HomeMy WebLinkAbout10-City Attorney
,
,CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F, PENMAN
City Attorney
Subject:
Professional Services Agreements between the City
of San Bernardino and the law firm of Lewis,
D' Amato, Brisbois & Bisgaard to represent the
City in the cases of Avila Construction, Inc. v. City
of San Bernardino, et al. and David M Sanborn dba
D.M Sanborn Pipeline Contractors v. Avila
Construction, Inc, et al.
Dept: CITY ATTORNEY
OF.; .." " v, 'i L
Date: August 22, 2001
Synopsis of Previous Council Action:
August 6 and 20, 2001 -
Mayor and Council approved the hiring of Lewis, D' Amato, Brsibois & Bisgaard
to represent the City in the subject court actions.
Recommended motion:
Adopt Resolutions.
~~,- ?~
C Signature
Contact person: Robert L. Simmons
Phone:
5355
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
?~ AJ -z<Jcw ? '\ ?
Agenda Item No.--LO
q/Jf/~J
STAFF REPORT
Council Meeting Date: SeDtember 4. 2001
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: August 22,2001
AGENDA ITEM: Professional Services Agreements between the City of San
Bernardino and the law firm of Lewis, D'Amato, Brisbois, &
Bisgaard to represent the City in the cases of Avila Construction,
Inc. v. City of San Bernardino, et al. and David M. Sanborn, dba
D.M. Sanborn Pipeline Contractors v. Avila Construction, Inc., et
al.
On August 6,2001 and August 20,2001, the Mayor and Common Council approved
the law firm of Lewis, D'Amato, Brisbois & Bisgaard to represent the City in the above-
referenced court actions. Attached hereto are the Professional Services Agreements
which reflect such approval, including the initial threshold of $20,000, and the requirement
of regular status reports.
It is requested by the City Attorney that the floor motion be adopted so that the
Mayor is authorized to execute said Professional Services Agreements on behalf of the
City of San Bernardino.
That the Mayor of the City of San Bernardino is hereby authorized and directed to
execute on behalf of the City of San Bernardino the Professional Services Agreements with
the law firm of Lewis, D'Amato, Brisbois, & Bisgaard to represent the City in the cases of
Avila Construction, Inc. v. City of San Bernardino, et al. and David M. Sanborn, dba D.M.
Sanborn Pipeline Contractors v. Avila Construction, Inc., et al.
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~(Q)[PW
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF PROFESSIONAL SERVICES AGREEMENTS
BETWEEN LEWIS. D'AMATO. BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY IN THE CASES OF AVILA CONSTRUCTION. INC. V. CITY OF SAN
BERNARDINO. ET AL. AND DAVID M. SANBORN. DBA SANBORN PIPELINE CONTRACTORS V.
AVILA CONSTRUCTION. INC.. ET AL.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
II
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
to execute on behalf of said City Professional Services Agreements between Lewis, D' Amato,
Brisbois & Bisgaard and the City of San Bernardino for legal services, copies of which are
attached hereto marked Exhibit "A" and "B" and incorporated herein by reference as fully as
though set forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
further effect if the agreements are not executed by both parties and returned to the office of the
City Clerk within sixty (60) days following the effective date of the resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF PROFESSIONAL SERVICES AGREEMENTS
2 BETWEEN LEWIS. D'AMATO. BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY IN THE CASES OF AVILA CONSTRUCTION. INC. V. CITY OF SA!,'
3 BERNARDINO. ET AL. AND DAVID M. SANBORN. DBA SANBORN PIPELINE CONTRACTORS V
AVILA CONSTRUCTION. INC.. ET AL.
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
meetin
. 2001, by the following vote. to wit
ABSTAIN ABSENT
CITY CLERK
The foregoing Resolution is hereby approved this
day of
, 2001.
JUDITH VALLES, Mayor
City of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
City Attorney
By: L ? .Po~
(} .
RLS/js [SANBORN.RES]
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PROFESSIONAL SERVICES AGREEMENT
2
A vila Construction, Inc. v. City of San Bernardino
3
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
4 LEWIS. D'AMATO. BRlSBOIS & BISGAARD (hereinafter "LDB&B") are the parties to this
5 Agreement.
6
'}
LDB&B will be representing the following entities in this litigation: CITY OF
7 SAN BERNARDINO. LDB&B shall not represent any client in any type of claim against the CITY
8 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
9 Attorney's Office.
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LDB&B shall be paid at the hourly rates set forth below:
Attorneys - $110.00 per hour; and,
Law Clerks/Paralegals - $50.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
14
$20.000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
15
16
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 LDB&B may include a single charge in an amount not to exceed four percent (4%) offees in lieu
19 of reimbursement for photocopying, telephone charges. and postage.
20
6.
If attorney's fees are charged "portal to portal" (e.g.. from office to court and
21 return). then LDB&B shall not be entitled to reimbursement for mileage and parking fees.
22
7.
LDB&B shall obtain approval from the CITY to retain expert consultants and other
23 professionals (not including court reporters) for purposes of defending the litigation. LDB&B may.
24 ifit chooses. pay the fees and charges of such consultants and seek reimbursement from CITY on
25 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
26 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
27
Finance Department.
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8. Status reports will be submitted to CITY through the City Attorney's Office
RLS/js [A VILA.AGR]
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1 whenever any significant event occurs, and in any event at least quarterly. Information suffici~nt
2 to set reserves, including, without limitation, potential liability exposure and percentage of fault
3 shall be included.
4 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
5 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
6 in this, or other litigation.
7 10. Copies of any correspondence and other documents sent to any of the defendants
8 in this action shall also be provided to the CITY through the City Attorney's Office.
9 I \. Any and all settlements shall require CITY approval. Request for settlement
10 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
11 approvals.
12 12. In the event the settlement value of the case appears to exceed $50,000, the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of LEWIS, D'AMATO, BRISBOIS & BISGAARD or other
15 senior attorney approved by the CITY shall try this case.
16 14. No client development costs are to be included in billings.
17 IS. No continuing education expenses are to be included in billings.
18 16. Final billing shall be accompanied by copies of the Request for Dismissal.
19 Satisfaction of Judgment, Release and any other final documents.
20 17. Either party may terminate this contract at will. LDB&B will continue to represent
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
22 another attorney.
23 18. LDB&B is an independent contractor as to the CITY.
24 19. LDB&B shall maintain the following types of insurance with limits as shown:
25 a) Workers Compensation as required by the laws of the State
26 of California, including Employment Liability with $250,000 limits
27 covering all persons providing service on behalf of LDB&B and all risks
28 to such persons under this Agreement. LDB&B shall require its Workers
RLSljs [A VILA.AGRJ 2
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Compensation carrier to waive all rights of subrogation against the CITY
2
and its officers and employees and any others for whom services are being
3
provided under this Agreement.
4
b)
Comprehensive General and Automobile Liability
5
Insurance coverage to include contractual coverage and automobile
6
coverage for owned, hired and non-owned vehicles. The policy shall have
at least a combined single limit of $1,000,000 for bodily injury and
property damage.
7
8
9
c)
Professional Liability Insurance with limits of at least
10
$1.000.000 per claim. In lieu of naming the CITY as an additional
insured, the policy may be endorsed as follows:
"Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF
SAN BERNARDINO for legal defense services, provided such liability
results from an error. omission or negligent act of the insured. its officers,
employees, agents or subcontractors. All other provisions of this policy
are to remain unchanged."
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LDB&B shall furnish certificates of insurance and certified copies of all policies
17
and endorsements to the City Attorney's Office evidencing the insurance coverage above required
18
prior to the commencement of performance of services hereunder. which certificates shall provide
that such insurance shall not be terminated or expire without thirty (30) days written notice to the
City Attorney's Office. and shall maintain such insurance from the time LDB&B commences
19
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performance 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
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
All policies required above are to be primary and non-contributing with any
insurance or self-insurance programs carried or administered by the CITY or other parties
RLS/js [A VILA.AGRJ
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represented und.:r this Agreement.
20. All communications and billings to the CITY are to be directed as follows:
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City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
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DATED:
,2001
LEWIS, D'AMATO, BRISBOIS & BISGAARD
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By: Joseph Arias
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DATED:
,2001
CITY OF SAN BERNARDINO
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By: Judith Valles, Mayor
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21 Approved as to form and
legal content:
22
JAMES F. PENMAN,
23 City Attorney
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RLs/js [A VILA.AGR]
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PROFESSIONAL SERVICES AGREEMENT
2
David M. Sanborn, dba D.M. Sanborn Pipeline Construction v.
A vila Construction, Inc., et al.
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I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
LEWIS. D'AMATO. BRISBOIS & BISGAARD (hereinafter "LDB&B") are the parties to this
5
6
Agreement.
2. LDB&B will be representing the following entities in this litigation: CITY OF
SAN BERNARDINO. LDB&B shall not represent any client in any type of claim against the CITY
without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
Attorney's Office.
3. LDB&B shall be paid at the hourly rates set forth below:
Attorneys - $110.00 per hour; and,
Law Clerks/Paralegals - $50.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
15
$20,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
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.
LDB&B may include a single charge in an amount not to exceed four percent (4%) offees in lieu
of reimbursement for photocopying, telephone charges, and postage.
6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
16
17
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19
20
21
22
return), then LDB&B shall not be entitled to reimbursement for mileage and parking fees.
23
7. LDB&B shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. LDB&B may,
24
25
if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
26
its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
27
Finance Department.
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RLS/js [SANBORN.AGR]
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1 8. Status reports will be submitted to CITY through the City Attorney's Otlicc
2 whenever any significant event occurs. and in any event at least quarterly. Information sutlicient
3 to set reserves. including. without limitation. potential liability exposure and percentage of fault
4 shall be included.
5 9. Copies of all opinions. pleadings, discovery and motions shall be provided to the
6 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
7 in this, or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the defendants
9 in this action shall also be provided to the CITY through the City Attorney's Office.
10 I I . Any and all settlements shall require CITY approval. Request for settlement
11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
12 approvals.
13 12. In the event the settlement value of the case appears to exceed $50,000, the City
14 Attorney's Office shall be notified immediately.
15 13. Only Joseph Arias of LEWIS. D'AMATO, BRISBOIS & BISGAARD or other
16 senior attorney approved by the CITY shall try this case.
17 14. No client development costs are to be included in billings.
18 IS. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment. Release and any other final documents.
21 17. Either party may terminate this contract at will. LDB&B will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. LDB&B is an independent contractor as to the CITY.
25 19. LDB&B shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State
27 of California, including Employment Liability with $250,000 limits
28 covering all persons providing service on behalf of LDB&B and all risks
RLS/js [SANBORN.AGR] 2
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1
to such persons under this Agreement. LDB&B shall require its Workers
Compensation carrier to waive all rights of subrogation against the CITY
and its officers and employees and any others for whom services are being
2
3
4
provided under this Agreement.
5
b)
Comprehensive General and Automobile Liability
6
Insurance coverage to include contractual coverage and automobile
7
coverage for owned. hired and non-owned vehicles. The policy shall have
at least a combined single limit of $1.000,000 for bodily injury and
8
9
property damage.
10
c)
Professional Liability Insurance with limits of at least
11
$1.000.000 per claim. In lieu of naming the CITY as an additional
12
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 CITY OF
SAN BERNARDINO for legal defense services, provided such liability
results from an error, omission or negligent act of the insured, its officers,
employees, agents or subcontractors. All other provisions of this policy
are to remain unchanged."
14
15
16
LDB&B shall furnish certificates of insurance and certified copies of all policies
17
and endorsements to the City Attorney's Office evidencing the insurance coverage above required
18
19
prior to the commencement of performance of services hereunder, which certificates shall provide
that such insurance shall not be terminated or expire without thirty (30) days written notice to the
City Attorney's Office, and shall maintain such insurance from the time LDB&B commences
20
21
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
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
24
25
26
27
28
All policies required above are to be primary and non-contributing with any
RLS/js [SANBORN.AGR]
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20
21
1 insurance or self-insurance programs carried or administered by the CITY or other parties
2 represented under this Agreement.
3
20.
All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
4
5
6
DA TED:
.2001
LEWIS, D'AMATO, BRISBOIS & BISGAARD
7
8
9
By: Joseph Arias
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11
DATED:
,2001
CITY OF SAN BERNARDINO
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By: Judith Valles, Mayor
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22 Approved as to form and
legal content:
23
JAMES F. PENMAN,
24 City Attorney
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RLS/js [SANBORN.AGR]
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. .
OFFICE OF THE CITY CLERK
RACHEL G. CLARK, CM.C. - CITY CLERK
'"
P.O. Box 1318. San Bernardino' CA92402
300 North "D" Street. San Bernardino' CA 92418-0001
909.384.5002. Fax: 909.384.5158
Business Registration Division: 909.384.5302
Passport Acceptance Facility: 909.384.5128
www.cLsan-bernardino.ca.us
September 7, 2001
Joseph Arias
Lewis, D'Amato, Brisbois & Bisgaard
201 N. E Street
San Bernardino, CA 92401
Dear Mr. Arias,
At the Mayor and Common Council meeting of September 4, 2001, the City of San Bernardino
adopted Resolution 2001-272 - Resolution authorizing the execution of professional services
agreements between Lewis, D 'Amato, Brisbois & Bisgaard and the City of San Bernardino to
represent the City in the cases of Avila Construction, Inc., v City of San Bernardino, et al. and
David M Sanborn, dba Sanborn Pipeline Contractors v. Avila Construction, Inc., et al.
Enclosed are two (2) original agreements. Please sign in the appropriate location and return the
original agreements to the City Clerk's Office, Attn: Michelle Taylor, P.O. Box 1318, San
Bernardino, CA 92402, as soon as possible.
Please retain a copy of the agreement for your files.
Please be advised that the resolution and agreements will be null and void if not executed
within 60 days, or by November 5, 2001.
If you have any questions, please do not hesitate to contact me at (909)384-5002.
Sincerely,
1/: " /...: ({,
Michelle Taylor
Senior Secretary
. ,
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Enclosure
cc: Robert L. Simmons, Sr. Asst. City Attorney
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity' Accountability' Respect for Human Dignity' Honesty
a.
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): '1' ~4 -0 \ Item #
Vote: Ayes 1- '\ Nays-E:r
Change to motion to amend original documents: -
\ 0 Resolution # 200 \ - LI7
Abstain -&- Absent-e-
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: -=--
Direct City Clerk to (circle 1): PUBLISH, POST, RECORD W/COUNTY
NullNoid After: <tJO DAIS. Ill-S-a \
I
By: -
Date Sent to Mayor: q - 5 -D \
Date of Mayor's Signature: q-<"-OJ
Date of Qak/CDC Signature: q 10-0\
Reso. Log Updated: ,,/
Seal Impressed: ~
Date Memo/Letter Sent for Signature: q - '1- 0 \ ( -z..) See Attached: / Date Returned: Cf -elL( -0 \
60 Day Reminder Letter Sent on 30th day: See Attached:
90 Day Reminder Letter Sent on 45th day: See Attached:
Request for Council Action & Staff Report Attached: Yes ./ No By
Updated Prior Resolutions (Other Than Below): Yes No~ By
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Yes No -.-L By
Updated CDC Personnel Folders (5557): Yes No ./ By
Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No/ By
Copies Distributed to:
City Attorney /
Parks & Rec.
Code Compliance
Dev. Services
EDA
Finance
MIS
Police Public Services
Water
Others:
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: fYI\
Date: 9-;14--01
Revised 01 I 12/0 1