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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney
C<.;'~ .., 'L
Subject: Professional Service Agreement between the
City of San Bernardino and the law firm of Lewis, Brisbois,
Bisgaard & Smith to represent the City of San Bernardino in the
case of Adrian Eugene Moore v. City of San Bernardino; San
Bernardino Police Officers Ernesto Antillon, Mike Golubic, Sgt.
Schwenka, Bustamante, Quiroz and Lee Dean, Chief of Police
Dept: City Attorney
Date: February 6,2003
Synopsis of Previous Council action:
Mayor and Council approved the hiring of Lewis, Brisbois, Bisgaard & Smith to represent the City and its police
employees in the subject court action.
Recommended motion:
Adopt Resolution.
~?/i.-,
U ature
Contact person:
James F. Penman
Phone:
5355
Supporting data attached:
Staff ReDort
Ward: All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
'2c..() ~ 2.cc({~j - "H
Agenda Item No.3
75-0262
J.. /J 1//)3
STAFF REPORT
Council Meeting Date: February 18, 2003
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
February 6, 2003
Professional Service Agreement between the City of San Bernardino and
the law firm of Lewis, Brisbois, Bisgaard & Smith to represent the Oty
of San Bernardino and its police employees in the case of Adrian Eugene
Moore v. City of San Bernardino; San Bernardino Police Officers Ernest
Antillon, Mike Golubic, Sgt. Schwenka, Bustamante, Quiroz, and Lee
Dean, Chief of Police.
The Mayor and Common Council approved the law firm of Lewis, Brisbois, Bisgaard &
Smith 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 $25,000 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.
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
Lewis, Brisbois, Bisgaard & Smith to represent the City and its police employees in the case of
Adrian Eugene Moore v. City of San Bernardino; San Bernardino Police Officers Ernest Antillon.
Mike Go/ubic, Sgt. Schwenka, Bustamante, Quiroz, and Lee Dean, Chief of Police.
5MB/cj[MoOTcStfRpt]
RESOLUTION' NO.
2 RESOLUTION OFTHE MA YORAND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF
SAN BERNARDINO TO REPRESENT THE CITY AND ITS POLICE EMPLOYEES IN THE
4 CASE OF ADRIAN EUGENE MOORE v. CITY OF SAN BERNARDINO; SAN BERNARDINO
POLICE OFFICERS ERNESTO ANTILL ON, MIKE GOLUBIC, SGT. SCHWENKA,
5 BUSTAMANTE, QUIROZ, AND LEE DEAN, CHIEF OF POLICE.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
7 SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to
9 execute on behalf of said City a Professional Services Agreement between Lewis, Brisbois, Bisgaard
10 & Smith and the City of San Bernardino for legal services, a copy of which is attached hereto marked
11 Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no further
13 effect if the agreement is not executed by both parties and returned to the office of City Clerk within
14 sixty (60) days following the effective date of the resolution.
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16 /1/
17 1/1
18 /11
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5MBicj[Moore,Res]
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF
SAN BERNARDINO TO REPRESENT THE CITY AND ITS POLICE EMPLOYEES IN THE
3 CASE OF ADRIAN EUGENE MOORE v. CITY OF SAN BERNARDINO; SAN BERNARDINO
POLICE OFFICERS ERNESTO ANT/LLON, MIKE GOLUBIC, SGT. SCHWENKA,
4 BUSTAMANTE, QUIROZ, AND LEE DEAN, CHIEF OF POLICE.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
meeting thereof, held
6 and Common Council of the City of San Bernardino at a
7 on the _day of
8
9 COUNCIL MEMBERS:
10 ESTRADA
II LONGVILLE
12 MCGINNIS
13 DERRY
14 SUAREZ
J ANDERSON
16 MC CAMMACK
17
18
19
, 2003, by the following vote, to wit:
AYES
ABSTAIN ABSENT
NAYS
Rachel Clark, City Clerk
20
The foregoing Resolution is hereby approved this _ day of
,2003
21
22
23
24
Approved as to form
25 and legal content:
26 JAMES F. PENMAN
City Attorney
27
"
MB/cj(Moore.Res]
JUDITH VALLES,
Mayor City of San Bernardino
PROFESSIONAL SERVICES AGREEMENT
2 ADRIAN EUGENE MOORE V. CITY OF SAN BERNARDINO; SAN BERNARDINO
POLICE OFFICERS ERNESTO ANTILL ON, MIKE GOLUBIC, SGT. SCHWENKA,
3 BUSTAMANTE, QUIROZ, AND LEE DEAN, CHIEF OF POLICE
(United States District Court Case No. EDCV 01-03074 DDP (RZ)
4
5
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
6 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parti'es to this
7 Agreement.
8
2.
LBB&S will be representing the following entities and persons in this litigation:
9 CITY OF SAN BERNARDINO; SAN BERNARbINO POLICE OFFICERS ERNESTO
10 ANTILLON, MIKE GOLUBIC, SGT. SCHWENKA, BUSTAMANTE, QUIROZ, AND LEE
11 DEAN, CHIEF OF POLICE. LBB&S shall not represent any client in any type of claim against the
12 CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
13 City Attorney's Office.
14
3.
LBB&S shall be paid at the hourly rates set forth below:
5 Attorneys - $125.00 per hour; and,
16 Law Clerks/Paralegals - $50.00 per hour.
17 The amounts expended under this agreement for attorneys fees shall not exceed
18 $25,000 without further approval of the Mayor and Common Council.
19
20
4.
5.
Bills shall be submitted at least quarterly.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 LBB&S may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of
23 reimbursement for photocopying, telephone charges, and postage.
24
6.
Ifattorney's fees are charged "portal to portal" (e.g., from office to court and return),
25 then LBB&S shall not be entitled to reimbursement for mileage and parking fees.
26
7.
LBB&S shall obtain approval from the CITY to retain expert consultants and other
27 professionals (not including court reporters) for purposes of defending the litigation. LBB&S may,
~ ifit chooses, pay the fees and charges of such consultants and seek reimbursement form CITY on
SM Bicj [M oorePrfServ, Agreement]
its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office whenever
5 any significant event occurs, and in any event at least quarterly. Information sufficient to set
6 reserves, including, without limitation, potential liability exposure and percentage offault shall be
7 included.
8 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
9 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this,
10 or other Iitigatio)1.
II 10. Copies of any correspondence and other documents sent to any of the defendants in
12 this action shall also be provided to the CITY through the City Attorney's Office.
13 II. Any and all settlements shall require CITY approval. Request for settlement authority
14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
5 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
16 Attorney's Office shall be notified immediately.
17 13. Only Joseph Arias of LEWIS, BRISBOIS, BISGAARD & SMITH or other senior
18 attorney approved by the City shall try this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this contract at will. LBB&S will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attorney.
26 18. LBB&S is an independent contractor as to the CITY.
27 19. LBB&S shall maintain the following types of insurance with limits as shown:
~~ III
5MBicj [Moore PrfServ, Agreement]
a)
Workers Compensation as required by the laws of the State of California,
including Employment Liabilitywith $250,000 limits covering all persons providing
service on behalf of LBB&S and all risks to such persons under this Agreement.
LBB&S 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.
2
3
4
5
6
7
8
9
10
II
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.
12
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
follows"
13
14
"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, or subcontractors. All other
provisions of this policy are to remain unchanged."
)
16
17
18 LBB&S shall furnish certificates of insurance and certified copies of all policies and
19 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
20 to the commencement of performance of services hereunder, which certificates shall provide that
21 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
22 Attorney's Office, and shall maintain such insurance from the time LBB&S commences performance
23 of services hereunder until the completion of such services.
24 All policies, with respect to the insurance coverage above required, except for the
25 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
26 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
27 their employees, agents, volunteers and officers as additional named insured with respect to
'~ liabilities arising out of the performance of services hereunder.
SM SiC]! M oorePrfSer\' .Agreement J
All policies required above are to be primary and non-contributing with any insurance
2 or self-insurance programs carried or administered by the CITY or other parties represented under
3 this Agreement.
4
5
20.
All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
6
7
8 Dated:
9
10
II
12
13 Dated:
14
,2003
LEWIS, BRISBOIS, BISGAARD & SMITH
By: Joseph Arias
,2003
CITY OF SAN BERNARDINO
By: Judith Valles, Mayor
16
17
18
19 Approved as to form and
legal content:
20
21 JAMES F. PENMAN,
City Attorney
22 By: L ,/ ew-...
23
24 {J
25
26
27
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SM B/cj I M oorePrfServ.Agreement I
.
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 21,2003
TO:
Edna DiVellis, Operations Supervisor
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2003-44
At the Mayor and Common Council meeting of February IS, 2003, the City of San Bernardino
adopted Resolution 2003-44 - Resolution authorizing the execution of a professional services
agreement between Lewis, Brisbois, Bisgaard & Smith and the City to represent the City and its
police employees in the case of Adrian Eugene Moore v. City of San Bernardino; San
Bernardino Police Officers Ernesto Antillon, Mike Golubic, Sgt. Schwenka, Bustamante, Quiroz,
and Lee Dean, Chief of Police.
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 resolntion and agreement will be nnll and void if not execnted
within 60 days, or by April 21, 2003.
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:fl-u, t/O;j,j/iLf {)('
Date: ,;;., /;,,>1/ D.3
~~~
,
Please sign and return
-,
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
March 4, 2003
TO:
Veronica Martinez, Senior Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution 2003-44 - Agreement with Lewis, Brisbois, Bisgaard & Smith
CC:
Attached is a fully executed copy of the professional services agreement with Lewis, Brisbois,
Bisgaard & Smith to represent the City and its police employees in the case of Adrian Eugene
Moore v. City of San Bernardino; San Bernardino Police Officers Antillon, Mike Golubic, Sgt.
Schwenka, Bustamante, Quiroz, and Lee Dean, Chief of Police. The original agreement is on file
in the City Clerk's Office.
If you have any questions, please call me at ex!. 3206.
,
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): )-I'i:-ClS Item # Cj
Vote: Ayes 1'1., -4 - () Nays.G-
Change to motion to amend original documents:
200::$ .j!"'I
Absent 3
Resolution #
Abstain -kr
See Attached: ,/" Date Returned: :;, ---'\ -e3
See Attached:
See Attached:
Reso. # On Attachments:
./
Contract term: --
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By:
?-2.0 c::,
~).)cQ?)
Date ofClerk/CDC Signature: :J -.;11 -o?)
Date Sent to Mayor:
Date of Mayor's Signature:
Date Memo/Letter Sent for Signature:
) - d I -0 -:>:,
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (64\3, 6429, 6433,10584,10585,12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
City Attorney / Code Coropliaoce
Dev. Services
Parks & Rec.
Police
Public Services
Water
Notes:
NulVVoidAfter: vC DA~S /1-LI-b3
I
Reso. Log Updated: V
Seal Impressed: ./
YesL No By
Yes No ..L By
Yes No ,/ By
Yes NOZ By
Yes No By
EDA
Finance ./
MIS
Others:
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: (YI'(
Date: .3.JI-()3
Revised 01/12/01