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HomeMy WebLinkAbout12-City Attorney. CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Dept: CITY ATTORNEY Date: February 22, 2007 Synopsis of Previous Council Action: Subject: Professional Services Agreement between the City of San Bernardino and the law £rm of Arias & Lockwood to represent the City of San Bemardino and Officer Dennis Han in Michael Negrete v. City of San Bernardino, et al. 02/20/07: Mayor and Council approved the hiring of Arias & Lockwood to represent the City of San Bemardino and Officer Dennis Han in the subject court action. Recommended motion: That said resolution be adopted. • Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: FUNDING REQUII2EMENTS: Amount: Source: Council Notes: Finance: Agenda Item No. 3 /~-/~~ . STAFF REPORT Council Meeting Date: March 5. 2007 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: February 22, 2007 AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the law firm of Arias & Lockwood to represent the City of San Bernardino and Officer Dennis Han in Michael Negrete v. City of San Bernardino, et al. On February 20, 2007, the Mayor and Common Council approved the hiring of Arias & Lockwood to represent the City and Officer Dennis Han in the subject court action. Attached hereto is the Professional Services Agreement which reflects such approval, including a ceiling of $25,000.00 on attorneys 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 to represent the City and Officer Dennis Han in the case of Michael Negrete v. City of San Bernardino, et al. DCR\js [Litigation Cases -Outside CounselWegreteWegrcte.Staff.Report[ 1 2 3 4 5 6 7 8 9 10 11' 12 13 • 14 15 16 17 18 19 20 21 22 23 24 25 26 • 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO IN THE CASE OF MICHAEL NEGRETE v. CITY OF SAN BERNARDINO, et al. BE TT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of [he City of San Bernardino is hereby authorized and directed to execute on behalf of said City a Professional Services Agreement between Arias & Lockwood and the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization granted hereunder shall expire and be void and of no further effect if the agreement is not executed by both parties and returned to the Office of the City Clerk within sixty (60) days following the effective date of the resolution. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 1 DCR\js [Litigation Cases -Outside CounselWegrete\Negrete..0utside CounseLRes] • u 1 2 3 4 5 6 7 8 9~ to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 26 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO IN THE CASE OF MICHAEL NEGRETE v. CITY OF SAN BERNARDINO, eta[. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the _ day of , 2007, by the following vote, to wit: COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON MC CAMMACK Rachel Clark, City Clerk The foregoing Resolution is hereby approved this _ day of , 2007. PATRICK J. MORRIS, Mayor City of San Bemardino Approved as to form: JAMES F. PENMAN, City Attorney By: - ~,-. 2 DCR\js [Litigetion Cases -Outside CounselWegreteWegrete..0utside CounseLRes] Exhibit "A" 1 PROFESSIONAL SER1'ICES AGREEMENT 2 dIICHAEL NEGRETE v. CITY OF SA,V BERNARDLVO, et al. united States District Court Case No. EDCV 06-01047 VAP (OPx) 3 1. The CITY OF SAN BERNARDINO (hereinafter "CITY")and the law firm of ARIAS 4 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement. 5 2. A&L will be representing the following entities and persons in this litigation: CITY 6 OF SAN BERNARDINO, OFFICER DENNIS HAN, and any other designated employee of the 7 CITY. A&L shall not represent any client in any type of claim against the CITY without prior 8 written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's 9 Office. 10 3. A&L shall be paid at the hourly rates set forth below: I1 Attorneys - $135.00 per hour; and, ]2 Law Clerks/Paralegals - $60.00 per hour. 13 The amounts expended under this agreement for attorneys 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 5'" day of 16 each succeeding month. 17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 18 mileage and related [rave] costs shall be itemized when submitted to the CITY for reimbursement. 19 A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of 20 reimbursement for photocopying, telephone charges, and postage. 21 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and return), 22 then A&L shall not be entitled to reimbursement for mileage and parking fees. 23 7. A&L shall obtain approva] from the CITY to retain expert consultants and other 24 professionals (not including court reporters) for purposes of defending the litigation. A&L may, if 25 it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its 26 periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay 27 it directl}. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance ,g • F:VtOTHILiligation Cases-Outside CounselWegreteNlegrele.PSA.w~dl Department. 8. Status reports will be submitted to CITY through the Cit}• Attomey's Office whenever any significant event occurs, and in any event at least quarterly. Information sufficient to set reserves, including, without limitation, potential liability exposure and percentage of fault shall be included. 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City i Attomey's Office which may reproduce same and provide copies to other parties or attorneys in this, ~! or other litigation. 10 11 12' 13 14 1~ 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Copies of any correspondence and other documents sent to any of the defendants in this action shall also be provided to the CITY through the City Attomey's Office. 11. Any and all settlements shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 12. In the event the settlement value of this case appears to exceed $50,000.00 the City Attorney's Office shall be notified immediately. 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by the City shall try this case. 14. No client development costs are to be included in billings. 15. No continuing education expenses are to be included in billings. 16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction of Judgment, Release and any other final documents. 17. Either party may terminate this contract at will. A&L will continue to represent the CITY on the terms and conditions in this Agreement until the case and file are transferred to another attorney. 18. A&L is an independent contractor as to the CITY. 19. A&L shall maintain the following types of insurance with limits as shown: a) Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing F.\ROTMLitigation Cases -Outside CounselWegreteWegrete.PSA.wpd2 service on behalf of A&L and all risks to such persons under this Agreement. A&L shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. b) Comprehensive General and Automobile Liability Insurance coverage to 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ~~ ~3 ~q ?5 ?6 ?7 _8 include contractual coverage and automobile coverage for owned, hired and non- owned vehicles. The policy shall have at least a combined single limit of $1,000,000 for bodily injury and property damage. c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under [he Agreement with the CITY OF SAN BERNARDINO for legal defense services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." A&L shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the City Attorney's Office, and shall maintain such insurance from the time A&L commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. /// F.~ROTH~I.itigalion Cases -Outside CounselWegremWegre~e.PSA.wpd3 r ~ r ~ LJ 1 3 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// All policies required above are to be primary and non-contri busing with any insurance or self- insurance programs carried or administered by the CITY or other parties represented under this Agreement. 20. 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 Dated: , 2007 Dated: , 2007 Approved as to form: JAMES F. PENMAN, City Attorney By: ARIAS & LOCKWOOD By: Joseph Arias CITY OF SAN BERNARDINO By: Patrick J. Moms, Mayor F:IROTF[tLitigation Cases ~ Outside CounselWegrete6Yegrete.PSA.wpd~ • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18' 19 20 21 22 23 24 25 26 27 28 PROFESSIONAL SERVICES AGREEMENT MICHAEL NEGRETE v. CITY OF SAN BERNARDINO, et al. United States District Court Case No. EDCV 06-01047 VAP (OPx) I . The CITY OF SAN BERNARDINO (hereinafter "CITY")and the law firm of ARIAS & LOCKWOOD (hereinafter "A&L") aze the parties to this Agreement. 2. A&L will be representing the following entities and persons in this litigation: CITY OF SAN BERNARDINO, OFFICER DENNIS HAN, and any other designated employee of the CITY. A&L shall not represent any client in any type of claim against the CTTY without prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 3. A&L shall be paid at the hourly rates set forth below: Attorneys - $135.00 per hour; and, Law Clerks/Pazalegals - $60.00 per hour. The amounts expended under this agreement for attorneys fees shall not exceed $25,000 without further approval of [he Mayor and Common Council. 4. Bills shall be submitted at least on a monthly basis and no later than the 5's day of each succeeding month. 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of reimbursement for photocopying, telephone charges, and postage. 6. If attorney's fees aze chazged "portal to portal" (e.g., from office to court and return), then A&L shall not be entitled to reimbursement for mileage and parking fees. 7. A&L shall obtain approval from the CITY to retain expert consultants and other professionals (no[ including court reporters) for purposes of defending [he litigation. A&L may, if it chooses, pay the fees and chazges of such consultants and seek reimbursement from CITY on its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the CTTY'S Finance FaROTMLitigation Cases -Outside CounselWegreteWegrete.PSA.wpol u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25. 26 27 28 ~~ Department. 8. Status reports will be submitted to CITY through the City Attorney's Office whenever any significant event occurs, and in any event at least quarterly. Information sufficient to set reserves, including, without limitation, potential liability exposure and percentage of fault shall be I included. 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this, or other litigation. 10. Copies of any correspondence and other documents sent to any of the defendants in this action shall also be provided to the CITY through the City Attorney's Office. 11. Any and all settlements shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 12. In the event the settlement value of this case appeazs to exceed $50,000.00 [he City Attorney's Office shall be notified immediately. 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by ~ the City shall try this case. 14. No client development costs aze to be included in billings. 15. No continuing education expenses are to be included in billings. 16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction of Judgment, Release and any other final documents. 17. Either party may terminate this contract at will. A&L will continue to represent the CITY on the terms and conditions in this Agreement until the case and file aze transfetred to another attorney. 18. A&L is an independent contractor as to the CITY. 19. A&L shall maintain the following types of insurance with limits as shown: a) Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing F:VtOTHU.itigation Cases -Outside CounselWegreteWegrete.PSA.wpd2 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 'I 16 17 18 19 20 21 22 23 24 25 26 27 28 service on behalf of A&L and all risks to such persons under this Agreement. A&L shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non- ownedvehicles. The policy shall have at least a combined single limit of $1,000,000 for bodily injury and property damage. c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal defense services, provided such liability results from an error, otmss~on or negligent act of the insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." A&L shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attomey's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the City Attorney's Office, and shall maintain such insurance from the time A&L commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. /// F:UtOTFi\Litigation Cases -Outside CounselWegreteWegre[e.PSA.wpd3 2 I 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "~ ~~~ All policies required above are to be primary and non-contributing with any insurance orself- insurance programs carried or administered by the CITY or other parties represented under this Agreement. 20. 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 Dated: , 2007 Dated: , 2007 Approved as to form: JAMES F. PENMAN, City Attorney By: ~ G..,,..ti ARIAS & LOCKWOOD By: Joseph Arias CTfY OF SAN BERNARDINO By: Patrick J. Moms, Mayor F:UtOT1lWtigation Cases -Outside CounselWegeteWegrete.PSA.wpd4