HomeMy WebLinkAbout11- City Attorney's Office CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
ORIGINAL
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 City of San
Bernardino in Michael Desrochers and Steve Lowes v. City
of San Bernardino, et al., San Bernardino Superior Court
Case No. CIVSS 708367
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
City of San Bernardino 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 Michael Desrochers and
Steve Lowes v. City of San Bernardino, et al.
Recommended motion:
That said resolution be adopted.
Signature
Contact person: Stephanie D. Easland Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Committee Notes: !Lase z07p — /b[�
Agenda Item No. '
F\FAsLAND\Desrochers\Desro hemLuwes LCW.rca2.wod
STAFF REPORT
Council Meeting Date: May17. 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; Michael Billdt, individually and as Chief of Police for the
San Bernardino Police Department;Frank Mankin,individually and as
Assistant Chief of Police for the San Bernardino Police Department;and,
Brian Boom, individually and as a Lieutenant for the San Bernardino
Police Department in the case of Michael Desrochers and Steve Lowes v.
City of San Bernardino, et al.
San Bernardino Superior Court Case No. CIVSS 708367
y On April 19,20 10,the Mayor and Common Council approved the hiring of Liebert,Cassidy,
Whitmore to represent the City of San Bernardino; Michael Billdt, individually and as Chief of
Police for the San Bernardino Police Department;Frank Mankin,individually and as Assistant Chief
of Police for the San Bernardino Police Department; and, Brian Boom, individually and as a
Lieutenant for the San Bernardino Police Department in the subject court action. On May 3,2010,
the Mayor and Common 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 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 Michael Desrochers and Steve Lowes v. City of
San Bernardino, et al.
Attachment
F:\EASLAND\Desrochers\De mchersLowes.Sta .Si ffReport2.LCW.wpd
I RESOLUTION NO._ COPY
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 MICHAEL DESROCHERSAND STEVE
4 LOWES v. CITY OF SAN BERNARDINO, el al. San Bernardino Superior Court Case No.
CIVSS 708367
5
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The Mayor and Council hereby repeal Resolution No. 2010-84 in its
9 entirety.
10 SECTION 2. The Mayor of the City of San Bernardino is hereby authorized and directed
1 I to execute on behalf of said City a Professional Services Agreement between Liebert, Cassidy,
12 Whitmore and the City of San Bernardino for legal services, a copy of which is attached hereto
13 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
14 SECTION 3. The authorization granted hereunder shall expire and be void and of no
15 further effect if the agreement is not executed by both parties and returned to the Office of the City
16 Clerk within sixty (60)days following the effective date of the resolution.
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F:\EAS LAND\Desrochers\DesrochersLowes.SMte.LCW.Res2.wpd 1
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN LIEBERT, CASSIDY, WHITMORE AND THE
CITY OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERSAND STEVE
3 LOWES v. CITY OF SAN BERNARDINO, et at. San Bernardino Superior Court Case No.
CIVSS 708367
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
9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ
11 DESJARDINS
12 BRINKER
13 SHORETT
14 KELLEY
15 JOHNSON
16 MCCAMMACK
17
18 CITY CLERK
19
The foregoing Resolution is hereby approved this day of , 2010.
20
21
22 Patrick J. Morris, Mayor
City of San Bernardino
23
Approved as to form:
24
JAMES F. PENMAN,
25 City Attorney
26
27 By:
28
FIEASLAND�Desrooherst DesrochusLowes.State.LCW.Ree2.wpd 2
1 PROFESSIONAL SERVICES AGREEMENT
2 MICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et al.
San Bernardino Superior Court Case No. CIVSS 708367
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and LIEBERT,
5 CASSIDY, WHITMORE (hereinafter "LCW") are the parties to this Agreement.
6 2. LCW will be representing the following entities and persons in this litigation:
7 CITY OF SAN BERNARDINO; MICHAEL BILLDT,individually and as Chief of Police for the
8 San Bernardino Police Department; FRANK MANKIN, individually and as Assistant Chief of
9 Police for the San Bernardino Police Department; and, BRIAN BOOM, individually and as a
10 Lieutenant for the San Bernardino Police Department. LCW shall not represent any client in any
11 type of claim against the CITY without prior written approval to do so from the CITY OF SAN
12 BERNARDINO through the City Attorney's Office.
13 3. LCW shall be paid at the hourly rates set forth below:
14 Attorneys- $270.00 per hour; and
15 Law Clerks/Paralegals - $100.00 per hour.
16 The amounts expended under this agreement for attorneys fees shall not exceed
17 $25,000 without further approval of the Mayor and Common Council.
18 4. Bills shall be submitted at least on a monthly basis and no laterthatrthe51'day of
19 each succeeding month.
20 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 LCW may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of
i
23 reimbursement for photocopying,telephone charges, and postage.
24 6. Attorney's fees shall be charged "portal to portal" (e.g., from office to court and
25 return), and LCW shall not be entitled to reimbursement for mileage and parking fees.
26 7. LCW shall obtain approval from the CITY to retain expert consultants and other
27 professionals(not including court reporters)for purposes of defending the litigation. LCW may,
28 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
F:t EASLAND\Desrochers\DesrochemLowes.Smte.LiebCess.PSA.wpd 1 BXHIBIr HAD
1 its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office
5 whenever any significant event occurs,and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
10 in this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 11. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000,the City
17 Attorney's Office shall be notified immediately.
18 13. Only Richard Kreisler,Melanie Poturica,or other senior attorney approved by the
19 CITY shall try 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. Either party may terminate this contract at will. LC W will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. LC W is an independent contractor as to the CITY.
28 14. LCW shall maintain the following types of insurance with limits as shown:
F*TASLAND\Desrochers\DesrochemLowes.Sme.LiebCus.PSA.wpd 2 EXHIBIT °A°
1 a) Workers Compensation as required by the laws of the State of
2 California, including Employment Liability with $250,000 limits covering all
3 persons providing service on behalf of LCW and all risks to such persons under
4 this Agreement. LCW shall require its Workers Compensation carrier to waive
5 all rights of subrogation against the CITY and its officers and employees and any
6 others for whom services are being provided under this Agreement.
7 b) Comprehensive General and Automobile Liability Insurance
8 coverage to include contractual coverage and automobile coverage for owned,
9 hired and non-owned vehicles. The policy shall have at least a combined single
10 limit of$1,000,000 for bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000
12 per claim. In lieu of naming the CITY as an additional insured,the policy may
13 be endorsed as follows:
14 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
15 BERNARDINO for legal defense services,provided such liability results from
an error,omission or negligent act of the insured,its officers,employees,agents
16 or subcontractors. All other provisions of this policy are to remain unchanged."
17 LCW shall furnish certificates of insurance and certified copies of all policies and
18 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
19 to the commencement of performance of services hereunder,which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty(30)days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time LCW commences performance
22 of services hereunder until the completion of such services.
23 All policies,with respect to the insurance coverage above required,except for the
24 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insured with respect to
27 liabilities arising out of the performance of services hereunder.
28 ///
FIEASLAND\DesrocherskDurochersLowes.State.LiebCus.PSA.wpd 3 EXHIBIT "A^
(^ I All policies required above are to be primary and non-contributing with any
v 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
15 By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
20 JAMES F. PENMAN,
City Attorney
21
22
By:
23
24
25
26
27
28
F.\EASLAND\Desrochers\DesrochcmLowes.State.UebCass PSA.wpd 4 EXHIBIT "A"
1 PROFESSIONAL SERVICES AGREEMENT
2 MICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et al.
San Bernardino Superior Court Case No. CIVSS 708367
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and LIEBERT,
5 CASSIDY, WHITMORE (hereinafter "LCW")are the parties to this Agreement.
6 2. LCW will be representing the following entities and persons in this litigation:
7 CITY OF SAN BERNARDINO;MICHAEL BILLDT, individually and as Chief of Police for the
8 San Bernardino Police Department; FRANK MANKIN, individually and as Assistant Chief of
9 Police for the San Bernardino Police Department; and, BRIAN BOOM, individually and as a
10 Lieutenant for the San Bernardino Police Department. LCW shall not represent any client in any
11 type of claim against the CITY without prior written approval to do so from the CITY OF SAN
12 BERNARDINO through the City Attorney's Office.
13 3. LCW shall be paid at the hourly rates set forth below:
14 Attorneys- $270.00 per hour; and
15 Law Clerks/Paralegals - $100.00 per hour.
16 The amounts expended under this agreement for attorneys fees shall not exceed
17 $25,000 without further approval of the Mayor and Common Council.
18 4. Bills shall be submitted at least on a monthly basis and no laterthan the 51s day of
19 each succeeding month.
20 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 LCW may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of
23 reimbursement for photocopying, telephone charges, and postage.
24 6. Attorney's fees shall be charged "portal to portal" (e.g., from office to court and
25 return), and LCW shall not be entitled to reimbursement for mileage and parking fees.
26 7. LCW shall obtain approval from the CITY to retain expert consultants and other
27 professionals (not including court reporters)for purposes of defending the litigation. LCW may,
28 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
F.\EASLAND\Desrochers\DesrochersLowes.State.LiebCass.PSA.wpd 1
I its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attomey's Office
5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
10 in this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 11. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000,the City
17 Attorney's Office shall be notified immediately.
18 13. Only Richard Kreisler,Melanie Poturica,or other senior attorney approved by the
19 CITY shall try 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. Either party may terminate this contract at will. LCW will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. LCW is an independent contractor as to the CITY.
28 19. LCW shall maintain the following types of insurance with limits as shown:
FLEAS LANDED esroche,\Du rochenLowes.Staw.LiebCass.PSA wpd 2
I a) Workers Compensation as required by the laws of the State of
2 California, including Employment Liability with $250,000 limits covering all
3 persons providing service on behalf of LCW and all risks to such persons under
4 this Agreement. LCW shall require its Workers Compensation carrier to waive
5 all rights of subrogation against the CITY and its officers and employees and any
6 others for whom services are being provided under this Agreement.
7 b) Comprehensive General and Automobile Liability Insurance
8 coverage to include contractual coverage and automobile coverage for owned,
9 hired and non-owned vehicles. The policy shall have at least a combined single
10 limit of$1,000,000 for bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000
12 per claim. In lieu of naming the CITY as an additional insured, the policy may
13 be endorsed as follows:
14 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
15 BERNARDINO for legal defense services,provided such liability results from
an error,omission or negligent act of the insured,its officers,employees,agents
16 or subcontractors. All other provisions of this policy are to remain unchanged."
17 LCW shall famish certificates of insurance and certified copies of all policies and
18 endorsements to the City Attorneys Office evidencing the insurance coverage above required prior
19 to the commencement of performance of services hereunder,which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty(30)days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time LCW commences performance
22 of services hereunder until the completion of such services.
23 All policies,with respect to the insurance coverage above required,except for the
24 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insured with respect to
27 liabilities arising out of the performance of services hereunder.
28 ///
F:EASLANDUD esrochcm\DesrochersLowes.State.LiebCws.PSA.wpd 3
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
15 By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
20 JAMES F. PENMAN,
City Attorney
21
22
23
24
25
26
27
28
F:\EASLAND\Desrochers\DesrochersLowes.Sute.LiebCass.PSA.wpd 4