HomeMy WebLinkAbout10-City Attorney
~C]'TY 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 Lewis,
D'Amato, Brisbois & Bisgaard to represent the
City in the case of Jonathan Smith v. City of San
Bernardino, et al.
Dept: CITY ATTORNEY
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[1'\..lIlWM
Date: July 12,2001
Synopsis of Previous Council Action:
July 9, 2001 - Mayor and Council approved the hiring of Lewis, D'Amato, Brsibois & Bisgaard
to represent the City in the subject court action.
Recommended motion:
Adopt Resolution.
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Signature
Contact person: Robert L. Simmons
Phone:
5355
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
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Agenda Item No.J 0
7/~~/()1
5T AFF REPORT
Council Meeting Date: July 23. 2001
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: July 12, 2001
AGENDA ITEM: Professional Services Agreement between the City of San
Bernardino and the law firm of Lewis, D'Amato, Brisbois, &
Bisgaard to represent the City in the case of Jonathan Smith v.
City of San Bernardino, et al.
On July 9, 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 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 Agreements on behalf of the
City of San Bernardino.
That the Mayor and 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 case of
Jonathan Smith v. City of San Bernardino, et. al.
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT
3 BETWEEN LEWIS, D'AMATO, BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY IN THE CASE OF JONATHAN SMITH V. CITY OF SAN BERNARDINO,
4 ET AL.
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 directed
8 to execute on behalf of said City a Professional Services Agreement between Lewis, D' Amato,
9 Brisbois & Bisgaard for legal services, a copy of which is attached hereto marked Exhibit" A" and
I 0 incorporated herein by reference as fully as though set forth at length.
11 SECTION 2. The authorization granted hereunder shall expire and be void and of no
12 further effect if the agreement is not executed by both parties and returned to the office of the City
13 Clerk within sixty (60) days following the effective date of the resolution.
14 /II
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RLS/js [SMITH.RES]
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT
2 BETWEEN LEWIS, D'AMATO, BRISBOIS & BISGAARD AND THE CITY OF SAN BERNARDINO
TO REPRESENT THE CITY IN THE CASE OF JONATHAN SMITH V. CITY OF SAN BERNARDINO.
3 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
meetin
6 thereof, held on the
7 COUNCIL MEMBERS:
8 ESTRADA
9 LIEN
10 MCGINNIS
11 SCHNETZ
12 SUAREZ
13 ANDERSON
14 MCCAMMACK
C 15
16
day of
AYES
,2001, by the following vote, to wit
NAYS
ABSTAIN ABSENT
CITY CLERK
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The foregoing Resolution is hereby approved this
day of
, 200 1.
JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
23 legal content:
24 JAMES F. PENMAN,
City Attorney
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By:
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PROFESSIONAL SERVICES AGREEMENT
Jonathan Smith v. City of San Bernardino
3 I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
4 LEWIS, D'AMATO, BRISBOIS & BISGAARD (hereinafter "LDB&B") are the parties to this
5 Agreement.
6 2. 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.
10 3. LDB&B shall be paid at the hourly rates set forth below:
11 Attorneys - $110.00 per hour; and,
12 Law ClerkslParalegals - $50.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 $20,000 without further approval of the Mayor and Common Council.
15 4. Bills shall be submitted at least quarterly.
16 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be item!zed 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 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
27 Finance Department.
28 8. Status reports will be submitted to CITY through the City Attorney's Office
RLS/js [SMITH.AGR] 1
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1 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
2
to set reserves, including, without limitation, potential liability exposure and percentage of fault
3 shall be included.
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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
11.
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.
13 Attorney's Office shall be notified immediately.
In the event the settlement value of the case appears to exceed $50,000, the City
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13. Only Joseph Arias of LEWIS, D'AMATO, BRISBOiS & BISGAARD or other
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senior attorney approved by the CITY shall try this case.
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14.
15.
16.
No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final documents.
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17.
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
Either party may terminate this contract at wilL LDB&B will continue to represent
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22 another attorney.
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18.
19.
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LDB&B is an independent contractor as to the CITY.
LDB&B 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 LDB&B and all risks
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to such persons under this Agreement LDB&B shall require its Workers
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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.
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b)
Comprehensive General and Automobile Liability
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Insurance coverage to include contractual coverage and automobile
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coverage for owned, hired and non-owned vehicles. The policy shall have
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at least a combined single limit of $1,000,000 for bodily injury and
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property damage.
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c)
Professional Liability Insurance with limits of at least
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$1,000,000 per claim. In lieu of naming the CITY as an additional
11
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
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and endorsements to the City Attorney's Office evidencing the insurance coverage above required
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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
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performance of services hereunder until the completion of such services.
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All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
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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
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liabilities arising out of the performance of services hereunder.
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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
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1 represented under this Agreement.
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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
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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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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
July 26,2001
TO:
Josie Soria, Legal Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2001-230
At the Mayor and Common Council meeting of July 23, 2001, the City of San Bernardino
adopted Resolution 2001-230 - Resolution authorizing the execution of a professional services
agreement between Lewis, D 'Amato, Brisbois & Bisgaard and the City of San Bernardino to
represent the City in the case of Jonathan Smith v. City of San Bernardino, et. al.
Attached is one (1) 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 retain a copy of the agreement for your files.
Please be advised that the resolution and agreement will be null and void if not executed
within 60 days, or by September 21, 2001.
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.
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Signe '. 11 , 0.-
Date: l.ld-<O \ ()\
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Please sign and return
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): '1- T3-0 \ Item # I 0
Vote: Ayes 2-'1 Nays-0
Change to motion to amend original documents:
Resolution # LCD \ - '2.30
Abstain -e- Absent \
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately:.=:=.-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
NullNoid After: 100 Of::r'1!S J <1-2-1-01
I
By: -
Date Sentto Mayor: f\-z~-o \
Date of Mayor's Signature: 1-;).10-(:, ,
Date ofClerklCDC Signature: '1- ,;1..Go- (:) \
Reso. Log Updated: .,/
Seal Impressed: ,/
Date Memo/Letter Sent for Signature: '1-.;)<0 -(;) \
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: L Date Returned: 8' -IS - 0 \
See Attached:
See Attached:
Request for Council Action & Staff Report Attached: Yes v" 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 t/ 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 (Coutract Term. etc.)
Ready to File:~
Date: 8'-( s: - 0\
Revised 01/12/01