HomeMy WebLinkAbout2011-1371
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RESOLUTION NO. 2011-137
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 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.
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 behalfof said City a Professional Services Agreement between Lewis, Brisbois, Bisgaard
& Smith and the City of San Bernardino for legal services in the case of 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, 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
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P:\LUCZA K\C N I L\Rcy\Rey. Resol uti on. PSA. wpd
2011-137
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
z 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, CHRISTYLDNA V. CITY OF SAN
BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS
4 1009578.
s
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on the 20 day
7
of June , 2011, by the following vote, to wit:
8
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9
MARQUEZ X
l0
VACANT
11 %
BRINKER
lz x
SHORETT
13 R
KELLEY
14 %
JOHNSON
15 R
MC CAMMACK
16
17 ~" ~~
Rach Clark, City Clerk
18
19 The foregoing Resolution is hereby approved this ~ day of June ~ 2011.
20
21
22 A RICK J. KRIS, Mayor
of San Bernardino
23
Approved as to form:
24
JAMES F. PENMAN,
2 5 City Attorney /7
2 6 C `./
B , ~t CI L ~L-` i ct_
Y'
27
28
P:\LUCZAK\CIV IL\Rey\Rey. ResolutioaPSA.wpd
2011-137
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 (hereinafrer "CITY") and the law firm of
5
LEWIS,BRISBOIS,BISGAARD&SMITH (hereinafrer"LBBS")azethepartiesto this Agreement.
6
2. LBBS will represent the following defendants in the case of Michael Anthony Rey,
7
et al. v. City of San Bernardino, et al., 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
10
be named. LBBS shall not represent any client in any type of claim against the CITY without prior
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written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
12
Office.
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3. LBBS shall be paid at the hourly rates set forth below:
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Attorneys - $145.00 per hour; and,
15
Law Clerks/Pazalegals - $70.00 per hour.
16
The amounts expended under this agreement for attorney fees shall not exceed
17
$25,000 without further approval of the Mayor and Common Council.
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4. Bills shall be submitted at least on a monthly basis and no later than the 5"' day of
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each succeeding month.
20
5. 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
LBBS may include a single chazge in an amount not to exceed four percent (4%) of attomey fees in
23
lieu of reimbursement for photocopying, telephone chazges, and postage.
24
6. If attorney fees are chazged "portal to portal" (e.g., from office to court and return),
25
then LBBS shall not be entitled to reimbursement for mileage and parking fees.
26
7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
27
and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
28
Exhibit "A'
P~.\LUCZAK\CNIL\Rey\Rey.LBBS.PSA.wpd 1
2011-137
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 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
10 in the case.
11 10. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
12 Attomey's Office which may reproduce same and provide copies to other parties or attorneys in this
13 or other litigation.
14 11. 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 ofLewis, 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.
Exhibit "A"
P:\LUCZAK\CIVIL\Rey\Rey.LBBS.PSA.wpd 2
2011-137
1 19. LBBS is an independent contractor as to the CITY.
2 20. LBBS shall maintain the following types of insurance with limits as shown:
3 a) Workers Compensation as required by the laws of the State of California,
4 including Employment Liability with $250,000 limits covering all persons providing
5 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS
6 shall require its Workers Compensation can-ier to waive all rights of subrogation
~ against the CITY and its officers and employees and any others for whom services
g are being provided under this Agreement.
9 b) Comprehensive General and Automobile Liability Insurance coverage to include
10 contractual coverage and automobile coverage for owned, hired and non-owned
11 vehicles. The policy shall have at least a combined single limit of $1,000,000 for
12 bodily injury and property damage.
13 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu
14 of naming the CITY as an additional insured, the policy may 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
16 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
1 ~ insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
18
LBBS 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 LBBS 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 insureds with respect to
28
Exhibit "A"
P:\LUCZAK\CNIL\Rcy\Rey.LBBS.PSA.wpd 3
2011-137
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liabilities arising out of the performance of services hereunder.
All policies required above are to be primary and non-contributing with any insurance
policies orself-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
21. 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: , 2011
Approved as to form:
JAMES F. PENMAN,
City Attorney
~ BY~
LEWIS, BRISBOIS, BISGAARD & SMITH
By: Arthur K. Cunningham
CITY OF SAN BERNARDINO
By: Patrick J. Moms, Mayor
Exhibit "A"
III P:\LUCZAK\CIVILVtay\Rey.LBBS.PSA.wpd
4
2011-137
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PROFESSIONAL SERVICES AGREEMENT
MICHAEL ANTHONY REY, by a~td through his Guardian Ad Litem, CHRISTY LUNA
V. CITY OF SAN BERNARDINO, ET AL.,
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1009578.
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "EBBS") are the parties to this Agreement.
2. EBBS will represent the following defendants in the case of Michael Anthony Rey,
et al. v. City of .San Bernardino, et al., San Bernardino Superior Court Case No.: CIVDS 1009578:
CITY OF SAN BERNARDINO, Michael Billdt, Sgt. R. Topping, Officer Chris Gray, Officer J.
Simpson, Officer C. Dai 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
$2`~~,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`~ 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
P:\LUCIAK\CIVIL\Key\Rey.LBBS.PSA.wpd
1
2011-137
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
Q be in: ludc:d. LBBS shall ccmk~ly 4.~i ~h all repertiNg _.~ q~:irements cf BICLF, if applicable.
9 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed
10 in 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 11. 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:ALUCZAK\CIVIL\Rey\Rey. LBBS. PSA.wpd 2
2011-137
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19. LBBS is an independent contractor as to the CITY.
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 Liability with $250,000 limits covering all persons providing
service on behalf of LBBS 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
;~.r:, being provided u:::ue.• this .-=zgreemer~'.
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. 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 he City Attorney's Ofice evidencing the i~;surance co~~erage 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
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,
their employees, agents, volunteers and officers as additional named insureds with respect to
P'\LUCZAK\CNIL\Rey\Rey.LBBS.PSA.wpd
3
2011-137
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 orself-insurance programs carried or administered by the CITY or other parties represented
4 under this Agreement.
5 21. All communications and billings to the CITY are to be directed as follows:
6 City Attorney's Office
CITY OF SAN BERNARDINO
~ 300 North "D" Street
San Bernardino, CA 92418
8;
9 Dated: °~w~+ ~`~ , 2011 LEWIS, BRISBOIS, BISGAARD & SMITH
10 -
~'
11 -
y: Arthur K. Cunningham
12 ,
13
14 Dated. d3, 201.1 CITY OF SAN BERNARDINO
1~
16
B : Pa ick J. Morris,
17
18
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20 Approved as to forn1:
21
JAMES F. PENMAN,
22 City Attorney
'~
23 ,.
24 //
2j
2fi
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P:ALUCZAK\CNIL\Rey\Rey.LBBS.PSA.wpd 4