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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.
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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