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RESOLUTION (ID # 4192) DOC ID: 4192
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Jolena E. Grider M/CC Meeting Date: 12/07/2015
Prepared by: Jason Ewert, (909) 384-
5355
Dept: City Attorney Ward(s): N/A
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Mayor to Execute a Professional Services Agreement with Wagner & Pelayes for
Legal Services Related to in Re: City of San Bernardino; Raymond Newberry, Et Al. V.
City of San Bernardino, Et Al. Adversary Proceeding, 6:15-Ap-01283-MJ. (#4192)
Current Business Registration Certificate: Yes
Financial Impact:
There are enough funds in the outside counsel budget to cover this item.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
On or about August 17, 2015, Council approved a professional services agreement with
the law firm of Wanger& Pelayes, LLP for representation in the case Raymond
Newberry, et al. v. City of San Bernardino, et al. U.S. District Court Case Number ED
CV14-02298JGB(SPx). The City has received and/or paid invoices for approximately
$9,271.80 for legal representation on that case.
Background:
The lawsuit filed in the Central District Court of California relates to the service of an
inspection warrant at the Edgehill Apartment (110-145 W. 43rd Street) Complex on
August 19, 2014. Since the filing of that action, there have been numerous hearings in
both the United States District Court for the Central District of California, as well as the
United States Bankruptcy court. Those hearings resulted in an order from the
Bankruptcy Court requiring the City be dismissed from the District Court case, because
the filing of the action was a violation of the automatic bankruptcy stay.
After the City was dismissed from that case, Plaintiffs counsel filed an appeal of the
bankruptcy court's decision ordering the City's dismissal. The hearing on that appeal will
be scheduled by the United States District Court.
Plaintiffs counsel also filed a complaint for non-dischargeability of debt incurred by
debtor for a willful mass violation of civil rights and non-dischargeability of fees incurred
under 42 U.S.C. 1988 (Adversary Proceeding Number 6:12-ap-01283-MJ). While
Stradling Yocca Carlson & Rauth, P.C. are currently working on the adversary
0 proceeding, a primary factor in the case relates to the alleged mass violation of civil
Updated: 12/2/2015 by Georgeann "Gigi" Hanna Packet Pg.25
4192
rights. The attorneys from the law firm of Wagner& Pelayes are highly experienced in
litigation relating to alleged violations of civil rights. Although the City is currently not a
party to the original District Court case, the City will likely be renamed as a defendant in
that lawsuit after the automatic stay is lifted.
Due to the fact the City has been dismissed from the original case for which Wagner &
Pelayes were retained, there is currently no agreement between the City and Wagner&
Pelayes for legal representation in cases related to Newberry. The courts rulings in this
adversary proceeding may impact the City's position and potential defenses in the
original District Court case.
City Attorney Review:
Supporting Documents:
W&P Newberry PSA Reso (DOC)
agrmt 4192 (PDF)
Updated: 12/2/2015 by Georgeann "Gigi" Hanna Packet Pg. 26
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A PROFESSIONAL
3 SERVICES AGREEMENT WITH WAGNER & PELAYES FOR LEGAL SERVICES
4 RELATED TO IN RE: CITY OF SAN BERNARDINO; RAYMOND NEWBERRY, ET
AL. V. CITY OF SAN BERNARDINO, ET AL. ADVERSARY PROCEEDING, 6:15-ap-
5 01283-MJ. o
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7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY N
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OF SAN BERNARDINO AS FOLLOWS:
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9 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
10 directed to execute on behalf of said City a Professional Services Agreement between Wagner&
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11 Pelayes and the City of San Bernardino for legal services, a copy of which is attached hereto and N
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12 incorporated herein as Exhibit "A."
13 SECTION 2. The authorization granted by this Resolution shall expire and be void
14 and of no further effect if the agreement is not executed by both parties and returned to the Office =
15 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 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 c
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Common Council of the City of San Bernardino at a meeting thereof, held on the
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8 day of , 2015,by the following vote, to wit:
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9 Council Members: AYES NAYS ABSTAIN ABSENT
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10 MARQUEZ Z
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11 BARRIOS a
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14 SHORETT
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15 NICKEL
16 JOHNSON
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19 Georgeann Hanna, City Clerk L,
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The foregoing Resolution is hereby approved this day of , 2015.
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23 R. Carey Davis, Mayor
City of San Bernardino E
24 Approved as to form: w
25 Gary D. Saenz, City Attorney q
26 By:
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1 PROFESSIONAL SERVICES AGREEMENT
In re: City of San Bernardino;Raymond Newberry, et al. v. City of San Bernardino, et a�,
2 Adversary Proceeding, 6:15-ap-01283-MJ.
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4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the Iaw fun of
5 WAGNER&PELAYES, LLP (hereinafter"W&P") are the parties to this Agreement, o
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: z
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1 I Attorneys -$145.00 per hour; and, a.
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12 Law Clerks/Paralegals - $70.00 per hour.
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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, 4
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18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. a)
19 W&P may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
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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), a
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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I CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of tht
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; 2
6 shall be included. W&P shall comply with all reporting requirements of BICEP, if applicable.
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7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to die
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this or other litigation.
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10 10. Copies of any correspondence and other documents sent to any of the parties in this a
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11 action shall also be provided to the CITY through the City Attorney's Office, y
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12 11. Any and all settlements shall require CITY approval. Request for settlement a
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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. .
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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.
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20 16. Final billing shall be accompanied by copies of the Request for Dismissal,
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21 Satisfaction of Judgment, Release and any other final documents. a
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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F:1Griderl0utside counseANewberry W&P PSA 2 _
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I a Workers Compensation nsation as required by the la w
s of the State of California,i
2 including Employment Liability with $250,000 limits covering all person,
3 providing service on behalf of W&P and all risks to such persons under thi:
4 Agreement. W&P shall require its Workers Compensation carrier to waive al
5 rights of subrogation against the CITY and its officers and employees and an) 2
6 others for whom services are being provided under this Agreement. a
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 3
10 $1,000,000 for bodily injury and property damage. z
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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
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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, p rovided
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liability results from an error, omission or
negligent act of the a)
insured, its officers, employees, agents, or subcontractors. All
16 other provisions of this policy are to remain unchanged."
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18 W&P shall furnish certificates of insurance and certified copies of all policies and E
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 E
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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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22 City Attorney's Office, and shall maintain such insurance from the time W&P commences
23 performance of services hereunder until the completion of such services.
24 All policies, with respect to the insurance coverage above required,except for the
25 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
26 obtain additional endorsements naming the CITY and all parties represented under this
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I Agreement, their employees, agents, volunteers and officers as additional named insureds wit]
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 insuranc(
4 policies or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement. c
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6 20. All communications and billings to the CITY are to be directed as follows: a
City Attorney's Office CU
CITY OF SAN BERNARDINO
$ 300 North "D" Street Q
San Bernardino, CA 92418
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5.B.b
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.
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4 Dated: , 2015 WAGNER&PELAYES, LLP
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By: Dennis Wagner
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9 Dated: ,2015 CITY OF SAN BERNARDINO a
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11 By: R. Carey Davis,Mayor a
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14 Approved as to form:
15 Gary D. Saenz, City Attorney
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