HomeMy WebLinkAbout08.B- City Attorney RESOLUTION (ID #2594) DOC ID: 2594
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: James F. Penman M/CC Meeting Date: 07/15/2013
Prepared by: Jolena E. Grider, (909) 384-
5355
Dept: City Attorney Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino, Acting as
Successor Agency to the Redevelopment Agency of San Bernardino Authorizing the Execution
of a Professional Services Agreement Between Wagner & Pelayes, LLP and the City Acting as
Successor Agency for Legal Services in the Case of Katrina Diane Menell V. Carousel Mall,
LLC, Et Al., San Bernardino County Superior Court Case No. CIVDS1306556. (#2594)
Current Business Registration Certificate: No
Financial Impact:
Account Budgeted Amount: <<Insert Amount»
Account No. <<Insert Account No.>>
Account Description: <<Insert Account Description>>
Balance as of: <<Insert Date>>
Balance after approval of this item: <<Insert Amount>>
Please note this balance does not indicate available funding. It does not include non-encumbered
reoccurring expenses or expenses incurred,but not yet processed.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
On July 1, 2013, the Mayor and Common Council approved the retention of Wagner&Pelayes
to handle this case.
City Attorney Review:
Supporting Documents:
reso 2594 (PDF)
agrmt 2594 (PDF)
Updated: 7/9/2013 by Telicia Lopez packet Pg.M
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RESOLUTION NO.
1
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITI
2 OF SAN BERNARDINO, ACTING AS SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF SAN BERNARDINO AUTHORIZING THE
3 EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN WAGNER
& PELAYES, LLP AND THE CITY ACTING AS SUCCESSOR AGENCY FOR LEGAL
4 SERVICES IN THE CASE OF KATRINA DIANE MENELL v CAROUSEL MALL,LLC,E?
5 AL., SAN BERNARDINO COUNTY SUPERIOR COURT CASE NO. CIVDS1306556
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE N
6 CITY OF SAN BERNARDINO AS FOLLOWS;
7
aD
8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and o
9 directed to execute on behalf of the City acting as Successor Agency a Professional Services
10 Agreement between Wagner &Pelayes, LLP and the City acting as Successor Agency for legal a(.
11 ad
services in the case of Katrina Diane Menell v. Carousel Mall, LLC, et al., San Bernardino County
12
Superior Court Case No. CIVDS 1306556, a copy of which is attached hereto and incorporated
13 herein as Exhibit "A."
3
14 a
SECTION 2. The authorization granted by this Resolution shall expire and be void and a
15 of no further effect if the agreement is not executed by both parties and returned to the Office of the
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City Clerk within sixty(60) days following the effective date of this Resolution.
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Packet Pg.733;
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO, ACTING AS SUCCESSOR AGENCY TO THE
2 REDEVELOPMENT AGENCY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN WAGNER
3 & PELAYES, LLP AND THE CITY ACTING AS SUCCESSOR AGENCY FOR LEGAL
4 SERVICES IN THE CASE OF KATRINA DIANE MENELL v. CAROUSEL MALL,LLC,E7
AL., SAN BERNARDINO COUNTY SUPERIOR COURT CASE NO. CIVDS1306556
5
6 °1
N
tC
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common
7
8 Council of the City of San Bernardino at a meeting
9 thereof, held on the day of , 2013, by the
following vote,to wit:
10 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT a
11 MARQUEZ
d
c
12 JENKINS
13 VALDIVIA
14 SHORETT vi
a.
15 KELLEY
16 JOHNSON
N-
17 N
0
18
19
20 Georgeann Hanna, City Clerk
w
21 Q
The foregoing Resolution is hereby approved this day of
22 ,2013.
23 Patrick J. Morris, Mayor
24 City of San Bernardino
25 Approved as to form:
JAMES F. PENMAN,
26 City Attorney
27 /
28
By: G
Packet Pg.734
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1 PROFESSIONAL SERVICES AGREEMENT
Katrina Diane Menell v. Carousel Mall,LLC, et al.
2 San Bernardino County Superior Court Case No. CIVDS1306556
3
4 1. The CITY OF SAN BERNARDINO, ACTING AS SUCCESSOR AGENCY TO
5 THE REDEVELOPMENT AGENCY OF SAN BERNARDINO(hereinafter"CITY") and the law
firm of WAGNER& PELAYES, LLP (hereinafter "W&P") are the parties to this Agreement.
6
7 2. W&P will represent the following defendants in Katrina Diane Menell v. Carousel
8 Mall, LLC, et al., San Bernardino County Superior Court,Case No. CIVDS 1306556: CAROUSEL
MALL, LLC and any other designated officer or employee of the CITY who may later be named.
9
10 W&P shall not represent any client in any type of claim against the CITY without prior written
11 approval to do so from the CITY through the City Attorney's Office.
3. W&P shall be paid at the hourly rates set forth below:
12
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
$33,000 without further approval of the Mayor and Common Council.
16
17 4. The City will submit a retainer fee of$33,000.00 for the initial legal work and
18 W& P will inform the City prior to exhausting said retainer fee in order to obtain approval for
further legal work. -
19
20 5. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
each succeeding month.
21
22 6. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
23 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
24 W&P may include a single charge in an amount not to exceed four percent(4%) of attorney fees in
25 lieu of reimbursement for photocopying, telephone charges, and postage.
26 7. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
then W&P shall not be entitled to reimbursement for mileage and parking fees.
17 then
7/15/13
FAGrider\Outside Counsel\Mehell v.Carousel Mall W&P PSA-2 #8B (2594)
replacement
1 8. W&P shall obtain approval from the CITY to retain expert witnesses, consultants,
2 and other professionals (not including court reporters) for purposes of the litigation. W&P may, if
3 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
4 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
5 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
6 CITY'S Finance Department.
7 9. Status reports will be submitted to the CITY through the City Attorney's Office
8 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
9 to set reserves, including, without limitation, potential liability exposure and percentage of fault,
10 shall be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
11 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the
12 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
13 in this or other litigation.
14 11. Copies of any correspondence and other documents sent to any of the parties in this
15 action shall also be provided to the CITY through the City Attorney's Office.
16 12. Any and all settlements shall require CITY approval. Request for settlement
17 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
18 approvals.
19 13. In the event the settlement value of this case appears to exceed$50,000.00 the City
20 Attorney's Office shall be notified immediately.
21 14. Only Dennis Wagner of Wagner&Pelayes, LLP shall conduct the trial of this case.
22 15. No client development costs are to be included in billings.
23 16. No continuing education expenses are to be included in billings.
24 17. Final billing shall be accompanied by copies of the Request for Dismissal,
25 Satisfaction of Judgment, Release and any other final documents.
26 18. Either party may terminate this Agreement at will. W&P will continue to represent
77
F:\Grider\Outside Counsel\Mehell v.Carousel Mall W&P PSA-2
C1
I the CITY on the terms and conditions in this Agreement until the case and file are transferred to
2 another attorney.
3 19. W&P is an independent contractor as to the CITY.
4 20. W&P shall maintain the following types of insurance with limits as shown:
5 a) Workers Compensation as required by the laws of the State of California,
6 including Employment Liability with $250,000 limits covering all persons
7 providing service on behalf of W&P and all risks to such persons under this
8 Agreement. W&P shall require its Workers Compensation carrier to waive all
9 rights of subrogation against the CITY and its officers and employees and any
10 others for whom services are being provided under this Agreement.
11 b) Comprehensive General and Automobile Liability Insurance coverage to
12 include contractual coverage and automobile coverage for owned, hired and
13 non-owned vehicles. The policy shall have at least a combined single limit of
14 $1,000,000 for bodily injury and property damage.
15 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
16 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
17 follows:
"Insurance coverage afforded by this policy shall also apply
18 to the liability assumed by the Insured under the Agreement with the
CITY OF SAN BERNARDINO for legal services, provided such
19 liability results from an error, omission or negligent act of the
insured, its officers, employees, agents, or subcontractors. All
20 other provisions of this policy are to remain unchanged."
21
22 W&P shall furnish certificates of insurance and certified copies of all policies and
23 endorsements to the City Attorney's Office evidencing the insurance coverage above required
24 prior to the commencement of performance of services hereunder,which certificates shall provide
25 that such insurance shall not be terminated or expire without thirty(30) days written notice to the
26 City Attorney's Office, and shall maintain such insurance from the time W&P commences
performance of services hereunder until the completion of such services.
F:\Grider\Outside Counse]Wehell v.Carousel Mall W&P PSA-2
I All policies, with respect to the insurance coverage above required, except for the
2 Workers Compensation insurance coverage and professional liability coverage,if a pp licable shall
3 obtain additional endorsements naming the CITY and all parties represented under this
4 Agreement, their employees, agents, volunteers and officers as additional named insureds with
5 respect to liabilities arising out of the performance of services hereunder.
6 All policies required above are to be primary and non-contributing with any insurance
7 policies or self-insurance programs carried or administered by the CITY or other parties
8 represented under this Agreement.
9 21. All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
10 CITY OF SAN BERNARDINO
300 North"D" Street
11 San Bernardino, CA 92418
12
13 Dated: 2013 WAGNER& PELA YES, LLP
14
15 By: Dennis Wagner
16
17
Dated: , 2013 CITY OF SAN BERNARDINO, ACTING
18 AS SUCCESSOR AGENCY TO THE
19 REDEVELOPMENT AGENCY OF SAN
BERNARDINO
20
21
By: Patrick J. Morris, Mayor
22 Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
26 By:
F:\Grider\Outside CounselWehell v.Carousel Mall W&P PSA-2