HomeMy WebLinkAbout44- 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 consolidated
cases of Long Nguyen v. City of San Bernardino, et al.
Date: June 6, 2011 and Lam Sinh v. City of San Bernardino, et al., San
Bernardino County Superior Court, Case No. CIVDS
1003080
Synopsis of Previous Council Action:
On May 16,2011,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
consolidated cases of Long Nguyen v. City of San Bernardino, et al. and Lam Sinh v. City of San
Bernardino, et al.
Recommended motion:
That the accompanying resolution, authorizing the execution of a Professional Services Agreement
between the City of San Bernardino and the law firm of Arias & Lockwood, be adopted.
Signature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
FAROMLitigation Cases-Outside Counsel\Nguyen\RCA.wpd
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STAFF REPORT
Council Meeting Date: February 1, 2010
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TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: June 6, 2011
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 consolidated cases of Long Nguyen v. City
of San Bernardino, et al. and Lam Sinh v. City of San Bernardino, et al., San
Bernardino County Superior Court, Case No. CIVDS 1003080
On May 16, 2011,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 consolidated cases of Long Nguyen v. City of San Bernardino, et al. and Lam Sinh v. City of
San Bernardino, et al., San Bernardino County Superior Court, Case No. CIVDS 1003080.
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
FAROTH\Litigation Cases-Outside Counsel\Nguyen\StaffReport.wpd
1 RESOLUTION NO. 2010-
i
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
4 BERNARDINO FOR LEGAL SERVICES IN THE CONSOLIDATED CASES OF LONG
NGUYEN v. CITY OF SAN BERNARDINO, et al. AND LAM SINH v. CITY OF SAN
k 5 BERNARDINO, et al., SAN BERNARDINO COUNTY SUPERIOR COURT CASE NO.
CIVDS 1003080
6
7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
8
9 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
10 to execute on behalf of said City a Professional Services Agreement between Arias&Lockwood and
11 the City of San Bernardino for legal services in the consolidated cases of Long Nguyen v. City of San
12 Bernardino, et al. and Lam Sinh v. City of San Bernardino, et al., San Bernardino County Superior
13 Court, Case No. CIVDS 1003080 , a copy of which is attached hereto marked Exhibit "A" and
14 incorporated herein by reference as fully as though set forth at length.
15 SECTION 2. The authorization granted by this Resolution shall expire and be void and
16 of no further effect if the agreement is not executed by both parties and returned to the Office of the
17 City Clerk within sixty(60) days following the effective date of this Resolution.
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FAROTH\Litigation Cases-Outside Counsel\Nguyen\Reso.wpd 1
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 CONSOLIDATED CASES OF LONG NGUYEN v. CITY
3 OF SAN BERNARDINO,et al.AND LAM SINH Y. CITY OF SAN BERNARDINO, et al.,SAN
BERNARDINO COUNTY SUPERIOR COURT, CASE NO. CIVDS 1003080
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 , 2011, by the following vote, to wit:
7
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8
MARQUEZ
9
VACANT
10
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 , 2011.
19
20
21 PATRICK J. MORRIS, Mayor
City of San Bernardino
22
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
By: �' .
26
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F:\ROTH\Litigation Cases-Outside Counsel\Nguyen\Reso.,xpd 2
I PROFESSIONAL SERVICES AGREEMENT
2 Long Nguyen v. City of San Bernardino, et al.
and Lam Sinh v. City of San Bernardino, et al.
3 Consolidated under San Bernardino County Superior Court, Case No. CIVDS 1003080
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 City of San Bernardino and any named officers or
7
employees in the consolidated cases of Long Nguyen v. City of San Bernardino, et al. and Lam Sinh
8
v. City of San Bernardino, et al.,San Bernardino County Superior Court,Case No.CIVDS 1003080.
9
A&L shall not represent any client in any type of claim against the CITY without prior written
10
approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
II
3. A&L shall be paid at the hourly rates set forth below:
12
Attorneys - $145.00 per hour; and,
13
Law Clerks/Paralegals - $70.00 per hour.
14
The amounts expended under this agreement for attorney fees shall not exceed
15
$25,000 without further approval of the Mayor and Common Council.
16
4. Bills shall be submitted at least on a monthly basis and no later than the 5' day of
17
each succeeding month.
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20
A&L may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
21
lieu of reimbursement for photocopying, telephone charges, and postage.
22
6. If attorney fees are charged"portal to portal" (e.g., from office to court and return),
23
then A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
25
other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26
chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27
periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28
FAROTHTitieation Cases-Outside Counsel\Nguven\professionalSvcs.Agreement.wpd EXHIBIT A 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 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
FAROTMLitigation Cases-Outside Counsel\Nguyen\ProfessionalSvcs.Agreement.wpd EXHIBIT A Page 2
I 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
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
FAROTHTitigation Cases-Outside Counsel\Nguyen\ProfessionalSvcs.Agreement.wpd EXHIBIT A 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: 92011 ARIAS & LOCKWOOD
9
10
By: Joseph Arias
11
12
13 Dated: , 2011 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
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FAROTHTitigation Cases-Outside Counsel\Nguyen\ProfessionalSvcs.Agreement.wpd EXHIBIT A Page 4
I PROFESSIONAL SERVICES AGREEMENT
2 Long Nguyen v. City of San Bernardino, et al.
and Lam Sinh v. City of San Bernardino, et al.
3 Consolidated under San Bernardino County Superior Court, Case No. CIVDS 1003080
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 City of San Bernardino and any named officers or
7
employees in the consolidated cases of Long Nguyen v. City of San Bernardino, et al. and Lam Sinh
8
v. City of San Bernardino, et al.,San Bernardino County Superior Court,Case No.CIVDS 1003080.
9
A&L shall not represent any client in any type of claim against the CITY without prior written
10
approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
11
3. A&L shall be paid at the hourly rates set forth below:
12
Attorneys - $145.00 per hour; and,
13
Law Clerks/Paralegals - $70.00 per hour.
14
The amounts expended under this agreement for attorney fees shall not exceed
15
$25,000 without further approval of the Mayor and Common Council.
16
4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
17
each succeeding month.
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20
A&L may include a single charge in an amount not to exceed four percent(4%) of attorney fees in
21
lieu of reimbursement for photocopying, telephone charges, and postage.
22
6. If attorney fees are charged"portal to portal"(e.g., from office to court and return),
23
then A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
25
other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26
chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27
periodic statement,or it may forward the consultant's bill to the CITY with a request that the CITY
28
FAROTH\Litigation Cases-Outside Counsel\NguyenTrofessionalSvcs.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
FAROTH\Litigation Cases-Outside Counsel\Nguyen\ProfessionalSvcs.Agreement."d Page 2
1
I 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
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
FAROTH\Litigation Cases-Outside Counsel\Nguyen\ProfessionalSvcs.Agreement.wpd Page 3
Co1 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: , 2011 ARIAS &LOCKWOOD
9
10
By: Joseph Arias
11
12
13 Dated: , 2011 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._.
r
, l
22
By: .,
23
24
25
26
27
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FAROMLitigation Cases-Outside Counsel\NguyenTrofessional Svcs.Agreement.wO Pate 4