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HomeMy WebLinkAbout10- City Attorney's Office t CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Professional Services Agreement between the City CITY ATTORNEY of San Bernardino and Liebert, Cassidy, Whitmore to represent the City of San Bernardino and Michael Billdt, individually and as Chief of Police for the San Bernardino Police Department in Steve Lowes v. Michael Billdt, et al., United States District Court Case No. EDCV09-2215 VAP (OPx) Dept: CITY ATTORNEY Date: May 11, 2010 MCC Meeting: May 17,2010 Synopsis of Previous Council Action: 04/19/10- Mayor and Council approved the hiring of Liebert, Cassidy, Whitmore to represent the City of San Bernardino and Michael Billdt, individually and as Chief of Police for the San Bernardino Police Department in the subject court action. 05/03/10- Mayor and Council approved a Professional Services Agreement between the City of San Bernardino and Liebert, Cassidy, Whitmore in the case of Steve Lowes v. Michael Billdt, et al. Recommended motion: That said resolution be adopted. 2 Signature Contact person: Stephanie D. Easland Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Committee Notes: �Fa o 020/0 - 103 Agenda Item No. 10 FIEASLMDV, s,SteveV. wesSteve.rw21CW wpd STAFF REPORT Council Meeting Date: May 17,2010 TO: Mayor and Common Council FROM: James F. Penman,City Attorney DATE: May 11,2010 AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and Liebert,Cassidy,Whitmore to represent the City of San Bernardino and Michael Billdt, individually and as Chief of Police for the San Bernardino Police Department in the case of Steve Lowes v. Michael Billdt, et al. United States District Court Case No. EDCV09-2215 VAP (OPx) On April 19, 2010, the Mayor and Common Council approved the hiring Liebert, Cassidy, Whitmore to represent the City and Michael Billdt in the subject court action. On May 3,2010,the Mayor and Council approved a Professional Services Agreement between the City of San Bernardino and Liebert, Cassidy, Whitmore. Subsequent to this approval, the City Attorney's Office received information from Liebert,Cassidy, Whitmore regarding the specific attorneys assigned to the case, the hourly amount billed for paralegal services, and that the firm charges attorneys fees "portal to portal," all of which need to be reflected in the agreement. Attached hereto is a revised agreement that will supersede the agreement approved on May 3, 2010 which adds the aforesaid information regarding assigned attorneys and their hourly rate of$270.00,the paralegal hourly rate of$100.00, and the charging of attorneys fees "portal to portal," in addition to a ceiling of$25,000 on attorney fees and the requirement of regular status reports. It is requested by the City Attorney that the floor motion be adopted so that the Mayor is authorized to execute said Professional Services Agreement on behalf of Michael Billdt and the City of San Bernardino. That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of the City of San Bernardino the Professional Services Agreement with Liebert,Cassidy, Whitmore to represent the City, et al. in the case of Steve Lowes v. Michael Billdt, et al. Attachment F:�EASLANDVuwes,SWw\LowesSteve.StaffRep n2 LCW"d I RESOLUTION NO. Lj 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 3 SERVICES AGREEMENT BETWEEN LIEBERT, CASSIDY, WHITMORE AND THE CITY OF SAN BERNARDINO IN THE CASE OF STEVE LOWES v. MICHAEL BILLDT, 4 et aL, United States District Court Case No. EDCV 09-2215 VAP (OPx). 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor and Council hereby repeal Resolution No. 2010-83 in its 8 entirety. 9 SECTION 2. The Mayor of the City of San Bernardino is hereby authorized and directed 10 to execute on behalf of said City a Professional Services Agreement between Liebert, Cassidy, 11 Whitmore and the City of San Bernardino for legal services, a copy of which is attached hereto 12 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. 13 SECTION 3. The authorization granted hereunder shall expire and be void and of no 14 further effect if the agreement is not executed by both parties and returned to the Office of the City 15 Clerk within sixty (60) days following the effective date of the resolution. 16 /ll 17 18 19 20 21 22 23 24 /// 25 26 27 28 FAFASLANDVnwes,St C'L0wesSteve.Reso2.LCW.wpd 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN LIEBERT, CASSIDY, WHITMORE AND THE 3 CITY OF SAN BERNARDINO IN THE CASE OF STEVE LOWES v. MICHAEL BILLDT, et al., United States District Court Case No. EDCV 09-2215 VAT (OPx). 4 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, 7 held on the day of 2010, by the following vote, to wit: 8 CCOUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 DESJARDINS 11 BRINKER 12 SHORETT _ 13 KELLEY 14 JOHNSON 15 MCCAMMACK 16 17 18 CITY CLERK 19 20 The foregoing Resolution is hereby approved this day of , 2010. 21 22 Patrick J. Moms, Mayor 23 City of San Bernardino Approved as to form: 24 JAMES F. PENMAN, 25 City Attorney 26 27 By: zs FAEASLANDU.owes,Steve\LowesSteve.Res02.LCW.wpd 2 11 1 °^ 1 PROFESSIONAL SERVICES AGREEMENT 2 STEVE LOWES v. MICHAEL BILLDT, et al. United States District Court Case No. EDCV09-2215 VAP (OPx) 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 LIEBERT, CASSIDY, WHITMORE (hereinafter "LCW") are the parties to this Agreement. 6 2. LCW will be representing the following entities and persons in the case of Steve 7 Lowes v. Michael Billdt, et al., United States District Court Case No. EDCV09-2215 VAP(OPx): 8 CITY OF SAN BERNARDINO and MICHAEL BILLDT,individually and as Chief of Police for 9 the San Bernardino Police Department. LCW shall not represent any client in any type of claim 10 against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO 11 through the City Attorney's Office. 12 3. LCW shall be paid at the hourly rates set forth below: 13 Attorneys- $270.00 per hour; and, 14 Law Clerks/Paralegals - $100.00 per hour. 15 The amounts expended under this agreement for attorneys fees shall not exceed 16 $25,000 without further approval of the Mayor and Common Council. 17 4. Bills shall be submitted at least on a monthly basis and no later than the 5'day of 18 each succeeding month. 19 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging, 20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 21 LCW may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of 22 reimbursement for photocopying, telephone charges, and postage. 23 6. Attorney's fees shall be charged "portal to portal" (e.g., from office to court and 24 return), and LCW shall not be entitled to reimbursement for mileage and parking fees. 25 7. LCW shall obtain approval from the CITY to retain expert consultants and other 26 professionals (not including court reporters)for purposes of defending the litigation. LCW may, 27 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on 28 its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY F:\EASLANDLLowu,SteveU.owesSteve.ProtSvcsAgrLCW.wpd 1 EXHIBIT "A^ 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 CITY through the City Attorney's Office 4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient 5 to set reserves, including, without limitation, potential liability exposure and percentage of fault 6 shall be included. 7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the 8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys i 9 in this, or other litigation. 10 10. Copies of any correspondence and other documents sent to any of the defendants 11 in this 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 13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 14 approvals. 15 12. In the event the settlement value of the case appears to exceed$50,000, the City 16 Attorney's Office shall be notified immediately. 17 13. Only Richard Kreisler,Melanie Poturica,or other senior attorney approved by the 18 CITY shall try this case. 19 14. No client development costs are to be included in billings. 20 15. No continuing education expenses are to be included in billings. 21 16. Final billing shall be accompanied by copies of the Request for Dismissal, 22 Satisfaction of Judgment, Release and any other final documents. 23 17. Either party may terminate this contract at will. LCW Will continue to represent 24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 25 another attorney. 26 18. LCW is an independent contractor as to the CITY. 27 28 FAEASLANDLLowes.Steve\LowesSwve.ProfSvcsAgrLCW.wpd 2 EXHIBIT ^A° 1 19. LCW shall maintain the following types of insurance with limits as shown: 2 a) Workers Compensation as required by the laws of the State of 3 California, including Employment Liability with $250,000 limits covering all 4 persons providing service on behalf of LCW and all risks to such persons under 5 this Agreement. LCW shall require its Workers Compensation carrier to waive 6 all rights of subrogation against the CITY and its officers and employees and any 7 others for whom services are being provided under this Agreement. 8 b) Comprehensive General and Automobile Liability Insurance 9 coverage to include contractual coverage and automobile coverage for owned, 10 hired and non-owned vehicles. The policy shall have at least a combined single 11 limit of$1,000,000 for bodily injury and property damage. 12 c) Professional Liability Insurance with limits of at least$1,000,000 13 per claim. In lieu of naming the CITY as an additional insured,the policy may 14 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 CITY OF SAN 16 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act of the insured,its officers,employees,agents 17 or subcontractors. All other provisions of this policy are to remain unchanged." 18 LCW shall fumish 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 LCW 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 insured with respect to 28 liabilities arising out of the performance of services hereunder. FTASLAND\Loaves,Steve\LowesSteve.ProLSvcsAgrLCW.wpd 3 EXHIBIT ^A" I All policies required above are to be primary and non-contributing with any 2 insurance or self-insurance programs carried or administered by the CITY or other parties 3 represented under this Agreement. 4 20. All communications and billings to the CITY are to be directed as follows: 5 City Attorney's Office CITY OF SAN BERNARDINO 6 300 North "D" Street San Bernardino, CA 92418 7 8 DATED: May_, 2010 LIEBERT, CASSIDY, WHITMORE 9 10 By: 11 12 DATED: May_, 2010 CITY OF SAN BERNARDINO 13 � 14 By: Patrick J. Moms, Mayor 15 16 17 18 Approved as to form: 19 JAMES F. PENMAN, 20 City Attorney 21 22 By: 23 24 25 26 27 28 FIEASLANML owes,Steve\LowesSieve.ProfsvcsAgrLCW.wpd 4 EXHIBIT "A^ 1 PROFESSIONAL SERVICES AGREEMENT 2 STEVE LOWES v. MICHAEL BILLDT, et al. United States District Court Case No. EDCV09-2215 VAP(OPx) 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 LIEBERT, CASSIDY, WHITMORE(hereinafter"LCW") are the parties to this Agreement. 6 2. LCW will be representing the following entities and persons in the case of Steve 7 Lowes v. Michael Billdt, et al., United States District Court Case No.EDCV09-2215 VAP(OPx): 8 CITY OF SAN BERNARDINO and MICHAEL BILLDT,individually and as Chief of Police for 9 the San Bernardino Police Department. LCW shall not represent any client in any type of claim 10 against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO 11 through the City Attorney's Office. 12 3. LCW shall be paid at the hourly rates set forth below: 13 Attorneys- $270.00 per hour; and, 14 Law Clerks/Paralegals - $100.00 per hour. 15 The amounts expended under this agreement for attorneys fees shall not exceed 16 $25,000 without further approval of the Mayor and Common Council. 17 4. Bills shall be submitted at least on a monthly basis and no later than the 5"day of 18 each succeeding month. 19 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging, 20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 21 LCW may include a single charge in an amount not to exceed four percent(4%) of fees in lieu of 22 reimbursement for photocopying,telephone charges, and postage. 23 6. Attorney's fees shall be charged "portal to portal" (e.g., from office to court and 24 return), and LCW shall not be entitled to reimbursement for mileage and parking fees. 25 7. LCW shall obtain approval from the CITY to retain expert consultants and other 26 professionals (not including court reporters)for purposes of defending the litigation. LCW may, 27. if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on 28 its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY FIEASLAMI\Lawes,St eve\LowesSwe e.Prof$vcsAgrLCW.wpd 1 0 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 CITY through the City Attorney's Office 4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient 5 to set reserves, including, without limitation, potential liability exposure and percentage of fault 6 shall be included. 7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the 8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys 9 in this, or other litigation. 10 10. Copies of any correspondence and other documents sent to any of the defendants 11 in this 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 13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 14 approvals. 15 12. In the event the settlement value of the case appears to exceed$50,000,the City 16 Attorney's Office shall be notified immediately. 17 13. Only Richard Kreisler,Melanie Poturica,or other senior attorney approved by the 18 CITY shall try this case. 19 14. No client development costs are to be included in billings. 20 15. No continuing education expenses are to be included in billings. 21 16. Final billing shall be accompanied by copies of the Request for Dismissal, 22 Satisfaction of Judgment, Release and any other final documents. 23 17. Either party may terminate this contract at will. LCW will continue to represent 24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to 25 another attorney. 26 18. LCW is an independent contractor as to the CITY. 27 28 ETASLANDLLowes,Steve\LowesSteve.ProtSvcsAgrLCW.wpd 2 1 19. LCW shall maintain the following types of insurance with limits as shown: 2 a) Workers Compensation as required by the laws of the State of 3 California, including Employment Liability with $250,000 limits covering all 4 persons providing service on behalf of LCW and all risks to such persons under 5 this Agreement. LCW shall require its Workers Compensation carrier to waive 6 all rights of subrogation against the CITY and its officers and employees and any 7 others for whom services are being provided under this Agreement. 8 b) Comprehensive General and Automobile Liability Insurance 9 coverage to include contractual coverage and automobile coverage for owned, 10 hired and non-owned vehicles. The policy shall have at least a combined single 11 limit of$1,000,000 for bodily injury and property damage. 12 c) Professional Liability Insurance with limits of at least$1,000,000 13 per claim. In lieu of naming the CITY as an additional insured,the policy may 14 be endorsed as follows: is "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN 16 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act of the insured,its officers,employees,agents 17 or subcontractors. All other provisions of this policy are to remain unchanged." 18 LCW 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 LCW 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 insured with respect to 28 liabilities arising out of the performance of services hereunder. FAEASLAND\Lmes,Steve\Lowessteve.ProtSvesAgrLCW.wpd 3 1 All policies required above are to be primary and non-contributing with any 2 insurance or self-insurance programs carried or administered by the CITY or other parties 3 represented under this Agreement. 4 20. All communications and billings to the CITY are to be directed as follows: 5 City Attorney's Office CITY OF SAN BERNARDINO 6 300 North "D" Street San Bernardino, CA 92418 7 8 DATED: May_, 2010 LIEBERT, CASSIDY, WHITMORE 9 10 By: 11 12 DATED: May_ 2010 CITY OF SAN BERNARDINO 13 14 By: Patrick J. Morris, Mayor 15 16 17 18 Approved as to form: 19 JAMES F. PENMAN, 20 City Attorney 21 Q 22 By: f 23 24 25 26 27 28 P EASLAMLowes,Steve\LowuSteve.ProfSvcsAgrLCW.wpd 4