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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
o fj'~; /j'M'~L
Subject: Professional Services Agreement
between the City of San Bernardino and the
law firm of Lewis, D'Amato, Brisbois &
Bisgaarad to represent the City of San
Bernardino and the Redevelopment Agency
of the City of San Bernardino in the case of
California Bio-Mass v. City of San
Bernardino, et al.
Dept: CITY ATTORNEY
Date: February 7, 2002
Synopsis of Previous Council Action:
November 19, 2001 -
Mayor and Council approved the hiring of Lewis, D'Amato, Brisbois
& Bisgaard to represent the City and RDA in the subject court action.
Recommended motion:
Adopt Resolution.
!k~ 1.~
C Signature
Contact person: James F. Penman
Phone:
5255
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
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STAFF REPORT
Council Meeting Date: February 19.2002
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 7,2002
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and
the law firm of Lewis, D' Amato, Brisbois & Bisgaarad to represent the City
of San Bernardino and the Redevelopment Agency of the City of San
Bernardino in the case of California Bio-Mass, et al. v. City of San
Bernardino, et at.
On November 19,2001, the Mayor and Common Council approved the law firm of Lewis,
D'Amato, Brisbois & Bisgaard to represent the City and RDA in the above-referenced court action.
The Council also approved an initial threshold of $20,000.00 in attorneys fees and costs and the
requirement of regular status reports.
The Professional Services Agreement reflecting the Council's prior action is attached. 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
Lewis, D'Amato, Brisbois & Bisgaard to represent the City of San Bernardino and the
Redevelopment Agency of the City of San Bernardino in the case of California Bio-Mass, et al. v.
City of San Bernardino, et at.
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RESOLUTION NO.
., RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA"
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT
3 BETWEEN LEWIS. D'AMATO. BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
4 BERNARDINO IN THE CASE OF CALIFORNIA BIO-MASS. et al. 1'. CITY OF SAN BERNARDINO, et
al.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
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to execute on behalf of said City a Professional Services Agreement between Lewis. D'Amato.
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Brisbois & Bisgaard 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.
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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.
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RLS/js [BIO-MASS.RES]
Common Council of the City of San Bernardino at a
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thereof, held on the day of
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COUNCIL MEMBERS: AYES NAYS
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ESTRADA
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LIEN
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MCGINNIS
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SCHNETZ
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SUAREZ
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ANDERSON
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e MCCAMMACK
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA~
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEME!"T I
') BETWEEN LEWIS. D'AMATO, BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SA!"
3 BERNARDINO IN THE CASE OF CALIFORNIA BIO-MASS, et al. \'. CITY OF SAN BERNARDINO, ct
al.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
meetin
.2002, by the following vote, to wit
ABSTAIN ABSENT
CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2002.
JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
City Attorney
By: u..MN., ;. f~
{/
RLS/js [BIO.MASS.RES]
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PROFESSIONAL SERVICES AGREEMEl'iT
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Califomia Bio-Mass ". Cit)' of Sail Bemardillo, et 0/.
San Bernardino Superior Court Case No. 083473
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I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
LEWIS. D'AMATO. BRISBOIS & BISGAARD (hereinafter "LDB&B") are the parties to this
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Agreement.
2. LDB&B will be representing the following entities in this litigation: CITY OF
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SAN BERNARDINO and THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
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BERNARDINO. LDB&B shall not represent any client in any type of claim against the CITY
without prior written appro\'al to do so from the CITY OF SAl\ BERl\ARDINO through the City
Attorney's Office.
3. LDB&B shall be paid at the hourly rates set forth below:
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Attorneys - $110.00 per hour: and.
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Law Clerks/Paralegals - $50.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
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$20.000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
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5. The actual cost for tiling fees. telephone charges. photocopying. postage. lodging.
mileage and related tra\'el costs shall be itemized when submitted to the CITY for reimbursement.
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LDB&B 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.
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6. If attorney's fees are charged "portal to portal" (e.g.. from office to court and
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return), then LDB&B shall not be entitled to reimbursement for mileage and parking fees.
7. LDB&B shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. LDB&B may,
if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
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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 CITY'S
RLSljs [B10-MASS.AGR)
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1 Finance Department.
2 8. Status reports will be submitted to CITY through the City Attorney's Office
3 whenever any significant event occurs. and in any event at least quarterly. Information sufficiem
4 to set reserves, including, without limitation, potential liability exposure and percentage of fault
5 shall be included.
6 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
7 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
8 in this, or other litigation.
9 10. Copies of any correspondence and other documents sent to any of the defendants
loin this action shall also be provided to the CITY through the City Attorney's Office.
11 II. Any and all settlements shall require CITY approval. Request for settlement
12 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
13 approvals.
14 12. In the event the settlement value of the case appears to exceed $50.000. the City
15 Attorney's Office shall be notified immediately.
16 13. Only Joseph Arias of LEWIS, D'AMATO. BRISBOIS & BISGAARD or other
17 senior attorney approved by the CITY shall try this case.
18 14. No client development costs are to be included in billings.
19 15. No continuing education expenses are to be included in billings.
20 16. Final billing shall be accompanied by copies of the Request for Dismissal,
21 Satisfaction of Judgment. Release and any other final documents.
22 17. Either party may terminate this contract at will. LDB&B will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. LDB&B is an independent contractor as to the CITY.
26 19. LDB&B shall maintain the following types of insurance with limits as shown:
27 a) Workers Compensation as required by the laws of the State
28 of California, including Employment Liability with $250,000 limits
RLS/js [BIO.MASS.AGR] 2
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covering all persons providing service on behalf of LDB&B and all risks
to such persons under this Agreement. LDB&B 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.
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b)
Comprehensive General and Automobile Liability
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Insurance coverage to include contractual coverage and automobile
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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
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property damage.
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c)
Professional Liability Insurance with limits of at least
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$1.000.000 per claim. In lieu of naming the CITY as an additional
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insured. the policy may be endorsed as follows:
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"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 subcontractor~. All other provisions of this policy
are to remain unchanged."
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LDB&B shall furnish certificates of insurance and certified copies of all policies
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and endorsements to the City Anorney's Office evidencing the insurance coverage above required
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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
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City Attorney's Office. and shall maintain such insurance from the time LDB&B commences
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performance of services hereunder until the completion of such services.
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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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RLS/js [BIO-MASS.AGR]
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All policies required above are to be primary and non-contributing with an:
insurance or self-insurance programs carried or administered by the CITY or other panics
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3 represented under this Agreement.
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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
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LEWIS, D'AMATO, BRISBOIS & BISGAARD
DATED:
,2002
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By: Joseph Arias
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DATED:
.2002
CITY OF SAN BERNARDINO
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By: Judith Valles, Mayor
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23 Approved as to form and
legal content:
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JAMES F. PENMAN,
25 City Attorney
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By: L i-./~
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RLS/js [BIO-MASS.AGR]
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 22, 2002
TO:
Edna Anderson, Operations Supervisor
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2002-49
At the Mayor and Common Council meeting of February 19, 2002, the City of San Bernardino
adopted Resolution 2002-49 - Resolution authorizing the execution of a professional services
agreement between Lewis, D 'Amato, Brisbois & Bisgaard and the City of San Bernardino to
represent the City and the Redevelopment Agency in the case of California Bio-Mass, et al. v.
City of San Bernardino, et al.
Attached is one (1) original agreement. Please obtain signatures in the appropriate locations and
return the original agreement to the City Clerk's Office as soon as possible, to my attention.
Please be advised that the resolution and agreement will be null and void if not executed
within 60 days, or by April 22, 2002.
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:
Please sign and return
Date:
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
March 12,2002
TO:
Veronica Martinez, Senior Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution 2002-49 - Lewis, D' Amato, Brisbois & Bisgaard
CC:
Attached is a fully executed copy of the agreement with Lewis, D' Amato, Brisbois & Bisgaard
to represent the City of San Bernardino and the Redevelopment Agency in the case of California
Bio-Mass, et al. v. City of San Bernardino, et al. The original agreement is on file in the City
Clerk's Office.
If you have any questions, please call me at ext. 3206.
,
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): d- \ C( -0;:1 Item # I \
Vote: Ayes I-S ( IJ Nays ..{}-
Change to motion to amend original documents:
dto<) - A9
Absent (:,
Resolution #
Abstain ..c;
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: -=--
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
Date Sent to Mayor: .i- db -0;)
Date of Mayor's Signature: d - ;;<0-0:;>
Date of Clerk/CDC Signature: ;;; <) \-O;:l
NullNoid After: (,,0 Olh( ] 14-22 -07
I I
By: -
Reso. Log Updated: /
Seal Impressed: v
Date Memo/Letter Sent for Signature: d - dd -0 ;;,l-.
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: ;/" Date Returned: ?, - I;) -O.;:l
See Attached:
See Attached:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
/
Dev. Services
Code Compliance
City Attorney
Parks & Rec.
Public Services
Water
Police
Notes:
Yes / No By
Yes No ..L...- By
Yes No / By
Yes NO+ 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: /)tI
Date: 3-g-o ~
Revised 01!l2/01