HomeMy WebLinkAbout09-City Attorney
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept:
CITY ATTORNE'QR1G1NAl
April 5, 2004
Subject: Professional Services Agreement
between the City of San Bernardino and the
law firm of Brunick, Battersby, McElhaney
& Beckett to represent the City of San
Bernardino and Francesca Ziegler in the
case of Alice Thomas, et al. v. City of San
Bernardino, and Francesca Ziegler,
San Bernardino Superior Court Case
Number: SCVSS 098359.
From: JAMES F. PENMAN
City Attorney
Date:
Synopsis oCPrevious Council Action:
March 15, 2004
Mayor and Council approved the hiring of Brunick, Battersby,
McElhaney & Beckett to represent the City and Francesca Ziegler in
the subject court action.
Recommended motion:
Adopt Resolution.
t-
?-./~
Signature
Contact person: James F. Penman .
Phone:
5255
Supporting data attached:
Staff ReDort
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
K.a:;o~2tC4-\fu
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q 1jsjIJLj
Agenda Item No. _
STAFF REPORT
Council Meeting Date: ABril 5. 2004
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: March 17, 2004
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and
the law firm of Brunick, Battersby, McElhaney & Beckett to represent the
City of San Bernardino and Francesca Ziegler in the case of Alice Thomas,
et aL v. City of San Bernardino, and Francesca Ziegler, San Bernardino
Superior Court Case Number: SCVSS 098359.
On March 15,2004, the Mayor and Common Council approved the law firm of Brunick,
Battersby, McElhaney & Beckett to represent the City of San Bernardino, and Francesca Ziegler, et
al., in the above-referenced court action. The Council also approved an initial threshold of
$20,000.00 in attorneys fees and costs and the requirement of regular status reports.
The Professional Services Agreement reflecting the Council's prior action is attached. 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
Brunick, Battersby, McElhaney & Beckett to represent the City of San Bernardino and Francesca
Ziegler in the case of Alice Thomas, et at. v. City of San Bernardino, and Francesca Ziegler, San
Bernardnio Superior Court Case Number: SCVSS 098359.
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REStr(Q)~Y
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT
BETWEEN of BRUNICK, BATTERSBY, McELHANEY & BECKETT AND THE CITY OF SAN
BERNARDINO TO REPRESENT THE CITY OF SAN BERNARDINO AND FRANCESCAZIEGLER IN
THE CASE OF Alice Thomas, et al. v. City of San Bernardino, and Francesca Ziegler, San
Bernardino Superior Court Case Number: SCVSS 098359.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
to execute on behalf of said City a Professional Services Agreement between Brunick, Battersby,
McElhaney & Beckett and the City of San Bernardino for legal services, a copy of which is
attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set
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forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
further effect if the agreement is not executed by both parties and returned to the office of the City
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Clerk within sixty (60) days following the effective date of the resolution.
IS
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MR/dn [AliceThomas.Res]
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT
2 BETWEEN BRUNICK, BATTERSBY, McELHANEY & BECKETT AND THE CITY OF SAN
BERNARDINO TO REPRESENT THE CITY OF SAN BERNARDINO AND FRANCESCA ZIEGLER IN
3 THE CASE OF Alice Thomas, et al. v. City of San Bernardino, and Francesca Ziegler, San
Bernardino Superior Court Case Number: SCVSS 098359.
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
meeting thereof,
7 held on the day of , 2004, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 LONGVILLE
11 MCGINNIS
12 DERRY
13 KELLEY
14 JOHNSON
0 15 MCCAMMACK
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17
CITY CLERK
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The foregoing Resolution is hereby approved this
day of
,2002.
JUDITH VALLES, Mayor
City of San Bernardino
Approved as to form and
24 legal content:
25 JAMES F. PENMAN,
City Attorney
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1.
PROFESSIONAL SERVICES AGREEMENT
ALlCE THOMAS, et at. v. CITY OF SAN BERNARDINO,
and FRANCESCA ZIEGLER.
San Bernardino Superior Court Case No. SCVSS 098359
The CITY OF;SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 BRUNICK, BATTERSBY, McELHANEY & BECKETT (hereinafter "BBM & B") are the parties
6 to this Agreement.
7
2.
BBM & B will be representing the following entities in this litigation: CITY OF
8 SAN BERNARDINO and FRANCESCA ZIEGLER. BBM & B shall not represent any client in
9 any type of claim against the CITY without prior written approval to do so from the CITY OF SAN
10 BERNARDINO through the City Attorney's Office.
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3.
BBM & B shall be paid at the hourly rates set forth below:
Attorneys - $125.00 per hour; and,
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.
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4.
Bills shall be submitted at least quarterly.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
5.
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 BBM & B may include a single charge in an amount not to exceed four percent (4%) offees in lieu
20 of reimbursement for photocopying, telephone charges, and postage.
21
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
22 return), then BBM & B shall not be entitled to reimbursement for mileage and parking fees.
23
7.
BBM & B shall obtain approval from the CITY to retain expert consultants and
24 other professionals (not including court reporters) for purposes of defending the litigation. BBM
25 & B may, if it chooses, pay the fees and charges of such consultants and seek reimbursement from
26 CITY on its periodic statement, or it may forward the consultant's bill to CITY with a request that
o 27 the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
28 CITY'S Finance Department.
MR/dn[AliceThomas.psa]
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1 8. Status reports will be submitted to CITY through the City Attorney's Office
2 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 shaH 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 II. 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 City
14 Attorney's Office shaH be notified irrunediately.
15 13. OnlyStephenMillerofBRUNlCK,BATTERSBY,McELHANEY & BECKETT
16 or other senior attorney approved by the CITY shall try this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 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. BBM & B will continue to
22 represent the CITY on the terms and conditions in this Agreement until the case and file are
23 transferred to another attorney.
24 18. BBM & B is an independent contractor as to the CITY.
25 19. BBM & B shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of
27 California, including Employment Liability with $250,000 limits covering all
28 persons providing service on behalf of BBM & B and all risks to such persons
MRldn[AliceThomas.psa]
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under this Agreement. BBM & B shaU 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
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4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile coverage for owned,
7
hired and non-owned vehicles. The policy shaU 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. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as foUows:
"Insurance coverage afforded by this policy shaU 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. AU other provisions ofthis policy are to remain unchanged."
15 BBM & B shaU furnish certificates of insurance and certified copies of aU policies
16 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
17 prior to the commencement of performance of services hereunder, which certificates shaU provide
18 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
19 City Attorney's Office, and shaU maintain such insurance from the time BBM & B commences
2 0 performance of services hereunder until the completion of such services.
21 AU policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable, shaU
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26 AU policies required above are to be primary and non-contributing with any
27
insurance or self-insurance programs carried or administered by the CITY or other parties
28 represented under this Agreement.
MRldn[ AliceThomas.psa]
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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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BRUNICK, BATTERSBY, McELHANEY & BECKETT
DATED:
,2004
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By: Stephen Miller
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CITY OF SAN BERNARDINO
DATED:
,2004
By: Judith Valles, Mayor
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20 Approved as to form and
legal content:
21
JAMES F. PENMAN,
22 City Attorney
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MR/dn[ AliceThomas.psa]
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EXHIBIT " A"
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PROFESSIONAL SERVICES AGREEMENT
ALICE THOMAS, et aL v. CITY OF SAN BERNARDINO,
and FRANCESCA ZIEGLER.
San Bernardino Superior Court Case No. SCVSS 098359
2
3
4
I.
The CITY OF'SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 BRUNICK, BATTERSBY, McELHANEY & BECKETT (hereinafter "BBM & B") are the parties
6 to this Agreement.
7
2.
BBM & B will be representing the following entities in this litigation: CITY OF
8 SAN BERNARDINO and FRANCESCA ZIEGLER. BBM & B shall not represent any client in
9 any type of claim against the CITY without prior written approval to do so from the CITY OF SAN
10 BERNARDINO through the City Attorney's Office.
11
3.
BBM & B shall be paid at the hourly rates set forth below:
Attorneys - $125.00 per hour; and,
Law Clerks/Paralegals - $50.00 per hour.
12
13
14
The amounts expended under this agreement for attorneys fees shall not exceed
15 $20,000 without further approval of the Mayor and Common Council.
16
4.
Bills shall be submitted at least quarterly.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17
5.
18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19 BBM & B may include a single charge in an amount not to exceed four percent (4%) offees in lieu
20 ofreimbursement for photocopying, telephone charges, and postage.
21
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
22 return), then BBM & B shall not be entitled to reimbursement for mileage and parking fees.
23
7.
BBM & B shall obtain approval from the CITY to retain expert consultants and
24 other professionals (not including court reporters) for purposes of defending the litigation. BBM
25 & B may, ifit chooses, pay the fees and charges of such consultants and seek reimbursement from
26 CITY on its periodic statement, or it may forward the consultant's bill to CITY :-vith a request that
27 the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
28 CITY'S Finance Department.
M Rldn[ AliceThomas.psa]
. 1
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1 8. Status reports will be submitted to CITY through the City Attorney's Office
2 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 12. In the event the settlement value of the case appears to exceed $50,000, the City
14 Attorney's Office shall be notified immediately.
15 13. OnlyStephenMillerofBRUNICK,BATTERSBY,McELHANEY & BECKETT
16 or other senior attorney approved by the CITY shall try this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 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. BBM & B will continue to
22 represent the CITY on the terms and conditions in this Agreement until the case and file are
23 transferred to another attorney.
24 18. BBM & B is an independent contractor as to the CITY.
25 19. BBM & B shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of
27 California, including Employment Liability with $250,000 limits covering all
28 persons providing service on behalfofBBM & B and all risks to such persons
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MR/dn[ AliceThomas.psa l
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under this Agreement. BBM & B 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
2
3
4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile coverage for owned,
7
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.
8
9
c)
Professional Liability Insurance with limits of at least $1 ,000,000
10
per claim. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as follows:
11
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 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."
13
14
15 BBM & B shall furnish certificates of insurance and certified copies of all policies
16 and endorsements to the CityAttorney's Office evidencing the insurance coverage above required
17 prior to the commencement of perforniance of services hereunder, which certificates shall provide
18 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
19 City Attorney's Office, and shall maintain such insurance from the time BBM & B commences
20 performance of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26
27
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
28 represented under this Agreement.
MRJdn[ AliceThomas,psa]
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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 924 18
2
3
4
BRUNICK, BATTERSBY, McELHANEY & BECKETT
DATED:
,2004
5
6
7
By: Stephen Miller
8
9
DATED:
,2004
CITY OF SAN BERNARDINO
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By: Judith Valles, Mayor
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17
18
19
2 0 Approved as to form and
legal content:
21
JAMES F. PENMAN,
22 City Attorney
23
24 By:
25
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MR/dn[ Alice Thomas_psa]
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"
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
April 8, 2004
TO:
Edna DiVellis, Operations Supervisor
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2004-86
At the Mayor and Common Council meeting of April 5, 2004, the City of San Bernardino
adopted Resolution 2004-86 - Resolution authorizing the execution of a professional services
agreement between Brunick, Battersby, McElhaney & Beckett and the City of San Bernardino to
represent the City and Francesca Ziegler in the case of Alice Thomas, et al. v. City of San
Bernardino, and Francesca Ziegler, San Bernardino Superior Court Case Number SCVSS
098359.
Attached is one (I) original agreement. Please obtain signatures in the appropriate location and
return one 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
with 60 days, or by June 4, 2004.
If you have ~ 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: ~ Kl,\./. .Ill~':"
Date: L/." 3/ o.{.
Please sign and return
.
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
May 20, 2004
TO:
Veronica Martinez, Senior Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution 2004-86 - Brunick, Battersby, McElhaney & Beckett
CC:
Attached is a fully executed copy of the agreement with Brunick, Battersby, McElhaney &
Beckett to represent the City and Francesca Ziegler in the case of Alice Thomas, et al. v. City of
San Bernardino, and Francesca Ziegler. The original agreement is on file in the City Clerk's
Office.
If you have any questions, please call me at ext. 3206.
'-
,
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 4-5- "I\~ Item # 9' Resolution #
Vote: Ayes I-I) Nays -e Abstain.e-
20.::/\ - <g'G:,
Absent ~
Change to motion to amend original documents 0
Companion Resolutions
NulWoid After: <at) days / ,,-+O~
Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor: L..j- (.,'C'1
Date of Mayor's Signature: '-\ - %'1
Date ofClerklCDC Signature: ~-'>s:-O,-\
Reso. Log Updated:
Seal Impressed:
[3-'"
B-
Date Memo/Letter Sent for Signature:
I Sl Reminder Letter Sent:
-4-~-()<-\ Date Returned: :5-\ ~ -0 '-/ Not Returned: 0
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585, 12/i34):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes ,/
Yes
Yes
Yes
Yes
No By
No L- By
No ~ By
No v' By
N07
Copies Distributed to:
Animal Control 0 EDA 0 Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation 0
City Attorney ~ Finance Er Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Others: J....
Notes:
Ready to File: _
Date:
Revised 12/18/03