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HomeMy WebLinkAbout08-City Attorney e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: Resolution ofthe Mayor and Common Council of the City of San Bernardino authorizing the execution of a Professional Services Agreement between the law firm of Arias & Lockwood and the City of San Bernardino in Matter of Marc Stephen Maxey, et al. Dept: CITY ATTORNEY Date: April 19, 2007 Synopsis of Previous Council Action: 04/19/07: Mayor and Council approved the hiring of Arias & Lockwood to represent the City of San Bernardino in the subject matter. Recommended motion: That said resolution be adopted. e tF ?~ . Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Reoort Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item NO.J e '1j/fp/tJ7 e e e STAFF REPORT Council Meeting Date: ADril19. 2007 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: April 19, 2007 AGENDA ITEM: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of a Professional Services Agreement between the law firm of Arias & Lockwood and the City of San Bernardino in Matter of Marc Stephen Maxey, et at. On Aprill9, 2007, the Mayor and Common Council approved the hiring of the law firm of Arias & Lockwood to represent the City in the subject matter. Attached hereto is the Professional Services Agreement which reflects such approval, including a ceiling of $25,000 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 in Matter of Man;: Stephen Maxey, et al. e 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT BETWEEN THE LAW FIRM OF ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO IN MATTER OF MARC STEPHEN MAXEY, et at. 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor ofthe City of San Bernardino is hereby authorized and directed 8 to execute on behalf of said City a Professional Services Agreement between the law firm of Arias 9 & Lockwood and the City of San Bernardino for legal services, a copy of which is attached hereto 10 as Exhibit "A" and incorporated herein by this reference as though set forth in full hereat. 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 the City 13 Clerk within sixty (60) days following the effective date of the Resolution. e 14 /1/ /1/ 15 16 /1/ 17 /1/ 18 /1/ 19 //1 20 //1 21 /1/ 22 /1/ 23 //1 24 /1/ 25 /1/ 26 //1 e 27 //1 28 I 8 COUNCIL MEMBERS: . AYES NAYS 9 ESTRADA 10 BAXTER 11 BRINKER 12 DERRY 13 KELLEY e 14 JOHNSON MC CAMMACK 15 16 17 e 18 19 20 21 22 23 24 .25 26 e 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 2 AGREEMENT BETWEEN THE LAW FIRM OF ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO IN MATTER OF MARC STEPHEN MAXEY, et aL 3 4 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 meeting thereof, held on the _ 7 day of ,2007, by the following vote, to wit: ABSTAIN ABSENT Rachel Clark, City Clerk The foregoing Resolution is hereby approved this _ day of ,2007. PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form: JAMES F. PENMAN, City Attorney -t- i. fe-..". 2 e e e 1 PROFESSIONAL SERVICES AGREEMENT 2 Matter of Marc Stephen Maxey, et aL 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS 5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement. 6 2. A&L will be representing the following entities and persons in this litigation: CITY 7 OF SAN BERNARDINO, and any designated employee of the CITY. A&L shall not represent any 8 client in any type of claim against the CITY without prior written approval to do so from the CITY 9 OF SAN BERNARDINO through the City Attorney's Office. Representation shall include 10 responding to a Public Records Act request and any litigation arising from the above-referenced 11 claim. 12 3. A&L shall be paid at the hourly rates set forth below: 13 Attorneys - $135.00 per hour; and, 14 Law Clerks/Paralega1s - $60.00 per hour. 15 The amounts expended under this agreement for attorneys fees shall not exceed 16 $25,000 without further approval of the Mayor and Common Council. 17 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of 18 each succeeding month. 19 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 21 A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of 22 reimbursement for photocopying, telephone charges, and postage. 23 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and return), 24 then A&L shall not be entitled to reimbursement for mileage and parking fees. 25 7. A&L shall obtain approval from the CITY to retain expert consultants and other 26 professionals (not including court reporters) for purposes of defending the litigation. A&L may, if 27 it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its 28 F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607. wpd 1 e 1 2 3 4 5 6 7 8 9 10 11 12 13 e e 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 ofthe CITY'S Finance 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 included. Since the City Attorney's office has declared a conflict as to the representation in this matter, reports shall be made to the Mayor and Common Council in closed session. Upon request, the City Attorney's office will place the matter on the agenda for the Mayor and Common Council. 9. Any and all settlements shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which place the matter on the agenda for the Mayor and Common Council. 10. In the event the settlement value of this case appears to exceed $50,000.00 the City's Risk Manager shall be notified immediately. II. Only Joseph Arias of A&L or other senior attorney approved by the City shall try this case. 12. No client development costs are to be included in billings. 13. No continuing education expenses are to be included in billings. 14. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction of Judgment, Release and any other final documents. 15. 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. 16. A&L is an independent contractor as to the CITY. 17. 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 Liabilitywith $250,000 limits covering all persons providing F:\SlMMONS\Maxey\CQITespondence\Agreement.A&L 032607. wpd 2 e e e 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 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. Comprehensive General and Automobile Liability Insurance coverage to 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. 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, omission or negligent act of the insured, its officers, employees, agents,orsubcontractors. 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 b) c) to the commenceinent 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 Agreemeni, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. III F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607. wpd 3 e I All policies required above are to be primary and non-contributing with any insurance or 2 self-insurance programs carried or administered by the CITY or other parties represented under this 3 Agreement. 4 All communications and billings to the CITY are to be directed as follows: 20. 5 City Attorney's Office CITY OF SAN BERNARDINO 6 300 North "D" Street San Bernardino, CA 92418 7 8 Dated: ,2007 ARIAS & LOCKWOOD 9 10 By: Joseph Arias 11 12 13 Dated: ,2007 CITY OF SAN BERNARDINO 14 e 15 By: Patrick J. Morris, Mayor 16 17 18 19 Approved as to form: 20 e 21 22 23 24 25 26 27 28 JAMES F. PENMAN, City Attorney "{f- d~ F:\SIMMONS\Maxey\Correspondence\Agreement.A&L 032607.wpd 4