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HomeMy WebLinkAbout10-City Attorney " .. . CITY OF SAN BERNARDINO. REQUEST FOR COUNCIL ACTION Dept Subject: Professional Services Agreement between the City of San Bernardino and the law firm of Lewis, Brisbois, Bisgaard & Smith to represent the City of San CITY ATTORNEY Bernardino in the case of Pravin D. Patel v. City of San O "', ... , Bernardino. et al. December 10, 2002 t . . , , ~ L i j ..."..r! From: JAMES F. PENMAN City Attorney Date; Synopsis of Previous Council Action: Mayor and Council approved the hiring of Lewis, Brisbois, Bisgaard & Smith to represent the City in the subject court action. Recommended motion; Adopt Resolution Signature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff ReDort Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: ~"'o~ '?6(),:)- ~"S' Agenda Item No. 10 I d.) It, /IJ:r . . STAFF REPORT Council Meeting Date: December 16. 2002 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: December 10, 2002 AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the law firm of Lewis, Brisbois, Bisgaard & Smith to represent the City of San Bernardino in the case of Pravin D. Patel v. City of San Bernardino, et al. The Mayor and Common Council approved the law firm of Lewis, Brisbois, Bisgaard & Smith to represent the City in the above-referenced court action. Attached hereto is the Professional Services Agreement which reflects 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 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 Lewis, Brisbois, Bisgaard & Smith to represent the City in the case of Pravin D. Patel v. City of San Bernardino, et al. I '0'~ ~\\,l7 ~~/~~-\J . RESOLUTION NO. t_ 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 TO REPRESENT THE CITY IN THE CASE OF PRA VIND. PATEL v. CITY OF SAN 4 BERNARDINO, ET AL 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: \..., c 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 8 to execute on behalf of said City a Professional Services Agreement between Lewis, Brisbois, 9 Bisgaard & Smith 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 fully as though 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 City 14 Clerk within sixty (60) days following effective date of the resolution. IS /1/ 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 /1/ RLS/js [PRAVINPATEL.RESOJ 1 c 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 2 AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF D~VENS v. CITY OF 3 SAN BERNARDINO, et aL pi2Aum U PA-~ 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 6 held on the day of 7 COUNCIL MEMBERS: AYES 8 ESTRADA 9 LONGVILLE IO MCGINNIS 11 DERRY 12 SUAREZ I3 ANDERSON 14 MCCAMMACK \.... 15 16 meeting thereof, , 2002, by the following vote, to wit: NAYS ABSTAIN ABSENT 17 18 19 20 21 CITY CLERK The foregoing Resolution is hereby approved this day of ,2002. 22 Approved as to form and 23 legal content: 24 JAMES F. PENMAN, City Attorney 25 26 27 -, L 28 RLS/js [PRAVINPATEL.RESOJ 2 ^ JUDITH V ALLES, Mayor City of San Bernardino c I~'- I..- ,-- I,.,., 24 25 26 27 28 1 2 3 PROFESSIONAL SERVICES AGREEMENT PRA VIN D. PATEL v. CITY OF SAN BERNARDINO et al. United States District Court Case No. EDCV 98-298 RT (V APx) 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this 4 5 6 Agreement. 2. LBB&S will be representing the fOllowing entities and persons in this litigation: 7 8 9 CITY OF SAN BERNARDINO. LBB&S 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. LBB&S shall be paid at the hourly rates set forth below: Attorneys - $125.00 per hour; and, 10 11 12 13 14 Law Clerks/Paralegals - $50.00 per hour. 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. 16 17 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. 18 19 LBB&S may include a single charge in an amount not to exceed four percent (4%) of fees in lieu 20 21 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 LBB&S shall not be entitled to reimbursement for mileage and parking fees. 7. LBB&S shall obtain approval from the CITY to retain expert consultants and other professionals (not including court reporters) for purposes of defending the litigation. LBB&S 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 22 23 Finance Department. RLS/js [PRA VINPA TEL. AGREEMENT] 1 - r L '- c . 17 18 19 1 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 2 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 11. 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 Ci ty 14 Attorney's Office shall be notified immediately. 15 13. Only Joseph Arias of LEWIS, BRISBOIS, BISGAARD & SMITH orother senior 16 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, 20 Satisfaction of Judgment, Release and any other final documents. 21 17. Either party may terminate this contract at will. LBB&S 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 25 26 27 28 18. LBB&S is an independent contractor as to the CITY. LBB&S shall maintain the following types of insurance with limits as shown: 19. a) Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all RLS/js [PRAVINPATEL.AGREEMENTj ..... , 0" 2_ c 1 persons providing service on behalf of LBB&S and all risks to such persons under this Agreement. LBB&S shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and 2 3 4 employees and any others for whom services are being provided under this 5 Agreement. 6 b) Comprehensive General and Automobile Liability Insurance 7 coverage to include contractual coverage and automobile coverage for owned, 8 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, 9 10 11 c) Professional LiabilityInsurance with limits of at least $1,000,000 12 per claim, In lieu of naming the CITY as an additional 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." ,.. L 14 15 16 LBB&S 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 19 that such insurance shall not be terminated or expire without thirty (30) days written notice to the 20 City Attorney's Office, and shall maintain such insurance from the time LBB&S commences 21 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 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. C 27 28 All policies required above are to be primary and non-contributing with any RLSljs [PRAVINPATEL.AGREEMCNTj 3 1 insurance or self-insurance programs carried or administered by the CITY or other parties C 2 represented under this Agreement. (' '- ,-. '- 19 20 21 15 16 17 18 3 4 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 5 6 DATED: ,2002 LEWIS, BRISBOIS, BISGAARD & SMITH 7 8 9 10 By: Joseph Arias 11 DA TED: ,2002 CITY OF SAN BERNARDINO 12 13 14 By: Judith Valles, Mayor 22 Approved as to form and legal content: 23 JAMES F. PENMAN, 24 City Attorney 28 25 26 27 By: ~ ,_ t ./C-.t~ O. RLS/js [PRA VINPATEL.AGREEMENTj 4 - /...."., l..- r^. , '- 16 17 18 19 20 21 22 23 24 1 2 PROFESSIONAL SERVICES AGREEMENT PRA VIN D. PATEL v. CITY OF SAN BERNARDINO, et at. United States District Court Case No. EDCV 98-298 RT (V APx) I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this 3 4 5 6 Agreement. 2. LBB&S will be representing the following entities and persons in this litigation: 7 8 9 10 CITY OF SAN BERNARDINO. LBB&S 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. LBB&S shall be paid at the hourly rates set forth below: Attorneys - $125.00 per hour; and, Law ClerkslParalegals - $50.00 per hour. 11 12 13 14 The amounts expended under this agreement for attorneys fees shall not exceed $20,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least quarterly. 15 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. LBB&S 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 LBB&S shall not be entitled to reimbursement for mileage and parking fees. 7. LBB&S shall obtain approval from the CITY to retain expert consultants and other professionals (not including court reporters) for purposes of defending the litigation. LBB&S may, if it 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 c 27 28 Finance Department. RLSljs [PRA VlNPATEL.AGREEMENT] 1 , ioo.- /~.. '- 1 2 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 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 11. 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 14 12. In the event the settlement value of the case appears to exceed $50,000, the City Attorney's Office shall be notified immediately. 15 13. Only Joseph Arias of LEWIS , BRISBOIS, BISGAARD & SMITH or other senior 16 attorney approved by the CITY shall try this case. 17 18 19 14. 15. No client development costs are to be included in billings. No continuing education expenses are to be included in billings. 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. LBB&S 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 25 26 c 27 28 18. 19. LBB&S is an independent contractor as to the CITY. LBB&S 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 RLS/js [PRA VINPATEL.AGREEMENT] 2 L 1 2 persons providing service on behalf of LBB&S and all risks to such persons under this Agreement. LBB&S 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 3 4 5 Agreement. 6 b) Comprehensive General and Automobile Liability Insurance 7 coverage to include contractual coverage and automobile coverage for owned, 8 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. 9 10 c) Professional Liability Insurance with limits of at least $1 ,000,000 11 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: 12 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 LBB&S 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 19 that such insurance shall not be terminated or expire without thirty (30) days written notice to the 20 City Attorney's Office, and shall maintain such insurance from the time LBB&S commences 21 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 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. - L 27 All policies required above are to be primary and non-contributing with any 28 RLS/js IPRAVlNPATELAGREEMENTj - 3 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: 4 City Attorney's Office CITY OF SAN BERNARDINO 5 300 North "0" Street San Bernardino, CA 92418 6 DATED: ,2002 LEWIS, BRISBOIS, BISGAARD & SMITH 7 8 9 By: Joseph Arias 10 11 DATED: ,2002 CITY OF SAN BERNARDINO 12 13 14 By: Judith Valles, Mayor ......~ 15 16 17 18 19 20 21 22 Approved as to form and legal content: 23 JAMES F. PENMAN, 24 City Attorney 25 26- (} , By: I """-' "'9./~ 27 "- 28 4 .. RLS/j, [PRA VINPATELAGREEMEN11 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: December 20, 2002 TO: Edna DtVellis, Operations Supervisor FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2002-385 At the Mayor and Common Council meeting of December 16, 2002, the City of San Bernardino adopted Resolution 2002-385 - Resolution authorizing the execution of a professional services agreement between Lewis, D'Amato, Brisbois & Smith and the City to represent the City in the case of.Dal!it:! C1 a . mil v. City of San Bernardino, et al. j>~I.JJ..I'aD..J... Attached is one (I) original agreement. Please obtain signatures in the appropriate location and return the original agreement to the City Clerk's Office as soon as possible, to my attention. Please be advised that the resolution and agreement will be null and void if not executed within 60 days, or by February 14, 2003. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Michelle Taylor Senior Secretary I hereby acknowledge receipt of the above mentioned documents. Signed: ~ Wi I/~ Date: I).., I ~ 3/ b;'" Please sign and return CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: January 10, 2003 TO: Veronica Martinez, Senior Secretary FROM: Michelle Taylor, Senior Secretary RE: Resolution 2002-385 - Agreement with Lewis, Brisbois, Bisgaard & Smith CC: Attached is a fully executed copy of the professional services agreement with Lewis, Brisbois, Bisgaard & Smith to represent the City in the case ofPravin D. Patel v. City of San Bernardino, et al. The original agreement is on file in the City Clerk's Office. If you have any questions, please call me at ext. 3206. or . ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Resolution # 2 CO z. - 3<;( s: Abstain ~ Absent ~ Meeting Date (Date Adopted): ;;) -I b -0 ;;l- Item # 10 Vote: Ayes i -'1 Nays,.n- Change to motion to amend original documents: - Reso. # On Attachments: ~ Contract term: - Note on Resolution of Attachment stored separately: -=_ Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By: Date Sent to Mayor: I '2.-n - O?-- Date of Mayor's Signature: I} -I 'jS-D:r Date of Clerk/CDC Signature: 1;7 - I q-o ;r NulVVoid After: <00 OA-J!. I 2-/4-03 I Reso. Log Updated: ,/' Seal Impressed: ,/' Date Memo/Letter Sent for Signature: I :) - ) (;J to>;r 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached:./ Date Returned: / -<J-Q3 See Attached: See Attached: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234,655,92-389): Copies Distributed to: City Attorney ,/ Parks & Rec. Code Compliance Dev. Services Police Public Services Water Notes: Yes ,/' No Yes No ---.L. Yes No ,,- Yes No V Yes N07 EDA Finance ./ MIS Others: 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: ~ Date: /- /O-Q3 Revised 0 I / 12/0 1