HomeMy WebLinkAbout12-City Attorney
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept CITY ATTORNEY
Subject: Professional Services Agreement between the
City of San Bernardino and the law firm of Lewis
Brisbois Bisgaard & Smith to represent the City
regarding the case Michael Anthony Rey v. City of San
Bernardino, et al., San Bernardino Superior Court Case
No. CNDS 1009578.
From: DIANE C. ROTH
Sr. Assistant City Attorney
Date: June 13, 2011
Synopsis of Previous Couucil Action:
None.
Recommended motiou:
That said Resolution be adopted.
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isfgTIature
Contact person: Richard Luczak
Phone:
5355
Supporting data attached: Staff Reoort
Ward:
All
FUNDING REQUIREMENTS: Amount
Source:
Finance:
Council Notes:
Agenda Item No.
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STAFF REPORT
Council Meeting Date: June 20. 2011
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: June 13,2011
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Arias & Lockwood to represent the City of San Bernardino in the case
entitled MICHAEL ANTHONY REY, by and through his Guardian Ad
Litem, CHRISTY LUNA V. CITY OF SAN BERNARDINO, ET AL. ,
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1009578.
The City of San Bernardino is currently involved in litigation regarding the arrest and
detention of plaintiff Michael Anthony Rey. Mr. Rey alleges various medical damages and
constitutional violations.
The Mayor and Common Council have approved retention ofthe law firm of Lewis Brisbois
Bisgaard & Smith to represent the City of San Bernardino regarding the case entitled MICHAEL
ANTHONY REY, by and through his Guardian Ad Litem, CHRISTY LUNA V. CITY OF SAN
BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS
1009578.
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 following floor motion be adopted authorizing
the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
"That the Mayor of the City of San Bernardino and Common Council authorize and direct
the Mayor of the City of San Bernardino 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 of San Bernardino regarding the case entitled MICHAEL ANTHONY REY, by and
through his Guardian Ad Litem, CHRISTY LUNA V. CITY OF SAN BERNARDINO, ET AL.,
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1009578."
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND 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 FOR LEGAL SERVICES IN THE CASE OF MICHAEL ANTHONY
4 HEY, by and through his Guardian Ad Litem, CHRISTY LUNA V. CITY OF SAN
BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS
5 1009578.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
7
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 Lewis, Brisbois, Bisgaard
10 & Smith and the City of San Bernardino for legal services in the case of MICHAEL ANTHONY
11 HEY, by and through his Guardian Ad Litem, CHRISTY LUNA V. CITY OF SAN
12 BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS
13 1009578, a copy of which is attached hereto and incorporated herein as Exhibit "A."
14 SECTION 2. The authorization granted by this Resolution shall expire and be void and
15 of no further effect if the agreement is not executed by both parties and returned to the Office of the
16 City Clerk within sixty (60) days following the effective date of this Resolution.
17 11/
18 11/
19 /11
20 11/
21 11/
22 11/
23 11/
24 /11
25 11/
26 11/
27 11/
28 /11
P:\LUCZAK\CrVIL \Rey\Rey.Resolution,PSA.wpd
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 MICHAEL
3 ANTHONY REY, by and through his Guardian Ad Litem, CHRISTY LUNA V. CITY OF SAN
BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS
4 1009578.
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
meeting thereof, held on the _day
7
of
,2011, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
19
The foregoing Resolution is hereby approved this _ day of
,2011.
20
21
PATRICK J. MORRIS, Mayor
City of San Bernardino
22
23
Approved as to form:
24
JAMES F. PENMAN,
25 City Attorney
:: By/(~~0
28
P;\LUCZAK\CIVIL \Rey\Rey .Resolution.PSA.wpd
I PROFESSIONAL SERVICES AGREEMENT
2 MICHAEL ANTHONY REY, by and through his Guardian Ad Litem, CHRISTY LUNA
V. CITY OF SAN BERNARDINO, ET AL.,
3 SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1009578.
4
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBBS") are the parties to this Agreement.
5
6
7
2. LBBS will represent the following defendants in the case of Michael Anthony Rey,
et at. v. City of San Bernardino, et at., San Bernardino Superior Court Case No.: CIVDS 1009578:
8
CITY OF SAN BERNARDINO, Michael Billdt, Sgt. R. Topping, Officer Chris Gray, Officer J.
9
Simpson, Officer C. Dai and any other designated officer or employee of the CITY who may later
be named. LBBS shall not represent any client in any type of claim against the CITY without prior
10
II
written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
Office.
12
13
14
3. LBBS shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/Paralegals - $70.00 per hour.
15
16
The amounts expended under this agreement for attorney fees shall not exceed
17
18
19
$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 5th day of
each succeeding month.
20
21
22
23
24
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.
LBBS 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 LBBS shall not be entitled to reimbursement for mileage and parking fees.
25
26
7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
27
28
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA wpo
I
Exhibit "A"
1 it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
2 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
3 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
4 CITY'S Finance Department.
5 8. Status reports will be submitted to the CITY through the City Attorney's Office
6 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
7 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
8 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
9 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed
lOin the case.
11 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
12 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
13 or other litigation.
14 II. Copies of any correspondence and other documents sent to any of the parties in this
15 action shall also be provided to the CITY through the City Attorney's Office.
16 12. Any and all settlements shall require CITY approval. Request for settlement authority
17 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
18 13. In the event the settlement value of this case appears to exceed $50,000.00 the City
19 Attorney's Office shall be notified immediately.
20 14. Only Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior
21 attorney approved by the City shall conduct the trial of this case.
22 15. No client development costs are to be included in billings.
23 16. No continuing education expenses are to be included in billings.
24 17. Final billing shall be accompanied by copies of the Request for Dismissal,
25 Satisfaction of Judgment, Release and any other final documents.
26 18. Either party may terminate this Agreement at will. LBBS will continue to represent
27 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
28 another attorney.
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA.wpd
2
Exhibit "A"
I
19.
LBBS is an independent contractor as to the CITY.
2
3
4
20.
LBBS 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 Liabilitywith $250,000 limits covering all persons providing
service on behalf ofLBBS and all risks to such persons under this Agreement. LBBS
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.
Comprehensive General and Automobile Liability Insurance coverage to include
5
6
7
8
9
b)
10
contractual coverage and automobile coverage for owned, hired and non-owned
II
12
13
14
15
16
17
18
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 endorsed as follows:
"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 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."
LBBS shall furnish certificates of insurance and certified copies of all policies and
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
19
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
23
24
25
26
Attorney's Office, and shall maintain such insurance from the time LBBS 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,
27
28
their employees, agents, volunteers and officers as additional named insureds with respect to
Exhibit "A"
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA.wpd
3
1 liabilities arising out of the performance of services hereunder.
2 All policies required above are to be primary and non-contributing with any insurance
3 policies or self-insurance programs carried or administered by the CITY or other parties represented
4 under this Agreement.
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 21.
6
7
8
9 Dated:
10
11
12
13
14 Dated:
15
16
17
18
,2011
LEWIS, BRISBOIS, BISGAARD & SMITH
By: Arthur K. Cunningham
,2011
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
1 PROFESSIONAL SERVICES AGREEMENT
2 MICHAEL ANTHONY REY, by and through his Guardian Ad Litem, CHRISTY LUNA
V. CITY OF SAN BERNARDINO, ET AL.,
3 SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1009578.
4
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
LEWIS, BRISBOIS, BlSGAARD & SMITH (hereinafter "LBBS") are the parties to this Agreement.
5
6
2. LBBS will represent the following defendants in the case of Michael Anthony Rey,
7
et al. v. City of San Bernardino, et aI., San Bernardino Superior Court Case No.: CIVDS 1009578:
8
CITY OF SAN BERNARDINO, Michael Billdt, Sgt. R. Topping, Officer Chris Gray, Officer J.
9
Simpson, Officer C. Dai and any other designated officer or employee of the CITY who may later
be named. LBBS shall not represent any client in any type of claim against the CITY without prior
10
II
12
13
written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
Office.
3. LBBS shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/Paralegals - $70.00 per hour.
14
15
16
17
18
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 5th day of
19
each succeeding month.
20
21
22
23
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.
LBBS 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.
24
25
6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
then LBBS shall not be entitled to reimbursement for mileage and parking fees.
26
27
28
7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA.wpd
1
I it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
2 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
3 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
4 CITY'S Finance Department.
5
8.
Status reports will be submitted to the CITY through the City Attorney's Office
6 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
7 set reserves, including, without limitation, potential liability exposure and percentage offault, shall
8 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
9 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed!
lOin the case.
II
10.
Copies of all opinions, pleadings, discovery and motions shall be provided to the City
12 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
13 or other litigation.
14
II.
Copies of any correspondence and other documents sent to any of the parties in this
IS action shall also be provided to the CITY through the City Attorney's Office.
16
Any and all settlements shall require CITY approval. Request for settlement authority
12.
17 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
18
In the event the settlement value of this case appears to exceed $50,000.00 the City
13.
19 Attorney's Office shall be notified immediately.
20
Only Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior
14.
21 attorney approved by the City shall conduct the trial of this case.
22
23
24
IS.
16.
17.
No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
Final billing shall be accompanied by copies of the Request for Dismissal,
25 Satisfaction of Judgment, Release and any other final documents.
26
Either party may terminate this Agreement at will. LBBS will continue to represent
18.
27 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
28 another attorney.
P:\LUCZAK\CrYIL\Rey\Rey.LBBS.PSAvvpd
2
1
2
3
4
19.
20.
a)
LBBS is an independent contractor as to the ClTY.
LBBS shall maintain the following types of insurance with limits as shown:
5
Workers Compensation as required by the laws of the State of California,
including Employment Liability with $250,000 limits covering all persons providing
service on behalf ofLBBS and all risks to such persons under this Agreement. LBBS
6
shall require its Workers Compensation carrier to waive all rights of subrogation
7
against the CITY and its officers and employees and any others for whom services
8
9
are being provided under this Agreement.
b)
Comprehensive General and Automobile Liability Insurance coverage to include
10
II
12
13
14
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 endorsed as follows:
"Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
ClTY OF SAN BERNARDINO for legal 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."
15
16
17
18
19
20
21
22
LBBS shall furnish certificates of insurance and certified copies of all policies and
endorsements to the City Attorney's Office evidencing the insurance coverage 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) days written notice to the City
Attorney's Office, and shall maintain such insurance from the time LBBS commences performance
23
of services hereunder until the completion of such services.
24
25
26
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 ClTY and all parties represented under this Agreement,
27
28
their employees, agents, volunteers and officers as additional named insureds with respect to
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA.wpd
3
I liabilities arising out of the performance of services hereunder.
2 All policies required above are to be primary and non-contributing with any insurance
3 policies or self-insurance programs carried or administered by the CITY or other parties represented
4 under this Agreement.
All communications and billings to the CITY are to be directed as follows:
5 21.
6
7
8
9 Dated:
10
11
12
13
14 Dated:
IS
16
17
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
,2011
LEWIS, BRISBOIS, BISGAARD & SMITH
By: Arthur K. Cunningham
,2011
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor