Loading...
HomeMy WebLinkAbout2011-1271 2 3 4 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2011-127 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF CEDRIC MAY, SR., et al., v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT, CASE NO. CV10-00978 VAP (DTBx) 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 to execute on behalf of said City a Professional Services Agreement between Lewis, Brisbois, Bisgaard & Smith and the City of San Bernardino for legal services in the case of Cedric May, Sr., et al., v. City of San Bernardino, et al., United States District Court, Case No. CV 10-00978 VAP (DTBx) a copy of which is attached hereto and incorporated herein as Exhibit "A." SECTION 2. The authorization granted by this Resolution 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 this Resolution. /// /// /// /// /// /// /// /// /// /// /// /// /// F:\ROTH\Litigation Cases -Outside Counsel\MayU.BBS PSA RESO.wpd 2011-127 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 2 AGREEMENT BETWEEN BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF CEDRIC MAY, 3 SR., et al., Y. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT, CASE NO. CV10-00978 VAP (DTBx) 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and point 6 regular Common Council of the City of San Bernardino at a meeting thereof, held on the day 7 June of , 2011, by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ x 10 VACANT 11 X BRINKER 12 g SHORETT 13 g KELLEY 14 JOHNSON ~_ 15 X MC CAMMACK 16 Rachel Clark, City Clerk ~'^ Gam~" 18 1 g The foregoing Resolution is hereby approved this b ' day of June , 2011. 20 21 2 2 PA CK J. MO ,Mayor ' of San Bernardino 23 Approved as to form: 24 JAMES F. PENMAN, 2 5 City Attorney .%`°" /~/y f~~' / i .' i 27 By.+f. C_ 28 F:\ROTH\Litigation Cases -Outside Counsel\Ntay\LBBS PSA RESO.wpd 2011-127 PROFESSIONAL SERVICES AGREEMENT Cedric May, Sr., et al., v City of San Bernardino, et al. United States District Court, Case No. CV10-00978 VAP (DTBx) 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "EBBS") are the parties to this Agreement. 2. EBBS will represent the following defendants in Cedric May, Sr., et al., v. City of San Bernardino, et al., United States District Court, Case No. CV 10-00978 VAP (DTBx): CITY OF SAN BERNARDINO, Officer Joseph Aguilar, Jose Vasquez, Byron Clark, Langston Canright, Melissa Flint, Sergeant James Beach and any other designated officer or employee of the CITY who may later be named. EBBS shall not represent any client in any type of claim against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 3. EBBS shall be paid at the hourly rates set forth below: Attorneys - $145.00 per hour; and, Law Clerks/Paralegals - $70.00 per hour. The amounts expended under this agreement for attorney fees shall not exceed $25,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least on a monthly basis and no later than the 5`h day of each succeeding month. 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. EBBS may include a single charge in an amount not to exceed four percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone charges, and postage. 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return), then EBBS shall not be entitled to reimbursement for mileage and parking fees. 7. EBBS shall obtain approval from the CITY to retain expert witnesses, consultants, and other professionals (not including court reporters) for purposes of the litigation. EBBS may, if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on F:~ROTH~Litigation Cases -Outside Counsel~Ivlay~LBBS PSA.wpd 1 EXHIBIT "A" 2011-127 1 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 2 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the 3 CITY' S Finance Department. 4 8. Status reports will be submitted to the CITY through the City Attorney's Office 5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to 6 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall 7 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable. 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 litigation. 11 10. Copies of any correspondence and other documents sent to any of the parties in this 12 action shall also be provided to the CITY through the City Attorney's Office. 13 11. 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. 15 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 Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior 18 attorney approved by the City shall conduct the trial of 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 Agreement at will. LBBS 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. LBBS is an independent contractor as to the CITY. 27 19. LBBS shall maintain the following types of insurance with limits as shown: 28 a) Workers Compensation as required by the laws of the State of California, F:~ROTH~Litigation Cases -Outside Counseluvlay~L,BBS PSA.wpd 2 EXHIBIT "A" 2011-127 1 including Employment Liability with $250,000 limits covering all persons providing 2 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS 3 shall require its Workers Compensation carrier to waive all rights of subrogation 4 against the CITY and its officers and employees and any others for whom services 5 are being provided under this Agreement. 6 b) Comprehensive General and Automobile Liability Insurance coverage to 7 include contractual coverage and automobile coverage for owned, hired and non- g owned vehicles. The policy shall have at least a combined single limit of $1,000,000 9 for bodily injury and property damage. 10 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 12 follows: 13 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 14 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 15 insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." 16 LBBS shall furnish certificates of insurance and certified copies of all policies and 17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 18 to the commencement of performance of services hereunder, which certificates shall provide that 19 such insurance shall not be terminated or expire without thirty (30) days written notice to the City 20 Attorney's Office, and shall maintain such insurance from the time LBBS commences performance 21 of services hereunder until the completion of such services. 22 All policies, with respect to the insurance coverage above required, except for the 23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 24 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 25 their employees, agents, volunteers and officers as additional named insureds with respect to 26 liabilities arising out of the performance of services hereunder. 27 All policies required above are to be primary and non-contributing with any insurance 28 F:~ROTH~L,itigation Cases -Outside CounselU~tay~L,BBS PSA.wpd 3 EXHIBIT "A" 2011-127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies orself-insurance programs carried or administered by the CITY or other parties represented under this Agreement. 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 Dated: , 2011 LEWIS, BRISBOIS, BISGAARD & SMITH Dated: , 2011 Approved as to form: JAMES F. PENMAN, City Attorney ~ BY~ By: Arthur K. Cunningham CITY OF SAN BERNARDINO By: Patrick J. Morris, Mayor II F:~ROTInLitigation Cases -Outside Counseluvlay~L,BBS PSA.wpd 4 EXHIBIT "A" 2011-127 1 PROFESSIONAL SERVICES AGREEMENT 2 Cedric May, Sr., et al., v. City of San Bernardino, et al. United States District Court, Case No. CV10-00978 VAP (DTBx) 3 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 4 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "EBBS") are the parties to this Agreement. 5 2. EBBS will represent the following defendants in Cedric May, Sr., et al., v. City ofSan 6 Bernardino, et al., United States District Court, Case No. CV 10-00978 VAP (DTBx): CITY OF SAN 7 BEIZNARDINO, Officer Joseph Aguilar, Jose Vasquez, Byron Clark, Langston Canright, Melissa 8 Flint, Sergeant James Beach and any other designated officer or employee of the CITY who may 9 later be named. EBBS shall not represent any client in any type of claim against the CITY without 10 prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's 11 Office. 12 3. EBBS shall be paid at the hourly rates set forth below: 13 Attorneys - $145.00 per hour; and, 14 Law Clerks/Paralegals - $70.00 per hour. 15 The amounts expended under this agreement for attorney 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 5`'' 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 EBBS may include a single charge in an amount not to exceed four percent (4%) of attorney fees in 22 lieu of reimbursement for photocopying, telephone charges, and postage. 23 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return), 24 then EBBS shall not be entitled to reimbursement for mileage and parking fees. 25 7. EBBS shall obtain approval from the CITY to retain expert witnesses, consultants, 26 and other professionals (not including court reporters) for purposes of the litigation. EBBS may, if 27 it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on 28 F:\ROTH\Litigation Cases -Outside Counsel\May\LBBS PSA.wpd 1 2011-127 1 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 2 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the 3 CITY' S Finance Department. 4 8. Status reports will be submitted to the CITY through the City Attorney's Office 5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to 6 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall 7 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable. 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 litigation. 11 10. Copies of any correspondence and other documents sent to any of the parties in this 12 action shall also be provided to the CITY through the City Attorney's Office. 13 11. 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. 15 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 Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior 18 attorney approved by the City shall conduct the trial of 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 Agreement at will. LBBS 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. LBBS is an independent contractor as to the CITY. 27 19. LBBS shall maintain the following types of insurance with limits as shown: 28 a) Workers Compensation as required by the laws of the State of California, F:~ROTH~Litigation Cases -Outside CounselUvlay~L,BBS PSA.wpd 2 2011-127 1 including Employment Liability with $250,000 limits covering all persons providing 2 service on behalf of LBBS and all risks to such persons under this Agreement. LBB S 3 shall require its Workers Compensation carrier to waive all rights of subrogation 4 against the CITY and its officers and employees and any others for whom services 5 are being provided under this Agreement. 6 b) Comprehensive General and Automobile Liability Insurance coverage to 7 include contractual coverage and automobile coverage for owned, hired and non- 8 owned vehicles. The policy shall have at least a combined single limit of $1,000,000 9 for bodily injury and property damage. 10 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 12 follows: 13 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 14 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 15 insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." 16 LBBS shall furnish certificates of insurance and certified copies of all policies and 17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 18 to the commencement of performance of services hereunder, which certificates shall provide that 19 such insurance shall not be terminated or expire without thirty (30) days written notice to the City 20 Attorney's Office, and shall maintain such insurance from the time LBBS commences performance 21 of services hereunder until the completion of such services. 22 All policies, with respect to the insurance coverage above required, except for the 23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 24 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 25 their employees, agents, volunteers and officers as additional named insureds with respect to 26 liabilities arising out of the performance of services hereunder. 27 All policies required above are to be primary and non-contributing with any insurance 28 F:~ROTHU.itigation Cases -Outside CounselUvlayU.BBS PSA.wpd 3 2011-127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 policies orself-insurance programs carried or administered by the CITY or other parties represented under this Agreement. 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 Dated: ' ~ , 2011 Dated: u h.e ~' , 2011 Approved as to form: JAMES F. PENMAN, City Attorn .. /~~ f~ ~. LEWIS, BRISBOIS, BISGAARD & SMITH ~`~ ~: Arthur K. Cunningham 6 CITY OF SAN BERNARDINO y: Pa rick J. Mo M or I F:~ROTI-1\Litigation Cases -Outside Counsel~Ivlay~LBBS PSA.wpd 4'