HomeMy WebLinkAbout07.F- City Attorney 7,F.a
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Staff Report
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City of San Bernardino
Request for Council Action
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Date: December 19, 2016 0.
To: Honorable Mayor and City Council Members
From: Gary Saenz, City Attorney
By: Jolena Grider, Chief Assistant City Attorney o
Lauren Daniels, Deputy City Attorney a
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Subject: Resolution of the Mayor and City Council of the City of San d
Bernardino Authorizing the City Manager to Execute a U
Professional Services Agreement with Cota Cole LLP for Legal
Services Related to Receiverships
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Recommendation
Adopt the Resolution.
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Background E
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The Mayor and City Council previously approved a Professional Services Agreement ,0
(PSA) with Green de Bortnowsky, LLP for litigation services related to receiverships and
a PSA with the Law Office of Charisse L. Smith for the same. Under these agreements,
outside counsel is compensated pursuant to a deferred billing arrangement which W
provides the firm's fees and costs are paid from the proceeds of the sale of the property
at the end of the receivership. To date, numerous cases have been handled at no cost
to the City. a
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An increase in litigation capacity is needed to assist the City Attorney's Office and keep d
up with the pace at which blighted properties are currently being processed, and staff
has identified an additional firm to supplement the services being provided by the other c
two firms and to supplement the services being provided in house. U
Under the proposed PSA, Cota Cole LLP would also be providing litigation services E
related to receiverships pursuant to a deferred billing arrangement. Cota Cole LLP
specializes in code enforcement law and nuisance litigation. The firm is willing and able a
to handle multiple receivership cases at one time.
Discussion
This PSA will not have a financial impact on the City and will not affect either of the two
previous PSAs.
Packet Pg. 357
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Fiscal Impact
None. Cota Cole LLP will collect all fees and costs from the proceeds of the sale of a
property at the end of a receivership.
Conclusion
Adopt the Resolution.
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Attachments
Attachment 1 — Professional Service Agreement with Cota Cole LLP
Attachment 2 — Resolution
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Ward: All.
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Synopsis of Previous Council Actions: c
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Packet Pg.358
PROFESSIONAL SERVICES AGREEMENT
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
COTA COLE LLP (hereinafter"COTA COLE") are the parties to this Agreement.
2. COTA COLE will be representing the CITY on cases seeking the appointment of
a receiver over real property which the CITY has determined do not meet the minimum
standards of state and local maintenance codes. COTA COLE shall not represent any client in
any type of claim against the CITY without prior written approval to do so from the CITY
through the City Attorney's Office.
3. COTA COLE shall be paid at the deferred hourly rates set forth below:
a. Partners - $295.00 per hour;
b. Associates - $250.00 per hour;
b. Paralegals - $150 per hour.
COTA COLE attorney's fees and costs shall he paid at the time any of the
following occurs: (1) a motion for attorney's fees, whether at the conclusion of a matter or at any
time during the pendency of litigation, is granted and the City receives funds from the adverse
party or parties in accordance with any order granting such fees; (2) a settlement, stipulated
judgment, consent decree, or similar resolution is reached resolving a case and the City receives
fiends pursuant to that resolution; or (3) a judgment, order of abatement, or other final order is
entered in a case, including a default judgment, and the City receives funds pursuant to that
judgment or order.
4. The CITY has been informed and understands that the above contingent fee is not
prescribed by law but has been negotiated between the parties.
5. To the extent that any court denies some portion of any claim for award of
attorney's fees or costs, the CITY shall have no obligation with respect to the shortfall. The
CITY agrees that if for any reason the CITY elects, without the approval of COTA COLE, to
compromise or waive any portion of the attorney's fees or costs, or to refuse to seek such an
award,the CITY shall reimburse COTA COLE for the amount of such fees or expenses.
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6. The CITY understands that under current legal standards if any defendant prevails
in any litigation brought pursuant to this Agreement, that defendant may seek to recover costs
from the CITY. The City also understands that the prevailing party in any action brought
pursuant to California Health and Safety Code sections 17980.6 and 17980.7 shall be entitled to
attorney's fees. No action shall be filed unless both the City Attorney's Office and COTA
COLE determine in their best judgment that the CITY is likely to prevail. If any expenses, costs
or attorney's fees are assessed against the CITY, the CITY agrees to be legally responsible for
payment of those expenses, costs, and attorney's fees.
7. COTA COLE shall obtain approval from the CITY to retain expert consultants
and other professionals (not including court reporters) for purposes of the litigation. COTA
COLE may, if it chooses, pay the fees and charges of such consultants and seek reimbursement
in the manner prescribed in paragraph (3). Consultants shall not bill the CITY directly without
prior approval of the 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. The status report shall
include, but shall not be limited to, status of the receivership and anticipated timelines, the actual
cost for filing fees, telephone charges,photocopying, postage, lodging, mileage and related travel
costs shall be itemized when submitted to the CITY.
9. This Agreement shall comply in all respects with the decision of the California
Supreme Court in County of Santa Clara v. Superior Court (2010) 50 Cal.4"' 35, including but
not limited to the following:
(a) COTA COLE shall not initiate any action or proceeding which seeks to
prevent any third-party from continuing current business operations or exercising
any First Amendment right or other liberty interest.
(b) COTA COLE attorneys shall be subject to a heightened standard of ethical
conduct applicable to public officials acting in the name of the public.
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(c) The City Attorney's Office, and not COTA COLE, shall at all times retain
complete control over all critical discretionary decisions involved in the litigation,
and over the course and conduct of the case. Specifically, the City Attorney's
Office shall make any and all critical discretionary decisions regarding the
decision to initiate any particular case; any proposed settlement of any case; and
any other decision which the City Attorney's Office deems critical at any point
and expressly requests decision-making authority to COTA COLE in writing.
(d) Any defendant that is the subject of any action or proceeding initiated by
COTA COLE pursuant to this Agreement may contact the City Attorney's Office
directly, without having to confer with COTA COLE.
(e) The City Attorney's Office retains a veto power over any decisions made by
COTA COLE.
(f) An attorney from the City Attorney's Office with supervisory authority over
COTA COLE shall be personally involved in overseeing the litigation.
10. 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.
11. Copies of any correspondence and other documents sent to any of the other
parties in an action shall also be provided to the CITY through the City Attorney's Office.
12. Any and all settlement shall require CITY approval. Request for settlement
authority shall be made through the City Attorney's Office which shall obtain the necessary
CITY approvals.
13. The City Attorney shall be listed as co-counsel for the City in all actions under
this Agreement.
14, Only Karen A. Feld of COTA COLE, or another COTA COLE attorney approved
by the CITY through the City Attorney's Office, shall appear in an action.
15. No client development costs are to be included in billings.
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16. No continuing education expenses are to be included in billings.
17. Final billing shall be accompanied by copies of the Request for Dismissal,
Satisfaction of Judgment,Release and/or any other final documents.
18. Either party may terminate this contract at will. Should this contract be
terminated, COTA COLE will continue to represent the CITY on the terms and conditions in this
Agreement until any active cases and files are transferred to another attorney. COTA COLE may
then assert a lien for the payment of fees and costs accrued but not yet paid, plus reasonable fees
and costs in transferring the case to the City or new counsel. This lien shall be paid in accordance
with paragraph 3 upon the City's receipt of any of the referenced payments from the adverse
party or parties.
19. COTA COLE is an independent contractor as to the CITY.
20. An attorney-client relationship exists between the CITY and COTA COLE. The
CITY will provide detailed information about the parties and properties involved in each matter
upon contacting COTA COLE regarding representation for that matter. A conflict check will be
run for each matter, and representation will be contingent upon the results of the check.
21. This agreement does not cover any appeals or collection procedures. Any such
work would require a supplemental agreement signed by both parties.
22. If the CITY does not request the return of its file, we will retain its file for five
years. After five years, COTA COLE may destroy the file. If the CITY would like its file
maintained for more than five years or returned, it must make a separate request to COTA
COLE.
23. COTA COLE 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 service of behalf of COTA COLE and all risks to such persons under
this Agreement. COTA COLE shall require its Workers Compensation carrier to
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waive all rights of subrogation against the CITY and its officer and employees
and any other 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-
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
enforced as follows:
"Insurance coverage afforded by this policy shall also apply to the Iiability
assumed by the Insured under the Agreement with the CITY OF SAN
BERNARDINO for legal 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."
COTA COLE 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 COTA COLE 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.
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All policies required above are to be primary and non-contributing with any
insurance or self-insurance programs carried or administered by the CITY or other parties
represented under this Agreement.
24. 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
25. All communications to COTA COLE are to be directed as follows:
COTA COLE LLP
3401 Centrelake Drive, Suite 670
Ontario, CA 91761
DATED: _ 2016 COTA COLE LLP
By:
DATED: _' 2016 CITY OF SAN BERNARDINO
By:
Mark Scott
City Manager
Approved as to form:
Gary D. Saenz, City Attorney
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