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HomeMy WebLinkAbout07.C- City Attorney RESOLUTION(ID# 1889) DOC ID: 1889 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman M/CC Meeting Date: 07/02/2012 Prepared by: Jolena E. Grider, (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 Between Wagner& Pelayes, LLP and the City of San Bernardino for Legal Services in the Case of Michael Wade V. City of San Bernardino, United States District Court Case No. CV 11-09831 GHK(SPx). Financial Impact: Account Budgeted Amount: «Inert Amount>> Account No. «Inert Account No.>> Account Description: «Inert Account Description Balance as o£ «Inert Date>> QBalance after approval of this item: «Inert 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. On June 4, 2012, the Mayor and Common Council approved the retention of the law firm of Wagner & Pelayes, LLP to represent the City of San Bernardino, and all named officers and employees in the case entitled Michael Wade v. City of San Bernardino, United States District Court, Case No. CV11-09831 GHK(SPx). 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,authorizing the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino. L.. Packet Pg. 993 Updated:6/28/2012 by Sabdi Sanchez Pugc I 1889 City Attorney Review: Supportine Documents: reso 1889 (PDF) agrmt 1889 (PDF) Updated:6/28/2012 by Sabdi Sanchez Page 2 7.C.a i I RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN WAGNER & PELAYES, LLP AND THE CITY 3 OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF MICHAEL WADE v. 4 CITY OF SAN BERNARDINO, UNITED STATES DISTRICT COURT, CASE NO. CV11-09831 GHK(SPx) 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CTTY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and 9 directed to execute on behalf of said City a Professional Services Agreement between Wagner& w a 10 Pelayes, LLP and the City of San Bernardino for legal services in the case of Michael Wade v. 11 City of San Bernardino, United States District Court,Case No.CV 11-09831 GHK(SPx)a copy of 12 which is attached hereto and incorporated herein as Exhibit "A." 3 13 SECTION 2. The authorization granted by this Resolution shall expire and be void and © 14 of no further effect if the agreement is not executed by both pasties and returned to the Office of the 15 City Clerk within sixty(60)days following the effective date of this Resolution. G 16 c 17 E s 18 a ' 19 20 21 22 23 24 25 26 O27 28 PacketPg.995 7.C.a I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN WAGNER & PELAYES, LLP AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF MICHAEL WADE v. 3 CITY OF SAN BERNARDINO, UNITED STATES DISTRICT COURT, CASE NO. 4 CVII-09831 GHK(SPx) 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a 8 meeting thereof, held on the day of , 2012, by the following vote, to wit: a 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT a 10 MARQUEZ II JENKINS d v 12 VALDIVIA 3 13 SHORETT 14 KELLEY 15 JOHNSON o N 16 MCCAMMACK 17 E r 18 a 19 Georgeann Hanna, City Clerk 20 The foregoing Resolution is hereby approved this 21 ,2012. day of 22 Patrick J. Morris, Mayor 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, City Attorney 26 27 By 28 Packet:Pg;.996.. 1 PROFESSIONAL SERVICES AGREEMENT Michael Wade v. City of San Bernardino,Adam Affrumi 2 United States District Court Case No. CV 11-09831 GHK(SPx) 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 WAGNER&PELAYES, LLP (hereinafter"W&P")are the parties to this Agreement. 6 2. W&P will represent the following defendants in Michael Wade v. City of San 7 Bernardino, Adam Affrunti, United States District Court, Case No. CV I1-09831GHK(SPx): 8 CITY OF SAN BERNARDINO and any other designated officer or employee of the CITY who a may later be named. W&P shall not represent an client in an type of claim N 9 P Y Y YP against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the City 10 Attorney's Office. 11 3 3. W&P shall be paid at the hourly rates set forth below: 12 „ © Attorneys - $145.00 per hour; and, 13 Law Clerks/Paralegals-$70.00 per hour. 14 The amounts expended under this agreement for attorney fees shall not exceed a 15 $25,000 without further approval of the Mayor and Common Council. c 16 E 4. Bills shall be submitted at least on a monthly basis and no later than the 5a'day of 17 cash succeeding month. a 18 19 5. The actual cost for filing fees,telephone charges, photocopying,postage, lodging, 20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 21 W&P may include a single charge in an amount not to exceed four percent(4%)of attorney fees in 22 lieu of reimbursement for photocopying,telephone charges,and postage. 23 6. If attorney fees are charged"portal to portal"(e.g.,from office to court and return), 24 then W&P shall not be entitled to reimbursement for mileage and parking fees. 25 7. W&P shall obtain approval from the CITY to retain expert witnesses,consultants, 26 and other professionals(not including court reporters)for purposes of the litigation.W&P may,if 17 R\Gridur Outside Counsel\Wade v.City W&P PSA I i l i I it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on 2 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 3 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the 4 CITY'S Finance Department. 5 8. Status reports will be submitted to the CITY through the City Attorney's Office 6 whenever any significant event occurs,and in any event at least quarterly. Information sufficient 7 to set reserves, including, without limitation,potential liability exposure and percentage of fault, 8 shall be included. W&P shall comply with all reporting requirements of BICEP, if applicable. H a 9 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the U 10 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys A 11 in this or other litigation. 3 12 10. Copies of any correspondence and other documents sent to any of the parties in this 13 action shall also be provided to the CITY through the City Attorney's Office. W 14 11. Any and all settlements shall require CITY approval. Request for settlement E 15 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 16 approvals. L 17 12. In the event the settlement value of this case appears to exceed$50,000.00 the City s a 18 Attorney's Office shall be notified immediately. 19 13. Only Dennis Wagner of Wagner&Pelayes,LLP shall conduct the trial of this case. 20 14. No client development costs are to be included in billings. 21 15. No continuing education expenses are to be included in billings. 22 16. Final billing shall be accompanied by copies of the Request for Dismissal, 23 Satisfaction of Judgment,Release and any other final documents. 24 17. Either party may terminate this Agreement at will.W&P will continue to represent 25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to O26 another attorney. FAChida\Outside ComsehWede v.Ciry W&P PSA 2 ..r 1 18. W&P is an independent contractor as to the CITY. 2 19. W&P shall maintain the following types of insurance with limits as shown: 3 a) Workers Compensation as required by the laws of the State of California, 4 including Employment Liability with $250,000 limits covering all persons 5 providing service on behalf of W&P and all risks to such persons under this 6 Agreement. W&P shall require its Workers Compensation carrier to waive all 7 rights of subrogation against the CITY and its officers and employees and any 8 others for whom services are being provided under this Agreement. H a 9 b) Comprehensive General and Automobile Liability Insurance coverage to 10 include contractual coverage and automobile coverage for owned, hired and m I1 non-owned vehicles. The policy shall have at least a combined single limit of 3 12 $1,000,000 for bodily injury and property damage. 13 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. 14 In lieu of naming the CITY as an additional insured,the policy may be endorsed as 15 follows: 16 "Insurance coverage afforded by this policy shall also apply v to the liability assumed by the Insured under the Agreement with the 17 CITY OF SAN BERNARDINO for legal services, provided such Fq liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All a 18 other provisions of this policy are to remain unchanged." 19 20 W&P shall furnish certificates of insurance and certified copies of all policies and 21 endorsements to the City Attorney's Office evidencing the insurance coverage above required 22 prior to the commencement of performance of services hereunder,which certificates shall provide 23 that such insurance shall not be terminated or expire without thirty(30) days written notice to the 24 City Attorney's Office, and shall maintain such insurance from the time W&P commences 25 performance of services hereunder until the completion of such services. 26 All policies, with respect to the insurance coverage above required,except for the 77 FdGdder\Outside CounwilWade v.City W&P PSA 3 7.C.b I Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 2 obtain additional endorsements naming the CITY and all parties represented under this 3 Agreement, their employees, agents, volunteers and officers as additional named insureds with 4 respect to liabilities arising out of the performance of services hereunder. 5 All policies required above are to be primary and non-contributing with any insurance 6 policies or self-insurance programs carried or administered by the CITY or other parties 7 represented under this Agreement. 8 a. a' 9 L) 10 /// m II 12 /// © 13 m 14 E 15 /// m 16 E s 17 A 18 1// a 19 /// 20 /// 21 22 23 24 ® 25 26 To FAGrider%OuNide ComseMade v.City W&P PSA 4 Packet Pg. 1000 1 20. All communications and billings to the CITY are to be directed as follows: City Attorney's Office 2 CITY OF SAN BERNARDINO 300 North"D" Street 3 San Bernardino,CA 92418 4 5 Dated: 2012 WAGNER&PELAYES, LLP 6 7 By: Dennis Wagner 8 a a 9 a U 10 Dated: — 2012 CITY OF SAN BERNARDINO d v 11 3 rn 12 By: Patrick J. Morris,Mayor a = 13 m 14 E 15 Approved as to form: 16 £ 17 JAMES F. PENMAN, A 18 City Attorney 19 7 By: T 20 21 22 23 24 25 26 FAGrideA0utside Comse6Wade v.City W&P PSA 5 Packet Pg. 1001