HomeMy WebLinkAbout34-City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman Subject: Professional Services Agreement
City Attorney between the City of San Bernardino and the law firm of
Lewis,Brisbois,Bisgaard&Smith for legal services in
Dept: CITY ATTORNEY the claim of Brian Boom.
Date: June 17, 2010
M/CC Date: June 21,2010
Synopsis of Previous Council Action:
On June 7,2010,the Mayor and Common Council approved the retention of the law firm of Lewis,Brisbois,
Bisgaard & Smith for legal services in the claim of Brian Boom.
Recommended motion:
That the accompanying resolution authorizing the execution of a Professional Services Agreement between
the City of San Bernardino and the law firm of Lewis,Brisbois,Bisgaard &Smith b- adopted. /Jn
gnature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: (.Ves o
Agenda Item No. 34
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STAFF REPORT
Council Meeting Date: June 21, 2010
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: June 21,2010
AGENDA: Professional Services Agreement Between the City of San Bernardino and the
Law Firm of Lewis,Brisbois,Bisgaard&Smith for Legal Services in the Claim
of Brian Boom.
On June 7,2010,the Mayor and Common Council approved the retention of the law firm of
Lewis,Brisbois,Bisgaard&Smith to represent the City of San Bernardino and its employees in the
claim filed by Brian Boom.
Attached hereto is a Professional Services Agreement providing for the representation,with
a ceiling of$25,000 on attorneys' fees and a requirement of regular status reports.
It is requested by the City Attorney that the proposed Resolution be adopted,authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
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RESOLUTION NO. �-
1 (Q) If-e 2 RESOLUTION OF THE MAYOR AND COMMON COUNCOff'THE ITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL THE
3 SERVICES OF LEWIS,E1VI AGREEMENT BRISBOIS, SGAARD&SMITH REGARDING THE CLAIM OF
LAW FIRM OF
4 BRIAN BOOM.
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 the City of
9 San Bernardino and Lewis, Brisbois, Bisgaard & Smith for legal services in the claim of Brian
10 Boom, a copy of which is attached hereto marked Exhibit"A" and incorporated herein by reference
11 as fully as though set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no further
13 effect if the agreement is not executed by both parties and returned to the Office of the City Clerk
14 within sixty (60) days following the effective date of the resolution.
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1 RESOLUTION OF THE ORIZING THE EXECUTION OF
OF IA PROFESSIONAL
SAN BERNARDINO AU THE
2 SERVICES LEEMEBR SBO S BETWEEN ISGAARD&SMITH REGARDING THE CLAIM LAW OF FIRM LEWIS, IM OF
3 BRIAN BOOM.
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,held
7 on the day of , 2010, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ
10 DESJARDINS
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17
18 Rachel G. Clark, City Clerk
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
By:
27 /
28
1 PROFESSIONAL SERVICES AGREEMENT
2 LEWIS,BRISBOIS,BISGAARD & SMITH
3 CLAIM OF BRIAN BOOM
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this
6 Agreement.
7 2. LBB&S will represent the CITY OF SAN BERNARDINO and any other designated
8- officers or employees with respect to the Claim of Brian Boom and any litigation arising therefrom.
9 LBB&S shall not represent any client in any type of claim against the CITY without prior written
10 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
11 3. LBB&S shall be paid at the hourly rates set forth below:
12 Attorney Gail Montgomery- $195.00 per hour;
13 Associates - $165.00 per hour; and
14 Law Clerks/Paralegals - $85.00 per hour.
15 The amounts expended under this agreement for attorney 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 5th 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 LBB&S may include a single charge in an amount not to exceed four percent(4%) of attorney fees
22 in lieu of reimbursement for photocopying, telephone charges, and postage.
23 6. If attorney fees are charged "portal to portal" (e.g.,from office to court and return),
24 then LBB&S shall not be entitled to reimbursement for mileage and parking fees.
25 7. LBB&S shall obtain approval from the CITY to retain expert witnesses,consultants,
26 and other professionals (not including court reporters) for purposes of the litigation. LBB&S may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
28 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
1 Exhibit "A"
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1 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S Finance Department.
3 8. Status reports will be submitted to the CITY through the City Attorney's Office
4 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to
5 set reserves,including,without limitation,potential liability exposure and percentage of fault,shall
6 be included.
7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
9 or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the parties in this
11 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 authority
13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
14 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
15 Attorney's Office shall be notified immediately.
16 13. Only Gail Montgomery of LEWIS,BRISBOIS, BISGAARD & SMITH or another
17 senior attorney approved by the City shall conduct the trial of this case.
18 14. No client development costs are to be included in billings.
19 15. No continuing education expenses are to be included in billings.
20 16. Final billing shall be accompanied by copies of the Request for Dismissal,
21 Satisfaction of Judgment, Release and any other final documents.
22 17. Either party may terminate this Agreement at will. LBB&S will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. LBB&S is an independent contractor as to the CITY.
26 19. LBB&S shall maintain the following types of insurance with limits as shown:
27 a) Workers Compensation as required by the laws of the State of California,
28 including Employment Liability with$250,000 limits covering all persons providing
2
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1 service on behalf of LBB&S and all risks to such persons under this Agreement.
2 LBB&S shall require its Workers Compensation carrier to waive all rights of
3 subrogation against the CITY and its officers and employees and any others for
4 whom services are being provided under this Agreement.
5 b) Comprehensive General and Automobile Liability Insurance coverage to
6 include contractual coverage and automobile coverage for owned, hired and non-
7 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
8 for bodily injury and property damage.
9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
10 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
11 follows:
12 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
13 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
14 insured,its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
15
16 LBB&S shall furnish certificates of insurance and certified copies of all policies and
17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
18 to the commencement of performance of services hereunder, which certificates shall provide that
19 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
20 Attorney's Office,and shall maintain such insurance from the time LBB&S commences performance
21 of services hereunder until the completion of such services.
22 All policies, with respect to the insurance coverage above required, except for the
23 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall
24 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
25 their employees, agents, volunteers and officers as additional named insureds with respect to
26 liabilities arising out of the performance of services hereunder.
27 All policies required above are to be primary and non-contributing with any insurance
28 policies or self-insurance programs carried or administered by the CITY or other parties represented
3
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1 under this Agreement.
2 20. All communications and billings to the CITY are to be directed as follows:
3 City Attorney's Office
CITY OF SAN BERNARDINO
4 300 North"D" Street
San Bernardino, CA 92418
5
6 Dated: , 2010 LEWIS, BRISBOIS,BISGAARD & SMITH
7
8 By: Gail Montgomery
9
10
11 Dated: ,2010 CITY OF SAN BERNARDINO
12
13 By: Patrick J. Morris,Mayor
14
15
16
17 Approved as to form:
18
JAMES F. PENMAN,
19 City Attorney
20
By:
21
22
23
24
25
26
27
28
4
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1 PROFESSIONAL SERVICES AGREEMENT
2 LEWIS,BRISBOIS,BISGAARD & SMITH
3 CLAIM OF BRIAN BOOM
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this
6 Agreement.
7 2. LBB&S will represent the CITY OF SAN BERNARDINO and any other designated
8 officers or employees with respect to the Claim of Brian Boom and any litigation arising therefrom.
9 LBB&S shall not represent any client in any type of claim against the CITY without prior written
10 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
11 3. LBB&S shall be paid at the hourly rates set forth below:
12 Attorney Gail Montgomery - $195.00 per hour;
13 Associates - $165.00 per hour; and
14 Law Clerks/Paralegals - $85.00 per hour.
15 The amounts expended under this agreement for attorney 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 5th 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 LBB&S may include a single charge in an amount not to exceed four percent(4%) of attorney fees
22 in lieu of reimbursement for photocopying, telephone charges, and postage.
23 6. If attorney fees are charged "portal to portal" (e.g., from office to court and return),
24 then LBB&S shall not be entitled to reimbursement for mileage and parking fees.
25 7. LBB&S shall obtain approval from the CITY to retain expert witnesses,consultants,
26 and other professionals (not including court reporters) for purposes of the litigation. LBB&S may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
28 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:\ROTH\Litigation Cases-Outside Counsel\Boom\PSA.LBBS.6.21.10.wpd
1 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S Finance Department.
3 8. Status reports will be submitted to the CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
5 set reserves,including,without limitation,potential liability exposure and percentage of fault, shall
6 be included.
7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
8 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
9 or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the parties in this
11 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 authority
13 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
14 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
15 Attorney's Office shall be notified immediately.
16 13. Only Gail Montgomery of LEWIS, BRISBOIS, BISGAARD & SMITH or another
17 senior attorney approved by the City shall conduct the trial of this case.
18 14. No client development costs are to be included in billings.
19 15. No continuing education expenses are to be included in billings.
20 16. Final billing shall be accompanied by copies of the Request for Dismissal,
21 Satisfaction of Judgment, Release and any other final documents.
22 17. Either party may terminate this Agreement at will. LBB&S will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. LBB&S is an independent contractor as to the CITY.
26 19. LBB&S shall maintain the following types of insurance with limits as shown:
27 a) Workers Compensation as required by the laws of the State of California,
28 including Employment Liability with$250,000 limits covering all persons providing
2
F:\ROTH\Litigation Cases-Outside Counsel\Boom\PSA.LBBS.6.21.10.wpd
1 service on behalf of LBB&S and all risks to such persons under this Agreement.
2 LBB&S shall require its Workers Compensation carrier to waive all rights of
3 subrogation against the CITY and its officers and employees and any others for
4 whom services are being provided under this Agreement.
5 b) Comprehensive General and Automobile Liability Insurance coverage to
6 include contractual coverage and automobile coverage for owned, hired and non-
7 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
8 for bodily injury and property damage.
9 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
10 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
11 follows:
12 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
13 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
14 insured,its officers,employees, agents,or subcontractors. All other
provisions of this policy are to remain unchanged."
15
16 LBB&S shall furnish certificates of insurance and certified copies of all policies and
17 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
18 to the commencement of performance of services hereunder, which certificates shall provide that
19 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
20 Attorney's Office,and shall maintain such insurance from the time LBB&S commences performance
21 of services hereunder until the completion of such services.
22 All policies, with respect to the insurance coverage above required, except for the
23 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
24 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
25 their employees, agents, volunteers and officers as additional named insureds with respect to
26 liabilities arising out of the performance of services hereunder.
27 All policies required above are to be primary and non-contributing with any insurance
28 policies or self-insurance programs carried or administered by the CITY or other parties represented
3
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1 under this Agreement.
2 20. All communications and billings to the CITY are to be directed as follows:
3 City Attorney's Office
CITY OF SAN BERNARDINO
4 300 North "D" Street
San Bernardino, CA 92418
5
6 Dated: , 2010 LEWIS, BRISBOIS, BISGAARD & SMITH
7
8
By: Gail Montgomery
9
10
11 Dated: , 2010 CITY OF SAN BERNARDINO
12
13
By: Patrick J. Morris,Mayor
14
15
16
17 Approved as to form:
18
JAMES F. PENMAN,
19 City Attorney
20
By ad . " . -
21
22
23
24
25
26
27
28
4
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