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HomeMy WebLinkAbout10- City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Diane C. Roth Subject: Professional Services Agreement between the Sr. Assistant City Attorney City of San Bernardino and the law firm of Arias & Lockwood to represent the City of San Bernardino and Dept: CITY ATTORNEY all named officers and employees in the case ofMekione Samatua, et al. v. City of San Bernardino, et al., San Date: January 20,2010 Bernardino Superior Court Case No. CIVDS 917832 Synopsis of Previous Council Action: On January 19, 2010, the Mayor and Common Council approved the retention of the law firm of Arias& Lockwood to represent the City of San Bernardino and all named officers and employees in the case of Mekione Samatua, et al. v. City of San Bernardino, et al Recommended motion: That the accompanying resolution,authorizing the execution of a Professional Servic Agreement between the City of San Bernardino and the law firm of Arias&Lockwood,be adopte ignature Contact person: Diane C. Roth Phone: 5355 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. _ Cp - / - aa/o F:ROMLitigation Cases-Outside Counsel\Samatua\Samatua.RCA.wpd STAFF REPORT Council Meeting Date: February 1, 2010 TO: Mayor and Common Council FROM: City Attorney's Office DATE: January 20,2010 AGENDA: Professional Services Agreement between the City of San Bernardino and the law firm of Arias &Lockwood to represent the City of San Bernardino and all named officers and employees in the case of Mekione Samatua, et al. v. City of San Bernardino,etal.,San Bernardino Superior Court Case No.CIVDS 917832 i i 1 On January 19,2010,the Mayor and Common Council approved the retention ofthe law firm of Arias&Lockwood to represent the City of San Bernardino and all named officers and employees r in the case entitled Mekione Samatua, et al. v. City of San Bernardino, et al., San Bernardino Superior Court Case No. CLADS 917832. 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. Recommendation: Adopt Resolution FAROTMUtigation Cases-Outside Counsel)Samatua\Samatua.StaftReport.wpd 1 RESOLUTION NO. 2010- C (a Ff ) Y 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO 4 FOR LEGAL SERVICES IN THE CASE OF MEKIONE SAMATUA, et aG v. CITY OF SAN BERNARDINO, et al., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 917832 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 Arias&Lockwood and i 9 the City of San Bernardino for legal services in the case of Mekione Samatua, et al v. City of San i 10 Bernardino, et al., San Bernardino Superior Court Case No. CLADS 917832, a copy of which is 11 attached hereto marked Exhibit"A" and incorporated herein by reference as fully as though set forth 12 at length. 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 parties and returned to the Office of the 15 City Clerk within sixty(60) days following the effective date of this Resolution. 16 17 18 19 20 21 22 / 23 24 / 25 / 26 v 28 F1ROTMLitigation Cases-Outside Counsel\Samatua\Samatua.Reso.V* I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 2 AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF MEKIONE SAMATDA, et al. v. CITJ'OF SAN 3 BERNARDINO, et al., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 917832 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the_day 6 of , 2010, by the following vote, to wit: 7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 8 ESTRADA 9 BAXTER to BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 Rachel Clark, City Clerk 17 18 The foregoing Resolution is hereby approved this_day of , 2010. 19 20 PATRICK J. MORRIS, Mayor 21 City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, City Attorney 24 25 By: 26 27 28 F:`ROTHTitigation Cases-Outside CounsePSamatua`Samatua.Reso.u* 1 PROFESSIONAL SERVICES AGREEMENT 2 MEKIONE SAMATUA et at v. CITY OF SAN BERNARDINO, et aL SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 917832 3 4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm ofARIAS 5 & 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, OFFICER JONATHAN MANLY, and any other designated officer or 8 employee of the CITY in the case of Mekione Samatua, et al v. City of San Bernardino, et al., San 9 Bernardino Superior Court Case No.CIVDS 917832. A&L shall not represent any client in any type 10 of claim against the CITY without prior written approval to do so from the CITY OF SAN 11 BERNARDINO through the City Attorney's Office. 12 3. A&L shall be paid at the hourly rates set forth below: 13 Attorneys - $145.00 per hour; and, 14 Law Clerks/Paralegals - $70.00 per hour. 15 The amounts expended under this agreement for attorney fees shall not exceed 16 $25,000 without further approval of the Mayor and Common Council. 17 4. Bills shall be submitted at least on a monthly basis and no later than the 5`" day of 18 each succeeding month. 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 A&L 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 A&L shall not be entitled to reimbursement for mileage and parking fees. 25 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and 26 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it 27 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its 28 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY Exhibit "A" FAROTH\Utigation Cases-Outside CounseRSamatuat Samatua.Professiona]Svcs.Agrtement.wpd Page I I pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 2 Finance Department, 3 8. Status reports will be submitted to the CITY through the City Attorney's Office 4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to 5 set reserves,including,without limitation,potential liability exposure and percentage of fault,shall 6 be included. 7 9. Copies ofall opinions,pleadings,discovery and motions shall be provided to the City 8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this 9 or other litigation. 10 10. Copies of any correspondence and other documents sent to any of the parties in this 11 action shall also be provided to the CITY through the City Attorney's Office. 12 11. Any and all settlements shall require CITY approval. Request for settlement authority 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 14 12. In the event the settlement value of this case appears to exceed $50,000.00 the City 15 Attorney's Office shall be notified immediately. 16 13. Only Joseph Arias of ARIAS & LOCKWOOD or another senior attorney approved 17 by the City shall conduct the trial of this case. 18 14. No client development costs are to be included in billings. 19 15. No continuing education expenses are to be included in billings. 20 16. Final billing shall be accompanied by copies of the Request for Dismissal, 21 Satisfaction of Judgment, Release and any other final documents. 22 1 17. Either party may terminate this Agreement at will. A&L will continue to represent 23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 24 another attorney. 25 18. A&L is an independent contractor as to the CITY. 26 19. A&L shall maintain the following types of insurance with limits as shown: 27 a) Workers Compensation as required by the laws of the State of California, 28 including Employment LLiabilityi`with$$250,000 limits covering all persons providing to F:WTH\Litigauon Cases-Outside CounseDSamatua\ .0ai� P"eiiona6S s.Agreement. d 2 �'P Page I service on behalf of A&L and all risks to such persons under this Agreement. A&L 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services 4 are being provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned, hired and non- 7 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 8 for bodily injury and property damage. 9 C) Professional Liability Insurance with limits of at least$1,000,000 per claim. 10 In lieu of naming the CITY as an additional insured, the policy maybe endorsed as 11 follows: 12 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 13 CITY OF SAN BERNARDINO for legal services, provided such © liability results from an error, omission or negligent act of the 14 insured,its officers, employees, agents,or subcontractors. All other IS provisions of this policy are to remain unchanged." 16 A&L shall furnish certificates of insurance and certified copies of all policies and 17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 18 to the commencement of performance of services hereunder, which certificates shall provide that 19 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 20 Attorney's Office, and shall maintain such insurance from the time A&L commences performance 21 of services hereunder until the completion of such services. 22 All policies, with respect to the insurance coverage above required, except for the 23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 24 obtain additional endorsements flaming the CITY and all parties represented under this Agreement, 25 their employees, agents, volunteers and officers as additional named insureds with respect to 26 liabilities arising out of the performance of services hereunder. 27 28 Exhibit "A" FAROTH\L.itigation Cases-Outside Counscl\Samatua�Sam wa.ProfessionalSvcs.Agreementwpd Page 3 i 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 7 San Bernardino, CA 92418 8 Dated: 2010 ARIAS & LOCKWOOD 9 10 11 By: Joseph Arias 12 13 Dated: 12010 CITY OF SAN BERNARDINO 14 15 16 By: Patrick J. Moms, Mayor 17 18 19 Approved as to form: 20 JAMES F. PENMAN, 21 City Attorney 22 By: 23 24 25 26 27 28 � {[,) FAROTH\L.itigation Cases-Outside Counsel`SamaiujES Xh.ii?f ilna,3t-cS.Agreemmt.wpd Page 4 PROFESSIONAL SERVICES AGREEMENT 2 MEKIONE SAMATUA et al v. CITY OF SAN BERNARDINO, et al. 3 SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 917832 4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIAS 5 & 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, OFFICER JONATHAN MANLY, and any other designated officer or 8 employee of the CITY in the case of Mekione Samatua, et al v. City ojSan Bernardino, et al., San 9 Bernardino Superior Court Case No.CLADS 917832. A&L shall not represent any client in any type 10 of claim against the CITY without prior written approval to do so from the CITY OF SAN 11 BERNARDINO through the City Attorney's Office. 12 3. A&L shall be paid at the hourly rates set forth below: 13 Attorneys - $145.00 per hour; and, 14 Law Clerks/Paralegals - $70.00 per hour. 15 The amounts expended under this agreement for attorney fees shall not exceed 16 $25,000 without further approval of the Mayor and Common Council. 17 4. Bills shall be submitted at least on a monthly basis and no later than the 5" day of 18 each succeeding month. 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 A&L 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 A&L shall not be entitled to reimbursement for mileage and parking fees. 25 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and �} 26 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it 27 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its 28 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY F:'.ROMLitigation Cases-Outside Counsel\Samatua\Samatua.ProfessionalSvcs.Agreement.wpd Page 1 I pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 2 Finance Department. 3 8. Status reports will be submitted to the CITY through the City Attorney's Office 4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to 5 set reserves,including,without limitation,potential liability exposure and percentage of fault, shall 6 be included. 7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City 8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this 9 or other litigation. 10 10. Copies of any correspondence and other documents sent to any of the parties in this 11 action shall also be provided to the CITY through the City Attorney's Office. 12 11. Any and all settlements shall require CITY approval. Request for settlement authority 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 14 12. In the event the settlement value of this case appears to exceed $50,000.00 the City 15 Attorney's Office shall be notified immediately. 16 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved 17 by the City shall conduct the trial of this case. 18 14. No client development costs are to be included in billings. 19 15. No continuing education expenses are to be included in billings. 20 16. Final billing shall be accompanied by copies of the Request for Dismissal, 21 Satisfaction of Judgment, Release and any other final documents. 22 17. Either party may terminate this Agreement at will. A&L will continue to represent 23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 24 another attorney. 25 18. A&L is an independent contractor as to the CITY. 26 19. A&L shall maintain the following types of insurance with limits as shown: 27 a) Workers Compensation as required by the laws of the State of California, 28 including Employment Liabilitywith$250,000 limits covering all persons providing FAROTH\Litigation Cases-Outside Couns i�Sam tua�Sar tua.ProfessionalSves.Agree t.wpd Page 2 ' i 1 service on behalf of A&L and all risks to such persons under this Agreement. A&L 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services 4 are being provided under this Agreement. 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned, hired and non- 7 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 8 for bodily injury and property damage. 9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. I In lieu of naming the CITY as an additional insured, the policy may be endorsed as 1 1 follows: 1 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 13 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 14 insured,its officers, employees, agents, or subcontractors. All other 15 provisions of this policy are to remain unchanged." 16 A&L shall furnish certificates of insurance and certified copies of all policies and 17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 18 to the commencement of performance of services hereunder, which certificates shall provide that 19 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 20 Attorney's Office, and shall maintain such insurance from the time A&L commences performance 21 of services hereunder until the completion of such services. 22 All policies, with respect to the insurance coverage above required, except for the 23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 24 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 25 their employees, agents, volunteers and officers as additional named insureds with respect to 26 liabilities arising out of the performance of services hereunder. 27 28 FAOMLitigation Cases-Outside CounsoMametualSa=tua.Professiona]Svcs.Agreement.wpd Page 3 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 Officc CITY OF SAN BERNARDINO 6 300 North"D" Street San Bernardino, CA 92418 7 8 Dated: 2010- ARIAS & LOCKWOOD 9 10 By: Joseph Arias 11 12 13 Dated: 2010 CITY OF SAN BERNARDINO 14 15 16 By: Patrick J. Morris, Mayor 17 18 19 Approved as to form: 20 JAMES F. PENMAN, 21 City Attorney 22 i By. - 23 24 25 26 27 28 FAROTH\Litigation Cases-Outside Counsel`,Samatua\Samatua.ProfessionalSvcs.Agmement.wpd Page 4