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HomeMy WebLinkAbout09-City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Dept: CITY ATTORNEY Subject: Professional Services Agreement between the City of San Bernardino and the law firm of Arias & Lockwood for legal services to represent Michael Desrochers and Steve Lowes in. their depositions in Kimberly Hearns v. City of San Bernardino, et aI., United States District Court Case No. CV 03-1434 SJO (SGL) From: James F. Penman City Attorney Date: April 22, 2009 MlCC Date: May 4, 2009 Synopsis of Previons Council Action: On April 20, 2009, the Mayor and Common Council approved the retention of the law firm of Arias & Lockwood for legal services to represent Michael Desrochers and Steve Lowes in their depositions in Kimberly Hearns v. City of San Bernardino, et aI., United States District Court Case No. CV 03-1434 SJO(SGL) Recommended motion: That the accompanying resolution authorizing the execution of a Professional Services Agreement between the City of San Bernardino and the law firm of Arias & Lockwood be adopted. Contact person: James F. Penman ?--t~ Phone: 5255 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: / ABt..F7J . Agenda Item No. q 5-1/- 01{ F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.RCA.wpd STAFF REPORT Council Meeting Date: May 4, 2009 TO: FROM: DATE: AGENDA: Mayor and Common Council City Attorney's Office April 23, 2009 Professional Services Agreement Between the City of San Bernardino and the Law Firm of Arias & Lockwood for Legal Services to represent Michael Desrochers and Steve Lowes in their depositions in Kimberly Hearns v. City of San Bernardino, et al., United States District Court Case No. CV 03-1434 SJO(SGL) On April 20, 2009, the Mayor and Common Council approved the retention of the law firm of Arias & Lockwood for legal services to represent Michael Desrochers and Steve Lowes in their depositions in Kimberly Hearns v. City of San Bernardino, et aI., United States District Court Case No. CV 03-1434 SJO(SGL) Attached hereto is a Professional Services Agreement providing for the representation, with a ceiling of $1 0,000 on attorneys' fees and a requirement of regular status reports. It is requested by the City Attorney that the proposed Resolution be adopted, authorizing the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino. Recommendation: Adopt Resolution. F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.StaffReport.wpd 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 FOR LEGAL SERVICES TO REPRESENT MICHAEL DESROCHERS 4 AND STEVE LOWES IN THEIR DEPOSITIONS IN KIMBERLY HEARNS V. CITY OF SAN BERNARDINO, United States District Court Case No. CV 03-1434 SJO (SGL) 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION]. The Mayor ofthe CityofSan Bernardino is hereby authorized and directed 8 to execute on behalf of said City a Professional Services Agreement between Arias & Lockwood and 9 the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit "A" 10 and incorporated herein by reference as fully as though set forth at length. 11 12 SECTION 2. The authorization granted by this Resolution shall expire and be void and of no further effect if the agreement is not executed by both parties and returned to the Office ofthe City Clerk within sixty (60) days following the effective date of this Resolution. 13 14 /1/ 15 /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 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.Outside Counsel.Res.v.rpd 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES TO REPRESENT MICHAEL DESROCHERS 3 AND STEVE LOWES IN THEIR DEPOSITIONS IN KIMBERLY HEARNS V. CITY OF SAN BERNARDINO, United States District Court Case No. CV 03-1434 SJO (SGL) 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 7 COUNCIL MEMBERS: 8 ESTRADA 9 BAXTER 10 BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 ,2009, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT Rachel Clark, City Clerk 17 18 The foregoing Resolution is hereby approved this _ day of ,2009. 19 20 21 PATRICKJ. MORRIS, Mayor City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, 24 City Attorney 25 26 27 28 2 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.Outside Counsel.Res.wpd I PROFESSIONAL SERVICES AGREEMENT 2 Kimberly Hearns v. City of San Bernardino, et al. United States District Court Case No. CV 03-1434 SJO (SGL) I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS 3 4 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement. 5 2. A&L services will be limited to representing MICHAEL DESROCHERS and STEVE 6 LOWES for purposes of their depositions only, in the case of Kimberly Hearns v. City of San 7 Bernardino, et al. United States District Court Case No. CV 03-1434 SJO (SGL). A&L shall 8 perform no other services in this case. A&L shall not represent any client in any type of claim 9 10 against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 3. A&L shall be paid at the hourly rates set forth below: Attorneys - $145.00 per hour; and, Law Clerks/Paralegals - $70.00 per hour. II 12 13 14 The amounts expended under this agreement for attorney fees shall not exceed 15 16 $10,000 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 17 each succeeding month. 18 19 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. 20 21 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in 22 lieu of reimbursement for photocopying, telephone charges, and postage. 23 6. If attorney 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 witnesses, consultants, and other professionals (not including court reporters) for purposes of the litigation. A&L may, if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its 24 25 26 27 28 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY I F:\ROTll\ljtigation Cases - Outside Counsel\Heams\Hcarns.ProfessionalSvc.Agrmtwpd EXHIBIT "An 1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 2 Finance Department. 3 8. Status reports will be submitted to the CITY through the City Attorney's Office 4 whenever any significant event occurs, and in any event at least quarterly. 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 Copies of any correspondence and other documents sent to any of the parties in this 10. 9 action shall also be provided to the CITY through the City Attorney's Office. 10 Only Joseph Arias of ARIAS & LOCKWOOD or another senior attorney approved 11. 11 by the City shall perform the services under this Agreement. 12 No client development costs are to be included in billings. 12. 13 13. No continuing education expenses are to be included in billings. 14 Either party may terminate this Agreement at will. A&L will continue to represent 14. 15 DESROCHERS and LOWES on the terms and conditions in this Agreement until the case and file 16 are transferred to another attorney. 17 A& L is an independent contractor as to the CITY. 15. 18 16. A&L 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 20 Employment Liability with $250,000 limits covering all persons providing service on behalf 21 of A&L and all risks to such persons under this Agreement. A&L shall require its Workers 22 Compensation carrier to waive all rights of subrogation against the CITY and its officers and 23 employees and any others for whom services are being provided under this Agreement. 24 b) Comprehensive General and Automobile Liability Insurance coverage to 25 include contractual coverage and automobile coverage for owned, hired and non- 26 owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000 for bodily injury and property damage. 27 28 2 F:\ROTH\Litigation Cases - Outside Counsel\Hearns\Hearns.ProfessionalSvc.Agrmt.wpd EXHIBIT "A" I c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 2 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 3 follows: 5 "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 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." 4 6 7 A&L shall furnish certificates of insurance and certified copies of all policies and 8 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 9 to the commencement of performance of services hereunder, which certificates shall provide that 10 such insurance shall not be terminated or expire without thirty (30) days prior written notice to the 11 City Attorney's Office, and shall maintain such insurance from the time A&L commences 12 performance of services hereunder until the completion of such services. 13 14 All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 15 16 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 17 their employees, agents, volunteers and officers as additional named insureds with respect to liabilities arising out of the performance of services hereunder. 18 19 All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented 20 under this Agreement. 21 /1/ 22 1// 23 /1/ 24 1// 25 1// 26 1// 27 1// 28 3 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams,ProfessionalSvc.Agrmt.wpd EXHIBIT "A" 1 2 17. All communications and billings to the CITY are to be directed as follows: 3 4 5 ated: ,2009 6 7 8 9 10 ated: ,2009 11 12 13 14 15 16 pproved as to form: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 ARIAS LOCKWOOD By: Joseph Arias CITY OF SAN BERNARDINO By: Patrick J. Morris, Mayor 4 :\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.ProfessionalSvc.Agrmt.wpd I PROFESSIONAL SERVICES AGREEMENT 2 3 Kimberly Hearns v. City of San Bernardino, et al. United States District Conrt Case No. CV 03-1434 SJO (SGL) I. 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 2. A&L services will be limited to representing MICHAEL DESROCHERS and STEVE 6 LOWES for purposes of their depositions only, in the case of Kimberly Hearns v. City of San 7 Bernardino, et af. United States District Court Case No. CV 03-1434 SJO (SGL). A&L shall 8 perform no other services in this case. A&L shall not represent any client in any type of claim 9 10 against the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office. 3. A&L shall be paid at the hourly rates set forth below: Attorneys - $145.00 per hour; and, Law Clerks/Paralegals - $70.00 per hour. 11 12 13 14 The amounts expended under this agreement for attorney fees shall not exceed 15 16 $10,000 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 17 each succeeding month. 18 19 20 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. 21 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in lieu of reimbursement for photocopying, telephone charges, and postage. 22 23 6. If attorney 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 witnesses, consultants, and other professionals (not including court reporters) for purposes of the litigation. A&L may, ifit 24 25 26 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its 27 28 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY 1 F:\ROTH\Litigation Cases - Outside Counsel\Hearns\Hcams.ProfessionalSvc.Agrmt.wpd 1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S 2 Finance Department. 3 8. Status reports will be submitted to the CITY through the City Attorney's Office 4 whenever any significant event occurs, and in any event at least quarterly. 5 Copies of all opinions, pleadings, discovery and motions shall be provid'ed to the City 9. 6 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this 7 or other litigation. 8 Copies of any correspondence and other documents sent to any of the parties in this 10. 9 action shall also be provided to the CITY through the City Attorney's Office. 10 Only Joseph Arias of ARIAS & LOCKWOOD or another senior attorney approved 11. 11 by the City shall perform the services under this Agreement. 12 No client development costs are to be included in billings. 12. 13 No continuing education expenses are to be included in billings. 13. 14 Either party may terminate this Agreement at will. A&L will continue to represent 14. 15 DESROCHERS and LOWES on the terms and conditions in this Agreement until the case and file 16 are transferred to another attorney. 17 A& L is an independent contractor as to the CITY. 15. 18 16. A&L shall maintain the following types of insurance with limits as shown: Workers Compensation as required by the laws of the State of California, including 19 a) 20 Employment Liability with $250,000 limits covering all persons providing service on behalf 21 of A&L and all risks to such persons under this Agreement. A&L shall require its Workers 22 Compensation carrier to waive all rights of subrogation against the CITY and its officers and 23 employees and any others for whom services are being provided under this Agreement. 24 b) Comprehensive General and Automobile Liability Insurance coverage to 25 include contractual coverage and automobile coverage for owned, hired and non- 26 owned vehicles. The policy shall have at least a combined single limit of$l ,000,000 for bodily injury and property damage. 27 28 c) Professional Liability Insurance with limits of at least $1,000,000 per claim. 2 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams,ProfessionalSvc.Agrmt.wpd I 2 In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: 3 "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 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." 4 5 6 A&L shall furnish certificates of insurance and certified copies of all policies and 7 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 8 to the commencement of performance of services hereunder, which certificates shall provide that 9 such insurance shall not be terminated or expire without thirty (30) days prior written notice to the 10 City Attorney's Office, and shall maintain such insurance from the time A&L commences II performance of services hereunder until the completion of such services. 12 13 All policies, with respect to the insurance coverage above required, except for the 14 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 15 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 16 their employees, agents, volunteers and officers as additional named insureds with respect to liabilities arising out of the performance of services hereunder. 17 18 All policies required above are to be primary and non-contributing with any insurance policies or self-insurance programs carried or administered by the CITY or other parties represented 3 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Hearns.ProfessionaISvc.Agrmt.wpd All communications and billings to the CITY are to be directed as follows: 1 17. 2 3 4 5 Dated: 6 7 8 9 10 Dated: 11 12 13 14 15 ,2009 ,2009 16 Approved as to form: 17 JAMES F. PENMAN, 18 City Attorney 19 By: ~n- J Iv-... 20 () 21 22 23 24 25 26 27 28 City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 ARIAS LOCKWOOD By: Joseph Arias CITY OF SAN BERNARDINO By: Patrick J. Morris, Mayor 4 F:\ROTH\Litigation Cases - Outside Counsel\Heams\Heams.ProfessionalSvc.Agrmt.wpd