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ORIGINAL
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
Arias & Lockwood for legal services to represent
Michael Desrochers and Steve Lowes in. their
depositions in Kimberly Hearns v. City of San
Bernardino, et aI., United States District Court Case No.
CV 03-1434 SJO (SGL)
From: James F. Penman
City Attorney
Date: April 22, 2009
MlCC Date: May 4, 2009
Synopsis of Previons Council Action:
On April 20, 2009, the Mayor and Common Council approved the retention of the law firm of Arias &
Lockwood for legal services to represent Michael Desrochers and Steve Lowes in their depositions in
Kimberly Hearns v. City of San Bernardino, et aI., United States District Court Case No. CV 03-1434
SJO(SGL)
Recommended motion:
That the accompanying resolution authorizing the execution of a Professional Services Agreement between
the City of San Bernardino and the law firm of Arias & Lockwood be adopted.
Contact person: James F. Penman
?--t~
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
/ ABt..F7J
. Agenda Item No. q
5-1/- 01{
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STAFF REPORT
Council Meeting Date: May 4, 2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
April 23, 2009
Professional Services Agreement Between the City of San Bernardino and the
Law Firm of Arias & Lockwood for Legal Services to represent Michael
Desrochers and Steve Lowes in their depositions in Kimberly Hearns v. City of
San Bernardino, et al., United States District Court Case No. CV 03-1434
SJO(SGL)
On April 20, 2009, the Mayor and Common Council approved the retention of the law firm
of Arias & Lockwood for legal services to represent Michael Desrochers and Steve Lowes in their
depositions in Kimberly Hearns v. City of San Bernardino, et aI., United States District Court Case
No. CV 03-1434 SJO(SGL)
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of $1 0,000 on attorneys' fees and a requirement of regular status reports.
It is requested by the City Attorney that the proposed Resolution be adopted, authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.StaffReport.wpd
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES TO REPRESENT MICHAEL DESROCHERS
4 AND STEVE LOWES IN THEIR DEPOSITIONS IN KIMBERLY HEARNS V. CITY OF SAN
BERNARDINO, United States District Court Case No. CV 03-1434 SJO (SGL)
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7
SECTION]. The Mayor ofthe CityofSan Bernardino is hereby authorized and directed
8
to execute on behalf of said City a Professional Services Agreement between Arias & Lockwood and
9
the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit "A"
10
and incorporated herein by reference as fully as though set forth at length.
11
12
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 ofthe
City Clerk within sixty (60) days following the effective date of this Resolution.
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F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.Outside Counsel.Res.v.rpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES TO REPRESENT MICHAEL DESROCHERS
3 AND STEVE LOWES IN THEIR DEPOSITIONS IN KIMBERLY HEARNS V. CITY OF SAN
BERNARDINO, United States District Court Case No. CV 03-1434 SJO (SGL)
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a
meeting thereof, held on the _
6
day of
7
COUNCIL MEMBERS:
8
ESTRADA
9
BAXTER
10
BRINKER
11
SHORETT
12
KELLEY
13
JOHNSON
14
MC CAMMACK
15
16
,2009, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
17
18
The foregoing Resolution is hereby approved this _ day of
,2009.
19
20
21
PATRICKJ. MORRIS, Mayor
City of San Bernardino
22
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
26
27
28
2
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I
PROFESSIONAL SERVICES AGREEMENT
2
Kimberly Hearns v. City of San Bernardino, et al.
United States District Court Case No. CV 03-1434 SJO (SGL)
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
3
4
& LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
5
2. A&L services will be limited to representing MICHAEL DESROCHERS and STEVE
6
LOWES for purposes of their depositions only, in the case of Kimberly Hearns v. City of San
7
Bernardino, et al. United States District Court Case No. CV 03-1434 SJO (SGL). A&L shall
8
perform no other services in this case. A&L shall not represent any client in any type of claim
9
10
against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO
through the City Attorney's Office.
3. A&L shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/Paralegals - $70.00 per hour.
II
12
13
14
The amounts expended under this agreement for attorney fees shall not exceed
15
16
$10,000 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
19
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.
20
21
A&L 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),
then A&L shall not be entitled to reimbursement for mileage and parking fees.
7. A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
24
25
26
27
28
periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
I
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EXHIBIT "An
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 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.
5
9.
Copies of all opinions, pleadings, discovery and motions shall be provided to the City
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
7 or other litigation.
8
Copies of any correspondence and other documents sent to any of the parties in this
10.
9 action shall also be provided to the CITY through the City Attorney's Office.
10
Only Joseph Arias of ARIAS & LOCKWOOD or another senior attorney approved
11.
11 by the City shall perform the services under this Agreement.
12
No client development costs are to be included in billings.
12.
13
13.
No continuing education expenses are to be included in billings.
14
Either party may terminate this Agreement at will. A&L will continue to represent
14.
15 DESROCHERS and LOWES on the terms and conditions in this Agreement until the case and file
16 are transferred to another attorney.
17
A& L is an independent contractor as to the CITY.
15.
18
16.
A&L shall maintain the following types of insurance with limits as shown:
19
a)
Workers Compensation as required by the laws of the State of California, including
20 Employment Liability with $250,000 limits covering all persons providing service on behalf
21 of A&L and all risks to such persons under this Agreement. A&L shall require its Workers
22 Compensation carrier to waive all rights of subrogation against the CITY and its officers and
23 employees and any others for whom services are being provided under this Agreement.
24
b)
Comprehensive General and Automobile Liability Insurance coverage to
25
include contractual coverage and automobile coverage for owned, hired and non-
26
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
for bodily injury and property damage.
27
28
2
F:\ROTH\Litigation Cases - Outside Counsel\Hearns\Hearns.ProfessionalSvc.Agrmt.wpd
EXHIBIT "A"
I
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
2
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
3
follows:
5
"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."
4
6
7
A&L shall furnish certificates of insurance and certified copies of all policies and
8
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
9
to the commencement of performance of services hereunder, which certificates shall provide that
10
such insurance shall not be terminated or expire without thirty (30) days prior written notice to the
11
City Attorney's Office, and shall maintain such insurance from the time A&L commences
12
performance of services hereunder until the completion of such services.
13
14
All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
15
16
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
17
their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
18
19
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
20
under this Agreement.
21
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EXHIBIT "A"
1
2
17.
All communications and billings to the CITY are to be directed as follows:
3
4
5 ated:
,2009
6
7
8
9
10 ated:
,2009
11
12
13
14
15
16 pproved as to form:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
ARIAS LOCKWOOD
By: Joseph Arias
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
4
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I
PROFESSIONAL SERVICES AGREEMENT
2
3
Kimberly Hearns v. City of San Bernardino, et al.
United States District Conrt Case No. CV 03-1434 SJO (SGL)
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
4
& LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
5
2. A&L services will be limited to representing MICHAEL DESROCHERS and STEVE
6
LOWES for purposes of their depositions only, in the case of Kimberly Hearns v. City of San
7
Bernardino, et af. United States District Court Case No. CV 03-1434 SJO (SGL). A&L shall
8
perform no other services in this case. A&L shall not represent any client in any type of claim
9
10
against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO
through the City Attorney's Office.
3. A&L shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/Paralegals - $70.00 per hour.
11
12
13
14
The amounts expended under this agreement for attorney fees shall not exceed
15
16
$10,000 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
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.
21
A&L 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
23
6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
then A&L shall not be entitled to reimbursement for mileage and parking fees.
7. A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
other professionals (not including court reporters) for purposes of the litigation. A&L may, ifit
24
25
26
chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27
28
periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
1
F:\ROTH\Litigation Cases - Outside Counsel\Hearns\Hcams.ProfessionalSvc.Agrmt.wpd
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 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.
5
Copies of all opinions, pleadings, discovery and motions shall be provid'ed to the City
9.
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
7 or other litigation.
8
Copies of any correspondence and other documents sent to any of the parties in this
10.
9 action shall also be provided to the CITY through the City Attorney's Office.
10
Only Joseph Arias of ARIAS & LOCKWOOD or another senior attorney approved
11.
11 by the City shall perform the services under this Agreement.
12
No client development costs are to be included in billings.
12.
13
No continuing education expenses are to be included in billings.
13.
14
Either party may terminate this Agreement at will. A&L will continue to represent
14.
15 DESROCHERS and LOWES on the terms and conditions in this Agreement until the case and file
16 are transferred to another attorney.
17
A& L is an independent contractor as to the CITY.
15.
18
16.
A&L shall maintain the following types of insurance with limits as shown:
Workers Compensation as required by the laws of the State of California, including
19
a)
20 Employment Liability with $250,000 limits covering all persons providing service on behalf
21 of A&L and all risks to such persons under this Agreement. A&L shall require its Workers
22 Compensation carrier to waive all rights of subrogation against the CITY and its officers and
23 employees and any others for whom services are being provided under this Agreement.
24
b)
Comprehensive General and Automobile Liability Insurance coverage to
25
include contractual coverage and automobile coverage for owned, hired and non-
26
owned vehicles. The policy shall have at least a combined single limit of$l ,000,000
for bodily injury and property damage.
27
28
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
2
F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams,ProfessionalSvc.Agrmt.wpd
I
2
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
follows:
3
"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."
4
5
6
A&L shall furnish certificates of insurance and certified copies of all policies and
7
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
8
to the commencement of performance of services hereunder, which certificates shall provide that
9
such insurance shall not be terminated or expire without thirty (30) days prior written notice to the
10
City Attorney's Office, and shall maintain such insurance from the time A&L commences
II
performance of services hereunder until the completion of such services.
12
13
All policies, with respect to the insurance coverage above required, except for the
14
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
15
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
16
their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
17
18
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
3
F:\ROTH\Litigation Cases - Outside Counsel\Heams\Hearns.ProfessionaISvc.Agrmt.wpd
All communications and billings to the CITY are to be directed as follows:
1 17.
2
3
4
5 Dated:
6
7
8
9
10 Dated:
11
12
13
14
15
,2009
,2009
16 Approved as to form:
17
JAMES F. PENMAN,
18 City Attorney
19 By: ~n- J Iv-...
20 ()
21
22
23
24
25
26
27
28
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
ARIAS LOCKWOOD
By: Joseph Arias
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
4
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