HomeMy WebLinkAbout14-City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Professional Services Agreement between the
1 City Attorney City of San Bernardino and the law firm of Arias &
Lockwood to represent the City of San Bernardino,
Dept: CITY ATTORNEY Garrett Zimmon,in his former official capacity as Chief
of Police,and Michael Billdt,in his official capacity as
Date: February 22, 2007 Chief of Police in Christina Smith, et al. v. City of San
Bernardino, et al.
Synopsis of Previous Council Action:
9 02/20/07: Mayor and Council approved the hiring of Arias&Lockwood to represent the City of San
Bernardino,Garrett Zimmon,in his former official capacity as Chief of Police,and Michael
Billdt, in his official capacity as Chief of Police in the subject court action.
Recommended motion:
That said resolution be adopted.
gnature
I
Contact person: James F. Penman Phone: 5255
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: AOESd -WO 7- .70
Agenda Item No. 1
STAFF REPORT
Council Meeting Date: March 5, 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 22, 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, Garrett Zimmon, in his former
capacity as Chief of Police, and Michael Billdt, in his official
capacity as Chief of Police in Christina Smith, etaL v. City of San
Bernardino, et aL
e
On February 20, 2007, the Mayor and Common Council approved the hiring of Arias
& Lockwood to represent the City, Garrett Zimmon, in his former official capacity as Chief
of Police, and Michael Billdt, in his official capacity as Chief of Police in the subject court
action. Attached hereto is the Professional Services Agreement which reflects such
approval, including a ceiling of $25,000.00 on attorneys fees 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 Agreement 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 Agreement with
the law firm of Arias & Lockwood to represent the City, Garrett Zimmon, in his former
official capacity as Chief of Police, and Michael Billdt, in his official capacity as Chief of
Police in the case of Christina Smith, et al. v. City of San Bernardino, et al.
DCR\js[Litigation Cases-Outside Counsel\S mith\S mith.Staff.Report]
COPY
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO IN THE CASE OF CHRISTINA SMITH, et al. v. CITY OF SAN
4 BERNARDINO, et al.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
6
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
7
to execute on behalf of said City a Professional Services Agreement between Arias&Lockwood and
s
the City of San Bernardino for legal services,a copy of which is attached hereto marked Exhibit"A"
9
and incorporated herein by reference as fully as though set forth at length.
10
SECTION 2. The authorization granted hereunder shall expire and be void and of no
i1
further effect if the agreement is not executed by both parties and returned to the Office of the City
12
Clerk within sixty(60) days following the effective date of the resolution.
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DCR\js[Litigation Cases-Outside Counsel\Smith\Smith.Outside Counsel.Res]
RESOLUTION OF THE MAYOR AND COMMON COU1V'CIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO IN THE CASE OF CHRISTINA SMITH, et al. v. CITY OF SAN
3 BERNARDINO, et al.
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 _
6 day of , 2007, by the following vote, to wit:
7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8 ESTRADA
9 BAXTER
lo BRINKER
11 DERRY
12 KELLEY
13 JOHNSON
14 MC CAMMACK
15
16 Rachel Clark, City Clerk
17
The foregoing Resolution is hereby approved this_day of 2007.
18
19
20
PATRICK J. MORRIS, Mayor
21 City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN,
City Attorney
24
25 By: i -
26
i
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28
2
DCR\js[Litigation Cases-Outside Counsel\Smith\Smith.Outside Counsel.Res]
Exhibit "A"
1 PROFESSIONAL SERVICES AGREEMENT
CHRISTINA SMITH, et al. v. CITY OF SAN BERNARDINO, et al.
United States District Court Case No. EDCV 06-00860 VAP (CTx)
4 1. The CITY OF SAN BERNARDINO(hereinafter"CITY")and the law firm of ARIA S
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,GARRETT ZIMMON,in his former official capacity as Chief of Police,
S MICHAEL BILLDT, in his official capacity as Chief of Police,and any designated employee of the
9 CITY. A&L shall not represent any client in any type of claim against the CITY without prior
10 written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
Office.
11
3. A&L shall be paid at the hourly rates set forth below:
]2
13 Attorneys - $135.00 per hour; and,
1.1 Law Clerks/Paralegals - $60.00 per hour.
15 The amounts expended under this agreement for attorneys fees shall not exceed
16 $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`n day of
17
each succeeding month.
18
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 A&L may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of
22 reimbursement for photocopying, telephone charges, and postage.
23 6. If attorney's fees are charged"portal to portal"(e.g., from office to court and return).
24 then A&L shall not be entitled to reimbursement for mileage and parking fees.
25 7. A&L shall obtain approval from the CITY to retain expert consultants and other
26 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
27
�8 periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY pay
`
FAROTH\Litigadon Cases-Outside Counsel\Smith\Smith.PSA.wpd 1
I it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance
Department.
3 8. Status reports will be submitted to CITY through the City Attorney's Office whenever
4 any significant event occurs, and in any event at least quarterly. Information sufficient to set
5 reserves, including, without limitation, potential liability exposure and percentage of fault shall be
6 included.
7 9. Copies of all opinions,pleadings,discovery and motions shall be provided to the Cit}
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 defendants in
11 this 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 other senior attorney approved by
17 the City shall try 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 contract at will. A&twill continue to represent the
23 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
24 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\BOTH\Litigation Cases-Outside Counsel\Smith\Smith.PSA%?d 2
-- 1 including Employment Liability with$250,000 limits covering all persons prop iding
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
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-
S 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.
1 1 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 defense services, provided
such liability results from an error, omission or negligent act of the
1 insured, its officers,employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
1G
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 insured with respect to
26
liabilities arising out of the performance of services hereunder.
27
28
F\ROTMI-ingation Cases-Outside Counsel\Smith\Smith.PSA wpd 3
11 1
I A11 policies required above are to be primary and non-con tri buting w)th 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 BERNARDf O
6 300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: 2007 ARIAS & LOCKWOOD
9
10
] By: Joseph Arias
l
IL
13 Dated: 2007 CITY OF SAN BERNARDINO
14
15
16 By: Patrick J. Morris, Mayor
17
l8
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
23
24
25
26
27
28
F\ROTMUtigation Cases-Outside Counsel\Sn ith\Smith.PSA.wpd 4
1 PROFESSIONAL SERVICES AGREEMENT
2 CHRISTINA SMITH, et al. v. CITY OF SAN BERNARDINO, et al.
United States District Court Case No. EDCV 06-00860 VAP (CTx)
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
6 2. A&L will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO, GARRETT ZIMMON,in his former official capacity as Chief of Police,
8 MICHAEL BILLDT, in his official capacity as Chief of Police, and any designated employee of the
9 CITY. A&L shall not represent any client in any type of claim against the CITY without prior
10 written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's
Office.
11
3. A&L shall be paid at the hourly rates set forth below:
12
Attorneys - $135.00 per hour; and,
13
14 Law Clerks/Paralegals - $60.00 per hour.
15 The amounts expended under this agreement for attorneys fees shall not exceed
$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 5`h 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 fees in lieu of
21
reimbursement for photocopying, telephone charges, and postage.
22
6. If attorney's fees are charged"portal to portal"(e.g.,from office to court and return),
23
24 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
25
professionals (not including court reporters) for purposes of defending the litigation. A&L may, if
26
it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
27
periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
28
F:TOTH\Litigation Cases-Outside Counsel\Smith\Smith.PSA.xapd I
1
I it directly. Consultants shall not bill the CITY directly without prior approval ofthe CITY'S Finance
Department.
8. Status reports will be submitted to CITY through the City Attorney's Office whenever
4 any significant event occurs, and in any event at least quarterly. Information sufficient to set
5 reserves, including, without limitation, potential liability exposure and percentage of fault shall be
6 included.
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 defendants in
l 1 this action shall also be provided to the CITY through the City Attorney's Office.
1 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 other senior attorney approved by
17 the City shall try 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,
Z 1 Satisfaction of Judgment, Release and any other final documents.
22 17. Either party may terminate this contract at will. A&L will continue to represent the
23 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
24 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 Cases-Outside Counsel\Smith\Smith.PSA.N,pd 2
1 including Employment Liability with$250,00011 mits 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.
1 I 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 defense services, provided
such liability results from an error, omission or negligent act of the
1 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.
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 insured with respect to
26
liabilities arising out of the performance of services hereunder.
27
28
FIROTH\Litigation Cases-Outside Counsel\Smith\Smith.PSA.wpd 3
I 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 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
By: Joseph Arias
11
12
13 Dated: , 2007 CITY OF SAN BERNARDINO
14
15
By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
23
24
25
26
27
28
FUROTMLitigation Cases-Outside Counsel\Smith\Smith.PSA.wpd 4
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE: March 7, 2007
TO: James F. Penman, City Attorney
FROM: Sandra Medina, Assistant to the City Clerk
RE: Transmitting Documents for Signature—Resolution No. 2007-70
At the Mayor and Common Council meeting of March 5, 2007 the City of San Bernardino
adopted Resolution No. 2007-70 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 in the case of Christina Smith, et al. v. City of San
Bernardino, et al.
Attached are one (1) original Professional Services Agreement and two (2) duplicate agreements
to be executed. Please obtain signatures in the appropriate locations and return the ORIGINAL
agreement to Margaret Fedor in the City Clerk's Office as soon as possible. Retain one duplicate
agreement for your records and forward the other duplicate agreement to the other party.
Please be advised that the resolution and contract will be null and void if not executed
within sixty (60) days, or by Friday, May 4, 2007.
If you have any questions, please do not hesitate to contact Margaret Fedor at ext. 3206. Thank
you.
I hereby cknowledge receipt of the above mentioned documents.
Sign
Please sign and return
Date: �( b