HomeMy WebLinkAbout43- 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 Cedric
Date: June 6, 2011 May, Sr., et al., v. City of San Bernardino, et al.
Synopsis of Previous Council Action:
None
Recommended motion:
Adopt Resolution
1
ignature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
_exso
Agenda Item No.
STAFF REPORT
Council Meeting Date: June 6,2011
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: June 1, 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 Cedric May,Sr.,et al.,v. City of San Bernardino,et al.,United States
District Court, Case No. CV10-00978 VAP (DTBx)
On May 16, 2011, 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 all named officers
and employees in the case entitled Cedric May, Sr., et al., v. City of San Bernardino, et al., United
States District Court, Case No. CV 10-00978 VAP (DTBx).
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
FAROTH\Litigation Cases-Outside Counsel\May\LBBS PSA StaffRpt.wpd
Q �
I 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 CEDRIC MAY,SR., et al.,
4 v CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT, CASE NO.
CV10-00978 VAP (DTBx)
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
10 &Smith and the City of San Bernardino for legal services in the case of Cedric May, Sr., et al., v. City
11 of San Bernardino, et al., United States District Court, Case No. CV 10-00978 VAP (DTBx)a copy
12 of which is attached hereto and incorporated herein as Exhibit "A."
13 SECTION 2. The authorization granted by this Resolution shall expire and be void and
14 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.
16
17
18
19
20
21
22
23
24
25
26
27
28
FAROTHU.itigation Cases-Outside Counse1\MayU.BBS 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 CEDRIC MAY,
3 SR., et al., Y. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT,
CASE NO. CV10-00978 VAP(DTBx)
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 , 20115 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
19 The foregoing Resolution is hereby approved this_day of , 2011.
20
21
22 PATRICK J. MORRIS, Mayor
City of San Bernardino
23
Approved as to form:
24
JAMES F. PENMAN,
25 City Attorney
26 By. /
27 ;
28
FAROTH\Litigation Cases-Outside Counsel\May\LBBS PSA RESO.wpd
I PROFESSIONAL SERVICES AGREEMENT
2 Cedric May, Sr., et al., v. City of San Bernardino, et al.
United States District Court, Case No. CV10-00978 VAP (DTBx)
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 Cedric May, Sr., et al., v. City of San
6
Bernardino, et al.,United States District Court,Case No.CV 10-00978 VAP(DTBx): CITY OF SAN
7
BERNARDINO, Officer Joseph Aguilar, Jose Vasquez, Byron Clark,Langston Canright, Melissa
8
Flint, Sergeant James Beach and any other designated officer or employee of the CITY who may
9
later be named. LBBS shall not represent any client in any type of claim against the CITY without
10
prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
11
Office.
12
3. LBBS shall be paid at the hourly rates set forth below:
13
14 Attorneys - $145.00 per hour; and,
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
18 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of
each succeeding month.
19
20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
21
22 LBBS may include a single charge in an amount not to exceed four percent(4%)of attorney fees in
lieu of reimbursement for photocopying, telephone charges, and postage.
23
24 6. If attorney fees are charged"portal to portal" (e.g., from office to court and return),
25 then LBBS shall not be entitled to reimbursement for mileage and parking fees.
26 7. LBBS shall obtain approval from the CITY to retain expert witnesses, consultants,
27 and other professionals (not including court reporters) for purposes of the litigation. LBBS may, if
it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY on
28
FAROTHTitintion Cases-Outside Cnunse1\Mav\1.RRS MA wnd I CYL1i11FT 11 A
I its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
2 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
3 CITY'S Finance Department.
4 8. Status reports will be submitted to the CITY through the City Attorney's Office
5 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to
6 set reserves,including,without limitation,potential liability exposure and percentage of fault,shall
7 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
8 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
9 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
10 or other litigation.
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 approval. Request for settlement authority
14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
15 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
16 Attorney's Office shall be notified immediately.
17 13. Only Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior
18 attorney approved by the City shall conduct the trial of this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this Agreement at will. LBBS will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attorney.
26 18. LBBS is an independent contractor as to the CITY.
27 19. LBBS shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of California,
FAROTHU.itieation Cases-Outside Counse1\Mav\LBBS PSA.wod 2 EXHIBIT"A"
I including Employment Liability with$250,000 limits covering all persons providing
2 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS
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
LBBS 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 LBBS 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•\ROTMI.itination Cases-Outside Counse]\Mav\LBBS PSA.wud 3 EXHIBIT"A"
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: 52011 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
FAROTMI.itieation Cases-Outside Counse1\Mav\LB13S PSA.wnd 4 EXHIBIT"A"
1 PROFESSIONAL SERVICES AGREEMENT
2 Cedric May, Sr., et al., v. City of San Bernardino, et al.
United States District Court, Case No. CV10-00978 VAP (DTBx)
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 Cedric May, Sr., et al., v. City of San
6
Bernardino, et al.,United States District Court,Case No.CV 10-00978 VAP(DTBx): CITY OF SAN
7
BERNARDINO, Officer Joseph Aguilar, Jose Vasquez, Byron Clark, Langston Canright,Melissa
8
Flint, Sergeant James Beach and any other designated officer or employee of the CITY who may
9
later be named. LBBS shall not represent any client in any type of claim against the CITY without
10
prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
11
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,
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
FAROT1-Utigation Cases-Outside Counsel\May\LBBS PSA.wpd I
I its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
2 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
3 CITY'S Finance Department.
4 8. Status reports will be submitted to the CITY through the City Attorney's Office
5 whenever any significant event occurs,and in any event at least quarterly. Information sufficient to
6 set reserves,including,without limitation,potential liability exposure and percentage of fault,shall
7 be included. LBBS shall comply with all reporting requirements of BICEP, if applicable.
8 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
9 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this
10 or other litigation.
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 approval. Request for settlement authority
_ 14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
15 12. In the event the settlement value of this case appears to exceed$50,000.00 the City
16 Attorney's Office shall be notified immediately.
17 13. Only Arthur K.Cunningham of Lewis,Brisbois,Bisgaard&Smith or another senior
18 attorney approved by the City shall conduct the trial of this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this Agreement at will. LBBS will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attorney.
26 18. LBBS is an independent contractor as to the CITY.
27 19. LBBS shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of California,
FAROTMLitigation Cases-Outside Counsel\May\LBBS PSA.wpd 2
I including Employment Liability with$250,000 limits covering all persons providing
2 service on behalf of LBBS and all risks to such persons under this Agreement. LBBS
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
LBBS 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 LBBS 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
FAROTMLitigation Cases-Outside Counsel\May\LBBS PSA.wpd 3
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: 52011 LEWIS, BRISBOIS, BISGAARD & SMITH
8
9
By: Arthur K. Cunningham
10
11
12 Dated: 52011 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 r
By:
22
23
24
v 25
26
27
28
FAROTHTitieation Cases-Outside Counse1\Mav\L.BBS PSA.wvd 4