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HomeMy WebLinkAbout12- 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 of Estate of Terry Nash, et al. v. City of San Bernardino, et al. Date: 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 Estate of Terry Nash, et al. v. City of San Bernardino, et al. Recommended motion: That the accompanying resolution,authorizing the execution of a Professional S s 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. �- -x-016 FAROMLitigation Cases-Outside Counsel\Nash\Nash.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 Estate of Terry Nash, et al. v. City of San Bernardino, et al., United States District Court Case No. CA 09-08671- RGK 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 entitled Estate of Terry Nash, et al. v. City of San Bernardino, et al., United States District Court Case No. CA 09-08671-RGK 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 FAROTHTitigation Cases-Outside CounselWashWash.StaftReport.wpd gym..... 1 RESOLUTION N0. 2010- C� © p� 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 ESTATE OF TERRY NASH, et al. v. CITY OF SAN BERNARDINO, et aC, UNITED STATES DISTRICT COURT CASE NO. CA 09-08671- 5 RGK 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION I. 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 9 the City of San Bernardino for legal services in the case of Estate of Terry Nash, et al. v. City of San 10 Bernardino, et al., United States District Court Case No. CA 09-08671-RGK, a copy of which is li 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 27 28 FIROTMLitigation Cases-Outside Counsel\Nash\Nash.Reso.wpd i 1 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 ESTATE OF TERRY NASH, et al. v. CITY OF 3 SAN BERNARDINO, et aG, UNITED STATES DISTRICT COURT CASE NO. CA 09-08671- RGK 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 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 g ESTRADA 9 BAXTER 10 BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 17 Rachel Clark, City Clerk 18 The foregoing Resolution is hereby approved this_ day of , 2010. 19 20 21 PATRICK J. MORRIS, Mayor 22 City of San Bernardino Approved as to form: 23 JAMES F. PENMAN, 24 CitaAnomey 25 By: 26 27 28 FIROTH\Litigation Cases-Outside CounselWash\Nash.Reso.wpd 2 1 PROFESSIONAL SERVICES AGREEMENT 2 ESTATE OF TERRY NASH, et al v. CITY OF SAN BERNARDINO, et ab UNITED STATES DISTRICT COURT CASE NO. CA 09-08671-RGK 3 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,OFFICERS BELLAMY,NEWTON,ROGERS,D.GOMEZ,WALTON, 8 E.MARTIN,MURPHY,S.SANDOVAL,and any other designated officer or employee of the CITY 9 in the case of Estate of Terry Nash, et al v. City of San Bernardino, et al., United States District 10 Court Case No.CA 09-08671-RGK. A&L shall not represent any client in any type of claim against 11 the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through 12 the City Attorney's Office. 13 3. A&L shall be paid at the hourly rates set forth below: 14 Attorneys - $145.00 per hour; and, 15 Law Clerks/Paralegals - $70.00 per hour. 16 The amounts expended under this agreement for attorney fees shall not exceed 17 $25,000 without further approval of the Mayor and Common Council. 18 4. Bills shall be submitted at least on a monthly basis and no later than the 5`^ day of 19 each succeeding month. 20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 22 A&L may include a single charge in an amount not to exceed four percent(4%) of attorney fees in 23 lieu of reimbursement for photocopying, telephone charges, and postage. 24 6. If attorney fees are charged "portal to portal'(e.g., from office to court and return), 25 then A&L shall not be entitled to reimbursement for mileage and parking fees. 26 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and 27 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it 28 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its Exhibit "A' F1ROTHV-ipgatim Cases-Outside Counsel W ash W ash.ProfessimalSvcs.Agreemmt.wpd Page l 1 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY 2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 3 Finance 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 6 set reserves,including,without limitation,potential liability exposure and percentage of fault,shall 7 be included. 8 9. Copies ofall opinions,pleadings,discovery and motions shall be provided to the City 9 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this 10 or other litigation. I 1 10. Copies of any correspondence and other documents sent to any of the parties in this 12 action shall also be provided to the CITY through the City Attorney's Office. 13 11. Any and all settlements shall require CITY approval. Request for settlement authority 14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 15 12. In the event the settlement value of this case appears to exceed$50,000.00 the City 16 Attorney's Office shall be notified immediately. 17 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved 18 by the City shall conduct the trial of this case. 19 14. No client development costs are to be included in billings. 20 15. No continuing education expenses are to be included in billings. 21 16. Final billing shall be accompanied by copies of the Request for Dismissal, 22 Satisfaction of Judgment, Release and any other final documents. 23 17. Either party may terminate this Agreement at will. A&L will continue to represent 24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 25 another attorney. 26 18. A&L is an independent contractor as to the CITY. 1 27 19. A&L shall maintain the following types of insurance with limits as shown: 28 a) Workers Compensation as required by the laws of the State of California, Exhibit "A" FAROTHQ.itigation Cases-Outside Counse]\NnhWash.PmfessionalSvcs.Ag=e t.wpd Page 2 i including Employment Liabilitywith$250,000 limits covering all persons providing 2 service on behalf of A&L and all risks to such persons under this Agreement. A&L 3 shall require its Workers Compensation carrier to waive all rights of subrogation 4 against the CITY and its officers and employees and any others for whom services 5 are being provided under this Agreement. 6 b) Comprehensive General and Automobile Liability Insurance coverage to 7 include contractual coverage and automobile coverage for owned, hired and non- 8 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 9 for bodily injury and property damage. 10 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. 11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 12 follows: 13 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 14 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 15 insured, its officers, employees, agents, or subcontractors. All other 16 provisions of this policy are to remain unchanged." 17 A&L shall furnish certificates of insurance and certified copies of all policies and 18 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 19 20 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 21 Attorney's Office, and shall maintain such insurance from the time A&L commences performance 22 of services hereunder until the completion of such services. 23 All policies, with respect to the insurance coverage above required, except for the 24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 25 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 26 their employees, agents, volunteers and officers as additional named insureds with respect to ® 27 liabilities arising out of the performance of services hereunder. 28 Exhibit " " FAROTMLitigation Cues-Outside CounscMuhWuh.PmfessionalSvcs. greemmt.wpd 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 San Bernardino, CA 92418 7 8 Dated: 2010 ARIAS & LOCKWOOD 9 10 11 By: Joseph Arias 12 13 Dated: 2010 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 Exhibit "A" FAROTH\Litigation Cases-Outside CounselWashW ash.ProfessionalSvcs.AgreementwPd Page 4 i 1 PROFESSIONAL SERVICES AGREEMENT 2 ESTATE OF TERRY NASH, et al v. CITY OF SAN BERNARDINO, et al. UNITED STATES DISTRICT COURT CASE NO. CA 09-08671-RGK 3 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,OFFICERS BELLAMY,NEWTON,ROGERS,D.GOMEZ,WALTON, 8 E.MARTIN,MURPHY,S.SANDOVAL,and any other designated officer or employee ofthe CITY 9 in the case of Estate of Terry Nash, et al v. City of San Bernardino, et al., United States District 10 Court Case No. CA 09-0867 1-RGK. A&L shall not represent any client in any type of claim against 11 the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through 12 the City Attorney's Office. 13 3. A&L shall be paid at the hourly rates set forth below: 14 Attorneys - $145.00 per hour; and, 15 Law Clerks/Paralegals - $70.00 per hour. 16 The amounts expended under this agreement for attorney fees shall not exceed 17 $25,000 without further approval of the Mayor and Common Council. 18 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of 19 each succeeding month. 20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 22 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in 23 lieu of reimbursement for photocopying, telephone charges, and postage. 24 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return), 25 then A&L shall not be entitled to reimbursement for mileage and parking fees. 26 7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and �,. 27 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it 28 chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its FAROTWLitigation Cases-Outside Counsel\Nash\Nash.Professional$vcs.Agrme t.wpd Page 1 1 periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY 2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 3 Finance 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 6 set reserves, including,without limitation,potential liability exposure and percentage of fault,shall 7 be included. 8 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City 9 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this 10 or other litigation. 11 10. Copies of any correspondence and other documents sent to any of the parties in this 12 action shall also be provided to the CITY through the City Attorney's Office. 13 11. Any and all settlements shall require CITY approval. Request for settlement authority \r/ 14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 15 12. In the event the settlement value of this case appears to exceed$50,000.00 the City 16 Attorney's Office shall be notified immediately. 17 13. Only Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved 18 by the City shall conduct the trial of this case. 19 14. No client development costs are to be included in billings. 20 15. No continuing education expenses are to be included in billings. i 21 16. Final billing shall be accompanied by copies of the Request for Dismissal, 22 Satisfaction of Judgment, Release and any other final documents. 23 17. Either party may terminate this Agreement at will. A&L will continue to represent 24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 25 another attorney. 26 18. A&L is an independent contractor as to the CITY. 27 19. A&L shall maintain the following types of insurance with limits as shown: 28 a) Workers Compensation as required by the laws of the State of California, FdROTMI-itigation Cases-Outside Counsel\Nmh\Nash.PmfessionalSvcs.Agreem t.wpd Page 2 1 including Employment Liability with$250,000 limits covering all persons providing 2 service on behalf of A&L and all risks to such persons under this Agreement. A&L 3 shall require its Workers Compensation carrier to waive all rights of subrogation 4 against the CITY and its officers and employees and any others for whom services 5 are being provided under this Agreement. 6 b) Comprehensive General and Automobile Liability Insurance coverage to 7 include contractual coverage and automobile coverage for owned, hired and non- 8 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 9 for bodily injury and property damage. 10 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. 11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 12 follows: 13 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 14 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 15 insured,its officers, employees, agents, or subcontractors. All other 16 provisions of this policy are to remain unchanged." 17 A&L shall furnish certificates of insurance and certified copies of all policies and 18 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 19 to the commencement of performance of services hereunder, which certificates shall provide that 20 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 21 Attorney's Office, and shall maintain such insurance from the time A&L commences performance 22 of services hereunder until the completion of such services. 23 All policies, with respect to the insurance coverage above required, except for the 24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 25 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 26 their employees, agents, volunteers and officers as additional named insureds with respect to 27 liabilities arising out of the performance of services hereunder. 28 F:\ROTH\Uugauon Cases-Outside Counsel\Nash\Nash.ProfessionalSvcs.Agreem nt.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 Office 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 By: Patrick J. Morris, Mayor 16 17 18 19 Approved as to form: 20 JAMES F. PENMAN, 21 City Attorney 22 By- 23 24 25 26 27 28 F:\ROTH\Litigation Cases-outside Counsel\Nwh\Nash.ProfessionalSvcs.Agree t.wpd Page