HomeMy WebLinkAbout2015-259 I
RESOLUTION NO. 2015-259
2
3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL
4 SERVICES AGREEMENT WITH WAGNER & PELAYES FOR LEGAL SERVICES
5 RELATED TO IN RE: CITY OF SAN BERNARDINO; RAYMOND NEWBERRY, ET
AL. V. CITY OF SAN BERNARDINO, ET AL. ADVERSARY PROCEEDING, 6:15-ap-
6 01283-MJ.
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8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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10 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
11 directed to execute on behalf of said City a Professional Services Agreement between Wagner &
12 Pelayes and the City of San Bernardino for legal services, a copy of which is attached hereto and
13 incorporated herein as Exhibit "A."
14 SECTION 2. The authorization granted by this Resolution shall expire and be void
15 and of no further effect if the agreement is not executed by both parties and returned to the Office
16 of the City Clerk within sixty (60) days following the effective date of this Resolution.
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I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL
2 SERVICES AGREEMENT WITH WAGNER& PELAYES FOR LEGAL SERVICES
3 RELATED TO IN RE: CITY OF SAN BERNARDINO; RAYMOND NEWBERRY,ET
AL. V. CITY OF SAN BERNARDINO, ET AL. ADVERSARY PROCEEDING, 6:15-ap-
4 01283-MJ.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6
Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 7t
8 day of December, 2015, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ X
11 X
BARRIOS
12
VALDIVIA X
13
14
SHORETT X
15 NICKEL X
16 JOHNSON _X
17 X _
MULVIHILL — T---
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19 Georgeann Hanna, C C, City Clerk
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The foregoing Resolution is hereby approved this /� day December, 1)5.
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23 R. Carey Davi , Mayor
City of San Bernardino
24 Approved as to form:
25 Gary D. Saenz, City Attorney
. 1
26 By:
27 7t" �
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2015-259
1 PROFESSIONAL SERVICES AGREEMENT
In re: City of San Bernardino;Raymond Newberry, et al. v. City of San Bernardino, et al.,
2 Adversary Proceeding, 6:15-ap-01283-MJ.
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 WAGNER& PELAYES, LLP (hereinafter "W&P") are the parties to this Agreement.
6 2. W&P will represent the following defendants in In re: City of San Bernardino;
7 Raymond Newberry, et al. v. City of San Bernardino, et al., Adversary Proceeding,
8 6:15-ap-01283-MJ. W&P shall not represent any client in any type of claim against the CITY
9 without prior written approval to do so from the CITY through the City Attorney's Office.
10 3. W&P shall be paid at the hourly rates set forth below:
1 I Attorneys - $145.00 per hour; and,
12 Law Clerks/Paralegals - $70.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 W&P may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
20 lieu of reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
22 then W&P shall not be entitled to reimbursement for mileage and parking fees.
23 7. W&P shall obtain approval from the CITY to retain expert witnesses, consultants,
24 and other professionals (not including court reporters) for purposes of the litigation. W&P may, if
25 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
26 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
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FAGrider\Outside CounsehNewberry W&P PSA I
2015-259
1 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S 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
5 to set reserves, including, without limitation, potential liability exposure and percentage of fault,
6 shall be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this 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
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 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 Dennis Wagner of Wagner&Pelayes,LLP 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. W&P 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. W&P is an independent contractor as to the CITY.
26 19. W&P shall maintain the following types of insurance with limits as shown:
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FAGrider\Outside Counsel\Newberry W&P PSA 2
2015-259
1 a) Workers Compensation as required by the laws of the State of California,
2 including Employment Liability with $250,000 limits covering all persons
3 providing service on behalf of W&P and all risks to such persons under this
4 Agreement. W&P shall require its Workers Compensation carrier to waive all
5 rights of subrogation against the CITY and its officers and employees and any
6 others for whom services are being provided under this Agreement.
7 b) Comprehensive General and Automobile Liability Insurance coverage to
8 include contractual coverage and automobile coverage for owned, hired and
9 non-owned vehicles. The policy shall have at least a combined single limit of
10 $1,000,000 for bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
12 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
13 follows:
"Insurance coverage afforded by this policy shall also apply
14 to the liability assumed by the Insured under the Agreement with the
CITY OF SAN BERNARMNO for legal services, provided such
15 liability results from an error, omission or negligent act of the
insured, its officers, employees, agents, or subcontractors. All
16 other provisions of this policy are to remain unchanged."
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W&P shall furnish certificates of insurance and certified copies of all policies and
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endorsements to the City Attorney's Office evidencing the insurance coverage above required
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prior to the commencement of performance of services hereunder, which certificates shall provide
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that such insurance shall not be terminated or expire without thirty (30) days written notice to the
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City Attorney's Office, and shall maintain such insurance from the time W&P commences
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performance of services hereunder until the completion of such services.
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All policies, with respect to the insurance coverage above required, except for the
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Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
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obtain additional endorsements naming the CITY and all parties represented under this
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FAGrider\Outside Counsel\Newberry W&P PSA 3
2015-259
1 Agreement, their employees, agents, volunteers and officers as additional named insureds with
2 respect to liabilities arising out of the performance of services hereunder.
3 All policies required above are to be primary and non-contributing with any insurance
4 policies or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement.
6 20. All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
7 CITY OF SAN BERNARDINO
300 North "D" Street
8 San Bernardino, CA 92418
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1'7
FAGrider\Outside CounsehNewberry W&P PSA 4
2015-259
1 PROFESSIONAL SERVICES AGREEMENT
In re: City of San Bernardino;Raymond Newberry, et al. v. City of San Bernardino, et al.,
2 Adversary Proceeding, 6:15-ap-01283-MJ.
3
4 Dated: , 2015 WAGNER& PELAYES, LLP
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6 By: Dennis Wagner
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9 Dated: 12 i ' 2015 CITY OF SAN BERNARD O
10 emu ,
11 By: R. Carey Dav' , Mayor
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14 Approved as to form:
15 Gary D. Saenz, City Attorney
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By: 0144�cl e�
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FAGrider\Outside CounsehNewberry W&P PSA 5
2015-259
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1 PROFESSIONAL SERVICES AGREEMENT
In re: City of San Bernardino;Raymond Newberry, et al. v. City of San Bernardino, et al.,
2 Adversary Proceeding, 6:15-ap-01283-MJ.
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 WAGNER& PELAYES, LLP (hereinafter "W&P") are the parties to this Agreement.
6 2. W&P will represent the following defendants in In re: City of San Bernardino;
7 Raymond Newberry, et al. v. City of San Bernardino, et al., Adversary Proceeding,
8 6:15-ap-01283-MJ. W&P shall not represent any client in any type of claim against the CITY
9 without prior written approval to do so from the CITY through the City Attorney's Office.
10 3. W&P shall be paid at the hourly rates set forth below:
11 Attorneys - $145.00 per hour; and,
12 Law Clerks/Paralegals - $70.00 per hour.
13 The amounts expended under this agreement for attorney fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 W&P may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
20 lieu of reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
22 then W&P shall not be entitled to reimbursement for mileage and parking fees.
23 7. W&P shall obtain approval from the CITY to retain expert witnesses, consultants,
24 and other professionals (not including court reporters) for purposes of the litigation. W&P may, if
25 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
26 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
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FAGrider\Outside CounsehNewberry W&P PSA 1
2015-259
t
1 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S 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
5 to set reserves, including, without limitation, potential liability exposure and percentage of fault,
6 shall be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this 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
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 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 Dennis Wagner of Wagner&Pelayes,LLP 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. W&P 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. W&P is an independent contractor as to the CITY.
26 19. W&P shall maintain the following types of insurance with limits as shown:
17
FAGrider\Outside Counsel\Newberry W&P PSA 2
2015-259
1 a) Workers Compensation as required by the laws of the State of California,
2 including Employment Liability with $250,000 limits covering all persons
3 providing service on behalf of W&P and all risks to such persons under this
4 Agreement. W&P shall require its Workers Compensation carrier to waive all
5 rights of subrogation against the CITY and its officers and employees and any
6 others for whom services are being provided under this Agreement.
7 b) Comprehensive General and Automobile Liability Insurance coverage to
8 include contractual coverage and automobile coverage for owned, hired and
9 non-owned vehicles. The policy shall have at least a combined single limit of
10 $1,000,000 for bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
12 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
13 follows:
"Insurance coverage afforded by this policy shall also apply
14 to the liability assumed by the Insured under the Agreement with the
CITY OF SAN BERNARDINO for legal services, provided such
15 liability results from an error, omission or negligent act of the
insured, its officers, employees, agents, or subcontractors. All
16 other provisions of this policy are to remain unchanged."
17
W&P 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
19
prior to the commencement of performance of services hereunder, which certificates shall provide
20
that such insurance shall not be terminated or expire without thirty (30) days written notice to the
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City Attorney's Office, and shall maintain such insurance from the time W&P commences
22
performance 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
26
17
FAGrider\Outside Counsel\Newberry W&P PSA 3
2015-259
1 Agreement, their employees, agents, volunteers and officers as additional named insureds with
2 respect to liabilities arising out of the performance of services hereunder.
3 All policies required above are to be primary and non-contributing with any insurance
4 policies or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement.
6 20. All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
7 CITY OF SAN BERNARDINO
300 North "D" Street
8 San Bernardino, CA 92418
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FAGrider\Outside Counsel\Newbe"W&P PSA 4
2015-259
1 PROFESSIONAL SERVICES AGREEMENT
2 In re: City of San Bernardino;Raymond Newberry, et al. v. City of San Bernardino, et al.,
Adversary Proceeding, 6:15-ap-01283-MJ.
3 /
4 Dated: ZA 5 WAG PELAYES, LLP
5
6 y: Dennis Wagner
7
8
9 Dated: 1211, , 2015 CITY OF SAN BERNARD O
10 /`�
11 By: R. Carey Dav' , Mayor
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14 Approved as to form:
15 Gary D. Saenz, City Attorney
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16 By' C144.�Cl
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FAGrider\Outside Counsel\Newberry W&P PSA 5