HomeMy WebLinkAbout06.B- City Attorney RESOLUTION(ID# 1974) DOC ID: 1974 A
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: James F. Penman M/CC Meeting Date: 08/06/2012
Prepared by: Richard D. Luczak, (909) 384-
5355
Dept: City Attorney Ward(s): N/A
Subject:
Resolution of the. Mayor and Common Council of the City of San Bernardino Approving the
Hiring of Wagner&Pelayes to Represent the City and Any Designated Employee Regarding the
Case Entitled Hector Briones, Et Al. V. City of San Bernardino, Et Al., United States District
Court Case No. CV 10-7571 CBM(OPx)
Financial Impact:
This action authorizes $25,000 of the City Attorney budget for services under this agreement.
Motion: Authorize and direct the Mayor of the City of San Bernardino to execute on
behalf of the City of San Bernardino the Professional Services Agreement with
the law firm of Wagner & Pelayes to represent the City of San Bernardino
regarding the case entitled Hector Briones, et al. v. City of San Bernardino, et al.,
United States District Court Case No. CV 10-7571 CBM(OPx).
Synopsis of Previous Council Action:
The Mayor and Council previously approved retaining Wagner&Pelayes with respect to this
case.
Background:
The City of San Bernardino is currently involved in litigation regarding a dog shooting.
There are two plaintiffs in the case: Hector Briones and Roseland Harding.
The two plaintiffs claim various damages as a result of the dog shooting.
The Mayor and Common Council have approved retention of the law firm of Wagner&
Pelayes to represent the City of San Bernardino regarding the case entitled Hector Briones, et al.
v. City of San Bernardino, et al.,Untied States District Court Case No. CV 10-7571 CBM (OPx).
Updated: 8/2/2012 by Linda Sutherland A
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1974
® Attached hereto is the Professional Services Agreement which reflects such approval,
including a ceiling of$25,000 on attorney fees and the requirement of regular status reports.
City Attorney Review:
Rdl/Jeg
SAAPOrtine Documents:
reso1974 (PDF)
agent 1974 (PDF)
Updated: 8/2/2012 by Linda Sutherland A
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6.B.A
I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING THE HIRING OF WAGNER&PELAYES TO a
3 REPRESENT THE CITY AND ANY DESIGNATED EMPLOYEE REGARDING THE w
CASE ENTITLED HECTOR BRIONES,ETAL. V. CITY OF SANBERNARDINO,ET AL., D
4 UNITED STATES DISTRICT COURT CASE NO. CV 10-7571 CBM(OPx).
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
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6 OF SAN BERNARDINO AS FOLLOWS: w
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and o
8 directed to execute on behalf of said City a Professional Services Agreement between Wagner& 00
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9 Pelayes and the City of San Bernardino for legal services in relation to Hector Briones v. City of of
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10 San Bernardino, et al, USDC Case No.• CV 10-7571 CBM(OPx), a copy of which is attached T
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11 hereto marked Exhibit"A"and incorporated herein by reference as though fully set forth at as
12 length. c
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13 SECTION 2. The authorization granted hereunder shall expire and be void and of no
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14 further effect if the agreement is not executed by both parties and returned to the Office of the o
15 City Clerk within sixty(60)days following the effective date of the resolution.
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6.B.A
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN _
2 BERNARDINO APPROVING THE HIRING OF WAGNER& PELAYES TO
REPRESENT THE CITY AND ANY DESIGNATED EMPLOYEE REGARDING THE ¢
3 CASE ENTITLED RECTOR BRIONES,ETAL. Y. CITY OFSANBERNARDINO,ETAL., W
UNITED STATES DISTRICT COURT CASE NO. CV 10-7571 CBM(OPx).
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5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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6 Common Council of the City of San Bernardino at a meeting thereof, w
7 held on the day of 2012,by the following vote,to wit: c
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8 COUNCIL MEMBERS: AYES NAYS A$STA_IN ABSENT m`
9 MARQUEZ
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10 JENKINS
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11 VALDIVIA
12 SHORETT
13 KELLEY
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14 JOHNSON
" 15 MC CAMMACK 5
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Georgeann"Gigi"Hamra,City Clerk 0
19 The foregoing Resolution is hereby approved this day of c
— Y 2012. °
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22 PATRICK J.MORRIS,Mayor
City of San Bernardino rn
23 Approved as to form:
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25 By: f�,yn.� d
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JAMES F. PENMAN
26 City Attorney
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s.B.a
I PROFESSIONAL SERVICES AGREEMENT
2 HECTOR BRIONES, et aL v. CITY OF SANBERNARDilvo
UNITED STATES DISTRICT COURT CASE NO.:CV 10-75M )
(OPX a
3 71 CB W
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4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 WAGNER&PELAYES (hereinafter"W&P") are the parties to this Agreement.
6 2. W&P will be representing the following entities and persons in this litigation: CITY w
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7 OF SAN BERNARDINO and any designated employee of the City. W&P shall not represent any
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8 client in any type of claim against the CITY without prior written approval to do so from the CITY m
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9 OF SAN BERNARDINO through the City Attorney's Office. �
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10 3. W&P shall be paid at the hourly rates set forth below: m
11 Attorneys- $145.00 per hour; and,
12 Law Clerks/Paralegals-$70.00 per hour. c
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13 The amounts expended under this agreement for attorneys fees shall not exceed
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14 $25,000 without further approval of the Mayor and Common Council.
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15 4. Bills shall be submitted at least on a monthly basis and no later than the 51 day of d
16 each succeeding month. Er
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17 5. The actual cost for filing fees' telephone charges,photocopyin g,postage, lodging, �
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 0
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19 W&P may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of a
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20 reimbursement for photocopying,telephone charges,and postage.
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21 6. If attorney's fees are charged"portal to portal"(e.g.,from office to court and return),
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22 then W&P shall not be entitled to reimbursement for mileage and parking fees.
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23 7. W&P shall obtain approval from the CITY to retain expert consultants and other
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24 professionals(not including court reporters)for purposes of defending the litigation.W&P may,if °-
25 it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on its E
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26 periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY pay
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27 it directly. Consultants shall not bill the CITY directly without E
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28 Finance Department. U
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I S. Status reports will be submitted to CITY through the City Attorney's Office
2 whenever any significant event occurs,and in any event at least quarterly. Information sufficient a
3 to setreserves,including,without limitation,potential liability exposure and percentage offault shall W
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4 1 be included.
5 9. Copies ofall opinions,pleadings,discovery and motions shall beprovided to the City a
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this, W
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7 or other litigation.
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8 10. Copies of any correspondence and other documents sent to any of the defendants in 00
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9 this action shall also be provided to the CITY through the City Attorney's Office.
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10 11. Any and all settlements shall require CITY approval. Request for settlement T
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11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY «s
12 approvals.
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13 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
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14 Attorney's Office shall be notified immediately.
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15 13. Only DENNIS WAGNER of WAGNER & PELAYES or other senior attorney d
16 approved by the City shall try this case.
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17 14. No client development costs are to be included in billings. N
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18 15. No continuing education expenses are to be included in billings.
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19 16. Final billing shall be accompanied by copies of the Request for Dismissal, `o
20 Satisfaction of Judgment, Release and any other final documents.
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21 17. Either party may terminate this contract at will. W&P will continue to represent the
22 CITY on the terms and conditions in this Agreement until the case and file are transferred to another °
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23 attorney.
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24 18. W&P is an independent contractor as to the CITY.
25 19. W&P shall maintain the following types of insurance with limits as shown E
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26 a) Workers Compensation as required by the laws of the State of California,
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27 including Employment Liabili with$250,000 limits covering all persons providing a,
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28 service on behalf of W&P and all risks to such persons under this Agreement. W&P =°
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I shall require its Workers Compensation carrier to waive all rights of subrogation
2 against the CITY and its officers and employees and any others for whom services a
3 are being provided under this Agreement. W
4 b) Comprehensive General and Automobile Liability Insurance coverage to v
5 include contractual coverage and automobile coverage for owned, hired and non- a
6 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 w
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7 for bodily injury and property damage. o
8 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. C0
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9 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
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10 follows:
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11 "Insurance coverage afforded by this policy shall also apply oa
to the liability assumed by the Insured under the Agreement with the
12 CITY OF SAN BERNARDINO for legal defense services,provided
such liability results from an error, omission or negligent act of the
13 insured,its officers,employees,agents,or subcontractors. All other
provisions of this policy are to remain unchanged." o
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15 W&P shall furnish certificates of insurance and certified copies of all policies and `m
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16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior M
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17 to the commencement of performance of services hereunder,which certificates shall provide that
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18 such insurance shall not be terminated or expire without thirty(30)days written notice to the City
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19 Attorney's Office,and shall maintain such insurance from the time W&P commences performance o
20 of services hereunder until the completion of such services.
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21 All policies, with respect to the insurance coverage above required, except for the
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22 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
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23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
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24 their employees, agents, volunteers and officers as additional named insured with respect to n
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25 liabilities arising out of the performance of services hereunder. E
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2 All policies required above are to be primary and non-contributing with any insurance or C
3 self-insurance programs carried or administered by the CITY or other parties represented under this w
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4 Agreement. v
5 20. All communications and billings to the CITY are to be directed as follows: a
6 City Attorney's Office w
CITY OF SAN BERNARDINO 2,7 300 North"D"Street c
San Bernardino,CA 92418 •c
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9 Dated: 2012 WAGNER&PELAYES
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By: Dennis Wagner
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14 Dated: 2012 CITY OF SAN BERNARDINO c
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By: Patrick J. Morris, Mayor c
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20 Approved as to form: 2
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JAMES F. PENMAN,
22 City Attorney
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24 By.
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