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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 Arias&
Dept: CITY ATTORNEY Lockwood and the City of San Bernardino in the case of
Willie Mason, Sr., v. City of San Bernardino, United
Date: April 4, 2011 States District Court, Case No. EDCV 10-00504
f VAP(OPx).
3
Meeting Date: April 4,2011
Synopsis of Previous Council Action:
Recommended motion:
That said resolution be adopted.
Signature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount: $25,000.00
Source: $25,000 from the Claims and Judgments Payable
account—current balance $4,599,994.74
Finance:
Council Notes: G�
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Entered Into Reo, at MCC/CDC I AL y`��,/
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AgendQ I o. �a
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Clty clerk/C C Sacrefary C � Agenda Item No. 20 - Replacement page
City of San Bernardino
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C. ROTH Subject:Resolutions of the Maypr and Common Council
Sr. AssistantCity Attorney of the City of San Bernardino uthorizing the Execution
of a Professional Services,Agreement Between Arias&
Dept: CITY ATTORNEY Lockwood and the City f San Bernardino in the case of
Willie Mason, Sr., v City of San Bernardino, United
Date: March 17,2011 State/te: urt, Case No. EDCV 10-00504
VAP(
Meetch 21,2011
Synopsis of Previous Council Action:
Recommended motion:
That said resolution be adopted.
ligp.lure
Contact person: Diane C. oth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIRE ENTS: Amount:
Source:
Finance:
Council Note 2011- gs
L 2l
Agenda Item No. -5P 0
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 Arias
& Lockwood and the City of San Bernardino for Legal Services in the Case of
Willie Mason, Sr., v. City of San Bernardino, United States District Court, Case
No. EDCV 10-00504 VAP(OPx).
Willie Mason, Sr., 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 Summer, 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 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 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 resources and support staff is needed to try this case. Attorney Joseph
Arias has the resources and qualifications to try this case. Therefore,we request that Joseph Arias,
of Arias &Lockwood, 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.
FAROTHTitigation Files-In-House\Mason\Arias PSA StaffRpt.wpd
1 RESOLUTION NO. COPY
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO
FOR LEGAL SERVICES IN THE CASE OF WILLIE MASON, SR., V. CITY OF SAN
4 BERNARDINO, UNITED STATES DISTRICT COURT, CASE NO. EDCV 10-00504
VAP(OPx).
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 Arias&Lockwood and
9 the City of San Bernardino for legal services in the case of Willie Mason, Sr., v. City of San
10 Bernardino, United States District Court, Case No. EDCV 10-00504 VAP(OPx), a copy of which is
11 attached hereto marked Exhibit"A" and incorporated herein by reference as fully as though set forth
12 at length.
13 SECTION 2. The authorization granted by this Resolution shall expire and be void and
O14 of no further effect if the agreement is not executed by both parties and returned to the Office of the
15 City Clerk within sixty(60) days following the effective date of this Resolution.
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FAROTH\Litigation Files-In-HouseWason\Arias 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 ARIAS&LOCKWOOD AND THE CITY OF SAN BERNARDINO
FOR LEGAL SERVICES IN THE CASE OF WILLIE MASON, SR., V. CITY OF SAN
3 BERNARDINO, UNITED STATES DISTRICT COURT, CASE NO. EDCV 10-00504
VAP(OPx). .
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a meeting thereof, held on the_day
6
of , 2011, by the following vote, to wit:
7
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8
MARQUEZ
9
VACANT
10
BRINKER
11
SHORETT
12
KELLEY
13
JOHNSON
14
MC CAMMACK
15
16
Rachel Clark, City Clerk
17
18 The foregoing Resolution is hereby approved this day of , 2011.
19
20
21 PATRICK J. MORRIS, Mayor
City of San Bernardino
22
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
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25
By:
26
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FAROTHTitigation Files-In-HouseWasonWrias PSA Resompd
i
1 PROFESSIONAL SERVICES AGREEMENT
2 Willie Mason, Sr., V. City of San Bernardino
United States District Court, Case No. EDCV 10-00504 VAP(OPx).
3
1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIAS
4
&LOCKWOOD (hereinafter"A&L") are the parties to this Agreement.
5
2. A&L will represent the following entities and persons in the case of Willie Mason,Sr.,
6
v. City of San Bernardino, United States District Court,Case No.EDCV 10-00504 VAP(OPx).: CITY OF
7
SAN BERNARDINO, ROY DIAZ, SERBANDO SAENZ and any other designated officer or
8
employee of the CITY who may be named. A&L shall not represent any client in any type of claim
9
against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO
10
through the City Attorney's Office.
11
3. A&L 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
A&L 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
25
other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26
chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27
periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28
P\ROTMI-itigation Files-In-HouseUvlasonWrias PSA.wpd 1 Exhibit A
i
I
! I pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
ARMIN
2 Finance Department.
3 8. Status reports will be submitted to the CITY through the City Attorney's Office
i
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
i
6 be included. A&L 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 Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved
17 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. A&L 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. A&L is an independent contractor as to the CITY.
26 19. A&L 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
FAROTH\Litigation Files-In-House\Mason\Arias PSA.wpd 2 Exhibit A
I including Employment Liability with$250,000 limits covering all persons providing
2 service on behalf of A&L and all risks to such persons under this Agreement. A&L
3 shall require its Workers Compensation carrier to waive all rights of subrogation
4 against the CITY and its officers and employees and any others for whom services
5 are being provided under this Agreement.
6 b) Comprehensive General and Automobile Liability Insurance coverage to
7 include contractual coverage and automobile coverage for owned, hired and non-
8 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
9 for bodily injury and property damage.
10 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
12 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
A&L 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 A&L 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
F:\ROTH\Litigation Files-In-House\Mason\Mias PSA."d 3 Exhibit A
1 policies or self-insurance programs carried or administered by the CITY or other parties represented
2 under this Agreement.
3 20. 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: 52008 ARIAS &LOCKWOOD
8
9
By: Joseph Arias
10
11
12 Dated: , 2008 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
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F:\ROTH\Litigation Files-In-House\Mason\Adas PSA."d 4 Exhibit A
1 PROFESSIONAL SERVICES AGREEMENT
2 Willie Mason, Sr., V. City of San Bernardino
United States District Court, Case No. EDCV 10-00504 VAP(OPx).
3
1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIAS
4 , 4
& LOCKWOOD (hereinafter"A&L") are the parties to this Agreement.
5
2. A&L will represent the following entities and persons in the case of Willie Mason,Sr.,
6
v. City of San Bernardino, United States District Court,Case No.EDCV 10-00504 VAP(OPx).: CITY OF
7
SAN BERNARDINO, ROY DIAZ, SERBANDO SAENZ and any other designated officer or
8
employee of the CITY who may be named. A&L shall not represent any client in any type of claim
9
against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO
10
through the City Attorney's Office.
11
3. A&L 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
A&L 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7. A&L shall obtain approval from the CITY to retain expert witnesses,consultants,and
25
other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26
chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on its
- 27
periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28
FAROTH\Litigation Files-In-House\Mason\Arias PSA.wpd I
I pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 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. A&L 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 Joseph Arias of ARIAS &LOCKWOOD or another senior attorney approved
17 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. A&L 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. A&L is an independent contractor as to the CITY.
26 19. A&L 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
F:\ROTH\Litigation Files-In-House\MasonWrias PSA.wpd 2
t
OWN 1 including Employment Liability with$250,000 limits covering all persons providing
2 service on behalf of A&L and all risks to such persons under this Agreement. A&L
3 shall require its Workers Compensation carrier to waive all rights of subrogation
4 against the CITY and its officers and employees and any others for whom services
5 are being provided under this Agreement.
6 b) Comprehensive General and Automobile Liability Insurance coverage to
7 include contractual coverage and automobile coverage for owned, hired and non-
8 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
9 for bodily injury and property damage.
10 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
11 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
12 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
A&L 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 A&L 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
FAROMLitigation Files-In-HouseWason\Arias PSA.wpd 3
a
i
I policies or self-insurance programs carried or administered by the CITY or other parties represented
2 under this Agreement.
3 20. 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: , 2008 ARIAS & LOCKWOOD
8
9
By: Joseph Arias
10
11
12 Dated: 12008 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
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F:\ROTH\Litigation Files-In-HouseWason\Arias PSA.wpd 4