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HomeMy WebLinkAbout06.D- City Attorney lu INA x c� Staff Report a a� City of San Bernardino Request for Council Action o rn Date: January g, 2017 To: Honorable Mayor and City Council Members L Q� From: Gary Saenz, City Attorney By: Mark Scott, City Manager t Jolena Grider, Chief Assistant City Attorney o Lauren Daniels, Deputy City Attorney Subject: Professional Services Agreement with Cota Cole LLP for Legal Services Related to Receiverships U Recommendation cn Adopt the Resolution of the Mayor and City Council authorizing the City Manager to execute a Professional Services Agreement with Cota Cole LLP for legal services J related to receiverships. o n. Background J The Mayor and City Council previously approved a Professional Services Agreement o (PSA) with Green de Bo€tnowsky, LLP for litigation services related to receiverships and a PSA with the Law Office of Charisse L. Smith for the same. Under these agreements, o outside counsel is compensated pursuant to a deferred billing arrangement which L) provides the firm's fees and costs are paid from the proceeds of the sale of the property 3 at the end of the receivership. To date, numerous cases have been handled at no cost to the City. L An increase in litigation capacity is needed to assist the City Attorney's Office and keep a 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 two firms and to supplement the services being provided in house. Under the proposed PSA, Cota Cole LLP would also be providing litigation services o related to receiverships pursuant to a deferred billing arrangement. Cota Cole LLP y specializes in code enforcement law and nuisance litigation. The firm is willing and able o to handle multiple receivership cases at one time. a Discussion E This PSA will not have a financial impact on the City and will not affect either of the two U previous PSAs. a Packet Pg. 531 6.D.a a a Fiscal Impact None. Cota Cole LLP will collect all fees and costs from the proceeds of the sale of a U property at the end of a receivership. o U Conclusion °' Adopt the Resolution. N _Q Attachments N Attachment 1 --- Resolution Attachment 2 — Professional Service Agreement with Cota Cole LLP U d O Y N Y N Ward: All U_ Synopsis of Previous Council Actions: cn as a� J O w- a J J d O U RS Y O U Y E L Q U L ,,(D^ (n C Q LO N d O L Y C 0) E U t0 Y Y Q Packet Pg. 532 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN 3 BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH COTA COLE LLP FOR LEGAL 4 SERVICES RELATED TO RECEIVERSHIPS 5 BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The City Manager 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 COTA 10 COLE LLP and the City of San Bernardino for legal services, a copy of which is attached hereto a 11 and incorporated herein as Exhibit "A." o U 12 SECTION 2. The authorization granted by this Resolution shall expire and be void v 13 and of no further effect if the agreement is not executed by both parties and returned to the co 14 �t Office of the City Clerk within sixty(60) days following the effective date of this Resolution. N 15 Ix ID 16 p 17 O 18 = E 19 w 20 Q 21 22 23 24 25 26 27 G HI 1 Packet Pg. 533 6.D.b 1 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 2 PROFESSIONAL SERVICES AGREEMENT WITH COTA COLE LLP FOR LEGAL 3 SERVICES RELATED TO RECEIVERSHIPS 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 6 City Council of the City of San Bernardino at a meeting thereof, held on the 7 day of ,2017,by the following vote,to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ _ 10 Q BARRIOS a 11 a) 0 VALDIVIA 12 0 13 SHORETT 14 NICKEL 0 15 RICHARD 16 0 MULVIHILL 17 0 U i Georgeann Hanna, City Clerk 19 v The foregoing Resolution is hereby approved this day of 2017. w 20 Q 21 22 R. Carey Davis,Mayor City of San Bernardino 23 Approved as to form: 24 Gary D. Saenz, City Attorney 25 By. 26 27 28 2 Packet Pg. 534 i s 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: Q Cn 0. a. Partners - $295.00 per hour; o U b. Associates - $250.00 per hour; o U b. Paralegals - $150 per hour. a, co COTA COLE attorney's fees and costs shall be paid at the time any of the Cn following occurs: (1) a motion for attorney's fees, whether at the conclusion of a matter or at any a time during the pendency of litigation, is granted and the City receives funds from the adverse 0 0 party or parties in accordance with any order granting such fees; (2) a settlement, stipulated M 0 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 E entered in a case, including a default judgment, and the City receives funds pursuant to that r a 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. i Packet Pg. 535 i i 6. The CITY understands that under current legal standards dards 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 a U) and other professionals (not including court reporters) for purposes of the litigation. COTA 0 U CU COLE may, if it chooses, pay the fees and charges of such consultants and seek reimbursement 0 U in the manner prescribed in paragraph (3). Consultants shall not bill the CITY directly without co prior approval of the CITY's Finance Department. Q 8. Status reports will be submitted to CITY through the City Attorney's Office a J whenever any significant event occurs, and in any event at least quarterly. The status report shall a, 0 include, but shall not be limited to, status of the receivership and anticipated timelines, the actual M 0 cost for filing fees, telephone charges,photocopying,postage, lodging, mileage and related travel c costs shall be itemized when submitted to the CITY. E 9. This Agreement shall comply in all respects with the decision of the California r a 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. 2 Packet Pg. 536 f i i (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 a co IV directly, without having to confer with COTA COLE. o U (e) The City Attorney's Office retains a veto power over any decisions made by o U COTA COLE. r co (f) An attorney from the City Attorney's Office with supervisory authority over Q COTA COLE shall be personally involved in overseeing the litigation. a J 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the 0 City Attorney's Office which may reproduce same and provide copies to other parties or Y 0 A attorneys. U 11. Copies of any correspondence and other documents sent to any of the other E parties in an action shall also be provided to the CITY through the City Attorney's Office. Q 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. 3 Packet Pg. 537 w r 16. No continuing education expenses are to be included in billings. E 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 a with paragraph 3 upon the City's receipt of any of the referenced payments from the adverse a party or parties. o U 19, COTA COLE is an independent contractor as to the CITY. o U 20. An attorney-client relationship exists between the CITY and COTA COLE. The 00 CITY will provide detailed information about the parties and properties involved in each matter Q upon contacting COTA COLE regarding representation for that matter. A conflict check will be n: J run for each matter, and representation will be contingent upon the results of the check. 0 21. This agreement does not cover any appeals or collection procedures. Any such 0 work would require a supplemental agreement signed by both parties. c 22. If the CITY does not request the return of its file, we will retain its file for five E years. After five years, COTA COLE may destroy the file. If the CITY would like its file a 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 4 Packet Pg. 538 6.D.c waive all rights of subrogation against the CITY and its officer and employees p yees 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: U) 0. "Insurance coverage afforded by this policy shall also apply to the liability 0 assumed by the Insured under the Agreement with the CITY OF SAN 0 BERNARDINO for legal services, provided such liability results from an V- 00 v error, omission or negligent act of the insured, its officers, employees, a agents or subcontractors. All other provisions of this policy are to remain a a J unchanged." 0 COTA COLE shall furnish certificates of insurance and certified copies of all r 0 policies and endorsements to the City Attorney's Office evidencing the insurance coverage v 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) .��. a 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. 5 Packet Pg.539 I t 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 Q 25. All communications to COTA COLE are to be directed as follows: N n. COTA COLE LLP 0 U 3401 Centrelake Drive, Suite 670 0 U Ontario, CA 91761 M r 00 Q DATED: , 2016 COTA COLE LLP a a J J _O By: O� _ �a O U c m E DATED: ' 2016 CITY OF SAN BERNARDINO w r Q By: Mark Scott City Manager Approved as to form: Gary D. Saenz, City Attorney By-.---"Ln'c 6 Packet Pg. 540