Loading...
HomeMy WebLinkAbout05.B- City Attorney 5.6 RESOLUTION(ID# 1645) DOC ID: 1645 A CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman M/CC Meeting Date: 03/19/2012 Prepared by: Diane C. Roth, (909) 384-5355 Dept: City Attorney Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of a Professional Services Agreement with Endeman, Lincoln, Turek & Heater for Legal Services in the Case of Glen Aire Mobilehome Park Corporation, Et Al., V. City of San Bernardino,Et Al., San Bernardino County Superior Court,Case No. 1114110. Financial Impact: Account Budgeted Amount: Up to $25,000 Account No. «Inert Account No>> Account Description: «Inert Account Description Balance as o£ «Inert Date>> Balance after approval of this item: «Insert Amount>> Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. Motion: Adopt Resolution. Synopsis of Previous Council Action: March 5, 2012 - Mayor and Common Council approved in closed session the retention of Endeman, Lincoln, Turek & Heater in the case entitled Glen Aire Mobilehome Park Corporation, et al., v. City of San Bernardino, et al., San Bernardino County Superior Court, Case No. 1114110. Background: On March 5, 2012, the Mayor and Common Council approved the retention of the law firm of Endeman, Lincoln, Turek & Heater to represent the City of San Bernardino, and all named City entities, agencies, officers and employees in the case entitled Glen Aire Mobilehome Park Corporation, et al., v. City of San Bernardino, et al., San Bernardino County Superior © Court,Case No. 1114110. Updated:3/15/2012 by Georgeann"Gigi"Hanna A 1645 Attached hereto is a Professional Services Agreement providing for the representation, with a ceiling of$25,000 on attorney's fees and a requirement of regular status reports. Because the litigation involves rent control on low-moderate income housing, attorney's fees and litigation expenses are to be paid out of low-moderate income housing funds. It is requested by the City Attorney that the proposed resolution be adopted, authorizing the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino. City Attorney Review: Suouorting Documents: reso 1645 (PDF) agmu 1645 (PDF) O Updated: 3/15/2012 by Georgeann"Gigi"Hanna A Packet Pg. 29 I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT WITH ENDEMAN, LINCOLN TUREK & HEATER FOR LEGAL 4 SERVICES IN THE CASE OF GLEN AIRE MOBILEHOME PARK CORPORATION, ET AL., V. CITY OF SAN BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE 5 NO. CIVDS 1114110. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF g 7 SAN BERNARDINO AS FOLLOWS: g v 8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to a d 9 execute on behalf of said City a Professional Services Agreement between Endeman, Lincoln, Turek o r 10 5 &Heater and the City of San Bernardino for legal services in the case of Glen Aire Mobilehome Park c I I Corporation, et al., v. City Of San Bernardino, et al., San Bernardino Superior Court Case No. 'a 12 CIVDS 1114110, a copy of which is attached hereto and incorporated herein as Exhibit"A." d 13 SECTION 2. The authorization granted by this Resolution shall expire and be void and of no d c 14 further effect if the agreement is not executed by both parties and returned to the Office of the City 15 d Clerk within sixty(60)days following the effective date of this Resolution. � `o 16 SECTION 3. The effective date of the Agreement is March 5, 2012; therefore any action a 17 taken between March 5,2012 and the date that this Resolution is adopted is hereby ratified. $ 18 19 o W 20 /// c 21 /// E A 22 23 24 25 26 27 28 Packet Pg. 30 5B.a I RESOLUTION AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH ENDEMAN, LINCOLN TUREK & HEATER FOR LEGAL 2 SERVICES IN THE CASE OF GLEN AIRS MOBILEHOME PARR CORPORATION, ET AL., 3 V. CITY OF SAN BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1114110. 4 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, held on the a 7 day of 2012,by the following vote, to wit: U s 8 `n a v 9 0 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT r d 10 a 11 MARQUEZ v a 12 JENKINS c v 13 VALDIVIA c 14 SHORETT 15 KELLEY d c o` 16 JOHNSON a 17 MCCAMMACK 18 N a 19 Georgeann Hanna, City Clerk °w City of San Bernardino 20 c E 21 The foregoing Resolution is hereby approved this day of 2012. 22 a 23 Patrick J. Moms, Mayor 24 City of San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 28 By. 2 PacketPg. 31 If( I PROFESSIONAL SERVICES AGREEMENT 2 Glen Aire Mobilehome Park Corporation, et al., Y. City of San Bernardino, et aL 3 San Bernardino County Superior Court, Case No. 1114110. 4 1. The CITY OF SAN 13ERNARDINO(hereinafter"CITY")and the law firm of Endeman, 5 Lincoln, Turek &Heater (hereinafter"ELTH')are the parties to this Agreement. 6 2. ELTH will represent the City of San Bernardino, and all named City entities,agencies, 7 officers and employees in the case entitled Glen Aire Mobilehome Park Corporation, et al., V. City of 0 8 San Bernardino, et al., San Bernardino County Superior Court, Case No. 1114110. ELTH shall not A a 9 represent any client in any type of claim against the CITY without prior written approval to do so from e L 10 the CITY OF SAN BERNARDINO through the City Attorney's Office. 0 0 11 3. ELTH shall be paid at the hourly rates set forth below: 12 Attorneys -$300.00 per hour c d 13 Associate Attorneys- $250.00 per hour. a S 14 The amounts expended under this agreement for attorney fees shall not exceed$25,000 15 without further approval of the Mayor and Common Council. d c 16 4. Bills shall be submitted at least on a monthly basis. a 17 5. The actual cost for filing fees,telephone charges,photocopying,postage, lodging, 18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. n 19 ELTH may include a single charge in an amount not to exceed four percent(4 0/6) of attorney fees in lieu € 20 of reimbursement for photocopying,telephone charges, and postage. m C 21 6. If attorney fees are charged`portal to portal"(e.g., from office to court and return),then i 0 22 ELTH shall not be entitled to reimbursement for mileage and parking fees. 23 7. ELTH shall obtain approval from the CITY to retain expert witnesses,consultants, and 24 other professionals(not including court reporters) for purposes of the litigation. ELTH may, if it 25 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its 26 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY pay 27 it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance 28 Department. San S mardino-ELTH Reuiner Agreement Packet Pg. 32 1 8. Status reports will be submitted to the CITY through the City Attorney's Office 2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to set 3 reserves, including,without limitation,potential liability exposure and percentage of fault, shall be 4 included. ELTH shall comply with all reporting requirements of BICEP, if applicable. 5 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed in 6 the case. 7 10. Copies of all opinions,pleadings,discovery and motions shall be provided to the City c 0 8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or 0 a. 9 other litigation. E 0 r 10 11. Copies of any correspondence and other documents sent to any of the parties in this a 0 11 action shall also be provided to the CITY through the City Attorney's Office. a, 12 12. Any and all settlements shall require CITY approval. Request for settlement authority m 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. a 14 13. In the event the settlement value of this case appears to exceed$50,000.00 the City 20 15 Attorney's Office shall be notified immediately. 16 14. Only Henry Heater of Endeman, Lincoln,Turek &Heater or another senior attorney z 17 approved by the City shall conduct the trial of this case. $ 18 15. No client development costs are to be included in billings. , 19 16. No continuing education expenses are to be included in billings. E 20 17. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction m 21 of Judgment, Settlement/Release documents and any other final documents. E 0 22 18. Either party may terminate this Agreement at will. ELTH will continue to represent the 23 CITY on the terms and conditions in this Agreement until the case and file are transferred to another 24 attorney. 25 19. ELTH is an independent contractor as to the CITY. 26 20. ELTH shall maintain the following types of insurance with limits as shown: 27 a) Workers Compensation as required by the laws of the State of California, 28 San Bernardino-BLTH aeWina .4gmmnen[ PeCkat P9. 33 I including Employment Liability with$250,000 limits covering all persons 2 providing service on behalf of ELTH and all risks to such persons under this 3 Agreement. ELTH shall require its Workers Compensation carrier to waive all 4 rights of subrogation against the CITY and its officers and employees and any 5 others for whom services are being provided under this Agreement. 6 b) Comprehensive General and Automobile Liability Insurance coverage to include 7 contractual coverage and automobile coverage for owned,hired and non-owned o U 8 vehicles. The policy shall have at least a combined single limit of$1,000,000 for i 9 bodily injury and property damage. 0 L 10 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In n 0 it lieu of naming the CITY as an additional insured, the policy may be endorsed as 12 follows: a C ar 13 "Insurance coverage afforded by this policy shall also `m 14 apply to the liability assumed by the Insured under the d 15 Agreement with the CITY OF SAN BERNARDINO for a d c 16 legal services,provided such liability results from an error, a 17 omission or negligent act of the insured, its officers, 18 employees, agents,or subcontractors. All other provisions a 19 of this policy are to remain unchanged." E 20 ELTH shall furnish certificates of insurance and certified copies of all policies and A 21 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to E 22 the commencement of performance of services hereunder,which certificates shall provide that such M 23 insurance shall not be terminated or expire without thirty(30) days prior written notice to the City 24 Attorney's Office, and shall maintain such insurance from the time ELTH commences performance of 25 services hereunder until the completion of such services. 26 All policies,with respect to the insurance coverage above required, except for the 27 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 28 obtain additional endorsements naming the CITY and all parties represented under this Agreement, San Bemardim-ELTH Retainer Agreement Paoket P9. 34 3 I their employees, agents, volunteers and officers as additional named insureds with respect to liabilities 2 arising out of the performance of services hereunder. 3 All policies required above are to be primary and non-contributing with any insurance policies 4 or self-insurance programs carried or administered by the CITY or other parties represented under this 5 Agreement. 6 21. All communications and billings to the CITY are to be directed as follows: 7 City Attorney's Office c CITY OF SAN BERNARDINO U 8 300 North"D"Street m 9 San Bernardino, CA 92418 0 0 10 22. The effective date of this Agreement is March 5, 2012. m Z 11 f Dated: 2011 LEWIS, BRISBOIS,BISGAARD&SMITH a 12 d 13 By: Arthur K. Cunningham `m 14 Dated: 2011 CITY OF SAN BERNARDINO r 15 m 0 16 By:Patrick J. Moms,Mayor a 17 18 Approved as to form: 19 JAMES F. PENMAN, € 20 City Attorney c 21 By; E z u 22 y4 23 24 25 26 27 28 San Bernardino-ELTH Retainer Agreement Packet Pg.35