HomeMy WebLinkAbout19- City Attorney 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 Monica
Date: April 4, 2011 Ballard v. City of San Bernardino, et al.
Meeting Date: April 4, 2011
Synopsis of Previous Council Action:
None
Recommended motion:
Adopt Resolution
y '
Signature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount: $25,000.00
Source: $25,000 from Claims &Judgments Payable account—
Current balance $4,624,994.74
Finance:
Council Notes:
Entered Into Rec. at MCC/CDC Mt g:
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by:
Agenda Nom—�
by:
City Clerk DC Secretary
City of San Bernardino
Agenda Item No. 19-Replacement page
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 Agree ent Between Lewis,
Dept: CITY ATTORNEY Brisbois, Bisgaard & Smand the City of San
Bernardino for,Legal Sery in the Case of Monica
Date: March 17,2011 Ballard v. City of San Be ardino, et al.
Meeting Date: Marc 21,2011
Synopsis of Previous Council Action:
None
Recommended motion:
Adopt Resolution
I al
Signature
Contact person: Diane C. Roth Z Phone: 5355
Supporting data attached: Staff ort Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
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Agenda Item No.,,,, 9_
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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 Monica Ballard v. City of San Bernardino, et al., United States
District Court, Case No. CV10-02769DMG(AJWx)
Monica Ballard 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 typically has a"second
chair" at the trial of the matter. This case is set for trial in September, 2011.
The in-house caseload of the City Attorney's Office has increased from 47 to 75(60%)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 27 (170%). At the same time, the
number of attorneys and support staff in the office has remained constant. We have insufficient staff
to devote the time and attention necessary to handle this type of 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 specialized expertise
nor the time nor the support staff to prepare the case for trial and try it. A police excessive force
specialist with an adequate support staff is needed to try this case. Attorney Arthur Cunningham has
the resources and qualifications 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.
FAROTHUtigation Cases-Outside Counsel\Ballard\LBBS PSA StaffRpt.wpd
1 RESOLUTION NO.
o ®
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 MONICA BALLARD v.
4 CITY OFSANBERNARDINO,etaL,UNITED STATES DISTRICT COURT,CASE NO.CV10-
02769DMG(AJWx)
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 Lewis,Brisbois,Bisgaard
9
&Smith and the City of San Bernardino for legal services in the case of Monica Ballard v. City of San
10
Bernardino, et al, United States District Court Case No.CV 10-02769DMG(AJWx), a copy of which
11
is attached hereto and incorporated herein as Exhibit "A."
12
SECTION 2. The authorization granted by this Resolution shall expire and be void and
13
of no further effect if the agreement is not executed by both parties and returned to the Office of the
14
City Clerk within sixty(60) days following the effective date of this Resolution.
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FAROMLitigation Cases-Outside Counsel\Ballard\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 MONICA
3 BALLARD v. CITY OF SAN BERNARDINO, et aL, UNITED STATES DISTRICT COURT,
CASE NO. CV10-02769DMG(AJWx)
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' \
`
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28
FAROTH\Litigation Cases-Outside Counsel\Ballard\LBBS PSA RESO.wpd
1 PROFESSIONAL SERVICES AGREEMENT
2 Monica Ballard v. City of San Bernardino, et al.
United States District Court, Case No. CV10-02769DMG(AJWx)
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS,BRISBOIS,BISGAARD&SMITH (hereinafter"LBBS")are the parties to this Agreement.
6 2. LBBS will represent the following defendants in the case of Monica Ballard v. City
7 of San Bernardino, et al., United States District Court, Case No. CV 10-02769DMG(AJWx): CITY
8 OF SAN BERNARDINO,Officer Alvarez and any other designated officer or employee ofthe CITY
9 who may later be named. LBBS shall not represent any client in any type of claim against the CITY
10 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
11 Attorney's Office.
12 3. LBBS shall be paid at the hourly rates set forth below:
13 Attorneys - $145.00 per hour; and,
14 Law Clerks/Paralegals - $70.00 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 5' 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 LBBS may include a single charge in an amount not to exceed four percent(4%) of attorney fees in
22 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 LBBS shall not be entitled to reimbursement for mileage and parking fees.
25 7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
26 and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
27 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
28 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:AROTHTitigation Cases-Outside Counsel\Ballard\LBBS PSA.wpd I EXHIBIT"A"
i
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. LBBS shall comply with all reporting requirements of BICEP, if applicable.
7 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed
8 in the case.
9 10. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
10 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
11 or other litigation.
12 11. Copies of any correspondence and other documents sent to any of the parties in this
13 action shall also be provided to the CITY through the City Attorney's Office.
14 12. Any and all settlements shall require CITY approval. Request for settlement authority
15 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
16 13. 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 14. Only Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior
19 attorney approved by the City shall conduct the trial of this case.
20 15. No client development costs are to be included in billings.
21 16. No continuing education expenses are to be included in billings.
22 17. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 18. Either party may terminate this Agreement at will. LBBS will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 19. LBBS is an independent contractor as to the CITY.
28 20. LBBS shall maintain the following types of insurance with limits as shown:
F:\ROTH\Litigation Cases-Outside Counsel\Ballard\LBBS 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 include
8 contractual coverage and automobile coverage for owned, hired and non-owned
9 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
i
10 bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
12 of naming the CITY as an additional insured,the policy maybe endorsed as follows:
13 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
14 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
15 insured, its officers, employees, agents, or subcontractors. All other
16 provisions of this policy are to remain unchanged."
LBBS shall furnish certificates of insurance and certified copies of all policies and
17
18 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
19 to the commencement of performance of services hereunder, which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time LBBS commences performance
of services hereunder until the completion of such services.
22
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insureds with respect to
27 liabilities arising out of the performance of services hereunder.
28 All policies required above are to be primary and non-contributing with any insurance
FA\ROTH\Litigation Cases-Outside Counsel\Ballard\LBBS PSA.wpd 3 EXHIBIT"A"
1 policies or self-insurance programs carried or administered by the CITY or other parties represented
2 under this Agreement.
3 21. All communications and billings to the CITY are to be directed as follows:
4 City Attorney's Office
CITY OF SAN BERNARDINO
5 300 North"D" Street
San Bernardino, CA 92418
6
7 Dated: , 2011 LEWIS, BRISBOIS, BISGAARD & SMITH
8
9
By: Arthur K. Cunningham
10
11
12 Dated: , 2011 CITY OF SAN BERNARDINO
13
14
By: Patrick J. Morris, Mayor
15
16
17
18 Approved as to form:
19
JAMES F. PENMAN,
20 City Attorney
21
By:
22
23
24
25
26
27
28
FAROTHUtigation Cases-Outside Counsel\Ballard\LBBS PSA."d 4 EXHIBIT"A"
1 PROFESSIONAL SERVICES AGREEMENT
2 Monica Ballard v. City of San Bernardino, et al.
United States District Court, Case No. CV10-02769DMG(AJWx)
3
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS,BRISBOIS,BISGAARD&SMITH (hereinafter"LBBS")are the parties to this Agreement.
6 2. LBBS will represent the following defendants in the case of Monica Ballard v. City
7 of San Bernardino, et al., United States District Court, Case No. CV 10-02769DMG(AJWx): CITY
8 OF SAN BERNARDINO,Officer Alvarez and any other designated officer or employee of the CITY
9 who may later be named. LBBS shall not represent any client in any type of claim against the CITY
10 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
11 Attorney's Office.
12 3. LBBS shall be paid at the hourly rates set forth below:
13 Attorneys - $145.00 per hour; and,
14 Law Clerks/Paralegals - $70.00 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 LBBS may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
22 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 LBBS shall not be entitled to reimbursement for mileage and parking fees.
25 7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
JON 26 and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
27 it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
28 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:\ROTH\Litigation Cases-Outside Counse1\Ba11ard\LBBS PSA.wpd I
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. LBBS shall comply with all reporting requirements of BICEP, if applicable.
7 9. The City Attorney shall be named as co-counsel in the case and on all pleadings filed
8 in the case.
9 10. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
10 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in thi s
11 or other litigation.
12 11. Copies of any correspondence and other documents sent to any of the parties in this
13 action shall also be provided to the CITY through the City Attorney's Office.
0 14 12. Any and all settlements shall require CITY approval. Request for settlement authority
15 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
16 13. 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 14. Only Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior
19 attorney approved by the City shall conduct the trial of this case.
20 15. No client development costs are to be included in billings.
21 16. No continuing education expenses are to be included in billings.
22 17. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 18. Either party may terminate this Agreement at will. LBBS will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 19. LBBS is an independent contractor as to the CITY.
28 20. LBBS shall maintain the following types of insurance with limits as shown:
FAROTMUtigation Cases-Outside Counsel\Ballard\LBBS PSA.wpd 2
I 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 include
8 contractual coverage and automobile coverage for owned, hired and non-owned
9 vehicles. The policy shall have at least a combined single limit of$1,000,000 for
10 bodily injury and property damage.
11 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. In lieu
12 of naming the CITY as an additional insured,the policy may be endorsed as follows:
13 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
14 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
15 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
16
LBBS shall furnish certificates of insurance and certified copies of all policies and
17
18 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
19 to the commencement of performance of services hereunder, which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time LBBS commences performance
of services hereunder until the completion of such services.
22
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
27
28 All policies required above are to be primary and non-contributing with any insurance
F:\ROTH\Litigation Cases-Outside Counsel\Ballard\LBBS PSA."d 3
1 policies or self-insurance programs carried or administered by the CITY or other parties represented
2 under this Agreement.
3 21. All communications and billings to the CITY are to be directed as follows:
4 City Attorney's Office
CITY OF SAN BERNARDINO
5 300 North"D" Street
San Bernardino, CA 92418
6
7 Dated: 12011 LEWIS, BRISBOIS, BISGAARD & SMITH
8
9
By: Arthur K. Cunningham
10
11
12 Dated: , 2011 CITY OF SAN BERNARDINO
13
14
By: Patrick J. Morris, Mayor
15
16
17
18 Approved as to form:
19
JAMES F. PENMAN,
20 City Attorney
21
By -
22
23
24
25
26
27
28
FAROMLitigation Cases-Outside Counsel\Ballard\LBBS PSA."d 4