Loading...
HomeMy WebLinkAbout09D- City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Professional Services Agreement between the CITY ATTORNEY City of San Bernardino and the law firm of Mimu, Edwards, Cannon, Lewin & Tooke to represent Denis Dept: CITY ATTORNEY Moon in the case of San Bernardino City Professional Firefighters, Local 891; Nathan Lopez. v. City of San Date: April 28, 2010 Bernardino, et al. MCC Date: May 3,2010 Synopsis of Previous Council Action: On April 27, 2010, the Mayor and Common Council approved the retention of the law firm of Mirau, Edwards,Cannon,Lewin&Tooke to represent Denis Moon in the case of San Bernardino City Professional Firefighters, Local 891; Nathan Lopez. v. City of San Bernardino, et al. Recommended motion: That said resolution be adopted. Signam Contact person: Stephanie D. Easland Phone: 5355 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: BSO o2O/D—�J Agenda Item No. p 5- 3-201`0 FAEASLANDTire DepartmenPSBCPFFLopez\SBCPFFLopez.RCATwke.wpd STAFF REPORT Council Meeting Date: May 3.2010 TO: Mayor and Common Council FROM: James F. Penman,City Attorney DATE: Apr1128,2010 AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the law firm of Mirau, Edwards, Cannon, Lewin & Tooke to represent Denis Moon in the case of San Bernardino City Professional Firefighters,Local 891,Nathan Lopez v. City of San Bernardino, et al. On April 27,2010,the Mayor and Common Council approved the hiring of Mirau,Edwards, Cannon, Lewin& Tooke to represent Denis Moon in the subject court action. 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 Denis Moon. 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 the law firm of Mirau,Edwards, Cannon, Lewin&Tooke to represent Denis Moon in the case of San Bernardino City Professional Firefighters, Local 891, Nathan Lopez v. City of San Bernardino, et al. a F:\EASLANDTim Department\SBCPFFLopezVL pezStaBRPLTwke.wpd COPY 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 THE CITY OF SAN BERNARDINO AND THE LAW FIRM OF MIRAU, EDWARDS, CANNON, LEWIN & TOOKE IN THE CASE OF 4 SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891, NATHAN LOPEZ v. CITY OF SAN BERNARDINO,SANBERNARDINO FIRE DEPARTMENT, et at 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 of the City of San Bernardino is hereby authorized and directed 9 to execute on behalf of said City a Professional Services Agreement between the City of 10 San Bernardino and Mirau,Edwards,Cannon,Lewin&Tooke for legal services,a copy of which 11 is attached hereto marked Exhibit"A"and incorporated herein by reference as fully as though set 12 forth at length. 13 SECTION 2. 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 17 18 19 20 21 22 23 24 25 26 27 28 FAEASLANDTire Depa entVSBCPFFLopez\Lopez.moTooke.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 THE CITY OF SAN BERNARDINO AND THE 3 LAW FIRM OF MIRAU, EDWARDS, CANNON, LEWIN & TOOKE IN THE CASE OF SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 897, NATHAN 4 LOPEZ v. CITY OF SAN BERNARDINO, SAN BERNARDINO FIRE DEPARTMENT, et al. 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof, 8 held on the day of . 2010, by the following vote, to wit: 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ _ 11 DESJARDINS 12 BRINKER _ 13 SHORETT to 14 KELLEY ; 15 JOHNSON _ 16 MCCAMMACK 17 18 Rachel G. Clark, City Clerk 19 20 The foregoing Resolution is hereby approved this_day of , 2010. 21 22 Patrick J. Morris, Mayor 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, City Attorney 26 28 FAEASLANDTim Department lSBCPFFLopez\Lopez.moTooke.wpd 2 OI PROFESSIONAL SERVICES AGREEMENT 2 SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS,LOCAL 891, NA THAN LOPEZ v. CITY OF SAN BERNARDINO, et aL 3 United States District Court Case No. CV 10-01779 PSG (DTBx) 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 MIRAU,EDWARDS, CANNON, LEWIN&TOOKE (hereinafter "MECL&T") are the parties 6 to this Agreement. 7 2. MECL&T will be representing defendant DENIS MOON in this litigation. 8 MECL&T shall not represent any client in any type of claim against the CITY without prior written 9 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 10 3. MECL&T shall be paid at the hourly rates set forth below: 11 Attorneys - $200.00 per hour; and, 12 Law Clerks/Paralegals - $65.00 per hour. 13 The amounts expended under this agreement for attorney's fees shall not exceed 14 $25,000 without further approval o#'the Mayor and Common Council. 15 4. Bills shall he 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 MECL&T may include a single charge in an amount not to exceed four percent(4%)of fees in lieu 20 of 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 MECL&T shall not be entitled to reimbursement for mileage and parking fees. 23 7. MECL&T shall obtain approval from the CITY to retain expert consultants and 24 other professionals (not including court reporters) for purposes of defending the litigation. 25 MECL&T may,if it chooses,pay the fees and charges of such consultants and seek reimbursement © 26 from CITY on its periodic statement,or it may forward the consultant's bill to CITY with a request 27 that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval 28 of the CITY's Finance Department. EXHIBIT "A" PkPACIAM\Pim T)e„art mt\SRCPFFLooezUooez.PSA.Tooke.wod 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 William P.Tooke ofMIRAU,EDWARDS,CANNON,LEWIN&TOOKE 16 or other senior attorney approved by the 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. MECL&T will continue to 22 represent the CITY on the terms and conditions in this Agreement until the case and file are 23 transferred to another attorney. 24 18. MECL&T is an independent contractor as to the CITY. 25 19. NIECL&T 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 MECL&T and all risks to such persons F.TASLANDTire DepoAment\SBCPFFLopu\Lopez.PSA.Tooke.wpd 2 EXHIBIT "All 1 under this Agreement. MECL&T shall require its Workers' Compensation 2 carrier to waive all rights of subrogation against the CITY and its officers and 3 employees and any others for whom services are being provided under this 4 Agreement. 5 b) Comprehensive General and Automobile Liability Insurance 6 coverage to include contractual coverage and automobile coverage for owned, 7 hired and non-owned vehicles. The policy shall have at least a combined single 8 limit of$1,000,000 for bodily injury and property damage. 9 c) Professional Liability Insurance with limits of at least$1,000,000 10 per claim. In lieu of naming the CITY as an additional insured,the policy may 11 be endorsed as follows: 12 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN 13 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act of the insured,its officers,employees,agents 14 or subcontractors. All other provisions of this policy are to remain unchanged." 15 MECL&T shall famish certificates of insurance and certified copies of all policies 16 and endorsements to the City Attorney's Office evidencing the insurance coverage above required 17 prior to the commencement of performance of services hereunder,which certificates shall provide 18 that such insurance shall not be terminated or expire without thirty(30) days written notice to the 19 City Attorney's Office, and shall maintain such insurance from the time MECL&T commences 20 performance of services hereunder until the completion of such services. 21 All policies,with respect to the insurance coverage above required,except for the 22 Workers'Compensation insurance coverage and professional liability coverage,if applicable,shall 23 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 24 their employees, agents, volunteers and officers as additional named insured with respect to 25 liabilities arising out of the performance of services hereunder. 26 All policies required above are to be primary and non-contributing with any 27 insurance or self-insurance programs carried or administered by the CITY or other parties 28 represented under this Agreement. EXHIBIT "A" FiBASLANDTim Denartment\SBCPFFLOM\I-Opex.PSA.Tooke.wpd 3 e/ 1 20. All communications and billings to the CITY are to be directed as follows: 2 City Attorney's Office CITY OF SAN BERNARDINO g 1 300 North "D" Street San Bernardino, CA 92418 4 5 DATED: May_, 2010 MIRAU,EDWARDS, CANNON&TOOKE 6 7 By: William P. Tooke 8 9 DATED: May_, 2010 CITY OF SAN BERNARDINO 10 11 12 By: Patrick J. Morris,Mayor 13 14 15 Approved as to form: 16 JAMES F. PENMAN, 17 City Attorney 18 19 By: 20 21 22 23 24 25 26 27 28 EXHIBIT "A" F_\EASLAND\Fire Department\SBCPFFLom\Lopex.PSATwke.wpd 4 �.. 1 PROFESSIONAL SERVICES AGREEMENT 2 SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891, NA THAN LOPEZ v. CITY OF SAN BERNARDINO, et al. 3 United States District Court Case No. CV 10-01779 PSG (DTBx) 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 MIRAU, EDWARDS, CANNON, LEWIN&TOOKE (hereinafter "MECL&T") are the parties 6 to this Agreement. 7 2. MECL&T will be representing defendant DENIS MOON in this litigation. a MECL&T shall not represent any client in any type of claim against the CITY without prior written 9 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 10 3. MECL&T shall be paid at the hourly rates set forth below: 11 Attorneys - $200.00 per hour; and, 12 Law Clerks/Paralegals- $65.00 per hour. 13 The amounts expended under this agreement for attorney's 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 MECL&T may include a single charge in an amount not to exceed four percent(4%)of fees in lieu 20 of 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 MECL&T shall not be entitled to reimbursement for mileage and parking fees. 23 7. MECL&T shall obtain approval from the CITY to retain expert consultants and 24 other professionals (not including court reporters) for purposes of defending the litigation. 25 MECL&T may,if it chooses,pay the fees and charges of such consultants and seek reimbursement 26 from CITY on its periodic statement,or it may forward the consultant's bill to CITY with a request 27 that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval 28 of the CITY's Finance Department. RTASLAND\Fim Department\SBCPFFLopez\Lopez.PSA.Twke.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 jmmediately. 15 13. Only William P.Tooke of MIRAU,EDWARDS,CANNON,LEWIN&TOOKE 16 or other senior attorney approved by the 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. MECL&T will continue to 22 represent the CITY on the terms and conditions in this Agreement until the case and file are 23 transferred to another attorney. 24 18. MECL&T is an independent contractor as to the CITY. 25 19. MECL&T 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 MECL&T and all risks to such persons FAEASLANDTim Department\SBCPFFLopaUkpez.PSA.Tooke.wpd 2 1 under this Agreement. MECL&T shall require its Workers' Compensation 2 carrier to waive all rights of subrogation against the CITY and its officers and 3 employees and any others for whom services are being provided under this 4 Agreement. 5 b) Comprehensive General and Automobile Liability Insurance 6 coverage to include contractual coverage and automobile coverage for owned, 7 hired and non-owned vehicles. The policy shall have at least a combined single 8 limit of$1,000,000 for bodily injury and property damage. 9 c) Professional Liability Insurance with limits of at least$1,000,000 10 per claim. In lieu of naming the CITY as an additional insured,the policy may 11 be endorsed as follows: 12 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN 13 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligegt act of the insured,its officers, employees,agents 14 or subcontractors. All other provisions of this policy are to remain unchanged." 15 MECL&T shall furnish certificates of insurance and certified copies of all policies 16 and endorsements to the City Attorney's Office evidencing the insurance coverage above required 17 prior to the commencement of performance of services hereunder,which certificates shall provide 18 that such insurance shall not be terminated or expire without thirty(30)days written notice to the 19 City Attorney's Office, and shall maintain such insurance from the time MECL&T commences 20 performance of services hereunder until the completion of such services. 21 All policies,with respect to the insurance coverage above required,except for the 22 Workers'Compensation insurance coverage and professional liability coverage,ifapplicable,shall 23 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 24 their employees, agents, volunteers and officers as additional named insured with respect to 25 liabilities arising out of the performance of services hereunder. 26 All policies required above are to be primary and non-contributing with any 27 insurance or self-insurance programs carried or administered by the CITY or other parties 28 represented under this Agreement. FMASt.ANDTire Depa ent\SBCPFFLopuzLopm.PSA.Tooke.wpd 3 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 4 5 DATED: May_, 2010 MIRAU,EDWARDS, CANNON & TOOKE 6 7 By: William P. Tooke 8 9 DATED: May 12010 CITY OF SAN BERNARDINO 10 11 12 By: Patrick J. Moms, Mayor 13 14 15 Approved as to form: 16 JAMES F. PENMAN, 17 City Attorney l 18 19 By: 20 21 22 23 24 25 26 27 28 F9PASI.ANDWim Deomment'SBCPFFLOP=\Lopez.PSA.Tooke.wpd 4