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HomeMy WebLinkAbout2010-084 1 RESOLUTION NO. 2010-84 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 3 SERVICES AGREEMENT BETWEEN LIEBERT, CASSIDY, WHITMORE AND THE CITY OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERS AND STEVE 4 LOWES v. CITY OF SAN BERNARDINO, et al. San Bernardino Superior Court Case No. CIVSS 708367 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 9 to execute on behalf of said City a Professional Services Agreement between Liebert, Cassidy, 10 Whitmore and the City of San Bernardino for legal services, a copy of which is attached hereto II marked 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 13 further effect if the agreement is not executed by both parties and returned to the Office of the City 14 Clerk within sixty (60) days following the effective date of the resolution. 15 /II 16 III 17 III 18 /II 19 III 20 1/1 21 /II 22 III 23 III 24 III 25 /II 26 III 27 /II 28 /II F:\EASLAND\Desrochers\DesrochersLowes.State.Lieb.Res. wpd 2010-84 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN LIEBERT, CASSIDY, WHITMORE AND THE CITY OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERS AND STEVE 3 LOWES v. CITY OF SAN BERNARDINO, et al. San Bernardino Superior Court Case No. CIVSS 708367 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 j oint regular meeting thereof, 7 held on the 3rd day of May 8 9 COUNCIL MEMBERS: AYES 10 MARQUEZ X 11 DESJARDINS X 12 BRINKER X 13 SHORETT X 14 KELLEY X 15 JOHNSON X 16 MCCAMMACK X 17 18 19 ,2010, by the following vote, to wit: NAYS ABSTAIN ABSENT Q~);;. ~ ~ CITY CLERK 20 21 22 23 The foregoing Resolution is hereby approved this ?-7'f dayof May ,2010. Approved as to form: 24 JAMES F. PENMAN, 25 City Attorney ~ ~'~b.,^,,2(r~ 28 F:\EASLAND\Desrochers\DesrochersLowes.State.Lieb.Res. wpd 2 1 PROFESSIONAL SERVICES AGREEMENT 2 MICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et al. San Bernardino Superior Court Case No. CIVSS 708367 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and LIEBERT, 5 CASSIDY, WHITMORE (hereinafter "LCW") are the parties to this Agreement. 6 2. LCW will be representing the following entities and persons in this litigation: 7 CITY OF SAN BERNARDINO; MICHAEL BILLDT, individually and as Chief of Police for the 8 San Bernardino Police Department; FRANK MANKIN, individually and as Assistant Chief of 9 Police for the San Bernardino Police Department; and, BRIAN BOOM, individually and as a 10 Lieutenant for the San Bernardino Police Department. LCW shall not represent any client in any 11 type of claim against the CITY without prior written approval to do so from the CITY OF SAN 12 BERNARDINO through the City Attorney's Office. 13 3. LCW shall be paid at the hourly rates set forth below: 14 Attorneys - $270.00 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 LCW 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 24 return), then LCW shall not be entitled to reimbursement for mileage and parking fees. 25 7. LCW shall obtain approval from the CITY to retain expert consultants and other 26 professionals (not including court reporters) for purposes of defending the litigation. LCW may, 27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on 28 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY F:\EASLAND\Desrochers\DesrochersLowes.State.LiebCass.PSA.wpd 1 EXHIBIT "A" 1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 2 Finance Department. 3 8. Status reports will be submitted to CITY through the City Attorney's Office 4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient 5 to set reserves, including, without limitation, potential liability exposure and percentage of fault 6 shall be included. 7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the 8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys 9 in this, or other litigation. 10 10. Copies of any correspondence and other documents sent to any of the defendants 11 in this action shall also be provided to the CITY through the City Attorney's Office. 12 11. Any and all settlements shall require CITY approval. Request for settlement 13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 14 approvals. 15 12. In the event the settlement value of the case appears to exceed $50,000, the City 16 Attorney's Office shall be notified immediately. 17 13. Only a Senior Attorney of LIEBERT, CASSIDY, WHITMORE approved by the 18 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. LCW 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. LCW is an independent contractor as to the CITY. 27 II I 28 1/1 F:\EASLAND\Desrochers\DesrochersLowes.State.LiebCass.PSA.wpd 2 EXHIBIT "A" 1 19. LCW shall maintain the following types of insurance with limits as shown: 2 a) Workers Compensation as required by the laws of the State of 3 California, including Employment Liability with $250,000 limits covering all persons providing service on behalf ofLCW and all risks to such persons under this Agreement. LCW shall require its Workers Compensation carrier to waive 4 5 6 all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. 7 8 b) Comprehensive General and Automobile Liability Insurance 9 coverage to include contractual coverage and automobile coverage for owned, 10 hired and non-owned vehicles. The policy shall have at least a combined single 11 limit of $1 ,000,000 for bodily injury and property damage. 12 c) Professional Liability Insurance with limits of at least $1 ,000,000 13 per claim. In lieu of naming the CITY as an additional insured, the policy may 14 be endorsed as follows: 15 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN 16 BERNARDINO for legal defense services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents 17 or subcontractors. All other provisions of this policy are to remain unchanged." 18 LCW 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 LCW 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 2 5 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 28 liabilities arising out of the performance of services hereunder. F:\EASLAND\Desrochers\DesrochersLowes.State.LiebCass.PSAwpd 3 EXHIBIT "A" 1 All policies required above are to be primary and non-contributing with any 2 insurance or self-insurance programs carried or administered by the CITY or other parties 3 represented under this Agreement. 4 20. 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 5 6 7 8 DATED: May _,2010 LIEBERT, CASSIDY, WHITMORE 9 10 By: 11 12 DATED: May _,2010 CITY OF SAN BERNARDINO 13 14 15 By: Patrick J. Morris, Mayor 16 17 18 19 Approved as to form: 20 JAMES F. PENMAN, City Attorney 21 22 By: 23 24 25 26 27 28 F:\EASLAND\Desrochers\DesrochersLowes.State.LiebCass.PSA wpd 4 EXHIBIT "A"