HomeMy WebLinkAbout09-City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Professional Services Agreement between the
City Attorney City of San Bernardino and the law firm of Arias &
Lockwood to represent the City and any designated
Dept: CITY ATTORNEY employee regarding the case Mary Louise Vargas, et al.
v. City of San Bernardino, et al.,United States District
Date: January 19, 2007 Court Case No. EDCV 06-01402 VAP(JCRx).
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 and
any designated employee in Mary Louise Vargas, et al. v. City of San
Bernardino, et al., United States District Court Case No. EDCV 06-01402
VAP (JCRx).
,L,-;7, o
4&' ature
Contact person: Richard Luczak Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
-so 0 1-
Agenda Item No.
STAFF REPORT
Council Meeting Date: January 22, 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: January 19, 2007
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Arias&Lockwood to represent the City of San Bernardino and any
designated employee in the case entitled Mary Louise Vargas, et al. v. City of
San Bernardino, et al., United States District Court Case No. EDCV 06-01402
VAP(JCRx).
The City of San Bernardino is currently involved in an alleged "wrongful death" case
regarding involving San Bernardino Police Officer Erick Bennett.There are six plaintiffs in the case:
Mary Louise Vargas, the Estate of Christopher M. Vargas, David Vargas, Christopher Michael
Vargas, Jr., Clarissa Mariah Vargas, and Cindy Maldonado.
The six plaintiffs claim Christopher M.Vargas was shot by Officer Bennett and further claim
various constitutional deprivations..
The Mayor and Common Council have approved retention of the law firm of Arias &
Lockwood to represent the City of San Bernardino regarding the case entitled Mary Louise Vargas,
et al. v. City of San Bernardino, et al.,United States District Court Case No. EDCV 06-01402 VAP
(JCRx).
Attached hereto is the Professional Services Agreement which reflects such approval,
including a ceiling of$25,000 on attorney fees and the requirement of regular status reports.
It is requested by the City Attorney that the following floor motion be adopted authorizing
the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
"That the Mayor of the City of San Bernardino and Common Council authorize and direct
the Mayor of the City of San Bernardino 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 of
San Bernardino and any designated employee regarding the case entitled Mary Louise Vargas, et al.
v. City of San Bernardino, et al., United States District Court Case No. EDCV 06-01402 VAP
(JCRx)."
COPY
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 AND ANY DESIGNATED EMPLOYEE REGARDING THE
CASE ENTITLED MARY LOUISE VARGAS, ET AL. V, CITY OF SAN BERNARDINO,
4 ETAL., UNITED STATES DISTRICT COURT CASE NO. EDCV 06-01402 VAP (JCRx)
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
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
11 length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
1
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.
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P:',LUCZAK'CIVIL'vargas\Vargas.Reso%\pd
1
OIL—
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO APPROVING THE HIRING OF ARIAS & LOCKWOOD TO
REPRESENT THE CITY AND ANY DESIGNATED EMPLOYEE REGARDING THE
3 CASE ENTITLED MARY LOUISE'VARGAS, ET AL. V CITY OF SAN BERNARDINO,
4 ETAL., UNITED STATES DISTRICT COURT CASE NO. EDCV 06-01402 VAP (JCRx)
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a meeting
7 thereof, held on the day of , 2007, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17
18
Rachel G. Clark, City Clerk
19 The foregoing Resolution is hereby approved this day of
2007.
20
21
22 PATRICK J. MORRIS, Mayor
23
City of San Bernardino
Approved as to form:
24
25
By:
26 JAM S F. PENMAN
27
City Attorney
28
P:\LUCZAK\CIV IL\Vargas\Vargas.Reso.wpd
2
1 PROFESSIONAL SERVICES AGREEMENT
2 Mare Louise Vargas, et al. v. City of San Bernardino, et al.
3 United States District Court Case No. EDCV 06-01402 VAP (JSRx).
4 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 and any designated employee of the CITY. A&L shall not represent any
8 client in any type of claim against the CITY without prior written approval to do so from the CITY
9 OF SAN BERNARDINO through the City Attorney's Office.
I
10 3. A&L shall be paid at the hourly rates set forth below:
11 Attorneys - 5135.00 per hour; and,
12 Law Clerks/Paralegals - 560.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 525,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5`h day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 A&L may include a single charge in an amount not to exceed four percent (4°ro) of fees in lieu of
20 reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney's fees are charged"portal to portal"(e.g., from office to court and return),
22 then A&L shall not be entitled to reimbursement for mileage and parking fees.
23 7. A&L shall obtain approval from the CITY to retain expert consultants and other
24 professionals (not including court reporters) for purposes of defending the litigation. A&L may, if
25 it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
26 periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
27 it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance
28 Department.
F:TUCZAK\CNII,\vargas\vargas.PSA.%pd EXHIBIT A
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.
5 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the Citv
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this,
7 or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the defendants in
9 this action shall also be provided to the CITY through the City Attorney's Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement authority
11 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed 850,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by
15 the City shall try this case.
16 14. No client development costs are to be included in billings.
17 15. 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. A&L will continue to represent the
21 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
22 attorney.
23 18. A&L is an independent contractor as to the CITY.
24 19. A&L shall maintain the following types of insurance with limits as shown:
25 a) Workers Compensation as required by the laws of the State of California,
26 including Employment Liability with 5250,000 limits covering all.persons providing
27 service on behalf of A&L and all risks to such persons under this Agreement. A&L
28 shall require its Workers Compensation carrier to waive all rights of subrogation
F:T UCZAK�CIVIL\Vargas'AVargas.PSA.wpd EXHIBIT A
1 against the CITY and its officers and employees and any others for whom services
2 are being provided under this Agreement.
3 b) Comprehensive General and Automobile Liability Insurance coverage to
4 include contractual coverage and automobile coverage for owned, hired and non-
5 owned vehicles. The policy shall have at least a combined single limit of S 1,000,000
6 for bodily injury and property damage.
7 c) Professional Liability Insurance with limits of at least S 1,000,000 per claim.
8 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
9 follows:
10 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
11 CITY OF SAN BERNARDfNTO for legal defense services,provided
such liability results from an error, omission or negligent act of the
12 insured, its officers, employees, agents, or subcontractors. All other
13 provisions of this policy are to remain unchanged."
14 A&L shall furnish certificates of insurance and certified copies of all policies and
15 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
16 to the commencement of performance of services hereunder, which certificates shall provide that
17 such insurance sha11 not be terminated or expire without thirty(30) days written notice to the City
18 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
19 of services hereunder until the completion of such services.
20 All policies, with respect to the insurance coverage above required, except for the
21 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
22 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23 their employees, agents, volunteers and officers as additional named insured with respect to
24 liabilities arising out of the performance of services hereunder.
25
26
27
F:`LUCZAK'CIV1UVargas Vargas.PSA.wpd EXHIBIT A
+ I 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 represented under this
3 Agreement.
4 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: , 2007 ARIAS & LOCKWOOD
9
10
11 By: Joseph Arias
12
13 Dated: , 2007 CITY OF SAN BERNARDINO
14
15
16 By: Patrick J. Morris, Mayor
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
23
24
25
26
27
28
F:\I.UCZAK\CIVIL\Vargas\Vargas.PSA.w•pd EXHIBIT A
C(DP
1 PROFESSIONAL SERVICES AGREEMENT
2 .1farj•Louise Vargas, et al. v. City of San Bernardino, et al.
3 United States District Court Case No. EDCV 06-01402 VAP (JSRx).
4 1. The CITY OF SAN BERNARDLN'O(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 BERNARDENTO and any designated employee of the CITY. A&L shall not represent anv
8 client in any type of claim against the CITY without prior written approval to do so from the CITY
9 OF SAN BERNARDINO through the City Attorney's Office.
10 3. A&L shall be paid at the hourly rates set forth below:
1 1 Attorneys - S 13 5.00 per hour; and,
12 Law Clerks/Paralegals - S60.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 525,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least on a monthly basis and no later than the 5`h day of
16 each succeeding month.
17 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 A&L may include a single charge in an amount not to exceed four percent (4°ro) of fees in lieu of
20 reimbursement for photocopying, telephone charges, and postage.
21 6. If attorney's fees are charged"portal to portal"(e.g., from office to court and return),
22 then A&L shall not be entitled to reimbursement for mileage and parking fees.
23 7. A&L shall obtain approval from the CITY to retain expert consultants and other
24 professionals (not including court reporters) for purposes of defending the litigation. A&L may, if
25 it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
26 periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
27 it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance
28 Department.
P:`,.LCCZAK'\.CIX'IL%'argasAvargas.PSA.wpd
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.
5 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the City
6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this,
7 or other litigation.
8 10. Copies of any correspondence and other documents sent to any of the defendants in
9 this action shall also be provided to the CITY through the City Attorney's Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement authority
11 shall be made through the City Attomey's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed 550,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of ARIAS & LOCKWOOD or other senior attorney approved by
15 the City shall try this case.
16 14. No client development costs are to be included in billings.
17 15. 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. A&L will continue to represent the
21 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
22 attorney.
23 18. A&.L is an independent contractor as to the CITY.
24 19. A&L shall maintain the following types of insurance with limits as shown:
25 a) Workers Compensation as required by the laws of the State of California,
26 including Employment Liability with 5250,000 limits covering all persons providing
27 service on behalf of A&L and all risks to such persons under this Agreement. A&L
28 shall require its Workers Compensation carrier to waive all rights of subrogation
P'LUCZAK ClylL,Vargas Vargas.PSA.wpd
i
I
I against the CITY and its officers and employees and any others for whom services
2 are being provided under this Agreement.
3 b) Comprehensive General and Automobile Liability Insurance coverage to
4 include contractual coverage and automobile coverage for owned, hired and non-
5 owned vehicles. The policy shall have at least a combined single limit of S 1,000,000
6 for bodily injury and property damage.
7 c) Professional Liability Insurance with limits of at least S 1,000,000 per claim.
8 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
9 follows:
10 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
11 CITY OF SAN BERNARDINO for legal defense services, provided
such liability results from an error, omission or negligent act of the
12 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
13
14 A&:L shall furnish certificates of insurance and certified copies of all policies and
15 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
16 to the commencement of performance of services hereunder, which certificates shall provide that
17 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
18 Attorney's Office, and shall maintain such insurance from the time A&.L commences performance
19 of services hereunder until the completion of such services.
20 All policies, with respect to the insurance coverage above required, except for the
21 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
22 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
23 their employees. agents, volunteers and officers as additional named insured with respect to
24 liabilities arising out of the performance of services hereunder.
25
26
27 ///
28
I"LUCZAKCIVIL'•Vargas'Vargas.PSA.xpd
I A11 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 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDENO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: 2007 ARIAS & LOCKWOOD
9
10
By: Joseph Arias
11
12
13 Dated: , 2007 CITY OF SAN BERNARDINO
14
15
16 By: Patrick J. Morris, 'Mayor
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22 �
By:
23
24
25
26
27
28
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