HomeMy WebLinkAbout09- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C. ROTH Subject:Resolutions ofthe Mayor and Common Council
Sr.AssistantCity Attorney of the City of San Bernardino Authorizing the Execution
of a Professional Services Agreement Between Timothy
Dept: CITY ATTORNEY Sabo,of Lewis Brisbo is Bis aard&Smith and the City
of San Bernardino, and authorizing and directing the
Date: March 7, 2011 Economic Development Agency to bear the cost of the
City's defense in the Case of Placo San Bernardino,
Llc, V. City of San Bernardino, et al.
Synopsis of Previous Council Action:
February 22,2011-Mayor and Common Council approved in closed session the retention of Timothy Sabo,
of Lewis,Brisbois,Bisgaard&Smith to represent the City and EDA in Placo San Bernardino,Llc, V. City
of San Bernardino, et al.
Recommended motion:
Adopt Resolution
afore
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
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Agenda Item No. q
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STAFF REPORT
Council Meeting Date: March 7, 2011
TO: Mayor and Common Council
FROM: Diane C. Roth, Senior Assistant City Attorney
DATE: February 28, 2011
AGENDA: Resolutions of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between
Timothy Sabo, of Lewis Brisbois, Bisgaard & Smith and the City of San
Bernardino,Legal Services in the Case of Placo San Bernardino,LLC, v. City of
San Bernardino, et al., and directing that the Economic Development Agency
shall bear the cost of the City's legal defense.
On February 22, 1011,the Mayor and Common Council approved the retention of Timothy
Sabo, of Lewis Brisbois, Bisgaard & Smith, to represent the City of San Bernardino and the EDA
in the case ofPlaco San Bernardino,Llc, v. City of San Bernardino, et al.,United States District Court
No. CV 11-01187GW(FMOx). It also authorized the cost of representation to be borne by the EDA.
Attached hereto is a Resolution authorizing the Mayor to execute a Professional Services
Agreement providing for the representation, with a ceiling of$25,000.00 on attorneys fees and a
requirement of regular status reports. Also attached is a Resolution of the Mayor and Common
Council and the Community Development Commission althorizing and directing the Economic
Development Agency to bear the costs of the City's defense in the litigation.
It is requested by the City Attorney that the proposed resolutions be adopted.
Recommendation: Adopt Resolutions.
F:AROTH\Litigation Cases-Outside Counsel\PlacoASabo PSA StaffRpt.wpd
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OPY
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN TIMOTHY SABO,OF LEWIS BRISBOIS BISGAARD&SMITH
and THE CITY OF SAN BERNARDINO FOR REPRESENTATION IN THE CASE OF
4 PLACO SAN BERNARDINO, LLC, V. CITY OF SAN BERNARDINO, ET AL., UNITED
STATES DISTRICT COURT NO. CVII-01187GW(FMOx).
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I BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
7 SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
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to execute on behalf of said City a Professional Services Agreement between Timothy Sabo,of Lewis
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IBrisbois Bisgaard&Smith and the City of San Bernardino for legal services in the case of Placo San
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Bernardino,LLC, v. City of San Bernardino, et al.,United States District Court No.CV 11-01187GW
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(FMOx),a copy of which is attached hereto marked Exhibit"A"and incorporated herein by reference
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as fully as though set forth at length.
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SECTION 2. The authorization granted by this Resolution shall expire and be void and
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of no further effect if the agreement is not executed by all parties and returned to the Office of the City
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Clerk within sixty (60) days following the effective date of this Resolution.
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FAONSTOT\CIVIL CASES\Piaco\Sabo PSA Reso.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN TIMOTHY SABO,OF LEWIS BRISBOIS BISGAARD&SMITH,
THE CITY OF SAN BERNARDINO FOR REPRESENTATION IN THE CASE OF PLACO
3 SAN BERNARDINO, LLC, V CITY OF SAN BERNARDINO, ET AL., UNITED STATES
DISTRICT COURT NO. CV11-01187GW(FMOx).
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a meeting thereof,held on the_day
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of , 2011,by the following vote, to wit:
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COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
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MARQUEZ
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VACANT
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BRINKER
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SHORETT
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KELLEY
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JOHNSON
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MC CAMMACK
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Rachel Clark, City Clerk
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19 The foregoing Resolution is hereby approved this_day of , 2011.
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22 PATRICK J. MORRIS, Mayor
City of San Bernardino
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Approved as to form:
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JAMES F. PENMAN,
25 City Attorney
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By
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CADocuments and Settings\Sonstot\Desktop\Sabo PSA Resompd
77 777
I PROFESSIONAL SERVICES AGREEMENT
2 Placo San Bernardino, LLC, v. City of San Bernardino, et al.
United States District Court No. CVII-01187GW(FMOx)
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1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
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LEWIS,BRISBOIS,BISGAARD&SMITH(hereinafter"LBBS")are the parties to this Agreement.
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2. LBBS will represent the following defendants in Placo San Bernardino,LLC, v. City
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of San Bernardino, et al.,United States District Court No.CV 11-01187GW(FMOx): the CITY,the
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EDA and any designated officer or employee of the CITY or EDA who may later be named. LBBS
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shall not represent any client in any type of claim against the CITY without prior written approval
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to do so from the CITY through the City Attorney's Office.
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3. LBBS shall be paid at the hourly rates set forth below:
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Attorneys: $160.00/hr.
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The amounts expended under this agreement for attorney fees shall not exceed
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$25,000 without further approval of the Mayor and Common Council and the Community
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Development Commission.
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4. Bills shall be submitted at least on a monthly basis and no later than the 5`' day of
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each succeeding month.
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5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
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mileage (at prevailing IRS rate) and related travel costs shall be itemized when submitted to the
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CITY for reimbursement. LBBS may include a single charge in an amount not to exceed four
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percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone charges, and
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postage.
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6. If attorney fees are charged"portal to portal" (e.g., from office to court and return),
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then LBBS shall not be entitled to reimbursement for mileage and parking fees.
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7. LBBS shall obtain approval from the CITY to retain expert witnesses,consultants,
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and other professionals (not including court reporters)for purposes of the litigation.LBBS may,if
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it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
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its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
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F:\0NST0T\C1VU CASES\P1aco\Sabo PSA.wpd 1 EXHIBIT"A"
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I 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. LBBS shall comply with all reporting requirements of BICEP, if applicable.
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. James F. Penman/ Stephen R. Onstot of the City Attorney's Office shall be
10 included on the official Service List of the lawsuit as associated counsel.
11 10. Copies of any correspondence and other documents sent to any of the parties in this
12 action shall also be provided to the CITY through the City Attorney's Office.
13 11. Any and all settlements shall require CITY and EDA approval. Request for
14 settlement authority shall be made through the City Attorney's Office which shall obtain the
15 necessary CITY approvals.
16 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
17 Attorney's Office shall be notified immediately.
18 13. Only Timothy Sabo of Lewis,Brisbois,Bisgaard&Smith,or another senior attorney
19 approved by the City shall conduct the trial of 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. Any of the parties may terminate this Agreement at will. LBBS will continue to
25 represent the CITY on the terms and conditions in this Agreement until the case and file are
26 transferred to another attorney.
27 18. LBBS is an independent contractor as to the CITY.
28 19. LBBS shall maintain the following types of insurance with limits as shown:
CADocuments and Settings\Sonstot\Desktop\Sabo PSA.wpd 2 EXHIBIT"A"
1 a) Workers Compensation as required by the laws of the State of California,
2 including Employment Liability with$250,000 limits covering all persons providing
3 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS
4 shall require its Workers Compensation carrier to waive all rights of subrogation
5 against the CITY and its officers and employees and any others for whom services
6 are being provided under this Agreement.
7 b) Comprehensive General and Automobile Liability Insurance coverage to
8 include contractual coverage and automobile coverage for owned, hired and non-
9 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
10 for bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
12 On all policies except that for professional liability, the CITY shall be named as additional
13 insured;however,in lieu of naming the CITY as an additional insured the policy may be endorsed
14 as follows:
15 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
3 16 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
17 insured, its officers, employees, agents,or subcontractors. All other
provisions of this policy are to remain unchanged."
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LBBS shall furnish certificates of insurance and certified copies of all policies and
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endorsements to the City Attorney's Office evidencing the insurance coverage above required within
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thirty(30)days of the commencement of performance of services hereunder,which certificates shall
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provide that such insurance shall not be terminated or expire without thirty(30)days written notice
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to the City Attorney's Office, and shall maintain such insurance from the time LBBS commences
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performance of services hereunder until the completion of such services.
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All policies required above are to be primary and non-contributing with any insurance
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policies or self-insurance programs carried or administered by the CITY or other parties represented
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under this Agreement.
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20. All communications and billings to the CITY are to be directed as follows:
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CADocuments and Settings\Sonstot\Desktop\Sabo PSA.wpd 3 EXHIBIT"A"
1 City Attorney's Office
CITY OF SAN BERNARDINO
2 300 North"D"Street
San Bernardino, CA 92418
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4 Dated: , 2011 LEWIS BRISBOIS BISGAARD & SMITH
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By: Timothy Sabo
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9 Dated: , 2011 CITY OF SAN BERNARDINO
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By: Patrick J. Morris, Mayor
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Approved as to form:
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JAMES F. PENMAN,
16 City Attorn y
17 By:
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CADocuments and Settings\Sonstot\Desktop\Sabo PSA.wpd 4 EXHIBIT"A"
1 RESOLUTION NO.
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DIRECTING THE ECONOMIC DEVELOPMENT AGENCY
3 TO PAY THE CITY'S ATTORNEY'S FEES AND COSTS OF LEWIS BRISBOIS BISGAARD
& SMITH FOR REPRESENTATION IN THE CASE OF PLACO SAN BERNARDINO,LLC,
4 V. CITY OF SAN BERNARDINO,ETAL.,UNITED STATES DISTRICT COURT NO.CV11-
01187GW(FMOx).
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BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT COMMISSION OF THE
7 CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Interim Executive Director of the Economic Development Agency is
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hereby authorized and directed to pay the City of San Bernardino's attorney's fees and costs incurred
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pursuant to the Professional Services Agreement between Timothy Sabo,of Lewis Brisbois Bisgaard
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&Smith and the City of San Bernardino for legal services in the case of Placo San Bernardino,LLC,
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v. City of San Bernardino, et al., United States District Court No. CV 11-01187GW (FMOx).
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO DIRECTING THE ECONOMIC DEVELOPMENT AGENCY TO PAY
2 THE CITY'S ATTORNEY'S FEES AND COSTS OF LEWIS BRISBOIS BISGAARD &
SMITH FOR REPRESENTATION IN THE CASE OF PLACO SAN BERNARDINO,LLC, V.
3 CITY OF SAN BERNARDINO, ET AL., UNITED STATES DISTRICT COURT NO. CV1I-
01187GW(FMOx).
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
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Development Commission of the City of San Bernardino at a meeting thereof, held on
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the_day of , 2011, by the following vote, to wit:
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COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
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MARQUEZ
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VACANT
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BRINKER
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SHORETT
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KELLEY
15
JOHNSON
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MC CAMMACK
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18
Rachel Clark, City Clerk
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20 The foregoing Resolution is hereby approved this_day of , 2011.
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23 PATRICK J. MORRIS, Chair
Community Development Commission
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Approved as to form:
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JAMES F. PENMAN,
26 City Attorney
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By:
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