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HomeMy WebLinkAbout2012-289 1 RESOLUTION NO. 2012-289 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE 3 CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A 4 PROFESSIONAL SERVICES AGREEMENT WITH CHADWICK J. BRADBURY FOR COLLECTION SERVICES. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor is hereby authorized to execute a Professional Services 8 Agreement with Chadwick J. Bradbury for collection services, attached hereto as Exhibit "A" 9 10 and incorporated herein by this reference. 11 /// 12 /// 13 14 15 16 /// 17 18 19 2 0 /// 21 /// 2 2 /// 2 3 /// 2 4 2 5 /// 2 6 /// 2 7 /// 28 1 2012-289 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE 2 CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A 3 PROFESSIONAL SERVICES AGREEMENT WITH CHADWICK J. BRADBURY FOR COLLECTION SERVICES. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 joint regula meetin thereof, held on Common Council of the City of San Bernardino at a g 7 the 17th day of December , 2012, by the following vote,to wit: 8 g Council Members: AYES NAYS ABSTAIN ABSENT 1° MARQUEZ X 11 JENKINS X 12 VALDIVIA x 13 14 SHORETT X 15 KELLEY X 16 JOHNSON x 17 MCCAMMACK x 18 if. . .`sY 19 Geol.Vann Ha n. ity Clerk 20 , 2012. The foregoing Resolution is hereby approved this &. n day of December 21 22 ` 23 Panv14. . Morris, Mayor City of San Bernardino 24 Approved as to 25 form: 26 27 �. a es F. Penman 28 C'ty Attorney 2 2012-289 PROFESSIONAL SERVICES AGREEMENT FOR THE RETENTION OF SPECIAL COUNSEL FOR ACP COLLECTIONS AND RECEIVERSHIP/REHABILITATION ACTIONS The proposal set forth herein pertains to the retention of the law firm of Chadwick J. Bradbury, APLC (in formation) ("Attorney") for the collection of Administrative Civil Penalties ("ACP") that have, and shall be assessed by the City of San Bernardino ("City") pursuant to the San Bernardino Municipal Code. This purpose of this proposal is to lay the groundwork for a written contract, and to foster negotiation and discussion for that purpose. 1. Commencement date shall be January 10, 2013, and shall continue monthly until cancelled by either party upon thirty (30) days written notice. Attorney shall remain obligated to continue representation of cases then in hand, and all payment terms shall remain in force and effect until such time as necessary for completion of the legal services required, or substitution of counsel has been effectuated. 2. Attorney shall diligently pursue collection of the ACP files assigned to Attorney for a flat monthly retainer in the amounts set forth below for all Collection Activities relating to ACP files for which the City has monies due and owing pursuant to an ACP Order. "Collection Activities" include drafting of demand letters, filing and prosecution of Civil Enforcement Actions; preparation of settlement documents; enforcement of judgments; and, appellate work. Civil Enforcement Actions include: judicial foreclosures; common counts; receivership petitions; confessions of judgment; negotiation and preparation of rehabilitation agreements. 3. A minimum retainer of$6,000.00 per month. In addition, Attorney shall receive contingency fees in the amount of 25% of all monies collected. The Parties shall meet and confer in good faith in six months from the Commencement Date for purposes of review and renegotiation of this fee arrangement based on Attorney's performance and cost/benefit analysis factors. 3.1. Attorney shall only be assigned cases in which the amount owed to the City exceeds $7,500.00. The exception being cases in which a receivership is the remedy to be pursued in which case no minimum is required. 4. For all awards of Attorney's fees, such fees shall be apportioned 75% to the City, and 25% to Attorney. Such Attorney fee awards shall be deposited in Attorney's client trust account until written authorization from the City Attorney for disbursement. Attorney will provide City Attorney with an accounting to effectuate disbursement. Attorney will maintain time records for all activities related to Civil Enforcement Actions at the rate of$300.00 per hour for presentation to the court for an award of attorney's fees. All such time records shall be sent by e-mail to the City Attorney periodically, or upon reasonable request by the City Attorney. EXHIBIT "A" F:\Bradbury\ACP Collections Proposal Page 1 2012-289 5. The City shall provide Attorney with Westlaw access pursuant to the City's Westlaw account. Attorney will not incur charges outside of the subscription, and will pay The City for any such charges. 6. Attorney shall meet with the City Attorney's office on agreed upon dates and times, not to exceed two full days per month, to review potential ACP Collection files at the request of the City Attorney. Attorney shall maintain communications via email, fax, and telephone with the City Attorney's office and other City officials as required in the performance of Attorney's duties. 7. Attorney shall be considered to be an independent contractor, but shall be considered "Of Counsel" to the City Attorney for purposes of ACP Collection Activities. In such capacity Attorney shall be authorized the usage of a business card from the City Attorney's office, and the City Attorney's letterhead for such purposes. The phrase "Chadwick J. Bradbury, APLC of Counsel to The City Attorney" shall be included in all communications relating to the Civil Enforcement Actions. Attorney shall seek to use pre-approved form letters by the City Attorney for its Civil Enforcement Actions. In the event that a customized letter is required for a specific communication, the Attorney shall submit a draft letter of the same to the City Attorney for e-mail approval prior to presentation to the opposing side. All mail addressed to Attorney received by the City Attorney shall be scanned and e-mailed to Attorney upon receipt by City Attorney. In the event that a party seeks a meeting with Attorney then all such meetings shall be scheduled for an agreed upon date and time at the City Attorney's office. 8. All other terms set forth in the attached professional services contract shall apply unless such provision is in conflict with the provisions set forth in this proposal. 9. City Attorney and special counsel shall be named as co-counsel in all cases and pleadings pursuant to Muni Code Section 2.20.060. 10. The actual cost for filing fees, telephone charges, photocopying,postage, lodging, mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. Attorney may include a single charge in an amount not to exceed four percent(4%) of minimum retainer in lieu of reimbursement for photocopying, telephone charges, and postage. 11. Attorney shall obtain approval from the CITY to retain expert witnesses, consultants, and other professionals (not including court reporters) for purposes of the litigation. Attorney may, if it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance Department. 12. Status reports will be submitted to the CITY through the City Attorney's Office whenever any significant event occurs, and in any event at least quarterly. F:\Bradbury\ACP Collections Proposal Page 2 2012-289 13. Copies of all opinions,pleadings, discovery and motions shall be provided to the City Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or other litigation. 14. Copies of any correspondence and other documents sent to any of the parties in this action shall also be provided to the CITY through the City Attorney's Office. 15. Any and all settlements and compromises shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals, and approval of the Federal Bankruptcy Court if required on case by case basis. 16. Only Chadwick J. Bradbury shall conduct the representation of the City in these collections without special approval of the City Attorney. 17. No client development costs are to be included in billings. 18. No continuing education expenses are to be included in billings. 19. Attorney is an independent contractor as to the CITY not withstanding any other language herein. 20. Attorney shall maintain the following types of insurance with limits as shown: a) Workers Compensation as and if required by the laws of the State of California, including Employment Liability with appropriate limits covering all persons providing service on behalf of Attorney and all risks to such persons under this Agreement. Attorney shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. The City Attorney shall determine "appropriate limits" of coverage with the agreement of Attorney. b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of$500,000 for bodily injury and property damage. c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN F:\Bradbury\ACP Collections Proposal Page 3 • 2012-289 BERNARDINO for legal services,provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." Attorney shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty(30) days written notice to the City Attorney's Office, and shall maintain such insurance from the time Attorney commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insureds with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented under this Agreement. /// /// /// /// //I F:\Bradbury\ACP Collections Proposal Page 4 2012-289 20. All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 Dated: j14P , 2012 CHADWICK J. BRADBURY, A PLC (I ' i ,, A4.0et By: Chadwick J. Bra)ry, Pg&1'011 Dated: /Z/Z4 , 2012 CITY OF SAN BERNARDINO By: Pa rick J. Mo�ynr) Approved as to form: JAMES F. PENMAN, City Att• ey By: I, 9 / F:\Bradbury\ACP Collections Proposal Page 5 2012-289 PROFESSIONAL SERVICES AGREEMENT FOR THE RETENTION OF SPECIAL COUNSEL FOR ACP COLLECTIONS AND RECEIVERSHIP/REHABILITATION ACTIONS The proposal set forth herein pertains to the retention of the law firm of Chadwick J. Bradbury, APLC (in formation) ("Attorney") for the collection of Administrative Civil Penalties ("ACP") that have, and shall be assessed by the City of San Bernardino ("City") pursuant to the San Bernardino Municipal Code. This purpose of this proposal is to lay the groundwork for a written contract, and to foster negotiation and discussion for that purpose. 1. Commencement date shall be January 10, 2013, and shall continue monthly until cancelled by either party upon thirty (30) days written notice. Attorney shall remain obligated to continue representation of cases then in hand, and all payment terms shall remain in force and effect until such time as necessary for completion of the legal services required, or substitution of counsel has been effectuated. 2. Attorney shall diligently pursue collection of the ACP files assigned to Attorney for a flat monthly retainer in the amounts set forth below for all Collection Activities relating to ACP files for which the City has monies due and owing pursuant to an ACP Order. "Collection Activities" include drafting of demand letters, filing and prosecution of Civil Enforcement Actions; preparation of settlement documents; enforcement of judgments; and, appellate work. Civil Enforcement Actions include: judicial foreclosures; common counts; receivership petitions; confessions of judgment; negotiation and preparation of rehabilitation agreements. 3. A minimum retainer of$6,000.00 per month. In addition, Attorney shall receive contingency fees in the amount of 25% of all monies collected. The Parties shall meet and confer in good faith in six months from the Commencement Date for purposes of review and renegotiation of this fee arrangement based on Attorney's performance and cost/benefit analysis factors. 3.1. Attorney shall only be assigned cases in which the amount owed to the City exceeds $7,500.00. The exception being cases in which a receivership is the remedy to be pursued in which case no minimum is required. 4. For all awards of Attorney's fees, such fees shall be apportioned 75% to the City, and 25% to Attorney. Such Attorney fee awards shall be deposited in Attorney's client trust account until written authorization from the City Attorney for disbursement. Attorney will provide City Attorney with an accounting to effectuate disbursement. Attorney will maintain time records for all activities related to Civil Enforcement Actions at the rate of$300.00 per hour for presentation to the court for an award of attorney's fees. All such time records shall be sent by e-mail to the City Attorney periodically, or upon reasonable request by the City Attorney. EXHIBIT "A" F:\Bradbury\ACP Collections Proposal Page 1 2012-289 5. The City shall provide Attorney with Westlaw access pursuant to the City's Westlaw account. Attorney will not incur charges outside of the subscription, and will pay The City for any such charges. 6. Attorney shall meet with the City Attorney's office on agreed upon dates and times, not to exceed two full days per month, to review potential ACP Collection files at the request of the City Attorney. Attorney shall maintain communications via email, fax, and telephone with the City Attorney's office and other City officials as required in the performance of Attorney's duties. 7. Attorney shall be considered to be an independent contractor, but shall be considered "Of Counsel" to the City Attorney for purposes of ACP Collection Activities. In such capacity Attorney shall be authorized the usage of a business card from the City Attorney's office, and the City Attorney's letterhead for such purposes. The phrase "Chadwick J. Bradbury, APLC of Counsel to The City Attorney" shall be included in all communications relating to the Civil Enforcement Actions. Attorney shall seek to use pre-approved form letters by the City Attorney for its Civil Enforcement Actions. In the event that a customized letter is required for a specific communication, the Attorney shall submit a draft letter of the same to the City Attorney for e-mail approval prior to presentation to the opposing side. All mail addressed to Attorney received by the City Attorney shall be scanned and e-mailed to Attorney upon receipt by City Attorney. In the event that a party seeks a meeting with Attorney then all such meetings shall be scheduled for an agreed upon date and time at the City Attorney's office. 8. All other terms set forth in the attached professional services contract shall apply unless such provision is in conflict with the provisions set forth in this proposal. 9. City Attorney and special counsel shall be named as co-counsel in all cases and pleadings pursuant to Muni Code Section 2.20.060. 10. The actual cost for filing fees, telephone charges, photocopying,postage, lodging,mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. Attorney may include a single charge in an amount not to exceed four percent(4%) of minimum retainer in lieu of reimbursement for photocopying, telephone charges, and postage. 11. Attorney shall obtain approval from the CITY to retain expert witnesses, consultants, and other professionals (not including court reporters) for purposes of the litigation. Attorney may, if it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance Department. 12. Status reports will be submitted to the CITY through the City Attorney's Office whenever any significant event occurs, and in any event at least quarterly. F:\Bradbury\ACP Collections Proposal Page 2 2012-289 13. Copies of all opinions,pleadings, discovery and motions shall be provided to the City Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this or other litigation. 14. Copies of any correspondence and other documents sent to any of the parties in this action shall also be provided to the CITY through the City Attorney's Office. 15. Any and all settlements and compromises shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals, and approval of the Federal Bankruptcy Court if required on case by case basis. 16. Only Chadwick J. Bradbury shall conduct the representation of the City in these collections without special approval of the City Attorney. 17. No client development costs are to be included in billings. 18. No continuing education expenses are to be included in billings. 19. Attorney is an independent contractor as to the CITY not withstanding any other language herein. 20. Attorney shall maintain the following types of insurance with limits as shown: a) Workers Compensation as and if required by the laws of the State of California, including Employment Liability with appropriate limits covering all persons providing service on behalf of Attorney and all risks to such persons under this Agreement. Attorney shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. The City Attorney shall determine "appropriate limits" of coverage with the agreement of Attorney. b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned,hired and non-owned vehicles. The policy shall have at least a combined single limit of$500,000 for bodily injury and property damage. c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN F:\Bradbury\ACP Collections Proposal Page 3 2012-289 BERNARDINO for legal services,provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." Attorney shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder,which certificates shall provide that such insurance shall not be terminated or expire without thirty(30) days written notice to the City Attorney's Office, and shall maintain such insurance from the time Attorney commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents,volunteers and officers as additional named insureds with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented under this Agreement. /// /// /// l" F:\Bradbury\ACP Collections Proposal Page 4 2012-289 20. All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 Dated: , 2012 CHADWICK J. BRADBURY, A PLC By: Chadwick J. Bradbury Dated: /2/1 , 2012 CITY OF SAN BERNARDINO 11■ tea► • By: Pa rick J. Morns, • Approved as to form: JAMES F. PENMAN, City Atte ey By: te„... 9 Page 5 F:\Bradbury\ACP Collections Proposal