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HomeMy WebLinkAbout2011-061 1 RESOLUTION NO. 2011-61 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 EL VIA A GUILA,R v. CITY 4 OF SAN BERNARDINO, etal., UNITED STATES DISTRICT COURT, CASE NO. CVl 0-03659 SJO (PLAx) 5 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 1 J & Smith and the City of San Bernardino for legal services in the case of Elvia Aguilar v. City of San 11 Bernardino, et AI, United States District Court Case No. CVI 0-03659 SIO (PLAx) a copy of which 12 is attached hereto and incorporated herein as Exhibit" A." 13 SECTION 2. The authorization granted by this Resolution shall expire and be void and 14 of no further effect if the agreement is not executed by both parties and returned to the Office of the 15 City Clerk within sixty (60) days following the effective date of this Resolution. 16 III 17 III 18 III 19 III 20 III 21 III 22 IIi 23 III 24 III 25 III 26 III 27 III 28 III F:\ROTH\Litigation Files - In-Housc\Aguilar\LBBS PSA RESO.wpd 2011-61 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 EL VIA AGUILAR 3 v. CITY OF SAN BERNARDINO, et ai., UNITED STATES DISTRICT COURT CASE NO. CVIO-03659 SJO (PLAx) 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and joint 6 Common Council of the City of San Bernardino at a re~ular meeting thereof, held on the7JJLday , 20 II, by the following vote, to wit: 7 of March 8 COUNCIL MEMBERS: 9 MARQUEZ 10 VACANT 11 BRINKER 12 SHORETT 1.3 KELLEY 14 JOHNSON 15 MC CAMMACK 16 17 18 AYES X NAYS ABSTAIN ABSENT --.lL --.lL --.lL --.lL --.lL ~A /~. eJ....v..A Rac el Clark, City Clerk The foregoing Resolution is hereby approved this ~day of March , 2011. JAMES F. PENMAN, City Attorney By:/L,~ ~- ~~. 19 20 21 22 23 Approved as to form: 24 25 26 27 28 ~c.~ Tobin Brinker, Mayor Pro Tern City of San Bernardino F:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSA RESO.wpd 2011-61 1 PROFESSIONAL SERVICES AGREEMENT 2 Elvia Aguilar v. City of San Bernardino, et al. United States District Court, Case No. CVIO-03659 SJO (PLAx) 3 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 2. LBBS will represent the following defendants in Elvia Aguilar v. City of San 6 Bernardino, et ai, United States District Court, Case No. CVI0-03659 SJO (PLAx): CITY OF SAN 7 8 BERNARDINO, Officer Juan Ochoa, Officer Andrew Honeycutt and any other designated officer or employee ofthe CITY who may later be named. LBBS 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 9 10 BERNARDINO through the City Attorney's Office. II 12 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. 13 14 The amounts expended under this agreement for attorney fees shall not exceed 15 16 $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 51h day of 17 each succeeding month. 18 19 20 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 21 22 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), 23 then LBBS shall not be entitled to reimbursement for mileage and parking fees. 24 25 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 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 bill to the CITY with a request that the 28 F:\ROTH\Litlgation Files - In-House\Aguilar\LBBS PSA.wpd 1 EXHIBIT "A" 2011-61 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 of fault, 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. 10 10. Copies of any correspondence and other documents sent to any of the parties in this II action shall also be provided to the CITY through the City Attorney's Office. 12 II. Any and all settlements shall require CITY approval. Request for settlement authority 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 14 12. In the event the settlement value of this case appears to exceed $50,000.00 the City 15 Attorney's Office shall be notified immediately. 16 13. Only Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior 17 attorney approved by the City shall conduct the trial of this case. 18 14. No client development costs are to be included in billings. 19 15. No continuing education expenses are to be included in billings. 20 16. Final billing shall be accompanied by copies of the Request for Dismissal, 21 Satisfaction of Judgment, Release and any other final documents. 22 17. Either party may terminate this Agreement at will. LBBS will continue to represent 23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 24 another attorney. 25 18. LBBS is an independent contractor as to the CITY. 26 19. LBBS shall maintain the following types of insurance with limits as shown: 27 a) Workers Compensation as required by the laws of the State of California, 28 including Employment Liability with $250,000 limits covering all persons providing F:\ROTH\Litigation Files. In-House\Aguilar\LBBS PSA.wpd 2 EXHIBIT "AIf 2011-61 1 service on behalf ofLBBS and all risks to such persons under this Agreement. LBBS 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services 4 are being provided under this Agreement. 5 6 b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non- 7 owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000 for bodily injury and property damage. 8 9 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 10 11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: 12 13 "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." 14 15 16 17 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 18 such insurance shall not be terminated or expire without thirty (30) days written notice to the City 19 20 21 22 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 23 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 24 their employees, agents, volunteers and officers as additional named insureds with respect to 25 26 liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance 27 policies or self-insurance programs carried or administered by the CITY or other parties represented 28 F:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSA.wpd 3 EXHIBIT" A" I under this Agreement. 2011-61 All communications and billings to the CITY are to be directed as follows: 2 20. 3 4 5 6 Dated: 7 8 9 10 II Dated: 12 13 14 ,2011 ,2011 28 City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 LEWIS, BRISBOIS, BISGAARD & SMITH By: Arthur K. Cunningham CITY OF SAN BERNARDINO By: Patrick J. Morris, Mayor 4 EXHIBIT" A" F:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSA.wpd 2011-61 I I PROFESSIONAL SERVICES AGREEMENT 2 Elvia Aguilar v. City of San Bernardino, et al. United States District Court, Case No. CVIO-03659 SJO (PLAx) 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. 3 4 5 2. LBBS will represent the following defendants in Elvia Aguilar v. City of San 6 Bernardino, et ai, United States District Court, Case No. CVI 0-03659 SJO (PLAx): CITY OF SAN 7 BERNARDINO, Officer Juan Ochoa, Officer Andrew Honeycutt and any other designated officer 8 or employee ofthe CITY who may later be named. LBBS 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 9 10 11 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. 12 13 14 The amounts expended under this agreement for attorney fees shall not exceed 15 16 $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 17 each succeeding month. 18 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 19 20 21 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. 22 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return), 23 then LBBS shall not be entitled to reimbursement for mileage and parking fees. 24 7. LBBS shall 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 bill to the CITY with a request that the 28 F:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSA.wpd 1 2011-61 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 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. 10 10. Copies of any correspondence and other documents sent to any of the parties in this 11 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 authority 13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 14 12. In the event the settlement value of this case appears to exceed $50,000.00 the City 15 Attorney's Office shall be notified immediately. 16 13. Only Arthur K. Cunningham of Lewis, Brisbois, Bisgaard & Smith or another senior 17 attorney approved by the City shall conduct the trial of this case. 18 14. No client development costs are to be included in billings. 19 15. No continuing education expenses are to be included in billings. 20 16. Final billing shall be accompanied by copies of the Request for Dismissal, 21 Satisfaction of Judgment, Release and any other final documents. 22 17. Either party may terminate this Agreement at will. LBBS will continue to represent 23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 24 another attorney. 25 18. LBBS is an independent contractor as to the CITY. 26 19. LBBS shall maintain the following types of insurance with limits as shown: 27 a) Workers Compensation as required by the laws of the State of California, 28 including Employment Liability with $250,000 limits covering all persons providing F:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSA.wpd 2 2011-61 1 service on behalf ofLBBS and all risks to such persons under this Agreement. LBBS 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. 4 5 b) Comprehensive General and Automobile Liability Insurance coverage to 6 include contractual coverage and automobile coverage for owned, hired and non- 7 owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000 for bodily injury and property damage. 8 9 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 10 II In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: 12 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." 13 14 IS LBBS shall furnish certificates of insurance and certified copies of all policies and 16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 17 18 to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the City 19 20 21 Attorney's Office, and shall maintain such insurance from the time LBBS commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the 22 23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, 24 their employees, agents, volunteers and officers as additional named insureds with respect to 25 liabilities arising out of the performance of services hereunder. 26 27 All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented 28 r:\ROTH\Litigation Files - In-House\Aguilar\LBBS PSAwpd 3 1 under this Agreement. 2011-61 20. All communications and billings to the CITY are to be directed as follows: 2 3 4 5 6 Dated: '<. 2 a' ,2011 7 8 9 10 11 Dated$dJd f ,2011 12 13 14 15 16 17 Approved as to form: 18 City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 LEWIS, BRISBOIS, BISGAARD & SMITH CITY OF SAN BERNARDINO ~u~ By: Tobin Brinker, Mayor Pro Tern City of San Bernardino JAMES F. PENMAN, City Attorney ~ ,'l By: ~ .... ~ '7fU 19 20 21 22 23 24 25 26 27 28 F:\ROTlI\Litigation Files - In-House\Aguilar\LBBS PSAwpd 4