HomeMy WebLinkAbout50-City Attorney
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Resolution of the Mayor and Common
Council of the City of San Bernardino Authorizing the
Execution of a Professional Services Agreement with
Lewis, Brisbois, Bisgaard & Smith for Legal Services in
the case of Edward Daves, et al. v. City of San
Bernardino. et al. San Bernardino Superior Court Case
No. CIVSS 815804
Dept: CITY ATTORNEY
Date: June JL, 2009
Synopsis of Previous Council Action:
Recommended motion:
~~
Contact person: Robert L. Simmons
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
?'" 20::>9- /c,f&>
Agenda Item No.
F:\SIMMONS\Daves\Daves.RCA. wpd
:t'50
CR .,(~ "O'f
STAFF REPORT
Council Meeting Date: June 15, 2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
June 10,2009
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution of a Professional Services Agreement with Lewis, Brisbois, Bisgaard & Smith
and the City of San Bernardino for Legal Services in the case of Edward Daves, et al. v. City
of San Bernardino, et al., San Bernardino Superior Court Case No. CIVSS 815804
On June 1,2009, the Mayor and Common Council approved the retention ofthe law firm of
Lewis, Brisbois, Bisgaard & Smith to represent the City of San Bernardino in the case entitled
Edward Daves, et al. v. City of San Bernardino, et al., San Bernardino County Superior Court Case
No. CNSS 815804.
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of$25,000.00 on attorneys fees and a requirement of regular status reports.
It is requested that the floor motion be adopted so that the Mayor is authorized to execute the
Professional Services Agreement on behalf of the City of San Bernardino.
F:\SIMMONS\Daves\Daves.StaffReport. wpd
1
RESOLUTION NO.
CCO[Plf
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN LEWIS, BRISBOIS, BISGAARD & SMITH AND
THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF EDWARD
4 DA VES, et al., v. CITY OF SAN BERNARDINO, et aL, SAN BERNARDINO SUPERIOR
COURT CASE NO. ClVSS 815804
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayorofthe 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 length.
11 SECTION 2. The authorization granted by this Resolution shall expire and be void and
12 of no further effect if the agreement is not executed by both parties and returned to the Office of the
13 City Clerk within sixty (60) days following the effective date of this Resolution.
14 /11
15 /11
16 11/
17 11/
18 /11
19 11/
20 11/
21 11/
22 /11
23 11/
24 /11
25 /11
26 /11
27 /11
28 /11
F:\SIMMONS\Daves\Outsidc Counsel.Res.wpd
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 FOR LEGAL SERVICES IN THE CASE OF EDWARD DA VES, et aL,
3 v. CITY OF SAN BERNARDINO, et a!., SAN BERNARDINO SUPERIOR COURT CASE NO.
CIVSS 815804
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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
17
Rachel Clark, City Clerk
18
The foregoing Resolution is hereby approved this _ day of
,2009.
19
20
21
22
PATRICKJ. MORRIS, Mayor
City of San Bernardino
Approved as to form:
23
24
JAMES F. PENMAN,
C;;2:.
By' -v' ~
25
26
27
28
2
F\SrM,\10NS\Daves\Outside Counse1.Rcs.wpd
Exhibit II A II
1
2
3
4
PROFESSIONAL SERVICES AGREEMENT
EDWARD DA VES, et aL v. CITY OF SAN BERNARDINO, et aL
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVSS 815804
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this
6 Agreement.
7
2.
LBB&S will be representing the following entities and persons in this litigation:
8 CITY OF SAN BERNARDINO and OFFICERS CHARLES DAI and RICHARD EVERETT, and
9 any designated officer or employee of the CITY. LBB&S shall not represent any client in any type
10 of claim against the CITY without prior written approval to do so from the CITY OF SAN
11 BERNARDINO through the City Attorney's Office.
12
3.
LBB&S shall be paid at the hourly rates set forth below:
13 Attorneys - $145.00 per hour; and,
14 Law ClerkslParalegals - $70.00 per hour.
15 The amounts expended under this agreement for attorney fees shall not exceed
16 $25,000 without further approval of the Mayor and Common Council.
17
4.
Bills shall be submitted at least on a monthly basis and no later than the 511> day of
18 each succeeding month.
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 LBB&S may include a single charge in an amount not to exceed four percent (4%) of attorney fees
22 in 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),
24 then LBB&S shall not be entitled to reimbursement for mileage and parking fees.
25
7.
LBB&S shall obtain approval from the CITY to retain expert witnesses, consultants,
26 and other professionals (not including court reporters) for purposes of the litigation. LBB&S may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
28 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:\SIMMONS\Daves\Daves.ProfessionalSvc.Agrmt. wpd 1
I CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S 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. Information sufficient to
5 set reserves, including, without limitation, potential liability exposure and percentage offault, shall
6 be 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 parties in this
II 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 John Porter of LEWIS, BRISBOIS, BISGAARD & SMITH or another senior
17 attorney approved by the City shall conduct the trial of 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 ofJudgment, Release and any other final documents.
22 17. Either party may terminate this Agreement at will. LBB&S will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. LBB&S is an independent contractor as to the CITY.
26 19. LBB&S shall maintain the fcllowing types of insurance with limits as shown:
27 a) Workers Compensation as required by the laws of the State of California,
28 including Employment Liability with $250,000 limits covering all persons providing
F :\SIMMONS\Daves\Daves,ProfessionalSvc.Agrmt. wpd 2
1
2
3
service on behalf of LBB&S and all risks to such persons under this Agreement.
4
LBB&S shall require its Workers Compensation carrier to waive all rights of
subrogation against the CITY and its officers and employees and any others for
whom services are being provided under this Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance coverage to
6
include contractual coverage and automobile coverage for owned, hired and non-
7
owned vehicles. The policy shall have at least a combined single limit of$l ,000,000
for bodily injury and property damage.
8
9
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
10
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
11
follows:
12
"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."
13
14
15
16 LBB&S 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 LBB&S 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 III
28 III
F:\SlMMONS\Daves\Daves.ProfessionalSvc.Agrmt. wpd 3
1 All policies required above are to be primary and non-contributing with any insurance
2 policies or self-insurance programs carried or administered by the CITY or other parties represented
3 under this Agreement.
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
7
LEWIS, BRISBOIS, BISGAARD & SMITH
By: John Porter
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\SIMMONS\Daves\Daves.ProfessionaISvC.Agrmt.wpd 4
1
2
3
4
PROFESSIONAL SERVICES AGREEMENT
EDWARD DA VES, et at. v. CITY OF SAN BERNARDINO, et at.
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVSS 815804
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 LEWIS, BRISBOIS, BISGAARD & SMITH (hereinafter "LBB&S") are the parties to this
6 Agreement.
7
2.
LBB&S will be representing the following entities and persons in this litigation:
8 CITY OF SAN BERNARDINO and OFFICERS CHARLES DAr and RICHARD EVERETT, and
9 any designated officer or employee of the CITY. LBB&S shall not represent any client in any type
10 of claim against the CITY without prior written approval to do so from the CITY OF SAN
11 BERNARDINO through the City Attorney's Office.
12
3.
LBB&S shall be paid at the hourly rates set forth below:
13 Attorneys - $145.00 per hour; and,
14 Law Clerks/Paralegals - $70.00 per hour.
15 The amounts expended under this agreement for attorney fees shall not exceed
16 $25,000 without further approval of the Mayor and Common Council.
17
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
18 each succeeding month.
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 LBB&S may include a single charge in an amount not to exceed four percent (4%) of attorney fees
22 in 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),
24 then LBB&S shall not be entitled to reimbursement for mileage and parking fees.
25
7.
LBB&S shall obtain approval from the CITY to retain expert witnesses, consultants,
26 and other professionals (not including court reporters) for purposes of the litigation. LBB&S may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
28 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
F:\SIMMONS\Daves\Daves.ProfessionalSvc.Agnnt.wpd 1
I CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
2 CITY'S 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. Information sufficient to
5 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
6 be 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 parties in this
II action shall also be provided to the CITY through the City Attorney's Office.
12 II. 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 John Porter of LEWIS, BRISBOIS, BISGAARD & SMITH or another senior
17 attorney approved by the City shall conduct the trial of 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 Agreement at will. LBB&S will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. LBB&S is an independent contractor as to the CITY.
26 19. LBB&S 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 including Employment Liability with $250,000 limits covering all persons providing
F:\SIMMONS\Daves\Daves.ProfessionalSvc.Agrmt.'W'pd 2
I
2
3
service on behalf of LBB&S and all risks to such persons under this Agreement.
4
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 Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance coverage to
6
include contractual coverage and automobile coverage for owned, hired and non-
7
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
for bodily injury and property damage.
8
9
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
10
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
11
follows:
14
"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."
12
13
15
16 LBB&S 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 LBB&S 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 III
28 III
F:\SIMMONS\Daves\Daves.ProfessionaISvc.Agrrnt.wpd 3
I All policies required above are to be primary and non-contributing with any insurance
2 policies or self-insurance programs carried or administered by the CITY or other parties represented
3 under this Agreement.
4
5
6
7
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
8 Dated: June ,2009
-
9
10
II
12
13 Dated: June ,2009
14
15
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22 B~~ Y&
23
24
25
26
27
28
LEWIS, BRISBOIS, BISGAARD & SMITH
By: John Porter
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:''SIMMONS\Daves\Daves.ProfessionaISvc.Agrmt. wpd 4