HomeMy WebLinkAbout2016-067 1 RESOLUTION NO. 2016-67
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 THE LAW OFFICES OF CHARISSE L. SMITH FOR
4 LEGAL 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
9 directed to execute on behalf of said City a Professional Services Agreement between THE LAW
10 OFFICES OF CHARISSE L. SMITH and the City of San Bernardino for legal services, a copy
11 of which is attached hereto and incorporated herein as Exhibit "A."
12 SECTION 2. The authorization granted by this Resolution shall expire and be void
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and of no further effect if the agreement is not executed by both parties and returned to the
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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 THE LAW OFFICES OF CHARISSE L. SMITH FOR
3 LEGAL 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 4th
6 day of April, 2016, 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
RICHARD x-
15
16 MULVIHILL X
17
Georgea Hanna, 0k, City Clerk
18
19 The foregoing Resolution is hereby approved this T —day of April, 201 .
20 ? t
21 R. Carey DaVemardino Mayor
22 City of San
Approved as to form:
23 Gary D. Saenz, City Attorney
24 By: S!�—,L A,r—A
25
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2016-67
1
PROFESSIONAL SERVICES AGREEMENT
2 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
3 THE LAW OFFICES OF CHARISSE L. SMITH (hereinafter "THE LAW OFFICES O
4 CHARISSE L. SMITH") are the parties to this Agreement.
5 2. THE LAW OFFICES OF CHARISSE L. SMITH will be representing the CIT
6 on cases seeking the appointment of a receiver over real property which the CITY ha
7 determined do not meet the minimum standards of state and local maintenance codes. THE LA
8 OFFICES OF CHARISSE L. SMITH shall not represent any client in any type of claim agains
9 the CITY without prior written approval to do so from the CITY through the City Attorney'
10 Office.
11 3. THE LAW OFFICES OF CHARISSE L. SMITH shall be paid at the deferred
12 hourly rates set forth below:
13 a. Attorneys—$295.00 per hour or less; and
14 b. Law Clerks/Paralegals - $135.00 per hour.
15 THE LAW OFFICES OF CHARISSE L. SMITH attorney's fees and costs shall
16 be paid directly from the proceeds of the sale of any property, which is the subject of
17 receivership action under this Agreement, at the conclusion of the action, or from the proceeds of
18 any settlement agreement.
19 4. The CITY has been informed and understands that the above contingent fee is no
20 prescribed by law but has been negotiated between the parties.
21 5. To the extent that any court denies some portion of any claim for award of
22 attorney's fees or costs, the CITY shall have no obligation with respect to the shortfall. Th
23 CITY agrees that if for any reason the CITY elects, without the approval of THE LA
24 OFFICES OF CHARISSE L. SMITH, to compromise or waive any portion of the attorney's fee
25 or costs, or to refuse to seek such an award, the CITY shall reimburse THE LAW OFFICES O
26 CHARISSE L. SMITH for the amount of such fees or expenses.
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2016-67
1
6. The CITY understands that under current legal standards if any defendant prevail
2
in any litigation brought pursuant to this Agreement, that defendant may seek to recover cost
3 from the CITY. The CITY also understands that the prevailing party in any action brought
4 pursuant to California Health and Safety Code sections 17980.6 and 17980.7 shall be entitled t
5 attorney's fees. No action shall be filed unless both the City Attorney's Office and THE LA
6 OFFICES OF CHARISSE L. SMITH determine in their best judgment that the CITY is likely t
7 prevail. If any expenses, costs or attorney's fees are assessed against the CITY, the CITY agree
8 to be legally responsible for payment of those expenses, costs, and attorney's fees.
9 7. THE LAW OFFICES OF CHARISSE L. SMITH shall obtain approval from the
10 CITY to retain expert consultants and other professionals (not including court reporters) fo
11 purposes of the litigation. THE LAW OFFICES OF CHARISSE L. SMITH may, if it chooses
12 pay the fees and charges of such consultants and seek reimbursement from proceeds of sale.
13 Consultants shall not bill the CITY directly without prior approval of the CITY's Finance
14 Department.
15 8. Status reports will be submitted to CITY through the City Attorney's Office
16 whenever any significant event occurs, and in any event at least quarterly. The status report shall
17 include, but shall not be limited to, status of the receivership and anticipated timelines, the actual
18 cost for filing fees, telephone charges, photocopying,postage, lodging, mileage and related travel
19 costs shall be itemized when submitted to the CITY.
20 9. This Agreement shall comply in all respects with the decision of the California
21 Supreme Court in County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, including bu
22 not limited to the following:
23 (a) THE LAW OFFICES OF CHARISSE L. SMITH shall not initiate any actin
24 or proceeding which seeks to prevent any third-party from continuing curren
25 business operations or exercising any First Amendment right or other liberty
interest.
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2016-67
1
(b) THE LAW OFFICES OF CHARISSE L. SMITH attorneys shall be subject t
2
a heightened standard of ethical conduct applicable to public officials acting in the
3
name of the public.
4 (c) The City Attorney's Office, and not THE LAW OFFICES OF CHARISSE L.
5 SMITH, shall at all times retain complete control over all critical discretionary
6 decisions involved in the litigation, and over the course and conduct of the case.
7 Specifically, the City Attorney's Office shall make any and all critical
8 discretionary decisions regarding the decision to initiate any particular case; an
9 proposed settlement of any case; and any other decision which the City Attorney'
10 Office deems critical at any point and expressly requests decision-making
11 authority to THE LAW OFFICES OF CHARISSE L. SMITH in writing.
12 (d) Any defendant that is the subject of any action or proceeding initiated by THE
13 LAW OFFICES OF CHARISSE L. SMITH pursuant to this Agreement may
14 contact the City Attorney's Office directly, without having to confer with THE
15 LAW OFFICES OF CHARISSE L. SMITH.
16 (e) The City Attorney's Office retains a veto power over any decisions made by
17 THE LAW OFFICES OF CHARISSE L. SMITH.
18 (f) An attorney from the City Attorney's Office with supervisory authority over
19 THE LAW OFFICES OF CHARISSE L. SMITH shall be personally involved in
20 overseeing the litigation.
21 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the
22 City Attorney's Office which may reproduce same and provide copies to other parties or
23 attorneys.
24 11. Copies of any correspondence and other documents sent to any of the other
25 parties in an action shall also be provided to the CITY through the City Attorney's Office.
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2016-67
1
12. Any and all settlement shall require CITY approval. Request for settlement
2
authority shall be made through the City Attorney's Office which shall obtain the necessary
3
CITY approvals.
4 13. The City Attorney shall be listed as co-counsel for the City in all actions under
5 this Agreement.
6 14. Only Charisse L. Smith of THE LAW OFFICES OF CHARISSE L. SMITH, or
7 another attorney approved by the CITY through the City Attorney's Office, shall appear in an
8 action.
9 15. No client development costs are to be included in billings.
10 16. No continuing education expenses are to be included in billings.
11 17. Final billing shall be accompanied by copies of the Request for Dismissal
12 Satisfaction of Judgment, Release and/or any other final documents.
13 18. Either party may terminate this contract at will. THE LAW OFFICES O
14 CHARISSE L. SMITH will continue to represent the CITY on the terms and conditions in this
15 Agreement until any active cases and files are transferred to another attorney.
16 19. THE LAW OFFICES OF CHARISSE L. SMITH is an independent contractor as
17 to the CITY.
18 20. THE LAW OFFICES OF CHARISSE L. SMITH shall maintain the following
19 types of insurance with limits as shown:
20 a) Workers Compensation as required by the laws of the State of California
21 including Employment Liability with $250,000 limits covering all person
22 providing service of behalf of THE LAW OFFICES OF CHARISSE L. SMIT
23 and all risks to such persons under this Agreement. THE LAW OFFICES O
24 CHARISSE L. SMITH shall require its Workers Compensation carrier to waive
25 all rights of subrogation against the CITY and its officer and employees and an
26 other for whom services are being provided under this Agreement.
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2016-67
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b) Comprehensive General and Automobile Liability Insurance coverage t
2
include contractual coverage and automobile coverage for owned, hired and non
-
3 owned vehicles. The policy shall have at least a combined single limit of
4 $1,000,000 for bodily injury and property damage.
5 c) Professional Liability Insurance with limits of at least $500,000 per claim.
6 In lieu of naming the CITY as an additional insured, the policy may be enforce
7 as follows:
8 "Insurance coverage afforded by this policy shall also apply to the liability
9 assumed by the Insured under the Agreement with the CITY OF SA
10 BERNARDINO for legal services, provided such liability results from an
11 error, omission or negligent act of the insured, its officers, employees,
12 agents or subcontractors. All other provisions of this policy are to remain
13 unchanged."
14 THE LAW OFFICES OF CHARISSE L. SMITH shall furnish certificates of
15 insurance and certified copies of all policies and endorsements to the City Attorney's Office
16 evidencing the insurance coverage above required prior to the commencement of performance of
17 services hereunder, which certificates shall provide that such insurance shall not be terminated or
18 expire without thirty (30) days written notice to the City Attorney's Office, and shall maintain
19 such insurance from the time THE LAW OFFICES OF CHARISSE L. SMITH commence
20 performance of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable
23 shall obtain additional endorsements naming the CITY and all parties represented under this
24 Agreement, their employees, agents, volunteers and officers as additional named insured wit
25 respect to liabilities arising out of the performance of services hereunder.
26
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2016-67
1
All policies required above are to be primary and non-contributing with an
2
insurance or self-insurance programs carried or administered by the CITY or other parties
3
represented under this Agreement.
4 21. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
6 CITY OF SAN BERNARDINO
7 300 North"D" Street
8 San Bernardino, CA 92418
9 22. All communications to THE LAW OFFICES OF CHARISSE L. SMITH are to be
10 directed as follows:
11 THE LAW OFFICES OF CHARISSE L. SMITH
12 9620 Center Avenue, Suite 130
13 Rancho Cucamonga, California 91730
14
DATED: 92016 THE LAW OFFICES O
15 CHARISSE L. SMITH
16
17 By:
18
DATED: , 2016 CITY OF SAN BERNARDINO
19
20 By'
R. Carey Davis
21 Mayor
22
Approved as to form:
23 Gary D. Saenz, City Attorney
24 '
By:
25
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2016-67
1
PROFESSIONAL SERVICES AGREEMENT
2
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
3 THE LAW OFFICES OF CHARISSE L. SMITH (hereinafter "THE LAW OFFICES O
4 CHARISSE L. SMITH") are the parties to this Agreement.
5 2. THE LAW OFFICES OF CHARISSE L. SMITH will be representing the CIT
6 on cases seeking the appointment of a receiver over real property which the CITY has
7 determined do not meet the minimum standards of state and local maintenance codes. THE LA
8 OFFICES OF CHARISSE L. SMITH shall not represent any client in any type of claim agains
9 the CITY without prior written approval to do so from the CITY through the City Attorney'
10 Office.
11 3. THE LAW OFFICES OF CHARISSE L. SMITH shall be paid at the deferred
12 hourly rates set forth below:
13 a. Attorneys—$295.00 per hour or less; and
14 b. Law Clerks/Paralegals - $135.00 per hour.
15 THE LAW OFFICES OF CHARISSE L. SMITH attorney's fees and costs shall
16 be paid directly from the proceeds of the sale of any property, which is the subject of
17 receivership action under this Agreement, at the conclusion of the action, or from the proceeds of
18 any settlement agreement.
19 4. The CITY has been informed and understands that the above contingent fee is no
20 prescribed by law but has been negotiated between the parties.
21 5. To the extent that any court denies some portion of any claim for award of
22 attorney's fees or costs, the CITY shall have no obligation with respect to the shortfall. The
23 CITY agrees that if for any reason the CITY elects, without the approval of THE LA
24 OFFICES OF CHARISSE L. SMITH, to compromise or waive any portion of the attorney's fee
25 or costs, or to refuse to seek such an award, the CITY shall reimburse THE LAW OFFICES O
26 CHARISSE L. SMITH for the amount of such fees or expenses.
27
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2016-67
1
6. The CITY understands that under current legal standards if any defendant prevail
2
in any litigation brought pursuant to this Agreement, that defendant may seek to recover cost
3
from the CITY. The CITY also understands that the prevailing party in any action brough
4 pursuant to California Health and Safety Code sections 17980.6 and 17980.7 shall be entitled to
5 attorney's fees. No action shall be filed unless both the City Attorney's Office and THE LA
6 OFFICES OF CHARISSE L. SMITH determine in their best judgment that the CITY is likely to
7 prevail. If any expenses, costs or attorney's fees are assessed against the CITY, the CITY agree
8 to be legally responsible for payment of those expenses, costs, and attorney's fees.
9 7. THE LAW OFFICES OF CHARISSE L. SMITH shall obtain approval from the
10 CITY to retain expert consultants and other professionals (not including court reporters) fo
11 purposes of the litigation. THE LAW OFFICES OF CHARISSE L. SMITH may, if it chooses
12 pay the fees and charges of such consultants and seek reimbursement from proceeds of sale.
13 Consultants shall not bill the CITY directly without prior approval of the CITY's Finance
14 Department.
15 8. Status reports will be submitted to CITY through the City Attorney's Office
16 whenever any significant event occurs, and in any event at least quarterly. The status report shall
17 include,but shall not be limited to, status of the receivership and anticipated timelines, the actual
18 cost for filing fees, telephone charges, photocopying,postage, lodging,mileage and related travel
19 costs shall be itemized when submitted to the CITY.
20 9. This Agreement shall comply in all respects with the decision of the California
21 Supreme Court in County of Santa Clara v. Superior Court (2010) 50 Cal.4t' 35, including bu
22 not limited to the following:
23 (a) THE LAW OFFICES OF CHARISSE L. SMITH shall not initiate any actin
24 or proceeding which seeks to prevent any third-party from continuing curren
25 business operations or exercising any First Amendment right or other liberty
26 interest.
27
2
2016-67
1
(b) THE LAW OFFICES OF CHARISSE L. SMITH attorneys shall be subject to
2
a heightened standard of ethical conduct applicable to public officials acting in the
3
name of the public.
4 (c) The City Attorney's Office, and not THE LAW OFFICES OF CHARISSE L.
5 SMITH, shall at all times retain complete control over all critical discretionary
6 decisions involved in the litigation, and over the course and conduct of the case.
7 Specifically, the City Attorney's Office shall make any and all critics
8 discretionary decisions regarding the decision to initiate any particular case; an
9 proposed settlement of any case; and any other decision which the City Attorney'
10 Office deems critical at any point and expressly requests decision-making
11 authority to THE LAW OFFICES OF CHARISSE L. SMITH in writing.
12 (d) Any defendant that is the subject of any action or proceeding initiated by THE
13 LAW OFFICES OF CHARISSE L. SMITH pursuant to this Agreement may
14 contact the City Attorney's Office directly, without having to confer with THE
15 LAW OFFICES OF CHARISSE L. SMITH.
16 (e) The City Attorney's Office retains a veto power over any decisions made by
17 THE LAW OFFICES OF CHARISSE L. SMITH.
18 (f) An attorney from the City Attorney's Office with supervisory authority over
19 THE LAW OFFICES OF CHARISSE L. SMITH shall be personally involved in
20 overseeing the litigation.
21 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the
22 City Attorney's Office which may reproduce same and provide copies to other parties or
23 attorneys.
24 11. Copies of any correspondence and other documents sent to any of the other
25 parties in an action shall also be provided to the CITY through the City Attorney's Office.
26
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2016-67
1
12. Any and all settlement shall require CITY approval. Request for settlemen
2
authority shall be made through the City Attorney's Office which shall obtain the necessary
3 CITY approvals.
4 13. The City Attorney shall be listed as co-counsel for the City in all actions unde
5
this Agreement.
6 14. Only Charisse L. Smith of THE LAW OFFICES OF CHARISSE L. SMITH, o
7 another attorney approved by the CITY through the City Attorney's Office, shall appear in an
8 action.
9 15. No client development costs are to be included in billings.
10 16. No continuing education expenses are to be included in billings.
11 17. Final billing shall be accompanied by copies of the Request for Dismissal
12 Satisfaction of Judgment, Release and/or any other final documents.
13 18. Either party may terminate this contract at will. THE LAW OFFICES O
14 CHARISSE L. SMITH will continue to represent the CITY on the terms and conditions in this
15 Agreement until any active cases and files are transferred to another attorney.
16 19. THE LAW OFFICES OF CHARISSE L. SMITH is an independent contractor a
17 to the CITY.
18 20. THE LAW OFFICES OF CHARISSE L. SMITH shall maintain the following
19 types of insurance with limits as shown:
20 a) Workers Compensation as required by the laws of the State of California
21 including Employment Liability with $250,000 limits covering all person
22 providing service of behalf of THE LAW OFFICES OF CHARISSE L. SMIT
23 and all risks to such persons under this Agreement. THE LAW OFFICES O
24 CHARISSE L. SMITH shall require its Workers Compensation carrier to waive
25 all rights of subrogation against the CITY and its officer and employees and an
26 other for whom services are being provided under this Agreement.
27
4
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2016-67
1
b) Comprehensive General and Automobile Liability Insurance coverage to
2
include contractual coverage and automobile coverage for owned, hired and non
-
3
owned vehicles. The policy shall have at least a combined single limit of
4 $1,000,000 for bodily injury and property damage.
5 c) Professional Liability Insurance with limits of at least $500,000 per claim.
6 In lieu of naming the CITY as an additional insured, the policy may be enforce
7 as follows:
8 "Insurance coverage afforded by this policy shall also apply to the liability
9 assumed by the Insured under the Agreement with the CITY OF SA
10 BERNARDINO for legal services, provided such liability results from
11 error, omission or negligent act of the insured, its officers, employees
12 agents or subcontractors. All other provisions of this policy are to remain
13 unchanged."
14 THE LAW OFFICES OF CHARISSE L. SMITH shall furnish certificates of
15 insurance and certified copies of all policies and endorsements to the City Attorney's Office
16 evidencing the insurance coverage above required prior to the commencement of performance of
17 services hereunder, which certificates shall provide that such insurance shall not be terminated or
18 expire without thirty (30) days written notice to the City Attorney's Office, and shall maintain
19 such insurance from the time THE LAW OFFICES OF CHARISSE L. SMITH commence
20 performance of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable
23 shall obtain additional endorsements naming the CITY and all parties represented under this
24 Agreement, their employees, agents, volunteers and officers as additional named insured with
25 respect to liabilities arising out of the performance of services hereunder.
26
27
5
4
2016-67
1
All policies required above are to be primary and non-contributing with an
2
insurance or self-insurance programs carried or administered by the CITY or other parties
3
represented under this Agreement.
4 21. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
6 CITY OF SAN BERNARDINO
7 300 North"D" Street
8 San Bernardino, CA 92418
9 22. All communications to THE LAW OFFICES OF CHARISSE L. SMITH are to be
10 directed as follows:
11 THE LAW OFFICES OF CHARISSE L. SMITH
12 9620 Center Avenue, Suite 130
13 Rancho Cucamonga, California 91730
14 I/
DATED: Z f , 2016 THE LAW OFFICES O
is CHARISSE L. SMITH
16
17 By:
18
DATED: 7— �� , 2016 CITY OF SAN B ARD
19 i�<
20 By:
R. Carey Da/is
21 Mayor
22
Approved as to form:
23 Gary D. Saenz, City Attorney
24
By:
25
26
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