HomeMy WebLinkAbout2011-059
(NOTE: COMPANION RESOLUTION CDC/2011-12)
1 RESOLUTION NO. 2011-59
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN TIMOTHY SABO, OF LEWIS, BRISBOIS, BISGAARD & SMITH
and THE CITY OF SAN BERNARDINO FOR REPRESENTATION IN THE CASE OF
4 PLACO SAN BERNARDINO, LLC, V. CITY OF SAN BERNARDINO, ET AL., UNITED
STATES DISTRICT COURT NO. CVll-01l87GW (FMOx).
5
6
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
7 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 Timothy Sabo, of Lewis,
10
Brisbois, Bisgaard & Smith and the City of San Bernardino for legal services in the case of Placo San
11
Bernardino, LLC, v. City of San Bernardino, et aI., United States District Court No. CVll-01187GW
12
(FMOx), a copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference
13
14
as fully as though set forth at length.
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 all parties and returned to the Office ofthe City
Clerk within sixty (60) days following the effective date of this Resolution.
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F:\ONSTOnCIVIL CASES\Placo\Sabo PSA Reso.wpd
2011-59
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN TIMOTHY SABO, OF LEWIS, BRISBOIS, BISGAARD &
SMITH, THE CITY OF SAN BERNARDINO FOR REPRESENT A TION IN THE CASE OF
3 PLACO SAN BERNARDINO, LLC, V. CITY OF SAN BERNARDINO, ET AL., UNITED
STATES DISTRICT COURT NO. CVll-01l87GW (FMOx).
4
5
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 re~ular meeting thereof, held on the ...Lday
7
March
,201 I, by the following vote, to wit:
of
8
COUNCIL MEMBERS:
9
MARQUEZ
10
VACANT
11
BRINKER
12
SHORETT
13
KELLEY
14
JOHNSON
15
MC CAMMACK
16
17
18
AYES
NAYS
ABSTAIN ABSENT
----1L
----1L
----1L
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----1L
c.2~.6 ~
Rachel Clark, City Clerk
19
The foregoing Resolution is hereby approved this ~ day of March., 201 I.
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Approved as to form:
24
28
~Ct~
Tobin Brinker, Mayor Pro Tern
City of San Bernardino
F:\ONSTOT\CIVIL CASES\Placo\Sabo PSA Reso.wpd
2011-59
1
PROFESSIONAL SERVICES AGREEMENT
2
3
4
Placo San Bernardino, LLC, v. City of San Bernardino, et al.
United States District Court No. CVll-OIl87GW (FMOx)
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
2. LBBS will represent the following defendants in Placo San Bernardino, LLe, v. City
6
7
of San Bernardino, et al., United States District Court No. CV] 1-01187GW (FMOx): the CITY, the
EDA and any designated officer or employee ofthe CITY or EDA who may later be named. LBBS
8
shall not represent any client in any type of claim against the CITY without prior written approval
9
10
to do so from the CITY through the City Attorney's Office.
3. LBBS shall be paid at the hourly rates set forth below:
11
Attorneys: $160.001hr.
]2
The amounts expended under this agreement for attorney fees shaH not exceed
13
$25,000 without further approval of the Mayor and Common Council and the Community
14
15
Development Commission.
4. Bills shaH be submitted at least on a monthly basis and no later than the 5th day of
16
each succeeding month.
17
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage (at prevailing IRS rate) and related travel costs shaH be itemized when submitted to the
CITY for reimbursement. LBBS may include a single charge in an amount not to exceed four
19
20
percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone charges, and
21
22
postage.
6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
23
then LBBS shaH not be entitled to reimbursement for mileage and parking fees.
24
7. LBBS shaH obtain approval from the CITY to retain expert witnesses, consultants,
25
and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
26
it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
27
its periodic statement, or it may forward the consultant's biH to the CITY with a request that the
28
F:\ONSTOT\CIVIL CASES\Placo\Sabo PSA.wpd
I
EXHIBIT "A"
2011-59
I CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S Finance Department.
3 8. Status reports will be submitted to the CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
5 set reserves, including, without limitation, potential liability exposure and percentage offault, shall
6 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
9 or other litigation. James F. Penman! Stephen R. Onstot of the City Attorney's Office shall be
10 included on the official Service List of the lawsuit as associated counsel.
II 10. Copies of any correspondence and other documents sent to any ofthe parties in this
12 action shall also be provided to the CITY through the City Attorney's Office.
13 II. Any and all settlements shall require CITY and EDA approval. Request for
14 settlement authority shall be made through the City Attorney's Office which shall obtain the
15 necessary CITY approvals.
16 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
17 Attorney's Office shall be notified immediately.
18 13. Only Timothy Sabo of Lewis, Brisbois, Bisgaard & Smith, or another senior attorney
19 approved by the City shall conduct the trial of this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Any of the parties may terminate this Agreement at will. LBBS will continue to
25 represent the CITY on the terms and conditions in this Agreement until the case and file are
26 transferred to another attorney.
27 18. LBBS is an independent contractor as to the CITY.
28 19. LBBS shall maintain the following types of insurance with limits as shown:
F:\ONSTOT\CIVIL CASES\Placo\Sabo PSAwpd
2
EXHIBIT "A"
2011-59
1
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
a)
2
3
4
shall require its Workers Compensation carrier to waive all rights of subrogation
5
against the CITY and its officers and employees and any others for whom services
are being provided under this Agreement.
6
7
b)
Comprehensive General and Automobile Liability Insurance coverage to
8
include contractual coverage and automobile coverage for owned, hired and non-
9
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
10
II
c)
for bodily injury and property damage.
Professional Liability Insurance with limits of at least $1,000,000 per claim.
12 On all policies except that for professional liability, the CITY shall be named as additional
13 insured; however, in lieu of naming the CITY as an additional insured the policy may be endorsed
14 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
17 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
18
19
LBBS shall furnish certificates of insurance and certified copies of all policies and
20
21
22
23
endorsements to the City Attorney's Office evidencing the insurance coverage above required within
thirty (30) days ofthe 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
24
performance of services hereunder until the completion of such services.
25
All policies required above are to be primary and non-contributing with any insurance
26
policies or self-insurance programs carried or administered by the CITY or other parties represented
27
28
under this Agreement.
20. All communications and billings to the CITY are to be directed as follows:
F:\ONSTOnCIVIL CASES\Placo\Sabo PSAwpd
3
EXHIBIT "A"
1
2
3
4 Dated:
5
6
7
8
9 Dated:
10
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12
13
14
,2011
,2011
2011-59
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
LEWIS BRISBOIS BISGAARD & SMITH
By: Timothy Sabo
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
2011-59
I
PROFESSIONAL SERVICES AGREEMENT
2
Placo San Bernardino, LLC, v. City of San Bernardino, et al.
United States District Court No. CVll-01l87GW (FMOx)
3
4
I. 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
2. LBBS will represent the following defendants in Placo San Bernardino, LLC, v. City
7
of San Bernardino, et aI., United States District Court No. CYII-01187GW (FMOx): the CITY, the
EDA and any designated officer or employee of the CITY or EDA who may later be named. LBBS
8
9
shall not represent any client in any type of claim against the CITY without prior written approval
10
to do so from the CITY through the City Attorney's Office.
3. LBBS shall be paid at the hourly rates set forth below:
11
12
Attorneys: $160.001hr.
13
The amounts expended under this agreement for attorney fees shall not exceed
14
$25,000 without further approval of the Mayor and Common Council and the Community
Development Commission.
15
16
4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
each succeeding month.
17
18
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage (at prevailing IRS rate) and related travel costs shall be itemized when submitted to the
19
20
CITY for reimbursement. LBBS may include a single charge in an amount not to exceed four
21
22
23
percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone charges, and
24
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.
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
it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
25
26
27
28
its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:\ONSTOnCIVIL CASES\Placo\Sabo PSA.wpd
I
2011-59
1 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S Finance Department.
3 8. Status reports will be submitted to the CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
5 set reserves, including, without limitation, potential liability exposure and percentage offauIt, shall
6 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City
8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
9 or other litigation. James F. Penman! Stephen R. Onstot of the City Attorney's Office shall be
10 included on the official Service List of the lawsuit as associated counsel.
11 10. Copies of any correspondence and other documents sent to any ofthe 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 and EDA approval. Request for
14 settlement authority shall be made through the City Attorney's Office which shall obtain the
15 necessary CITY approvals.
16 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
17 Attorney's Office shall be notified immediately.
18 13. Only Timothy Sabo of Lewis, Brisbois, Bisgaard & Smith, or another senior attorney
19 approved by the City shall conduct the trial of this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Any of the parties may terminate this Agreement at will. LBBS will continue to
25 represent the CITY on the terms and conditions in this Agreement until the case and file are
26 transferred to another attorney.
27 18. LBBS is an independent contractor as to the CITY.
28 19. LBBS shall maintain the following types of insurance with limits as shown:
F:\ONSTOnCIVIL CASES\PlacolSabo PSAwpd
2
2011-59
1
a)
Workers Compensation as required by the laws of the State of California,
including Employment Liability with $250,000 limits covering all persons providing
service on behalf ofLBBS and all risks to such persons under this Agreement. LBBS
2
3
4
shall require its Workers Compensation carrier to waive all rights of subrogation
5
against the CITY and its officers and employees and any others for whom services
are being provided under this Agreement.
6
7
b)
Comprehensive General and Automobile Liability Insurance coverage to
8
9
include contractual coverage and automobile coverage for owned, hired and non-
10
owned vehicles. The policy shall have at least a combined single limit of$l ,000,000
for bodily injury and property damage.
11
Professional Liability Insurance with limits of at least $1,000,000 per claim.
c)
12 On all policies except that for professional liability, the CITY shall be named as additional
13 insured; however, in lieu of naming the CITY as an additional insured the policy may be endorsed
14 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
17 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
18
19
20
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 within
21
thirty (30) days ofthe commencement of performance of services hereunder, which certificates shall
22
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
23
24
performance of services hereunder until the completion of such services.
25
All policies required above are to be primary and non-contributing with any insurance
26
policies or self-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
27
28
20. All communications and billings to the CITY are to be directed as follows:
F:\ONSTOT\CIVIL CASES\Placo\Sabo PSA.wpd
3
2011-59
I
2
3
4 Dated: M"orcL .\d, 2011
5
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
LEWIS BRISBOIS BISGAARD & SMITH
6
vA- A'~
By: timot~a
7
8
9 Dated:41"'~ 17,2011
10
CITY OF SAN BERNARDINO
II
12
13
14
IS
"--\'e ~--
By: Pat ck J. M .s, Mayor '-.)
Approved as to form:
JAMES F. PENMAN,
16 City Attr
17 By: !1/r i-2/'J.~' 7t!~,(
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F:\ONSTOnCIVIL CASES\Placo\Sabo PSA.wpd
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