HomeMy WebLinkAbout09- City Attorney's Office ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F.PENMAN Subject:Resolution of the Mayor and Common Council
City Attorney of the City of San Bernardino Authorizing the Execution
of a Professional Services Agreement with Arias &
Dept: CITY ATTORNEY Lockwood and the City of San Bernardino for Legal
Services in the Case of Lee Wayne Jones et al. v. City of
Date: May 17,2010 San Bernardino, et al.United States District Court Case
No.ED CV-08-00187 VAP
Synopsis of Previous Council Action:
None
Recommended motion: That the Resolution be adopted.
afore
Contact person: Robert L. Simmons Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
FASIMMONSUViL CASESVones.Fed=1 CaseVones,Fed.RCA.wpd
STAFF REPORT
Council Meeting Date: May 17,2010
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: May 5, 2010
AGENDA: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution of a Professional Services Agreement with Arias&Lockwood and the City
of San Bernardino for Legal Services in the Case of Lee Wayne Jones, et al. v. City of San
Bernardino, et al.,United States District Court Case No. ED CV-08-00187 VAP
On May 3,2010,the Mayor and Common Council approved the retention of the law firm of
Arias&Lockwood to represent the City of San Bernardino in the case entitled Lee Wayne Jones et
al.v. City of San Bernardino, et al.,United States District Court Case No. ED CV-08-00187 VAR
Attached hereto is a Professional Services Agreement providing for the representation,with
a ceiling of$25,000.00 on attorneys fees and a requirement of regular status reports.
It is requested that the floor motion be adopted so that the Mayor is authorized to execute the
Professional Services Agreement on behalf of the City of San Bernardino.
FASIMMONWIVIL CASESUones.Fedefal Cme\jmes.SMffReport.wpd
I RESOLUTION NO. COPY
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE CASE OF LEE WAYNE JONES,et aL v.
4 CITYOFSANBERNARDINO,et aL, UNITED STATES DISTRICT COURT CASE NO.ED
CV-08-00187 VAP
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTIONI. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City Professional Services Agreement between Arias&Lockwood and
9 the City of San Bernardino for legal services,a copy of which is attached hereto marked Exhibit"A"
to and incorporated herein by reference as fully as though set forth at length.
11 SECTION 2. The authorization granted by this Resolution shall expire and be void and
12 of no further effect if the agreement is not executed by both parties and returned to the Office of the
13 City Clerk within sixty(60) days following the effective date of this Resolution.
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F:ISIMMONS CIVIL CASES`Jones.Fedenl Cas0Reso1u1ion.wpd
1 RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
3 BERNARDINO FOR LEGAL SERVICES IN THE CASE OF LEE WAYNE JONES, et al. v.
CITYOFSANBERNARDINO, et al., UNITED STATES DISTRICT COURT CASE NO.ED
4 CV-08-00187 VAP
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_
day of 2010, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9
MARQUEZ
10 DESJARDINS
11
BRINKER
12 SHORETT
13
KELLEY
14
JOHNSON
15 MC CAMMACK
16
17 Rachel Clark, City Clerk
18
19 The foregoing Resolution is hereby approved this_day of ,2010.
20
21
22 PATRICK J. MORRIS, Mayor
City of San Bernardino
23
Approved as to form:
24 JAMES F. PENMAN,
25 City Attorney
26
B . Pte.
27
i
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2
F:\SIMMONSTIVIL CASESVOOes FMIM C.w Resoludm.wpd
I PROFESSIONAL SERVICES AGREEMENT
2 LEE WAYNE JONES et aL v. CITY OF SAN BERNARDINO, et aL
UNITED STATES DISTRICT COURT CASE NO. ED CV 08-00187 VAP
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 ARIAS & LOCKWOOD (hereinafter"A&L") are the parties to this Agreement.
6 2. A&L will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO and any designated officer or employee of the CITY. A&L shall not
8 represent any client in any type of claim against the CITY without prior written approval to do so
9 from the CITY OF SAN BERNARDINO through the City Attorney's Office.
10 3. A&L shall be paid at the hourly rates set forth below:
1 I Attorneys- $145.00 per hour; and,
12 Law Clerks/Paralegals - $70.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5' day of
16 each succeeding month.
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.
19 A&L may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
20 lieu of reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
22 then A&L shall not be entitled to reimbursement for mileage and parking fees.
23 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
24 other professionals (not including court reporters) for purposes of the litigation. A&L 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
27 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
Exhibit "A"
1
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
3 set reserves,including,without limitation,potential liability exposure and percentage of fault, shall
4 be included.
5 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
6 Attorney's Office which may reproduce same and provide copies to otherparties or attorneys in this
7 or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the parties in this
9 action shall also be provided to the CITY through the City Attorney's Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement authority
11 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals:
12 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved
15 by the City shall conduct the trial of this case.
16 14. No client development costs are to be included in billings.
17 15. No continuing education expenses are to be included in billings.
18 16. Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final documents.
20 17. Either party may terminate this Agreement at will. A&L will continue to represent
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
22 another attorney.
23 18. A&L is an independent contractor as to the CITY.
24 19. A&L shall maintain the following types of insurance with limits as shown:
25 a) Workers Compensation as required by the laws of the State of California,
26 including Employment Liabilitywith$250,000 limits covering all persons providing
27 service on behalf of A&L and all risks to such persons under this Agreement. A&L
28 shall require its Workers Compensation carrier to waive all rights of subrogation
2 Exhibit "A"
I against the CITY and its officers and employees and any others for whom services
2 are being provided under this Agreement.
3 b) Comprehensive General and Automobile Liability Insurance coverage to
4 include contractual coverage and automobile coverage for owned, hired and non-
5 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
6 for bodily injury and property damage.
7 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
8 hr lieu of naming the CITY as an additional insured, the policy may be endorsed as
9 follows:
10 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
11 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
12 insured,its officers, employees, agents,or subcontractors. All other
13 provisions of this policy are to remain unchanged."
14 A&L shall furnish certificates of insurance and certified copies of all policies and
15 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
16 to the commencement of performance of services hereunder,which certificates shall provide that
17 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
18 Attorney's Office,and shall maintain such insurance from the time A&L commences performance
19 of services hereunder until the completion of such services.
20 All policies, with respect to the insurance coverage above required, except for the
21 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall
22 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23 their employees, agents, volunteers and officers as additional named insured with respect to
24 liabilities arising out of the performance of services hereunder.
25
26
27 ///
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3 Exhibit "A"
I All policies required above are to be primary and non-contributing with any insurance
2 policies or self-insurance programs carried or administered by the CITY or other parties represented
3 under this 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
San Bernardino, CA 92418
7
8 Dated: May_, 2010 ARIAS &LOCKWOOD
9
10
By: Joseph Arias
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13 Dated: May_, 2010 CITY OF SAN BERNARDINO
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16 By: Patrick J. Morris, Mayor
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19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
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4
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ORIGWAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Resolution Approving a Professional Services
CITY ATTORNEY Agreement Between the City of San Bernardino and Shirley
Ogata for Temporary Attorney Services in the City Attorney's
Office.
Dept: CITY ATTORNEY
Date: May 13, 2010 MCC Meeting: May 17,2010
Synopsis of Previous Council Action:
None.
Recommended motion:
That said resolution be adopted.
Signature
Contact person: Stephanie D Easland Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Committee Notes: j;?e—ff-0_
Agenda Item No. 913
F:\EASLAND\RCAs\Ogata.rca.wpd
STAFF REPORT
Council Meeting Date: May 17.2010
TO: Mayor and Common Council
FROM: James F. Penman,City Attorney
DATE: May 13, 2010
AGENDA ITEM: Resolution Approving a Professional Services Agreement Between the
City of San Bernardino and Shirley Ogata for Temporary Attorney
Services In the City Attorney's Office
Two attorneys in the City Attorney's Office are scheduled to take maternity leave in June
2010, which will severely impact the office due to current case and workloads. In order to lessen
the impact caused by the temporary absence of these attorneys, the City Attorney's Office is
requesting approval to hire two contract attorneys on a temporary basis, at an hourly rate, without
benefits, to cover the case/workload of the attorneys taking maternity leave for a period of
approximately 6 months. One individual has already been approved by the Mayor and Council to
cover the caseload of the Sr.Deputy City Attorney responsible for the Administrative Civil Penalties.
This Agreement is to hire an attorney to cover the position of Deputy City Attorney Shauna
Britton-Naime while she is on maternity leave. Ms. Britton-Naime is anticipated to return to work
in September so the term of the attached Professional Services Agreement for attorney services is
for a four-month period beginning on June 1, 2010.
FdEASLAND\Staff Reports\Ogata.StaffRpt.wpd
I RESOLUTION NO. Copy
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN SHIRLEY OGATA AND THE CITY OF
SAN BERNARDINO FOR TEMPORARY ATTORNEY SERVICES IN THE CITY
4 ATTORNEY'S OFFICE.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between Shirley Ogata and
9 the City of San Bernardino for temporary attorney services in the City Attorney's Office, a copy
10 of which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as
11 though set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
13 further effect if the agreement is not executed by both parties and returned to the Office of the City
14 Clerk within sixty (60) days following the effective date of the resolution.
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F:\EASLAND\Resolutions\Ogala.Res.wpd l
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN SHIRLEY OGATA AND THE CITY OF
SAN BERNARDINO FOR TEMPORARY ATTORNEY SERVICES IN THE CITY
3 ATTORNEY'S OFFICE.
4
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,
7 held on the day of . 2010, by the following vote,to wit:
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8
9
MARQUEZ
10 DESJARDINS
BRINKER
11
12 SHORETT
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17 CITY CLERK
18
19 The foregoing Resolution is hereby approved this day of , 2010.
20
21 Patrick J. Morris, Mayor
22 City of San Bernardino
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
26 B .
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F:\EASLAND\Resolutions\Ogat&Res.wpd 2
t PROFESSIONAL SERVICES AGREEMENT
2 THIS AGREEMENT is made and entered into this_day of May, 2010("Effective Date")by
3 and between the CITY OF SAN BERNARDINO, a charter city ("CITY") and SHIRLEY OGATA
4
("OGATA").
5
6 WITNESSETH:
7 WHEREAS,CITY has the need for the temporary services of an attorney; and
8 WHEREAS,OGATA asserts that she is competent,trained and qualified currently for the
9
position of Deputy City Attorney I; and
to
I
WHEREAS,the parties desire to enter into this Agreement to outline the duties and
12 responsibilities of the parties,
13 NOW,THEREFORE,THE PARTIES AGREE AS FOLLOWS:
14 1. APPOINTMENT. OGATA is hereby appointed to, and does hereby accept such appointment
15
of, the temporary position of Deputy City Attorney I in the City of San Bernardino City Attorney's
16
17 Office.
is 2. TERM. The term of this Agreement shall be four(4) months from and beginning on June 1,
19 2010 and terminating at midnight on September 30, 2010. At the conclusion of this Agreement, at the
20
sole discretion of the City Attorney, subject to ratification by the City Council, OGATA may be given
21
an extension of this contract for such term as deemed appropriate.
22
23 3. COMPENSATION AND EXPENSES. For the term of this Agreement, OGATA shall be
24 compensated for her services as a Deputy City Attorney I, Step 3, at $40.58 an hour. OGATA shall not
25 be entitled to any compensation, leave accruals, retirement or other benefits beyond the aforementioned
26
hourly rate of pay.
27
28 4. TERMINATION. Under the terms of this appointment, OGATA serves as an "at will"
employee and may be terminated at any time, with or without cause, and OGATA may resign at any
1 time. Nothing in this Agreement shall be construed as creating any vested right in such appointment or
2 in employment with the CITY.
3
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties.
a
5 Any correspondence, letters,documents, or discussions leading up to this Agreement or in any way
6 made between the parties or their agents are replaced and superceded by this Agreement.
7 6. COMPLIANCE WITH LAWS. The parties hereto shall comply with applicable laws of the
8
United States of America, the State of California, and all other applicable laws.
9
10 7. GOVERNING LAW. This Agreement shall be enforced and interpreted under the laws of the
11 State of California
12 8. ATTORNEY'S FEES. In any litigation relating to this Agreement,the prevailing party shall be
13 entitled to reasonable attorney fees. The cost, salary, and expenses of the City Attorney and members of
14
his/her office in enforcing this contract on behalf of the CITY shall be considered "attorney's fees" for
15
16 the purposes of this paragraph.
17 9. SEVERABILITY. If any portion of this Agreement is held to be invalid by a court of law, such
18 provision shall be considered severable, and the remainder of this Agreement or any provision hereof
19 shall not be affected.
20
10. WAIVER. Failure of either party to enforce any provision of this Agreement shall not constitute
21
22 a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
23 11. AMENDMENT. This Agreement may only be amended by a written instrument executed by
2a the parties hereto, and may not be amended by oral agreement.
25
12. ASSIGNMENT. This Agreement shall not be assigned by OGATA, without prior written
26
consent of the City.
n
28 //!
1 IN WITNESS THEREOF,the parties hereto have executed this Agreement on the day and date
2 first above written.
3
Date: 2010 SHIRLEY OGATA
4
5 By:
6
7
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Date: 12010 CITY OF SAN BERNARDINO
9
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By:
11 Patrick J. Morris,Mayor
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14 ATTEST:
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Rachel Clark,City Clerk
17
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APPROVED TO FORM:
20
By
21 ames F. Penman
22 City Attorney
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F:\EASLANDWg=menu\Ogeta.PSA 5-13-10.doc 3
I PROFESSIONAL SERVICES AGREEMENT
2 THIS AGREEMENT is made and entered into this day of May, 2010 ("Effective Date")by
3 and between the CITY OF SAN BERNARDINO,a charter city("CITY") and SHIRLEY OGATA
4
("OGATA").
5
6 WITNESSETH:
7 WHEREAS, CITY has the need for the temporary services of an attorney; and
6 WHEREAS,OGATA asserts that she is competent,trained and qualified currently for the
9
position of Deputy City Attorney 1; and
10
I
WHEREAS,the parties desire to enter into this Agreement to outline the duties and
12 responsibilities of the parties,
13 NOW,THEREFORE,THE PARTIES AGREE AS FOLLOWS:
14 1. APPOINTMENT. OGATA is hereby appointed to, and does hereby accept such appointment
15
16 of, the temporary position of Deputy City Attorney I in the City of San Bernardino City Attorney's
17 Office.
1e 2. TERM. The term of this Agreement shall be four(4)months from and beginning on June 1,
19 2010 and terminating at midnight on September 30, 2010. At the conclusion of this Agreement,at the
20 sole discretion of the City Attorney, subject to ratification b the City Council,OGATA may be
tY Y J Y Y y given
21
zz an extension of this contract for such term as deemed appropriate.
23 3. COMPENSATION AND EXPENSES. For the term of this Agreement, OGATA shall be
24 compensated for her services as a Deputy City Attorney I, Step 3, at $40.58 an hour. OGATA shall not
25 be entitled to any compensation, leave accruals,retirement or other benefits beyond the aforementioned
26
hourly rate of pay.
27
za 4. TERMINATION. Under the terms of this appointment, OGATA serves as an "at will'
employee and may be terminated at any time,with or without cause, and OGATA may resign at any
FAFASLAND\Agre nU\Ogata.PSA 5-13-10.dm 1
I time. Nothing in this Agreement shall be construed as creating any vested right in such appointment or
2 in employment with the CITY.
3
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties.
a
5 Any correspondence, letters, documents, or discussions leading up to this Agreement or in any way
6 made between the parties or their agents are replaced and superceded by this Agreement.
7 6. COMPLIANCE WITH LAWS. The parties hereto shall comply with applicable laws of the
s
United States of America,the State of California, and all other applicable laws.
9
10 7. GOVERNING LAW. This Agreement shall be enforced and interpreted under the laws of the
11 State of California.
12 8. ATTORNEY'S FEES. In any litigation relating to this Agreement,the prevailing party shall be
13 entitled to reasonable attorney fees. The cost, salary,and expenses of the City Attorney and members of
14
his/her office in enforcing this contract on behalf of the CITY shall be considered "attorney's fees" for
15
16 the purposes of this paragraph.
17 9. SEVERABILITY. If any portion of this Agreement is held to be invalid by a court of law, such
18 provision shall be considered severable, and the remainder of this Agreement or any provision hereof
19 shall not be affected.
20
10. WAIVER. Failure of either party to enforce any provision of this Agreement shall not constitute
21
22 a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
23 11. AMENDMENT. This Agreement may only be amended by a written instrument executed by
24 the parties hereto, and may not be amended by oral agreement.
25
12. ASSIGNMENT. This Agreement shall not be assigned by OGATA, without prior written
26
consent of the City.
27
28
FAEASL AND\Agreements\OgetePSA 5-13-10 dm 2
I IN WITNESS THEREOF,the parties hereto have executed this Agreement on the day and date
2
first above written.
M44 ,
Date: Ma2010 SHIRLEY OGATA
4
5 By:
6
7
8
Date: 12010 CITY OF SAN BERNARDINO
9
10
By:
11 Patrick J. Morris,Mayor
12
13
14 ATTEST:
15
16
Rachel Clark, City Clerk
17
18
19
APPROVED AS TO FORM:
20
21 By w
es F.Penman
22 ity Attorney
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