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HomeMy WebLinkAbout12-City Attorney '. CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: Professional Services Agreement between the City of San Bernardino and the law firm of Arias, Lockwood & Gray to represent the City of San Bernardino in the case of Fu San Limited, et al. v. City . -.. oiSan Bernardino ORiGINAL Dept: CITY ATTORNEY Date: August 2, 2004 Synopsis of Previous Council Action: Mayor and Council approved the hiring of Arias, Lockwood and Gray to represent the City in the subject court action. Recommended motion: Adopt Resolution. Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Reoort Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: 12t~c.~(X)<\~ZS" Agenda Item No. !{), ~ /16/P'f STAFF REPORT Council Meeting Date: AUlrust 16.2004 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: August 2, 2004 AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the law firm of Arias, Lockwood & Gray to represent the City of San Bernardino in the case of Fu San Limited, et al. v. Oscar A. Sandoval, etal. The Mayor and Common Council approved the law firm of Arias, Lockwood & Gray to represent the City in the above-referenced court action. Attached hereto is the Professional Services Agreement which reflects such approval, including a ceiling of $20,000 on attorney fees and the requirement of regular status reports. It is requested by the City Attorney that the floor motion be adopted so that the Mayor is authorized to execute said Professional Services Agreement on behalf of the City of San Bernardino. That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of the City of San Bernardino the Professional Services Agreement with the law firm of Arias, Lockwood & Gray to represent the City in the case of Fu San Limited, et al. v. Oscar A. Sandoval, et al. RLS/ac [FuSanLimitedStaftRpt] RESOLUG 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT BETWEEN ARIAS, LOCKWOOD & GRAY AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF FU SAN LIMITED, et al. v. CITY 4 OF SAN BERNARDINO 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 directed 8 to execute on behalf of said City a Professional Services Agreement between Arias, Lockwood 9 & Gray and the City of San Bernardino for legal services, a copy of which is attached hereto 10 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. 11 SECTION 2. The authorization granted hereunder shall expire and be void and of no 12 further effect if the agreement is not executed by both parties and returned to the office of City 13 Clerk within sixty (60) days following effective date of the resolution. 14 III 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III RLS/ac (FuSanLimitedRes] 1 I 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 & GRAY AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF FU SAN liMITED, et al. v. CITY 3 OF SAN BERNARDINO 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 day of meeting 6 thereof, held on the 7 wit: 8 COUNCIL MEMBERS: 9 ESTRADA 10 LONGVILLE 11 MCGINNIS 12 DERRY 13 KELLEY 14 JOHNSON IS MCCAMMACK 16 17 , 2004, by the following vote, to AYES NAYS ABSTAIN ABSENT CITY CLERK 18 19 20 2004. 21 22 The foregoing Resolution is hereby approved this day of 23 24 Approved as to form and legal content: 25 26 27 28 RLS/ac [FuSanLimitedRes] 2 JUDITH V ALLES, Mayor City of San Bernardino 1 PROFESSIONAL SERVICES AGREEMENT 2 Fu San Limited, et al. v. City of San Bernardino, et aL San Bernardino Superior Court Case No. SCVSS 117349 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 Arias, Lockwood and Gray (hereinafter "PARTNERS") are the parties to this Agreement. 6 2. PARTNERS will be representing the CITY OF SAN BERNARDINO in this 7 litigation. PARTNERS shall not represent any client in any type of claim against the CITY without 8 prior written approval to do so from the CITY OF SAN BERNARDINO through the City 9 Attorney's Office. 10 3. PARTNERS shall be paid at the hourly rates set forth below: 11 Attorneys - $150.00 per hour; and, 12 Law ClerkslParalegals - $50.00 per hour. 13 Tbe amounts expended under this agreement for attorneys fees shall not exceed 14 $20,000 without further approval ofthe Mayor and Common Council. 16 4. 5. Bills shall be submitted at least quarterly. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 15 17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 18 PARTNERS may include a single charge in an amount not to exceed four percent (4%) of fees in 19 lieu of reimbursement for photocopying, telephone charges, and postage. 20 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and 21 return), then PARTNERS shall not be entitled to reimbursement for mileage and parking fees. 22 7. PARTNERS shall obtain approval from the CITY to retain expert consultants and 23 other professionals (not including court reporters) for purposes of defending the litigation. 24 PARTNERS may, if it chooses, pay the fees and charges of such consultants and seek 25 reimbursement from CITY on its periodic statement, or it may forward the consultant's bill to CITY 26 with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without 27 prior approval of the CITY'S Finance Department. 28 //1 RLS/ac {FuSanLimited-ALGAgr] 1 1 8. Status reports will be submitted to CITY through the City Attorney's Office 2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient 3 to set reserves, including, without limitation, potential liability exposure and percentage of fault 4 shall be included. 5 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the 6 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys 7 in this, or other litigation. 8 10. Copies of any correspondence and other documents sent to any of the defendants 9 in this action shall also be provided to the CITY through the City Attorney's Office. 10 11. Any and all settlements shall require CITY approval. Request for settlement 11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 12 approvals. 13 12. Only Joseph Arias or other attorney approved by the CITY shall try this case. 14 13. No client development costs are to be included in billings. 15 14. No continuing education expenses are to be included in billings. 16 15. Final billing shall be accompanied by copies of the Request for Dismissal, 17 Satisfaction of Judgment, Release and any other final documents. 18 16. Either party may terminate this contract at will. PARTNERS will continue to 19 represent the CITY on the terms and conditions in this Agreement until the case and file are 2 0 transferred to another attorney. 21 17. PARTNERS is an independent contractor as to the CITY. 22 18. PARTNERS shall maintain the following types ofinsurance with limits as shown: 23 a) Workers Compensation as required by the laws of the State of 24 California, including Employment Liability with $250,000 limits covering all 25 persons providing service on behalf ofP AR TNERS and all risks to such persons 26 under this Agreement. PARTNERS shall require its Workers Compensation 27 carrier to waive all rights of subrogation against the CITY and its officers and 28 employees and any others for whom services are being provided under this RLS/ac [FuSanLimited-ALGAgr] 2 1 Agreement. 2 b) Comprehensive General and Automobile Liability Insurance 3 coverage to include contractual coverage and automobile coverage for owned, 4 hired and non-owned vehicles. The policy shall have at least a combined single 5 limit of$I,OOO,OOO for bodily injury and property damage. 6 c) Professional Liability Insurance with limits of at least $ 1,000,000 7 per claim. In lieu of naming the CITY as an additional insured, the policy may 8 be endorsed as follows: 9 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN 10 BERNARDINO for legal defense services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents 11 or subcontractors. All other provisions of this policy are to remain unchanged." 12 PARTNERS shall furnish certificates of insurance and certified copies of all 13 policies and endorsements to the City Attorney's Office evidencing the insurance coverage above 14 required prior to the commencement of performance of services hereunder, which certificates shall 15 provide that such insurance shall not be terminated or expire without thirty (30) days written notice 16 to the City Attorney's Office, and shall maintain such insurance from the time PARTNERS 17 commences performance of services hereunder until the completion of such services. 18 All policies, with respect to the insurance coverage above required, except for the 19 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 20 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 21 their employees, agents, volunteers and officers as additional named insured with respect to 22 liabilities arising out of the performance of services hereunder. 23 All policies required above are to be primary and non-contributing with any 24 insurance or self-insurance programs carried or administered by the CITY or other parties 25 represented under this Agreement. 26 III 27 III 28 III RLS/ac [FuSanLimited-ALGAgr] 3 1 19. All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 2 3 4 DATED: ,2004 ARIAS, LOCKWOOD & GRAY 5 6 7 8 By: Joseph Arias 9 DATED: 10 ,2004 CITY OF SAN BERNARDINO 11 12 By: Judith Valles, Mayor 13 14 15 16 17 18 19 20 Approved as to form and legal content: 21 22 23 ./~ ES F. PENMAN ty Attorney 24 25 26 27 28 RLS/ac [FuSanLimited-ALGAgr] 4 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: August 20, 2004 TO: Edna DiVellis, Operations Supervisor FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2004-256 At the Mayor and Common Council meeting of August 16, 2004, the City of San Bernardino adopted Resolution 2004-256 - Resolution authorizing the execution of a professional services agreement between Arias, Lockwood & Gray and the City of San Bernardino to represent the City in the case of Fu San Limited, et al. v. City of San Bernardino. Attached is one (1) original agreement. Please obtain signatures in the appropriate location and return the original agreement to the City Clerk's Office as soon as possible, to my attention. Please be advised that the resolution and agreement will be null and void if not executed with 60 days, or by October 15, 2004. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary I hereby acknowledge receipt of the above mentioned documents. Signed: qu... r/.{J';\/,lIt A; Date: g/,t,%.j. I . Please sign and return '. CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: August 30, 2004 TO: Veronica Martinez, Senior Secretary FROM: Michelle Taylor, Senior Secretary RE: Resolution 2004-256 - Arias, Lockwood & Gray CC: Attached is a fully executed copy of the agreement with Arias, Lockwood & Gray to represent the City in the case of Fu San Limited, et al. v. City of San Bernardino. The original agreement is on file in the City Clerk's Office. If you have any questions, please call me at ext. 3206. ~." .. ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): <).;-1" -0<1 Item # I 2 Resolution # Vote: Ayes I-I) Nays.f7 Abstain-e Change to motion to amend original documents 0 Companion Resolutions '2co't- 2S~ Absent ...e- NullNoid After: Cof) days I (0- \ S-OLt Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0 PUBLISH 0 POST 0 RECORD W/COUNTY 0 By: Date Sent to Mayor: <6 -\ '1-oq Date of Mayor's Signature: Date ofClerk/CDC Signature: Reso. Log Updated: Seal Impressed: w o ~ .Z~-()q Date Returned: t.~-oY 2nd Reminder Letter Sent: Not Returned: 0 Date Memo/Letter Sent for Signature: 1" Reminder Letter Sent: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): YesL Yes Yes Yes Yes No By No -L- By No L By No / By No/ Copies Distributed to: Animal Control 0 EDA 0 Information Services 0 City Administrator 0 Facilities 0 Parks & Recreation 0 City Attorney ff Finance Er Police Department 0 Code Compliance 0 Fire Department 0 Public Services 0 Development Services 0 Human Resources 0 Water Department 0 Others: L Notes: Ready to File: _ Date: Revised 12/18/03