HomeMy WebLinkAbout2015-144 I RESOLUTION NO. 2015-144
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
3 BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH GREEN DE BORTNOWSKY, LLP FOR LEGAL
4 SERVICES RELATED TO RECEIVERSHIPS
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
8
directed to execute on behalf of said City a Professional Services Agreement between Green de
9
10 Bortnowsky, LLP and the City of San Bernardino for legal services, a copy of which is
11 attached hereto and incorporated herein as Exhibit "A."
12 SECTION 2. The authorization granted by this Resolution shall expire and be void
13
and of no further effect if the agreement is not executed by both parties and returned to the
14
Office of the City Clerk within sixty(60) days following the effective date of this Resolution.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL
2 SERVICES AGREEMENT WITH GREEN DE BORTNOWSKY, LLP FOR LEGAL
3 SERVICES RELATED TO RECEIVERSHIPS
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 joint regular meeting thereof, held on the
6 20th day of July, 2015, by the following vote, to wit:
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
9 MARQUEZ x-
10 BARRIOS x-
11 VALDIVIA X
12 SHORETT X
13
NICKEL X
14
15 JOHNSON X
16 MULVIHILL X
AZ f�fi&Hanna.,George C, City Clerk
18 rf
19 The foregoing Resolution is hereby approved this July, 2
20
21 R. Carey Da s, Mayor
22 City of San ernardino
Approved as to form:
23 Gary D. Saenz, City Attorney
24 By: t--r-
25
26
27
28
2
2015-144
1
PROFESSIONAL SERVICES AGREEMENT
2
3
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
4
GREEN DE BORTNOWSKY, LLP (hereinafter"GdB") are the parties to this Agreement.
5
2. GdB will be representing the CITY on cases seeking the appointment of
6
7 receiver over real property which the CITY has determined do not meet the minimum standard
8 of state and local maintenance codes. GdB shall not represent any client in any type of claim
9 against the CITY without prior written approval to do so from the CITY through the City
10 Attorney's Office.
11 3. GdB shall be paid at the deferred hourly rates set forth below:
12 a. Attorneys - $290.00 per hour; and
13 b. Law Clerks/Paralegals - $150 per hour.
14 GdB attorney's fees and costs shall be paid directly from the proceeds of the sal
15 of any property, which is the subject of a receivership action under this Agreement, at the
16 conclusion of the action, or from the proceeds of any settlement agreement.
17 4. The CITY has been informed and understands that the above contingent fee is no
18 prescribed by law but has been negotiated between the parties.
19 5. To the extent that any court denies some portion of any claim for award of
20
attorney's fees or costs, the CITY shall have no obligation with respect to the shortfall. The
21
CITY agrees that if for any reason the CITY elects, without the approval of GdB, to compromise
22
or waive any portion of the attorney's fees or costs, or to refuse to seek such an award, the CIT
23
shall reimburse GdB for the amount of such fees or expenses.
24
6. The CITY understands that under current legal standards if any defendant prevail
25
in any litigation brought pursuant to this Agreement, that defendant may seek to recover cost
26
27 from the CITY. The City also understands that the prevailing party in any action brought
28 pursuant to California Health and Safety Code sections 17980.6 and 17980.7 shall be entitled t
1
2015-144
1
attorney's fees. No action shall be filed unless both the City Attorney's Office and GdB
2
determine in their best judgment that the CITY is likely to prevail. If any expenses, costs o
3
attorney's fees are assessed against the CITY, the CITY agrees to be legally responsible fo
4
payment of those expenses, costs, and attorney's fees.
5
7. GdB shall obtain approval from the CITY to retain expert consultants and othe
6
7 professionals (not including court reporters) for purposes of the litigation. GdB may, if it
8 chooses, pay the fees and charges of such consultants and seek reimbursement from proceeds o
9 sale. Consultants shall not bill the CITY directly without prior approval of the CITY's Finance
10 Department.
11 8. Status reports will be submitted to CITY through the City Attorney's Office
12 whenever any significant event occurs, and in any event at least quarterly. The status report shall
13 include, but shall not be limited to, status of the receivership and anticipated timelines, the actual
14 cost for filing fees, telephone charges, photocopying, postage, lodging, mileage and related travel
15 costs shall be itemized when submitted to the CITY.
16 9. This Agreement shall comply in all respects with the decision of the California
17 Supreme Court in County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, including but
18 not limited to the following:
19 (a) GdB shall not initiate any action or proceeding which seeks to prevent an
20
third-party from continuing current business operations or exercising any Firs
21
Amendment right or other liberty interest.
22
(b) GdB attorneys shall be subject to a heightened standard of ethical conduct
23
applicable to public officials acting in the name of the public.
24
(c) The City Attorney's Office, and not GdB, shall at all times retain complete
25
control over all critical discretionary decisions involved in the litigation, and over
26
the course and conduct of the case. Specifically, the City Attorney's Office shal
27
28 make any and all critical discretionary decisions regarding the decision to initiate
2
2015-144
1
any particular case; any proposed settlement of any case; and any other decision
2
which the City Attorney's Office deems critical at any point and expressly
3
requests decision-making authority to GdB in writing.
4
(d) Any defendant that is the subject of any action or proceeding initiated by GdB
5
pursuant to this Agreement may contact the City Attorney's Office directly,
6
without having to confer with GdB.
7
8 (e) The City Attorney's Office retains a veto power over any decisions made by
9 GdB.
10 (f) An attorney from the City Attorney's Office with supervisory authority over
11 GdB shall be personally involved in overseeing the litigation.
12 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the
13 City Attorney's Office which may reproduce same and provide copies to other parties or
14 attorneys.
15 11. Copies of any correspondence and other documents sent to any of the other
16 parties in an action shall also be provided to the CITY through the City Attorney's Office.
17 12. Any and all settlement shall require CITY approval. Request for settlement
18 authority shall be made through the City Attorney's Office which shall obtain the necessary
19 CITY approvals.
20 13. The City Attorney shall be listed as co-counsel for the City in all actions under
21
this Agreement.
22
14. Only Nicholas Hermsen, Charles Green or Tuan-Anh Vu of GdB, or another GdB
23
attorney approved by the CITY through the City Attorney's Office, shall appear in an action.
24
15. No client development costs are to be included in billings.
25
16. No continuing education expenses are to be included in billings.
26
17. Final billing shall be accompanied by copies of the Request for Dismissal
27
28 Satisfaction of Judgment, Release and/or any other final documents.
3
2015-144
1
18. Either party may terminate this contract at will. GdB will continue to represent the
2
CITY on the terms and conditions in this Agreement until any active cases and files are
3
transferred to another attorney.
4
19. GdB is an independent contractor as to the CITY.
5
20. GdB shall maintain the following types of insurance with limits as shown:
6
7 a) Workers Compensation as required by the laws of the State of California
8 including Employment Liability with $250,000 limits covering all person
9 providing service of behalf of GdB and all risks to such persons under this
10 Agreement. GdB shall require its Workers Compensation carrier to waive all
11 rights of subrogation against the CITY and its officer and employees and an
12 other for whom services are being provided under this Agreement.
13 b) Comprehensive General and Automobile Liability Insurance coverage t
14 include contractual coverage and automobile coverage for owned, hired and non
15 owned vehicles. The policy shall have at least a combined single limit o
16 $1,000,000 for bodily injury and property damage.
17 c) Professional Liability Insurance with limits of at least $1,000,000 pe
18 claim. In lieu of naming the CITY as an additional insured, the policy may be
19 enforced as follows:
20
"Insurance coverage afforded by this policy shall also apply to the liability
21
assumed by the Insured under the Agreement with the CITY OF SA
22
BERNARDINO for legal services, provided such liability results from an
23
error, omission or negligent act of the insured, its officers, employees,
24
agents or subcontractors. All other provisions of this policy are to remai
25
unchanged."
26
GdB shall furnish certificates of insurance and certified copies of all policies an
27
28 endorsements to the City Attorney's Office evidencing the insurance coverage above require
4
2015-144
1
prior to the commencement of performance of services hereunder, which certificates shall
2
provide that such insurance shall not be terminated or expire without thirty (30) days written
3
notice fo the City Attorney's Office, and shall maintain such insurance from the time GdB
4
commences performance of services hereunder until the completion of such services.
5
All policies, with respect to the insurance coverage above required, except for the
6
Workers Compensation insurance coverage and professional liability coverage, if applicable
7
8 shall obtain additional endorsements naming the CITY and all parties represented under this
9 Agreement, their employees, agents, volunteers and officers as additional named insured with
10 respect to liabilities arising out of the performance of services hereunder.
11 All policies required above are to be primary and non-contributing with an
12 insurance or self-insurance programs carried or administered by the CITY or other parties
13 represented under this Agreement.
14 21. All communications and billings to the CITY are to be directed as follows:
15 City Attorney's Office
16 CITY OF SAN BERNARDINO
17 300 North"D" Street
18 San Bernardino, CA 92418
19 22. All communications to GdB are to be directed as follows:
20 Green de Bortnowsky, LLP
21
41-750 Rancho Las Palmas Drive, Suite P1
22
Rancho Mirage, CA 92270
23
24
25
26
27
28
5
2015-144
1 DATED: July 92015 GREEN DE BORTNOWSKY, LLP
2
3 By:
4
5
6 DATED: July , 2015 CITY OF SAN BERNARDINO
7
8 By'
R. Carey Davis
9 Mayor
10
Approved as to form:
11 Gary D. Saenz, City Attorney
12
13 By:
14
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2015-144
R
1
PROFESSIONAL SERVICES AGREEMENT
2
3
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
4
GREEN DE BORTNOWSKY, LLP (hereinafter"GdB") are the parties to this Agreement.
5
2. GdB will be representing the CITY on cases seeking the appointment of
6
receiver over real property which the CITY has determined do not meet the minimum standard
7
8 of state and local maintenance codes. GdB shall not represent any client in any type of claim
9 against the CITY without prior written approval to do so from the CITY through the City
10 Attorney's Office.
11 3. GdB shall be paid at the deferred hourly rates set forth below:
12 a. Attorneys - $290.00 per hour; and
13 b. Law Clerks/Paralegals - $150 per hour.
14 GdB attorney's fees and costs shall be paid directly from the proceeds of the sal
15 of any property, which is the subject of a receivership action under this Agreement, at the
16 conclusion of the action, or from the proceeds of any settlement agreement.
17 4. The CITY has been informed and understands that the above contingent fee is no
18 prescribed by law but has been negotiated between the parties.
19 5. To the extent that any court denies some portion of any claim for award of
20 attorney's fees or costs, the CITY shall have no obligation with respect to the shortfall. The
21
CITY agrees that if for any reason the CITY elects, without the approval of GdB,to compromise
22
or waive any portion of the attorney's fees or costs, or to refuse to seek such an award,the CIT
23
shall reimburse GdB for the amount of such fees or expenses.
24
6. The CITY understands that under current legal standards if any defendant prevail
25
in any litigation brought pursuant to this Agreement, that defendant may seek to recover cost
26
from the CITY. The City also understands that the prevailing party in any action brough
27
28 pursuant to California Health and Safety Code sections 17980.6 and 17980.7 shall be entitled to
1
2015-144
1
attorney's fees. No action shall be filed unless both the City Attorney's Office and GdB
2
determine in their best judgment that the CITY is likely to prevail. If any expenses, costs o
3
attorney's fees are assessed against the CITY, the CITY agrees to be legally responsible for
4
payment of those expenses, costs, and attorney's fees.
5
7. GdB shall obtain approval from the CITY to retain expert consultants and othe
6
7 professionals (not including court reporters) for purposes of the litigation. GdB may, if i
8 chooses, pay the fees and charges of such consultants and seek reimbursement from proceeds o
9 sale. Consultants shall not bill the CITY directly without prior approval of the CITY's Finance
10 Department.
11 8. Status reports will be submitted to CITY through the City Attorney's Office
12 whenever any significant event occurs, and in any event at least quarterly. The status report shat
13 include, but shall not be limited to, status of the receivership and anticipated timelines, the actual
14 cost for filing fees,telephone charges, photocopying,postage, lodging, mileage and related travel
15 costs shall be itemized when submitted to the CITY.
16 9. This Agreement shall comply in all respects with the decision of the California
17 Supreme Court in County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, including bu
18 not limited to the following:
19 (a) GdB shall not initiate any action or proceeding which seeks to prevent an
20
third-party from continuing current business operations or exercising any Firs
21
Amendment right or other liberty interest.
22
(b) GdB attorneys shall be subject to a heightened standard of ethical conduc
23
applicable to public officials acting in the name of the public.
24
(c) The City Attorney's Office, and not GdB, shall at all times retain complete
25
control over all critical discretionary decisions involved in the litigation, and ove
26
the course and conduct of the case. Specifically, the City Attorney's Office shal
27
28 make any and all critical discretionary decisions regarding the decision to initiate
2
2015-144
1 proposed settlement of any case; and any other decisio
any particular case; any p p
2
which the City Attorney's Office deems critical at any point and expressl
3
requests decision-making authority to GdB in writing.
4
(d) Any defendant that is the subject of any action or proceeding initiated by GdB
5
pursuant to this Agreement may contact the City Attorney's Office directly,
6
without having to confer with GdB.
7
(e) The City Attorney's Office retains a veto power over any decisions made b
8
9 GdB.
10 (f) An attorney from the City Attorney's Office with supervisory authority ove
11 GdB shall be personally involved in overseeing the litigation.
12 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the
13 City Attorney's Office which may reproduce same and provide copies to other parties or
14 attorneys.
15 11. Copies of any correspondence and other documents sent to any of the othe
16 parties in an action shall also be provided to the CITY through the City Attorney's Office.
17 12. Any and all settlement shall require CITY approval. Request for settlement
18 authority shall be made through the City Attorney's Office which shall obtain the necessary
19 CITY approvals.
20 13. The City Attorney shall be listed as co-counsel for the City in all actions unde
21
this Agreement.
22
14. Only Nicholas Hermsen, Charles Green or Tuan-Anh Vu of GdB, or another GdB
23
attorney approved by the CITY through the City Attorney's Office, shall appear in an action.
24
15. No client development costs are to be included in billings.
25
16. No continuing education expenses are to be included in billings.
26
17. Final billing shall be accompanied by copies of the Request for Dismissal
27
28 Satisfaction of Judgment, Release and/or any other final documents.
3
2015-144
1
18. Either party may terminate this contract at will. GdB will continue to represent the
2
CITY on the terms and conditions in this Agreement until any active cases and files are
3
transferred to another attorney.
4
19. GdB is an independent contractor as to the CITY.
s
20. GdB shall maintain the following types of insurance with limits as shown:
6
a) Workers Compensation as required by the laws of the State of California
7
8 including Employment Liability with $250,000 limits covering all person
9 providing service of behalf of GdB and all risks to such persons under this
10 Agreement. GdB shall require its Workers Compensation carrier to waive all
11 rights of subrogation against the CITY and its officer and employees and an
12 other for whom services are being provided under this Agreement.
13 b) Comprehensive General and Automobile Liability Insurance coverage to
14 include contractual coverage and automobile coverage for owned, hired and non
15 owned vehicles. The policy shall have at least a combined single limit o
16 $1,000,000 for bodily injury and property damage.
17 c) Professional Liability Insurance with limits of at least $1,000,000 per
18 claim. In lieu of naming the CITY as an additional insured, the policy may be
19 enforced as follows:
20
"Insurance coverage afforded by this policy shall also apply to the liability
21
assumed by the Insured under the Agreement with the CITY OF SA
22
BERNARDINO for legal services, provided such liability results from
23
error, omission or negligent act of the insured, its officers, employees
24
agents or subcontractors. All other provisions of this policy are to remain
25
unchanged."
26
GdB shall furnish certificates of insurance and certified copies of all policies an
27
28 endorsements to the City Attorney's Office evidencing the insurance coverage above require
4
2015-144
1
prior to the commencement of performance of services hereunder, which certificates sha
2
provide that such insurance shall not be terminated or expire without thirty (30) days writte
3
notice fo the City Attorney's Office, and shall maintain such insurance from the time Gd
4
commences performance of services hereunder until the completion of such services.
5
All policies, with respect to the insurance coverage above required, except for the
6
Workers Compensation insurance coverage and professional liability coverage, if applicable
7
8 shall obtain additional endorsements naming the CITY and all parties represented under this
9 Agreement, their employees, agents, volunteers and officers as additional named insured wit
10 respect to liabilities arising out of the performance of services hereunder.
11 All policies required above are to be primary and non-contributing with an
12 insurance or self-insurance programs carried or administered by the CITY or other parties
13 represented under this Agreement.
14 21. All communications and billings to the CITY are to be directed as follows:
15 City Attorney's Office
16 CITY OF SAN BERNARDINO
17 300 North"D" Street
18 San Bernardino, CA 92418
19 22. All communications to GdB are to be directed as follows:
20 Green de Bortnowsky, LLP
21
41-750 Rancho Las Palmas Drive, Suite P1
22
Rancho Mirage, CA 92270
23
24
25
26
27
28
5
2015-144
A)
1 DATED: Y y 2015 GREEN DE BORTNOW Y, LLP
2
3 By:
4
5
6 DATED: , 2015 CITY OF SAN BERNA INO
7
8 By. �-7
R. Carey,,Davis
9 Mayor
10
Approved as to form:
11 Gary D. Saenz, City Attorney
12
13 By;
14
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