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HomeMy WebLinkAbout05.C- City Attorney RESOLUTION (ID# 1647) DOC ID: 1647 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 Orrick, Popka, Fortino & Brislin for Legal Services in the Case of Lisa Matus, Et Al., V. City of San Bernardino, Et Al., San Bernardino Superior Court,Case No. CIVDS 1201235. Financial Impact: Account Budgeted Amount: Up to $25,000 Account No. «Inert Account No.>> Account Description: «Inert Account Description Balance as of: «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 Raymond F. Dolen of Orrick, Popka, Fortino & Brislin for legal services in the case of Lisa Matus, et al., v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CIVDS 1201235. Background: On March 5, 2012, the Mayor and Common Council approved the retention of Raymond F. Dolen of Orrick, Popka, Fortino & Brislin to represent the City of San Bernardino, and all named City entities, agencies, officers and employees in the case entitled Lisa Matus, et al., v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CIVDS 1201235. Updated: 3/15/2012 by Georgeann"Gigi"Hanna A Packet Pg. 36 1647 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. It is requested by the City Attorney that the proposed resolution be adopted, authorizing the Mayor to execute the Professional Services Agreement with Orrick, Popka, Fortino &Brislin on behalf of the City of San Bernardino. City Attorney Review: Suonortine Documents: reso 1647 (PDF) agrmt 1647 (PDF) r Updated:3/15/2012 by Georgeann"Gig?Hanna A Packet Pg. 37 1 1 RESOLUTION NO. [� 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN �r BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT WITH ORRICK, POPKA, FORTINO & BRISLIN FOR LEGAL SERVICES 4 IN THE CASE OF LISA MATUS, et aL, v. CITY OF SAN BERNARDINO, et at., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1201235. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to 8 execute on behalf of said City a Professional Services Agreement between Orrick, Popka, Fortino & 9 Brislin and the City of San Bernardino for legal services in the case of Lisa Matus, et al., V. City Of � 10 San Bernardino, et al., San Bernardino Superior Court Case No. CIVDS 1201235, a copy of which m 11 is attached hereto and incorporated herein as Exhibit"A." `m 12 SECTION 2. The authorization granted by this Resolution shall expire and be void and of no d 13 further effect if the agreement is not executed by both parties and returned to the Office of the City d c 14 Clerk within sixty(60)days following the effective date of this Resolution. 0 © a 15 SECTION 3. The effective date of the Agreement is March 5, 2012; therefore, any action ^� 16 taken between March 5, 2012 and the effective date of this Resolution is hereby ratified. a 17 0 N 18 111 C 19 E r U 20 Q 21 22 23 24 25 26 C27 28 Packet Pg. 38 r I RESOLUTION AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH ORRICK, POPKA, FORTINO & BRISLIN FOR LEGAL SERVICES C2 IN THE CASE OF LISA MATUS, et aL, v. CITY OF SAN BERNARDINO, et al., SAN 3 BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1201235. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the 6 day of ,2012,by the following vote, to writ: 7 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 10 MARQUEZ w 11 JENKINS f i2 VALDIVIA m 13 SHORETT T d C 14 KELLEY a 15 JOHNSON 16 MCCAMMACK a 17 0 N 18 Georgeann Hanna, City Clerk City of San Bernardino m 19 £ r v 20 The foregoing Resolution is hereby approved this day of 2012. a 21 22 Patrick J. Morris,Mayor 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, City Attorney 26 By; 27 28 2 I PROFESSIONAL SERVICES AGREEMENT C2 LISA MATUS, et at v. CITY OF SAN BERNARDINO, et ab 3 San Bernardino County Superior Court Case No. CIVDS 1201235 4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ORRICK, 5 POPKA, FORTINO&BRISLIN(hereinafter"OPFB") are the parties to this Agreement. 6 2. OPFB will be representing the following entities and persons in this litigation: CITY OF 7 SAN BERNARDINO and any other designated agencies,officers or employees of the CITY in the case 8 of Lisa Matus, et al v. City of San Bernardino, et al., San Bernardino County Superior Court Case No. v 9 CIVDS 1201235. OPFB shall not represent any client in any type of claim against the CITY without > u, 10 prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's � 11 Office. v 12 3. OPFB shall be paid at the hourly rates set forth below: T 13 Attorneys- $145.00 per hour; and, c `o 14 Law Clerks/Paralegals-$70.00 per hour, a �J 15 The amounts expended under this agreement for attorney fees shall not exceed$25,000 16 without further approval of the Mayor and Common Council, a u 17 4. Bills shall be submitted at least on a monthly basis. E o, 18 5. The actual cost for filing fees,telephone charges,photocopying,postage, lodging, a, 19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. E U ni 20 OPFB may include a single charge in an amount not to exceed four percent(4 1/o)of attorney fees in lieu 21 of reimbursement for photocopying,telephone charges, and postage. 22 6. If attorney fees are charged"portal to portal"(e.g., from office to court and return), then 23 OPFB shall not be entitled to reimbursement for mileage and parking fees. 24 7. OPFB shall obtain approval from the CITY to retain expert witnesses, consultants, and 25 other professionals (not including court reporters) for purposes of the litigation. OPFB may, if it 26 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its C27 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY pay 28 it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S San Bemardmo-ELTH ReWner Agmemen[ Packet Pg. 40 1 Department. C2 8. Status reports will be submitted to the CITY through the City Attorney's Office 3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to set 4 reserves, including, without limitation,potential liability exposure and percentage of fault, shall be 5 included. 6 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City 7 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or 8 other litigation. U 9 10. Copies of any correspondence and other documents sent to any of the parties in this w 10 action shall also be provided to the CITY through the City Attorney's Office. m f 11 11. Any and all settlements shall require CITY approval. Request for settlement authority 12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. T 13 12. In the event the settlement value of this case appears to exceed$50,000.00 the City E 0 C14 Attorney's Office shall be notified immediately, n v 15 13. Only Raymond F. Dolan of Orrick, Popka,Fortino&Brishn or another senior attorney 16 approved by the City shall conduct the trial of this case. 17 14. No client development costs are to be included in billings. E m 18 15. No continuing education expenses are to be included in billings. d 19 16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction u m 20 of Judgment, Settlement/Releasedocurnents and any other final documents. a 21 17. Either party may terminate this Agreement at will. OPFB will continue to represent the 22 CITY on the terms and conditions in this Agreement until the case and file are transferred to another 23 attorney. 24 18. OPFB is an independent contractor as to the CITY. 25 19. OPFB shall maintain the following types of insurance with limits as shown: 26 a) Workers Compensation as required by the laws of the State of California, 27 including Employment Liability with$250,000 limits covering all persons 28 providing service on behalf of OPFB and all risks to such persons and San eemaMino-ELTn Retainer Agreement Packet Pg.41 age. I Agreement. OPFB shall require its Workers Compensation carrier to waive all C2 rights of subrogation against the CITY and its officers and employees and any 3 others for whom services are being provided under this Agreement. 4 b) Comprehensive General and Automobile Liability Insurance coverage to 5 include contractual coverage and automobile coverage for owned, hired and non- 6 owned vehicles. The policy shall have at least a combined single limit of 7 $1,000,000 for bodily injury and property damage. 8 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In U 9 lieu of naming the CITY as an additional insured, the policy may be endorsed as > N J 10 follows: 11 "Insurance coverage afforded by this policy shall also m c 12 apply to the liability assumed by the Insured under the T 13 Agreement with the CITY OF SAN BERNARDINO for 0 Q 14 legal services,provided such liability results from an error, .. 15 omission or negligent act of the insured, its officers, m 16 employees, agents,or subcontractors. All other provisions 17 of this policy are to remain unchanged." rn m 18 OPFB shall furnish certificates of insurance and certified copies of all policies and d E 19 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to v m 20 the commencement of performance of services hereunder,which certificates shall provide that such 21 insurance shall not be terminated or expire without thirty(30)days written notice to the City Attorney's 22 Office, and shall maintain such insurance from the time OPFB commences performance of services 23 hereunder until the completion of such services. 24 All policies, with respect to the insurance coverage above required, except for the 25 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall 26 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 27 their employees, agents, volunteers and officers as additional named insureds with respect to liabilities 28 arising out of the performance of services hereunder. Packet Pg. 42 San Bernardino-ELTH Retainer Agreement ace I All policies required above are to be primary and non-contributing with any insurance policies O2 or self-insurance programs carried or administered by the CITY or other parties represented under this 3 Agreement. 4 20. All communications and billings to the CITY are to be directed as follows: 5 City Attorney's Office CITY OF SAN BERNARDINO 6 300 North`D"Street 7 San Bernardino, CA 92418 8 21. The effective date of this Agreement is March 5, 2012. n 9 > N 10 Dated: _, 2012 ORRICK,POPKA,FORTINO&BRISLIN 11 m By:Raymond F.Dolen 12 Dated: 2012 CITY OF SAN BERNARDINO a 13 c 0 © m x 14 By: Patrick J.Morris,Mayor a a 15 � 16 Approved as to form: 17 JAMES F. PENMAN, m 18 City Attorney c m E v 19 z By: 7� 20 a 21 22 23 24 25 26 027 28 San Bernardino-ELTH Retainer Agreement Packet P J.43 a¢e