HomeMy WebLinkAbout09B- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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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: April 28, 2010 MCC Meeting: May 3,2010
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.
Recommended motion:
That said resolution be adopted.
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Signature
Contact person: Stephanie D. Easland Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Committee Notes: �so o2010 - F,3
Agenda Item No. I B
5-3-�v
STAFF REPORT
Council Meeting Date: MU 3.2010
TO: Mayor and Common Council
FROM: James F. Penman,City Attorney
DATE: Apri128,2010
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. Attached hereto is the
Professional Services Agreement which reflects such approval, including 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 Lowes v. Michael Billdt, et al.
Attachment
FAEASLAND\Iow ,Stew\LowesSteve.StanReportLCW.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 STEVE LOWES Y. MICHAEL BILLDT,
4 et aL
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between Liebert, Cassidy,
9 Whitmore and the City of San Bernardino for legal services, a copy of which is attached hereto
10 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
11 SECTION 2. The authorization granted hereunder shall expire and be void and of no
12 further effect if the agreement is not executed by both parties and returned to the Office of the City
13 Clerk within sixty (60) days following the effective date of the resolution.
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F9EASLAND\DesrocherslDesrocherslowes.LCW.Res.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.
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,
6
held on the day of 2010, by the following vote,to wit:
7
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8
MARQUEZ —
9
DESJARDINS
10
BRINKER
11
SHORETT —
12
KELLEY
13
JOHNSON
O 14 —
MCCAMMACK
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16
17 CITY CLERK
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19 The foregoing Resolution is hereby approved this day of , 2010.
20
21
Patrick J. Morris, Mayor
22 City of San Bernardino
23 Approved as to form:
24 JAMES F. PENMAN,
City Attorney
25
26
27 By.
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FIEASLAND\Dmrochcn\De rochersLowes.LCW.Rm.wpd 2
1 PROFESSIONAL SERVICES AGREEMENT
2 STEVE LOWES v. MICHAEL BILLDT, et at.
United States District Court Case No. EDCV06-1408 (JCRx)
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 this litigation:
7 CITY OF SAN BERNARDINO and MICHAEL BILLDT,individually and as Chief of Police for
8 the City of San Bernardino. LCW shall not represent any client in any type of claim against the
9 CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
10 City Attorney's Office.
11 3. LCW shall be paid at the hourly rates set forth below:
12 Attorneys - $270.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5'day of
16 each succeeding month.
17 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 LCW may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of
20 reimbursement for photocopying,telephone charges,and postage.
21 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
22 return),then LCW shall not be entitled to reimbursement for mileage and parking fees.
23 7. LCW shall obtain approval from the CITY to retain expert consultants and other
24 professionals (not including court reporters)for purposes of defending the litigation. LCW may,
25 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
26 its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY
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27 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
F:TASLANDDesrochers\DesrochusLowesFed.LCW.PSA.wpd 1 EXHIBIT "A"
1 PROFESSIONAL SERVICES AGREEMENT
2 STEVE LOWES v. MICHAEL BILLDT, et aL
United States District Court Case No. EDCV06-1408 (JCRx)
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 this litigation:
7 CITY OF SAN BERNARDINO and MICHAEL BILLDT,individually and as Chief of Police for
8 the City of San Bernardino. LCW shall not represent any client in any type of claim against the
9 CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
10 City Attorney's Office.
11 3. LCW shall be paid at the hourly rates set forth below:
12 Attorneys- $270.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 $25,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5"day of
16 each succeeding month.
17 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 LCW may include a single charge in an amount not to exceed four percent(4%)of fees in lieu of
20 reimbursement for photocopying, telephone charges,and postage.
21 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
22 return),then LCW shall not be entitled to reimbursement for mileage and parking fees.
23 7. LCW shall obtain approval from the CITY to retain expert consultants and other
24 professionals(not including court reporters)for purposes of defending the litigation. LCW may,
25 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
26 its periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY
27 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
F1EASLAND\Desmhcm\Desrochenlaw sFed.LCW.PSA.wpd 1
.. 1 8. Status reports will be submitted to CITY through the City Attorney's Office
2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
3 to set reserves, including, without limitation,potential liability exposure and percentage of fault
4 shall be included.
5 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the
6 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
7 in this, or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the defendants
9 in this action shall also be provided to the CITY through the City Attorney's Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement
11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
12 approvals.
13 12. In the event the settlement value of the case appears to exceed$50,000,the City
14 Attorney's Office shall be notified immediately.
15 13. Only a Senior Attorney of LIEBERT, CASSIDY,WHITMORE approved by the
16 CITY shall try this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
21 17. Either party may terminate this contract at will. LCW will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. LCW is an independent contractor as to the CITY.
25 19. LCW shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of
27 California, including Employment Liability with $250,000 limits covering all
28 persons providing service on behalf of LCW and all risks to such persons under
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1 this Agreement. LCW shall require its Workers Compensation carrier to waive
2 all rights of subrogation against the CITY and its officers and employees and any
3 others for whom services are being provided under this Agreement.
4 b) Comprehensive General and Automobile Liability Insurance
5 coverage to include contractual coverage and automobile coverage for owned,
6 hired and non-owned vehicles. The policy shall have at least a combined single
7 limit of$1,000,000 for bodily injury and property damage.
8 c) Professional Liability Insurance with limits ofat least$1,000,000
9 per claim. In lieu of naming the CITY as an additional insured,the policy may
10 be endorsed as follows:
11 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
12 BERNARDINO for legal defense services,provided such liability results from
an error,omission or negligent act of the insured,its officers,employees,agents
13 or subcontractors. All other provisions of this policy are to remain unchanged."
14 LCW shall furnish certificates of insurance and certified copies of all policies and
15 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
16 to the commencement of performance of services hereunder,which certificates shall provide that
17 such insurance shall not be terminated or expire without thirty(30)days written notice to the City
18 Attorney's Office,and shall maintain such insurance from the time LCW commences performance
19 of services hereunder until the completion of such services.
20 All policies,with respect to the insurance coverage above required,except for the
21 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
22 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23 their employees, agents, volunteers and officers as additional named insured with respect to
24 liabilities arising out of the performance of services hereunder.
25 All policies required above are to be primary and non-contributing with any
26 insurance or self-insurance programs carried or administered by the CITY or other parties
27 represented under this Agreement.
28 ///
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1 20. All communications and billings to the CITY are to be directed as follows:
2 City Attorney's Office
CITY OF SAN BERNARDINO
3 300 North"D" Street
San Bernardino, CA 92418
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5 DATED: May 2010 LIEBERT,CASSIDY,WHITMORE
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By:
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DATED: May_ 2010 CITY OF SAN BERNARDINO
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12 By: Patrick J. Morris,Mayor
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16 Approved as to form:
17 JAMES F. PENMAN,
City Attorney
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By. l.Fe.ki
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