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HomeMy WebLinkAbout11- City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: DIANE C.ROTH Subject:Resolution of the Mayor and Common Council Sr.AssistantCity Attorney of the City of San Bernardino Authorizing the Execution of a Professional Services Agreement Between Lewis, Dept: CITY ATTORNEY Brisbois, Bisgaard & Smith and the City of San Bernardino for Legal Services in the Case of Elvia Date: March 7,2011 Aguilar, et al v. City of San Bernardino,et al. Synopsis of Previous Council Action: None Recommended motion: Adopt Resolution 1 -signature Contact person: Diane C. Roth Phone: 5355 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: D Agenda Item No. 03-o�-aair STAFF REPORT Council Meeting Date: March 7, 2011 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: February 28, 2011 AGENDA: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of a Professional Services Agreement Between Lewis, Brisbois, Bisgaard & Smith and the City of San Bernardino for Legal Services in the Case of Elvia Aguilar v. City of San Bernardino,et al.,United States District Court Case No. CV10-03659 SJO (PLAx) Elvia Aguilar v. City of San Bernardino, et al.,is an officer involved shooting death case that is being litigated as a civil rights case in the United States District Court in Los Angeles. The City and individual officers are currently represented by an in-house attorney. However,the City Attorney's Office does not currently have the resources to provide adequate representation in this case, and is requesting the retention of Lewis, Brisbois, Bisgaard& Smith to provide that representation. Private(outside)counsel handling San Bernardino federal civil rights cases typically have a partner, an associate attorney and a paralegal assigned to each case. The trial attorney has a"second chair" at the trial of the matter. This case is set for trial in May, 2011. The in-house caseload of the City Attorney's Office has increased from 43 to 70(34%)over the past two calendar years. The number of federal cases(which are much more complex and labor intensive and progress at a much faster pace) has increased from 10 to 22 (120%). At the same time, the number of cases handled by outside counsel has not increased. Also,the number of attorneys in the office has remained constant and the number of support staff has decreased. We have insufficient staff to put more than one attorney on a case. This case was originally assigned in-house to save money, and the assigned attorney has done an excellent job working it up to prepare for trial. However,he has neither the experience nor the time nor the support staff to properly try the case.A police excessive force specialist is needed to try this case. Therefore,we request that Arthur K. Cunningham,of Lewis,Brisbois,Bisgaard&Smith,be retained to represent the City and individual employees in this matter. Attached hereto is 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. 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. FAROTH\Litigation Files-In-House\AguilarTBBS PSA StaffRpt.wpd S O 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 LEWIS,BRISBOIS,BISGAARD&SMITH AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF EL VIA AGUILAR v. CITY 4 OFSANBERNARDINO,et al.,UNITED STATES DISTRICT COURT,CASE NO.C-10-03659 SJO (PLAx) 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 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 Lewis,Brisbois,Bisgaard i lo &Smith and the City of San Bernardino for legal services in the case of Elvia Aguilar v. City of San 11 Bernardino, et Al,United States District Court Case No. CV 10-03659 SJO(PLAx) a copy of which h I12 is attached hereto and incorporated herein as Exhibit"A." 13 SECTION 2. The authorization granted by this Resolution shall expire and be void and 4 14 of no further effect if the agreement is not executed by both parties and returned to the Office of the I 15 City Clerk within sixty(60) days following the effective date of this Resolution. k 16 3 17 i 18 i 19 I 20 21 22 23 24 25 26 27 28 FAROTH\Litigation Files-In-House\Aguilar\LBBS 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 BETWEEN LEWIS,BRISBOIS,BISGAARD&SMITH AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF EL VIA AGUILAR 3 v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT CASE NO. CV10-03659 SJO (PLAx) 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 on the_day 7 of , 2011,by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 VACANT 11 BRINKER 12 SHORETT 13 KELLEY 14 JOHNSON 15 MC CAMMACK 16 17 Rachel Clark, City Clerk 18 The foregoing Resolution is hereby approved this_day of , 2011. 19 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 FAROMLitigation Files-In-House\AguilarTBBS PSA RESO.wpd 1 PROFESSIONAL SERVICES AGREEMENT 2 Elvia Aguilar v. City of San Bernardino, et al. United States District Court, Case No. CVIO-03659 SJO (PLAx) 3 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 4 LEWIS,BRISBOIS,BISGAARD&SMITH (hereinafter"LBBS")are the parties to this Agreement. 5 2. LBBS will represent the following defendants in Elvia Aguilar v. City of San 6 Bernardino, et al, United States District Court,Case No.CV 10-03659 SJO(PLAx):CITY OF SAN 7 BERNARDINO, Officer Juan Ochoa, Officer Andrew Honeycutt and any other designated officer 8 or employee of the CITY who may later be named. LBBS shall not represent any client in any type 9 of claim against the CITY without prior written approval to do so from the CITY OF SAN 10 BERNARDINO through the City Attorney's Office. 11 3. LBBS shall be paid at the hourly rates set forth below: 12 Attorneys- $145.00 per hour; and, 13 Law Clerks/Paralegals - $70.00 per hour. 14 The amounts expended under this agreement for attorney fees shall not exceed 15 $25,000 without further approval of the Mayor and Common Council. 16 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of 17 each succeeding month. 18 5. The actual cost for filing fees, telephone charges,photocopying, postage, lodging, 19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 20 LBBS may include a single charge in an amount not to exceed four percent(4%)of attorney fees in 21 lieu of reimbursement for photocopying,telephone charges, and postage. 22 6. If attorney fees are charged"portal to portal"(e.g., from office to court and return), 23 then LBBS shall not be entitled to reimbursement for mileage and parking fees. 24 7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants, 25 and other professionals(not including court reporters)for purposes of the litigation. LBBS may, if 26 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on 27 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 28 FAROTMI-itigation Files-1n-House\Aguilar\LBBS PSA.wpd 1 EXHIBIT"A" 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. 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 Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior 17 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.LBBS 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. LBBS is an independent contractor as to the CITY. 26 19. LBBS 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 F:\ROMLitigation Files-In-House\Aguilar\LBBS PSA.wpd 2 EXHIBIT"A" 1 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services 4 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 LBBS shall furnish certificates of insurance and certified copies of all policies and 16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 17 to the commencement of performance of services hereunder,which certificates shall provide that 18 such insurance shall not be terminated or expire without thirty(30)days written notice to the City 19 Attorney's Office,and shall maintain such insurance from the time LBBS commences performance 20 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 insureds 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 insurance 27 policies or self-insurance programs carried or administered by the CITY or other parties represented 28 FAROTH\Litigation Files-In-House\Aguilar\LBBS PSA.wpd 3 EXHIBIT"A" , I 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 i j 6 Dated: 52011 LEWIS,BRISBOIS,BISGAARD & SMITH i 7 i 8 By: Arthur K. Cunningham 9 10 11 Dated: 52011 CITY OF SAN BERNARDINO 12 13 By: Patrick J. Morris,Mayor 14 15 16 I i 17 Approved as to form: 18 JAMES F. PENMAN, ' 19 City Attorney 20 By: 21 22 23 f 24 25 26 27 28 FA\ROMLitigation Files-In-House\Aguilar\LBBS PSA.wpd 4 EXHIBIT"A" I PROFESSIONAL SERVICES AGREEMENT 2 Elvia Aguilar v. City of San Bernardino, et al. United States District Court, Case No. CV10-03659 SJO (PLAx) 3 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 4 LEWIS,BRISBOIS,BISGAARD&SMITH (hereinafter"LBBS")are the parties to this Agreement. 5 2. LBBS will represent the following defendants in Elvia Aguilar v. City of San 6 Bernardino, et al,United States District Court,Case No.CV 10-03659 SJO(PLAx):CITY OF SAN 7 BERNARDINO, Officer Juan Ochoa,Officer Andrew Honeycutt and any other designated officer 8 or employee of the CITY who may later be named. LBBS shall not represent any client in any type 9 of claim against the CITY without prior written approval to do so from the CITY OF SAN 10 BERNARDINO through the City Attorney's Office. 11 3. LBBS shall be paid at the hourly rates set forth below: 12 Attorneys- $145.00 per hour; and, 13 Law Clerks/Paralegals- $70.00 per hour. 14 The amounts expended under this agreement for attorney fees shall not exceed 15 $25,000 without further approval of the Mayor and Common Council. 16 4. Bills shall be submitted at least on a monthly basis and no later than the 5'day of 17 each succeeding month. 18 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. 20 LBBS may include a single charge in an amount not to exceed four percent(4%)of attorney fees in 21 lieu of reimbursement for photocopying, telephone charges, and postage. 22 6. If attorney fees are charged"portal to portal"(e.g., from office to court and return), 23 then LBBS shall not be entitled to reimbursement for mileage and parking fees. 24 7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants, 25 and other professionals(not including court reporters) for purposes of the litigation. LBBS may,if 26 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on 27 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the 28 FAROTH\Litigation Files-In-House\Aguilar\LBBS PSA.wpd 1 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. 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 Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior 17 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. LBBS 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. LBBS is an independent contractor as to the CITY. 26 19. LBBS 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 FAROTH\Litigation Files-In-House\Aguilar\LBBS PSA.wpd 2 I service on behalf of LBBS and all risks to such persons under this Agreement. LBBS 2 shall require its Workers Compensation carrier to waive all rights of subrogation 3 against the CITY and its officers and employees and any others for whom services 4 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 LBBS shall furnish certificates of insurance and certified copies of all policies and 16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 17 to the commencement of performance of services hereunder, which certificates shall provide that 18 such insurance shall not be terminated or expire without thirty(30)days written notice to the City 19 Attorney's Office,and shall maintain such insurance from the time LBBS commences performance 20 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 insureds 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 insurance 27 policies or self-insurance programs carried or administered by the CITY or other parties represented 28 FAROMLitigation Files-In-House\AguilarU,BBS PSA.wpd 3 I 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: 92011 LEWIS,BRISBOIS,BISGAARD & SMITH 7 8 By: Arthur K. Cunningham 9 10 11 Dated: , 2011 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 Y 21 22 23 24 25 26 27 28 FAROTHTitigation Files-ln-House\Aguilar\LBBS PSA.wpd 4