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HomeMy WebLinkAbout09.A- City Attorney RESOLUTION(ID# 1686) DOC ID: 1686 B CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION QAgreement/Contract From: James F. Penman M/CC Meeting Date: 04/02/2012 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 Acting as the Successor Housing Agency to the Redevelopment Agency 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: Funding will come from encumbered low-mod housing funds. Motion: Adopt Resolution. Synopsis of Previous Council Action: O 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. March 19, 2012 - Mayor and Common Council approved a Professional Services Agreement j with 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 19, 2012, the Mayor and Common Council approved the attached Professional 4 Services Agreement with Endeman, Lincoln, Turek & Heater. However, because the litigation involves rent control on low and moderate income housing, attorney's fees and litigation expenses are to be paid out of encumbered low-mod housing funds. Therefore, it must be approved by the Mayor and Common Council Acting as the Successor Housing Agency to the C Updated: 3/28/2012 by Andrea Travis-Miller B Packet Pg. 694 1686 (� Redevelopment Agency. City Attorney Review: Supporting Documents: reso 1686 (PDF) agrmt 1686 (PDF) i I r 1 i 1 t Updated:3/28/2012 by Andrea Travis-Miller B Packet Pg. 695 I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS SUCCESSOR HOUSING AGENCY TO THE 3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AUTHORIZING 4 THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH ENDEMAN, LINCOLN, TUREK & HEATER FOR LEGAL SERVICES IN THE CASE OF GLENAIRE 5 MOBILEHOME PARK CORPORATION, et aL, v. CITY OF SAN BERNARDINO, et aL, SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1114110. 6 _r U 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF > SAN BERNARDINO ACTING AS SUCCESSOR HOUSING AGENCY TO THE _ 8 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AS FOLLOWS: d 9 SECTION 1. The Mayor of the City of San Bernardino Acting as the Successor Housing _m 10 Agency to the Redevelopment Agency of the City of San Bernardino is hereby authorized and d 11 directed to execute a Professional Services Agreement between Endeman, Lincoln, Turek & Heater A 12 and the City of San Bernardino Acting as the Successor Housing Agency to the Redevelopment of T d 13 Agency of the City of San Bernardino for legal services in the case of Glen Aire Mobilehome Park o z I � 14 Corporation, et al, v. City Of San Bernardino, et al., San Bernardino Superior Court Case No. a e 15 CLADS 1114110, filed on December 5, 2011 (the "Litigation"). a copy of which is attached hereto 16 and incorporated herein as Exhibit"A." 0 i7 SECTION 2. Because the Litigation was included as an encumbrance against low-mod funds, T 18 the defense of the City of San Bernardino and all of its named agencies, boards, commissions, p m 19 officers,employees and agents shall be funded with encumbered low-mod housing funds. o N 20 SECTION 3. The effective date of the Agreement is March 5, 2012; therefore, any action ` I c 21 taken under the Agreement between March 5,2012 and the effective date of this Resolution is hereby E L 22 ratified. a 23 SECTION 4. The authorization granted by this Resolution shall expire and be void and of no 24 further effect if the agreement is not executed by both parties and returned to the Office of the City 25 Clerk within sixty(60)days following the effective date of this Resolution. 26 27 1 28 t a i I G I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ACTING AS SUCCESSOR HOUSING AGENCY TO THE 2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AUTHORIZING 3 THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT WITH ENDEMAN, LINCOLN, TUREK & HEATER FOR LEGAL SERVICES IN THE CASE OF GLENAIRE 4 MOBILEHOME PARK CORPORATION, ET AL, K CITY OF SAN BERNARDINO, ET AL , SAN BERNARDINO SUPERIOR COURT CASE NO.CIVDS 1114110. 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and S, U 7 Common Council of the City of San Bernardino at a meeting thereof,held on the > a 8 day of 2012,by the following vote,to wit: f m 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT m 10 11 MARQUEZ 12 JENKINS T 13 VALDIVIA c 0 0 14 SHORETT Q 15 KELLEY 16 JOHNSON 0 0 17 MCCAMMACK mn d 18 m 19 Georgeann Hanna,City Clerk City of San Bernardino ° 20 c 21 The foregoing Resolution is hereby approved this day of 2012. E z 22 a 23 Patrick J. Morris,Mayor 24 City of San Bernardino 25 Approved as to form: 26 JAMES F.PENMAN,City Attorney C27 28 By: rtn G»wti 2 I PROFESSIONAL SERVICES AGREEMENT 2 Glen Aire Mobilehome Park Corporation,et al., P. City of San Bernardino,et al. 3 San Bernardino County Superior Court,Case No. 1114110. 4 1. The CITY OF SAN BERNARDINO ACTING AS SUCCESSOR HOUSING AGENCY 5 TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO(hereinafter 6 "CITY")and the law firm of ENDEMAN,LINCOLN,TUREK&HEATER (hereinafter"ELTH")are U 7 the parties to this Agreement. > IL 8 2. ELTH will represent the City of San Bernardino,and all named City entities,agencies, d 9 boards,commissions,officers and employees in the case entitled Glen Aire Mobilehome Park a L 10 Corporation, et al, v. City ofSan Bernardino, et al.,San Bernardino County Superior Court,Case No. 11 1114110. ELTH shall not represent any client in any type of claim against the CITY without prior 12 written approval to do so from the CITY through the City Attorney's Office. T 13 3. ELTH shall be paid at the hourly rates set forth below: `o 14 Attorneys-$300.00 per hour a 15 Associate Attorneys-$250.00 per hour. 16 The amounts expended under this agreement for attorney fees shall not exceed$25,000 c 0 17 without further approval of the Mayor and Common Council Acting as Successor Housing Agency to .N 18 the Redevelopment Agency of the City of San Bernardino. m 19 4. Bills shall be submitted at least on a monthly basis. E 20 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging, rn M 21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. w E 22 ELTH may include a single charge in an amount not to exceed four percent(4%)of attorney fees in lieu 23 of reimbursement for photocopying,telephone charges,and postage. a i 24 6. If attorney fees are charged"portal to portal"(e.g.,from office to court and return),then 25 ELTH shall not be entitled to reimbursement for mileage and parking fees. 26 7. ELTH shall obtain approval from the CITY to retain expert witnesses,consultants,and 27 other professionals(not including court reporters)for purposes of the litigation. ELTH may,if it 28 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its San BemerdinbELTH Retainer Agreement P,-c I Packet Pg. 698 I periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY pay 2 it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance 3 Department. 4 8. Status reports will be submitted to the CITY through the City Attorney's Office 5 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to set 6 reserves, including,without limitation,potential liability exposure and percentage of fault, shall be y v 7 included. ELTH shall comply with all reporting requirements of BICEP, if applicable. a 8 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed in f m 9 the case. Q c v 10 10. Copies of all opinions,pleadings,discovery and motions shall be provided to the City 11 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or c 12 other litigation. 13 11. Copies of any correspondence and other documents sent to any of the parties in this E 0 14 action shall also be provided to the CITY through the City Attorney's Office. a © 15 12. Any and all settlements shall require CITY approval. Request for settlement authority 16 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 0 17 13. In the event the settlement value of this case appears to exceed$50,000.00 the City .L d 18 Attorney's Office shall be notified immediately. it 19 14, Only Henry Heater of Endeman,Lincoln,Turek&Heater or another senior attorney 20 approved by the City shall conduct the trial of this case. m m 21 15. No client development costs are to be included in billings. m 22 16. No continuing education expenses are to be included in billings. 23 17. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction a 24 of Judgment, Settlement/Release documents and any other final documents. 25 18. Either party may terminate this Agreement at will. ELTH will continue to represent the 26 CITY on the terms and conditions in this Agreement until the case and file are transferred to another 27 attorney. 28 19. ELTH is an independent contractor as to the CITY. San Bmwrd nuELTH RMIM Ag mmt Pam 2 1 20. ELTH shall maintain the following types of insurance with limits as shown: (v 2 a) Workers Compensation as required by the laws of the State of California, 3 including Employment Liability with$250,000 limits covering all persons 4 providing service on behalf of ELTH and all risks to such persons under this 5 Agreement. ELTH shall require its Workers Compensation carrier to waive all 6 rights of subrogation against the CITY and its officers and employees and any U 7 others for whom services are being provided under this Agreement. > (L 8 b) Comprehensive General and Automobile Liability Insurance coverage to include 2 2 9 contractual coverage and automobile coverage for owned,hired and non-owned a c m 10 vehicles. The policy shall have at least a combined single limit of$1,000,000 for a 11 bodily injury and property damage. 12 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In T 13 lieu of naming the CITY as an additional insured,the policy may be endorsed as E 0 14 follows: a C15 "Insurance coverage afforded by this policy shall also 16 apply to the liability assumed by the Insured under the 0 0 17 Agreement with the CITY OF SAN BERNARDINO for a 18 legal services,provided such liability results from an error, M 19 omission or negligent act of the insured,its officers, E 20 employees,agents,or subcontractors. All other provisions m R 21 of this policy are to remain unchanged." E 22 ELTH shall famish certificates of insurance and certified copies of all policies and m z 23 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to a 24 the commencement of performance of services hereunder,which certificates shall provide that such 25 insurance shall not be terminated or expire without thirty(30)days prior written notice to the City 26 Attorney's Office, and shall maintain such insurance from the time ELTH commences performance of 27 services hereunder until the completion of such services. © 28 1111 San aemardina-ELTH Retainer Agreement PacketPg. 700 I All policies,with respect to the insurance coverage above required, except for the C2 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 3 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 4 their employees,agents,volunteers and officers as additional named insureds with respect to liabilities 5 arising out of the performance of services hereunder. 6 All policies required above are to be primary and non-contributing with any insurance policies i v 7 or self-insurance programs carried or administered by the CITY or other parties represented under this a 8 Agreement. X m 9 21. All communications and billings to the CITY are to be directed as follows: c d 10 City Attorney's Office � CITY OF SAN BERNARDINO 11 300 North"D"Street c San Bernardino,CA 92418 12 o: 13 22. The effective date of this Agreement is March 5,2012. `o © 14 Dated: 2012 ENDEMAN,LINCOLN,TUREK&HEATER 15 16 By: Henry Heater o 17 'y 18 Dated: 2012 CITY OF SAN BERNARDINO ACTING AS it SUCCESSOR HOUSING AGENCY TO THE it 19 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 20 rn I 21 By:Patrick J. Morris,Mayor E 22 s 23 Approved as to form: a 24 JAMES F.PENMAN, 25 City Attorney 26 By' �•,•• la.rrw 27 0 28 San Bemmdino-ELTH Rminer Agreement Paee 4 Packet Pg. 701