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HomeMy WebLinkAbout05.A- City Attorney RESOLUTION (ID# 1414) DOC ID: 1414 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman M/CC Meeting Date: 12/05/2011 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 Resolution of the Mayor and Common Council of the City of San Bernardino Terminating the Professional Services Agreement with Brunick, McElhaney & Beckett and Authorizing the Execution of a Professional Services Agreement with the Law Firm of Orrick, Popka, Fortino & Brislin for Legal Services in the Case of Michael Street V. City of San Bernardino, Et Al., San Bernardino Superior Court Case No. Civds 910518 Financial Impact: Account Budgeted Amount: «Inert Amount>> 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: February 1, 2010: Resolution No. 2010-16, by which the Mayor and Common Council approved the retention of the law firm of Brunick, McElhaney & Beckett to represent the City of San Bernardino, and all named officers and employees in the case of Michael Street v. City of San Bernardino, et al. Background: On February 1, 2010, by Resolution No. 2010-11, the Mayor and Common Council approved a Professional Services Agreement with the law firm of Brunick, McElhaney & Beckett (ABMB @) to represent the City of San Bernardino, and all named officers and employees in the case entitled Michael Street v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CIVDS 910518. The agreement required trial to be conducted by Attorney Raymond F. Dolen or another senior attorney approved by the City. Mr. Dolen has now has left BMB to join the firm of Orrick, Popka, Fortino & Brislin (AOPFB @), where he will continue to represent primarily public entities. Mr. Dolen agreed to Updated: 11/30/2011 by Linda Sutherland 1414 continue to represent the City; it is felt that continuity in representation would benefit the City and its named employees. Therefore, the City Attorney requests that the Professional Services Agreement with BMB be terminated and that a new Professional Services Agreement with OPFB be approved. Attached hereto is a Professional Services Agreement providing for the representation, with a ceiling of$25,000 on attorneys fees and a requirement of regular status reports. It is requested by the City Attorney that the proposed resolution be adopted, terminating the City=s Agreement with BMB and authorizing the Mayor to execute the Professional Services Agreement with OPFB on behalf of the City of San Bernardino. City Attorney Review: Supporting Documents: Reso 1414 (PDF) Exhibit A- Street OPFB PSA(PDF) C C Updated: 11/30/2011 by Linda Sutherland Packet Pg. 13 ® 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO TERMINATING THE PROFESSIONAL SERVICES AGREEMENT WITH 3 BRUNICK,MCELHANEY&BECKETT AND AUTHORIZING THE EXECUTION OF A 4 PROFESSIONAL SERVICES AGREEMENT WITH ORRICK,POPKA,FORTINO& BRISLIN FOR LEGAL SERVICES IN THE CASE OF MICHAEL STREET,v. CITY OF SAN 5 BERNARDINO,ETAL.,SAN BERNARDINO SUPERIOR COURT CASE NO.CIVDS 910518 6 WHEREAS,Attorney Raymond Dolen of the law firm of Brunick,McElhaney&Beckett has 7 been providing excellent representation to the City of San Bernardino and its named employees in the `w c 8 case of Michael Street v. City of San Bernardino, et al.,San Bernardino Superior Court Case No. m 9 CIVDS 910518;and, m E t0 WHEREAS,Attorney Raymond F. Dolen has left the law firm of Brunick,McElhaney& z Q 11 Beckett,and joined the law firm of Orrick,Popka,Fortino&Brislin; 12 THEREFORE,BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF v 13 THE CITY OF SAN BERNARDINO AS FOLLOWS: 14 SECTION 1. The Professional Services Agreement between the City of San Bernardino and y a 15 the Saw firm of Brunick,McElhaney&Beckett and the City of San Bernardino for legal services in the 16 case of Michael Street v. City of San Bernardino, et al.,San Bernardino Superior Court Case No. c 0 17 CIVDS 910518,approved by Resolution No.2010-16,is hereby terminated. 'i6 0 18 SECTION 2. The Mayor of the City of San Bernardino is hereby authorized and directed to v 19 execute on behalf of said City a Professional Services Agreement between Orrick,Popka,Fortino& 0 20 Brislin and the City of San Bernardino for legal services in the case of Michael Street v. City of San 21 Bernardino, et al,San Bernardino Superior Court Case No.CIVDS 910518,a copy of which is c E E 22 attached hereto marked Exhibit"A" and incorporated herein by reference as fully as though set forth at � A 23 length- 24 SECTION 3. The authorization granted by this Resolution shall expire and be void and of no 25 further effect if the agreement is not executed by both parties and returned to the Office of the City 26 Clerk within sixty(60)days following the effective date of this Resolution. 27 SECTION 4. The Agreement is effective September 26,2011;any action taken under the 28 Agreement between September 26,2011 and the effective date of this Resolution is hereby ratified. © 1 Packet Pg. 14 E ; 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO TERMINATING THE PROFESSIONAL SERVICES AGREEMENT WITH 2 BRUNICK,MCELHANEY&BECKETT AND AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH ORRICK,POPKA,FORTINO& 3 BRISLIN FOR LEGAL SERVICES IN THE CASE OF MICHAEL STREET,v. CITYOF SAN 4 BERNARDINO,ET AL.,SAN BERNARDINO SUPERIOR COURT CASE NO.CIVDS 910518 5 I 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 7 day of 2011,by the following vote,to wit: ^ d c 8 I � 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT m c 10 0 11 MARQUEZ a 12 JENKINS L) 13 BRINKER N 14 SHORETT v 15 KELLEY 16 JOHNSON c 0 17 MCCAMMACK > v 18 v 19 Rachel G.Clark,City Clerk City of San Bernardino 0 20 21 The foregoing Resolution is hereby approved this_day of 2011. a E 22 N 23 Patrick J.Morris,Mayor a 24 City of San Bernardino 25 Approved as to form: 26 JAMES F.PENMAN,City Attorney 27 �. By: 28 2 , Packet Pg. 15 Q1 PROFESSIONAL SERVICES AGREEMENT 2 MICHAEL STREET,v. CITY OF SAN BERNARDINO,et a4., SAN BERNARDINO SUPERIOR COURT CASE NO.CIVDS 910518 3 4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY')and the law firm of ORRICY, 5 POPKA,FORTINO&BRISLIN(hereinafter"OPFB")are the parties to this Agreement. 6 2. OPFB will be representing the CITY OF SAN BERNARDINO and any other designated 7 officers or employees of the CITY in the case of Michael Street v. City of San Bernardino, et al., San `m c 8 Bernardino Superior Court Case No.CIVDS 910518. OPFB shall not represent any client in any type =° v 9 of claim against the CITY without prior written approval to do so from the CITY OF SAN d c 10 BERNARDINO through the City Attorney's Office. $ a 11 3. OPFB shall be paid at the hourly rates set forth below: 12 v Attorneys-$145.00 per hour;and, 13 Law Clerks/Paralegals-$70.00 per how. d 14 The amounts expended under this agreement for attorney fees shall not exceed$25,000 h v © 15 without further approval of the Mayor and Common Council. 16 4. Bills shall be submitted at least on a monthly basis and no later than the 5a'day of each 0 17 succeeding month. '^ m 18 S. The actual cost for filing fees,telephone charges,photocopying,postage,lodging, v 19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 0 N 20 OPFB may include a single charge in an amount not to exceed four percent(4 0/6)of attorney fees in lieu � 21 of reimbursement for photocopying,telephone charges, and postage, w E 22 6. If attorney fees are charged"portal to portal"(e.g.,from office to court and return),then m 1± 23 OPFB shall not be entitled to reimbursement for mileage and parking fees. 4 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 27 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY pay 28 Packet Pg. 76 ® I it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance 2 Department. 3 8. Status reports will be submitted to the CrfY through the City Attorney's Office 4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to set 5 reserves,including,without limitation,potential liability exposure and percentage of fault,shall be 6 included. 7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City `m c 8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or 9 other litigation. >, m 10 10. Copies of any correspondence and other documents sent to any of the parties in this 11 action shall also be provided to the CITY through the City Attorney's Office. r 12 11. An and all settlements shall require quire CITY approval. Request for settlement authority � VIII 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. d N 14 12. In the event the settlement value of this case appears to exceed$50,000.00 the City �+ v {, 15 Attorney's Office shall be notified immediately. 16 13. Only Raymond F.Dolen of Orrick,Popka,Fortino&Brislin or another senior attorney o j 17 approved by the City shall conduct the trial of this case. > v i 18 14. No client development costs are to be included in billings. e 19 15. No continuing education expenses are to be included in billings. C !i 20 16. Final billing shall be accompanied by copies of the Request for Dismissal,Satisfaction 21 of Judgment,Release and any other final documents. � E 22 17. Either party may terminate this Agreement at will. OPFB will continue to represent the u m 23 CITY on the terms and conditions in this Agreement until the case and file are transferred to another a 24 attorney. 25 18. OPFB is an independent contractor as to the CITY. 26 19. OPFB 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 including Employment Liability with$250,000 limits covering all persons providing f Packet Pg. 17 i © 1 service on behalf of OPFB and all risks to such persons under this Agreement. OPFB 2 shall require its Workers Compensation carrier to waive all rights of subrogation against 3 the CTTY and its officers and employees and any others for whom services are being 4 provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned,hired and non. 7 owned vehicles. The policy shall have at least a combined single limit of c 8 $1,000,000 for bodily injury and property damage. .2 9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In d 10 lieu of naming the CITY as an additional insured,the policy may be endorsed as 0 11 follows: 12 'Insurance coverage afforded by this policy shall also v 13 apply to the liability assumed by the Insured under the d n 14 Agreement with the CITY OF SAN BE1tNARDINO for v 15 legal services,provided such liability results from an error, 16 omission or negligent act of the insured,its officers, 0 17 employees,agents,or subcontractors. All other provisions " d 18 of this policy are to remain unchanged." v 19 OPFB shall furnish certificates of insurance and certified copies of all policies and 0 20 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to 21 the commencement of performance of services hereunder,which certificates shall provide that such m E 22 insurance shall not be terminated or expire without thirty(30)days written notice to the City Attomey's v m 23 Office,and shall maintain such insurance from the time OPFB commences performance of services a 24 hereunder until the completion of such services. 25 All policies,with respect to the insurance coverage above required,except for the Workers 26 Compensation insurance coverage and professional liability coverage, if applicable,shall obtain 27 additional endorsements naming the CITY and all parties represented under this Agreement,their 28 Packet Pg. 18 C, I 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 20. All communications and billings to the CITY are to be directed as follows: 7 City Attorney's Office CITY OF SAN BERNARDINO c 8 300 North"D"Street 's 9 San Bernardino,CA 92418 r m 10 21. The effective date of this Agreement is September 26,2011. o 11 Dated: 2011 ORRICK,POPKA,FORTINO&BRISLIN Q _T 12 U By:Raymond F.Dolen,Attorney 13 v n 14 Dated: ,2011 CITY OF SAN BERNARDINO © 15 e 16 By:Patrick J.Moms,Mayor c 0 17 w 18 Approved as to form: a 19 JAMES F.PENMAN, v City Attome o 20 B Y r 21 � m 22 r U A 23 24 25 26 27 28 Packet Pg. 19 1 PROFESSIONAL SERVICES AGREEMENT r� `,. 2 MICHAEL STREET,v. CITY OF SAN BERNARDINO,et aL., SAN BERNARDINO SUPERIOR COURT CASE NO.CIVDS 910518 3 4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY") and the law firm of ORRICK, 5 POPKA,FORTTNO&BRISLIN (hereinafter"OPFB") are the parties to this Agreement. 6 2. OPFB will be representing the CITY OF SAN BERNARDINO and any other designated 7 officers or employees of the CITY in the case of Michael Street v. City of San Bernardino, et al., San T 8 Bernardino Superior Court Case No. CIVDS 910518. OPFB shall not represent any client in any type c `o 9 of claim against the CITY without prior written approval to do so from the CITY OF SAN 10 BERNARDINO through the City Attorney's Office. U 11 3. OPFB shall be paid at the hourly rates set forth below: w m 12 Attorneys- $145.00 per hour;and, in 13 ° Law Clerks/Paralegals- $70.00 per hour. v 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. 0 16 4. Bills shall be submitted at least on a monthly basis and no later than the 5"day of each 17 succeeding month. a m 18 5. The actual cost for filing fees,telephone charges,photocopying,postage, lodging, C 19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. w in 20 OPFB may include a single charge in an amount not to exceed four percent(4%)of attorney fees in lieu a 21 of reimbursement for photocopying,telephone charges, and postage. a s X 22 6. If attorney fees are charged"portal to portal"(e.g., from office to court and return),then w c 23 OPFB shall not be entitled to reimbursement for mileage and parking fees. E t U 24 7. OPFB shall obtain approval from the CITY to retain expert witnesses,consultants,and a 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 27 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY pay 28 /// I it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance 2 Department. 3 8. Status reports will be submitted to the CITY through the City Attorney's Office 4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to set 5 reserves,including,without limitation,potential liability exposure and percentage of fault,shall be 6 included. 7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City T 8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or `o >r 9 other litigation. 10 10. Copies of any correspondence and other documents sent to any of the parties in this v 11 action shall also be provided to the CITY through the City Attorney's Office. m m 12 11. Any and all settlements shall require CITY approval. Request for settlement authority rn v 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 14 12. In the event the settlement value of this case appears to exceed$50,000.00 the City F c © 15 Attorney's Office shall be notified immediately. 'o m 00 16 13. Only Raymond F.Dolen of Orrick,Popka,Fortino&Brislin or another senior attorney a 17 approved by the City shall conduct the trial of this case. a m 18 14. No client development costs are to be included in billings. 0 19 15. No continuing education expenses are to be included in billings. N 20 16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction 4 21 of Judgment,Release and any other final documents. a X 22 17. Either party may terminate this Agreement at will. OPFB will continue to represent the m c 23 CITY on the terms and conditions in this Agreement until the case and file are transferred to another t m 24 attorney. 25 18. OPFB is an independent contractor as to the CITY. 26 19. OPFB 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 including Employment Liability with$250,000 limits covering all persons providing Packet Pg. 21 1 service on behalf of OPFB and all risks to such persons under this Agreement. OPFB 2 shall require its Workers Compensation carrier to waive all rights of subrogation against 3 the CITY and its officers and employees and any others for whom services are being 4 provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned,hired and non- 7 owned vehicles. The policy shall have at least a combined single limit of r 8 $1,000,000 for bodily injury and property damage. c 0 9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In ¢ 10 lieu of naming the CITY as an additional insured,the policy may be endorsed as v 11 follows: d !u 12 "Insurance coverage afforded by this policy shall also rn a 13 apply to the liability assumed by the Insured under the 'a 14 Agreement with the CITY OF SAN BERNARDINO for c 15 legal services,provided such liability results from an error, m 16 omission or negligent act of the insured,its officers, X 17 employees,agents,or subcontractors. All other provisions a m 18 of this policy are to remain unchanged." a. 19 OPFB shall furnish certificates of insurance and certified copies of all policies and d N 20 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to a_ 21 the commencement of performance of services hereunder,which certificates shall provide that such a M X 22 insurance shall not be terminated or expire without thirty(30)days written notice to the City Attorney's ui c 23 Office,and shall maintain such insurance from the time OPFB commences performance of services z 24 hereunder until the completion of such services. a 25 All policies,with respect to the insurance coverage above required,except for the Workers 26 Compensation insurance coverage and professional liability coverage, if applicable,shall obtain 27 additional endorsements naming the CITY and all parties represented under this Agreement,their © 28 Packet Pg. 22 1 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 20. All communications and billings to the CITY are to be directed as follows: .q 7 City Attorney's Office CITY OF SAN BERNARDINO d 8 300 North"D" Street San Bernardino,CA 92418 $ 9 a 10 21. The effective date of this Agreement is September 26,2011. U 11 Dated: 2011 ORRICK,POPKA,FORTINO&BRISLIN > m d 12 By: Raymond F.Dolen,Attorney a 13 v 14 Dated: 2011 CITY OF SAN BERNARDINO 15 By: Patrick J. Morris,Mayor 16 a N 17 a to 18 Approved as to form: o 19 JAMES F.PENMAN, City Attorney n 20 4 By: a 21 s x w 22 c m 23 E s v m 24 25 26 27 28 Packet Pg. 23