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HomeMy WebLinkAbout08-City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: Professional Services Agreement between the City of San Bernardino and the law firm of Arias & Lockwood to represent the City regarding the case Timothy Weisenberger, et al. v. City of San Bernardino, et aI., San Bernardino Superior Court Case No. SCVSS 134901. Dept: CITY ATTORNEY Date: November 27, 2006 Synopsis of Previous Council Action: None. Recommended motion: Adopt Resolution: That the Mayor and Common Council authorize and direct the Mayor to execute on behalf of the City of San Bernardino the Professional Services Agreement with the law firm of Arias & Lockwood to represent the City in Timothy Weisenberger v. City of San Bernardino, et aI., San Bernardino 'PI""'" Cop" c,~ No SCVSS 134~ "1,~ Contact person: Richard Luczak Phone: 5355 Supporting data attached: Staff Reoort Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: K'Cv() cQ /Yv' <.......,,1+" . 'l/ G, - Agenda Item No. g I~I tf/d~ . e- e e I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE HIRING OF ARIAS & LOCKWOOD TO 3 REPRESENT THE CITY REGARDING THE CASE ENTITLED TIMOTHY WEISENBERGER, ET AL. V. CITY OF SAN BERNARDINO, ET AL., SAN 4 BERNARDINO SUPERIOR COURT CASE NO. SCVSS 134901. . 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and 8 directed to execute on behalf of said City a Professional Services Agreement between Arias & 9 Lockwood and the City of San Bernardino for legal services, a copy of which is attached 10 hereto marked Exhibit "A" and incorporated herein by reference as though fully set forth at II length. 12 SECTION 2. The authorization granted hereunder shall expire and be void and of no 13 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 the resolution. 15 16 /1/ 17 /1/ 18 /1/ 19 /1/ 20 /1/ 21 /1/ 22 /1/ 23 /1/ 24 /1/ 25 /1/ 26 /1/ 27 /1/ 28 F:\LUCZAKIFORMSICITY COUNCILIAL PSAIResolution.AL Services Agreementwpd I . . I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 2 BERNARDINO APPROVING THE HIRING OF ARIAS & LOCKWOOD TO REPRESENT THE CITY REGARDING THE CASE ENTITLED TIMOTHY 3 WEISENBERGER, ET AL. V. CITY OF SAN BERNARDINO, ET AL., SAN BERNARDINO SUPERIOR COURT CASE NO. SCVSS 134901. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 7 thereof, held on the 8 wit: 9 COUNCIL MEMBERS: 10 ESTRADA 11 BAXTER 12 BRINKER 13 DERRY e 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 6 and Common Council of the City of San Bernardino at a day of meeting , 2006, by the following vote, to AYES NAYS ABSTAIN ABSENT Rachel G. Clark, City Clerk 20 The foregoing Resolution is hereby approved this 2006. day of e 21 22 23 24 25 26 27 28 PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form: t. JAMES F. PENMAN City Attorney F:ILUCZAKIFORMSICITY COUNCILIAL PSA IResolution.AL Services Agreemenl.wpd 2 , . 10 11 12 13 14 . IS 16 17 18 19 20 21 22 23 24 25 26 27 .28 I 2 3 4 PROFESSIONAL SERVICES AGREEMENT TIMOTHY WEISENBERGER, et al. v. CITY OF SAN BERNARDINO; SAN BERNARDINO SUPERIOR COURT CASE NO.: SCVSS 134901 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS 5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement. 6 2. A&L will be representing the following entities and persons in this litigation: CITY 7 OF SAN BERNARDINO. A&L 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. 3. A&L shall be paid at the hourly rates set forth below: Attorneys - $135.00 per hour; and, Law Clerks/Paralegals - $60.00 per hour. The amounts expended under this agreement for attorneys fees shall not exceed $25,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of each succeeding month. 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. A&L may include a single charge in an amount not to exceed four percent (4%) of fees 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 return), then A&L shall not be entitled to reimbursement for mileage and parking fees. 7. A&L shall obtain approval from the CITY to retain expert consultants and other professionals (not including court reporters) for purposes of defending the litigation. A&L may, if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on 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 Finance EXHffiIT A , el 2 3 4 5 6 7 8 9 10 11 12 13 14 e 15 16 17 18 19 20 21 22 23 24 25 26 27 e28 Department. 8. Status reports will be submitted to CITY through the City Attorney's Office whenever any significant event occurs, and in any event at least quarterly. Information sufficient to set reserves, including, without limitation, potential liability exposure and percentage of fault shaH be included. 9. Copies of aH opinions, pleadings, discovery and motions shaH be provided to the City Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this, or other litigation. 10. Copies of any correspondence and other documents sent to any of the defendants in this action shaH also be provided to the CITY through the City Attorney's Office. II. Any and aH settlements shaH require CITY approval. Request for settlement authority shaH be made through the City Attorney's Office which shaH obtain the necessary CITY approvals. 12. In the event the settlement value ofthis case appears to exceed $50,000.00 the City Attorney's Office shaH be notified immediately. 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by the City shaH try this case. 14. No client development costs are to be included in billings. 15. No continuing education expenses are to be included in billings. 16. Final billing shaH be accompanied by copies of the Request for Dismissal, Satisfaction of Judgment, Release and any other final documents. 17. Either party may terminate this contract at wiH. A&L will continue to represent the CITY on the terms and conditions in this Agreement until the case and file are transferred to another attorney. 18. 19. a) A&L is an independent contractor as to the CITY. A&L shall maintain the foHowing types of insurance with limits as shown: Workers Compensation as required by the laws of the State of California, including Employment Liabilitywith $250,000 limits covering all persons providing EXHIBIT A ,-- , e 1 2 3 4 5 6 7 8 9 10 11 12 13 14 e 15 16 17 18 19 20 21 22 23 24 25 26 e28 service on behalf of A&L and all risks to such persons under this Agreement. A&L shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non- owned vehicles. The policy shall have at least a combined single limit of$I,OOO,OOO for bodily injury and property damage. c) Professional Liability Insurance with limits of at least $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." A&L shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required 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 A&L commences performance of services hereunder until the completion of such services. 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. 27 III EXHIBIT A \ _ 1 III 2 III 3 III 4 All policies required above are to be primary and non-contributing with any insurance or self- 5 insurance programs carried or administered by the CITY or other parties represented under this 6 Agreement. 7 20. 8 9 10 11 Dated: 12 13 14 e 15 16 Dated: 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 ,2006 ARIAS & LOCKWOOD By: Joseph Arias ,2006 CITY OF SAN BERNARDINO 17 18 19 20 21 By: Patrick J. Morris, Mayor 22 Approved as to form: 23 JAMES F. PENMAN, 24 City Attorney 25 26 27 .~ _28 EXHIBIT A \ _ 10 11 12 13 14 e 15 16 17 18 19 20 21 22 23 24 25 26 27 _28 1 2 3 4 PROFESSIONAL SERVICES AGREEMENT TIMOTHY WEISENBERGER, et al. v. CITY OF SAN BERNARDINO; SAN BERNARDINO SUPERIOR COURT CASE NO.: SCVSS 134901 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law finn of ARIAS 5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement. 6 2. A&L will be representing the following entities and persons in this litigation: CITY 7 OF SAN BERNARDINO. A&L 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. 3. A&L shall be paid at the hourly rates set forth below: Attorneys - $135.00 per hour; and, Law ClerkslParalegals - $60.00 per hour. The amounts expended under this agreement for attorneys fees shall not exceed $25,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least on a monthly basis and no later than the 5"' day of each succeeding month. 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. A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of reimbursement for photocopying, telephone charges, and postage. 6. Ifattorney's fees are charged "portal to portal" (e.g., from office to court and return), then A&L shall not be entitled to reimbursement for mileage and parking fees. 7. A&L shall obtain approval from the CITY to retain expert consultants and other professionals (not including court reporters) for purposes of defending the litigation. A&L may, if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on 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 Finance Department. F:\LUCZAKIFORMSICITY COUNCILlALPSA12006 A&L Professional Services Agrccment.wpd \ _ 5 6 7 8 9 10 11 12 13 14 e 15 16 17 18 19 20 21 22 23 24 25 26 27 _28 1 8. Status reports will be submitted to CITY through the City Attorney's Office whenever 2 any significant event occurs, and in any event at least quarterly. Information sufficient to set 3 reserves, including, without limitation, potential liability exposure and percentage of fault shall be 4 included. 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the City Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this, or other litigation. 10. Copies of any correspondence and other documents sent to any ofthe defendants in this action shall also be provided to the CITY through the City Attorney's Office. 11. Any and all settlements shall require CITY approval. Request for settlement authority shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals. 12. In the event the settlement value of this case appears to exceed $50,000.00 the City Attorney's Office shall be notified immediately. 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by the City shall try this case. 14. No client development costs are to be included in billings. 15. No continuing education expenses are to be included in billings. 16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction of Judgment, Release and any other final documents. 17. Either party may terminate this contract at will. A&L will continue to represent the CITY on the terms and conditions in this Agreement until the case and file are transferred to another attorney. 18. A&L is an independent contractor as to the CITY. 19. A&L shall maintain the following types of insurance with limits as shown: a) Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of A&L and all risks to such persons under this Agreement. A&L shall require its Workers Compensation carrier to waive all rights of subrogation F:lLUCZAKIJ'ORMSICITY COUNCILIAL PSA \2006 A&L Professional Services Agreement. wpd \ I . 2 3 4 5 6 7 8 9 10 11 12 13 14 . IS 16 17 18 19 20 21 22 23 24 25 .28 against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. b) Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile 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. c) Professional Liability Insurance with limits of at least $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." A&L .shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required 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 A&L commences performance of services hereunder until the completion of such services. 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. 26 27 III III III III F,ILUCZAKIFORMSICITY COUNCILIAL PSA\2006 A&L Professional Services Agreement.wpd \ _ 1 All policies required above are to be primary and non-contributing with any insurance or self- 2 insurance programs carried or administered by the CITY or other parties represented under this 3 Agreement. 4 5 6 7 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 8 Dated: ,2006 ARIAS & LOCKWOOD 9 10 11 12 13 Dated: ,2006 14 _ 15 16 17 18 19 Approved as to form: 20 JAMES F. PENMAN, 21 City Attorney 22 ,Pt 23 24 25 26 27 _28 By: Joseph Arias CITY OF SAN BERNARDINO By: Patrick J. Morris, Mayor F:\LUCZAK\FORMS\CITY COUNCIL\AL PSA\2006 A&L Professional Services Agreement.wpd ,-,-.,.- " r. ::'JJ~:" ~ ,. -.'1 , ., '-', 11 on~'D':"i'?'1 "\\:2.) L,.~O--~ - ,,,I INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO TO: Linda Hartzel, Deputy City Clerk FROM: Richard D, Luczak, Deputy City Attorney RE: WEISENBERGER, et aI. v. CITY OF SAN BERNARDINO, et ai, Resolution #2006-416 DATE: December 20, 2006 Enclosed please find the fully executed Professional Services Agreement with regard to the above-captioned matter. Should you have any questions, please do not hesitate to contact me, Thank you, <71 ~ 1/ ~ Richard D, Luczak, Deputy City Attorney