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I .
ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney
Subject: Professional Service Agreement between the City of
San Bernardino and the law firm of Arias, Lockwood & Gray to
represent City Attorney James F. Penman, as an individual and in
his official capacity; and Councilmember Wendy McCammack as
an individual and in her official capacity, in the case of Fire
Captain Ralph P. Romero v. City Attorney James Penman, et al.
Dept: City Attorney
Date: May 4, 2005
Synopsis of Previous Council action:
Council approved the hiring of Arias, Lockwood & Gray to represent City Attorney James F. Penman, as an individual
and in his official capacity; and Councilmember Wendy McCammack, as an individual and in her official capacity; in
the subject court action.
Recommended motion:
Adopt Resolution.
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Contact person:
James F. Penman
Phone:
5355
Supporting data attached:
Ward: All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes: ~. ~ tJos-11 J...
75-0262
Agenda Item No.
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STAFF REPORT
Council Meeting Date: May 16, 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: May 9, 2005
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino
and the law firm of Arias, Lockwood and Gray to represent City
Attorney James F. Penman, as an individual and in his official capacity;
and Councilmember Wendy McCammack as an individual and in her
official capacity, in the case of FIRE CAPTAIN RALPH P. ROMERO v.
CITY A TTORNEY JAMES PENMAN, et al.
The Mayor and Common Council approved hiring the law firm of Arias, Lockwood and Gray
to represent City Attorney James F. Penman, as an individual and in his official capacity; and
Councilmember Wendy McCammack, as an individual and in her official capacity, in the above-
referenced court action. Attached hereto is the Professional Services Agreement which reflects such
approval, including a ceiling of $25,000 on attorney fees 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.
SM B/cj [Romero.Staff. Rpt]
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RESOLUTION N~ (j) lPY
2 RESOLUTION OF THE MA YOR AND COMMON COUNCIL OFTlIE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN ARIAS, LOCKWOOD & GRAY AND THE CITY OF SAN
BERNARDINO TO REPRESENT CITY ATTORNEY JAMES F. PENMAN, AS AN
4 INDIVIDUAL AND IN HIS OFFICIAL CAPACITY; AND COUNCILMEMBER WENDY
McCAMMACK, AS AN INDIVIDUAL AND IN HER OFFICIAL CAPACITY; IN TilE CASE
5 OF FIRE CAPTA.IN RALPH P. ROMERO, an individual v. CITY A TTORNEY JAMES
PENMAN, ct al.
6
7 BE IT RESOLVED BY THE MA YOR AND COMMON COUNCIL OF THE CITY OF
8 SAN BERNARDINO AS FOLLOWS:
9 SECTION I. The Mayor of the City of San Bernardino is hereby authorized and directed to
10 execute on behalf of said City a Professional Services Agreement between Arias, Lockwood & Gray
II and the City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit
12 "A" and incorporated herein by reference as fully as though set forth at length.
13 SECTION 2. The authorization granted hereunder shall expire and be void and of no further
14 effect if the agreement is not executed by both parties and returned to the office of City Clerk within
() 15 sixty (60) days following the effective date of the resolution.
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5MB!cJfRomcro.Rcs J
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RESOLUTION OFTHE MA YORAND C01\IMON COUNCILOFTHE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN ARIAS, LOCKWOOD & GRAY AND THE CITY OF SAN
BERi"lARDINO TO REPRESENT CITY ATTORNEY JAMES F. PENMAN, AS AN
3 INDIVIDUAL AND IN HIS OFFICIAL CAPACITY; AND COUNCILMEl\1BER WENDY
McCAMl\IACK, AS AN INDIVIDUAL AND IN HER OFFICIAL CAPACITY; f~ THE CASE
4 OF FIRE CAPTAIN RALPH P. ROMERO, an individual v. CITY ATTORNEY JA1'lJES
PENMAN, et al.
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a
meeting thereof, held on the _day
8 of
,2005, by the following vote, to wit:
9
10 COUNCIL MEMBERS: AYES
11 ESTRADA
12 LONGVILLE
13 MCGll'.rNIS
14 DERRY
o ]5 KELLEY
] 6 JOHNSON
17 MC CAMMACK
]8
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NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
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The foregoing Resolution is hereby approved this _ day of
,2005
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JUDITH VALLES.
Mayor City of San "Bernardino
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A proved as to fO~l1
26 a legal c~ent.:~)
tl . . j ~/l"'''''''~
27 MES F. . ENMAN
S. ty Attorney
(128
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PROFESSIONAL SERVICES AGREEMENT
Fire Captain Ralph P. Romero, an ill dividu al I'. Ci~l' Attorney James Penlllan, as an
indil-idual and in his official capacit)'; Cit)' COl/llcillv/ember Wendy McCal1lmack,
as all individual alld ill her official capacity, and Does 1 through 10 in elusive.
U.S. District Court Case No. 5:0S-CV-00329-SGL
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law finn of
ARIAS, LOCKWOOD & GRAY (hereinafter "AL&G") are the parties to this Agreement.
2. AL&G will be representing the following entities and persons in this litigation:
JAMES F. PENMAN, as an individual and in his official capacity; and Council Member WENDY
McCAMMACK, as an individual and in her official capacity. AL&G 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. AL&G shall be paid at the hourly rates set forth below:
Attorneys - $135.00 per hour; and,
Law Clerks/Paralegals - $60.00 per hour.
The amounts expended under this agreement for attoll1eys Cees shall not exceed
$25,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least qUaJ1erly.
5. The actual cost for fil ing fees, telephone charges, photocopying, postage, lodging,
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
AL&G may include a single charge in an amount not to exceed four percent (4%) oC fees in lieu of
reimbursement for photocopying, telephone charges, and postage.
2,- ~ I f attorney~s fees are charged "portal to por1al" (e.g., from office to coul1 and retulll),
then AL&G shall not be entitled to reimbursement for mileage and parking fees.
7. AL&G shall obtain approval from the CITY to retain exper1 consultants and other
professionals (not including court reporters) for purposes of defending the litigation. AL&G 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 Plior approval oCthe CITY'S
SMIlie J [RomclOPrlScrv .Agreement ]
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Finance Department.
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8. Status reports will be submitted to CITY through the City Attorney's Office whenever
any signi ficant event occurs, and in any event at least quarterly. Infornlation sufficient to set
reserves, including, without limitation, potential liability exposure and percentage of fault shall be
included.
9.
Copies of all opinions, pleadings, discovery and motions shall be provided to the City
7 Attorney's Office which may reproduce same and provide copies to other parties or attorneys in this,
8 or other litigation.
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10.
Copies of any correspondence and other documents sent to any of the defendants in
10 this action shall also be provided to the CITY through the City Attorney's Office.
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11.
Any and all settlements shall require CITY approval. Request for settlement authOlity
12 shall be made through the City Attomey's Office which shall obtain the necessary CITY approvals.
12.
In the event the settlement value of this case appears to exceed $50,000.00 the City
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Attorney's Office shall be notified immediately.
13. Only Joseph Arias of ARIAS, LOCKWOOD & GRAY or other senior attorney
approved by the City shall try this case.
14.
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,
15.
16.
20 Satisfaction of Judgment, Release and any other final documents.
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17.
Either party may temlinate this contract at will. AL&G will continue to represent
22 City Attorney JAMES F. PENMAN, as an individual and in his official capacity; and Council
23 Member WENDY McCAMMACK, as an individual and in her official capacity on the ternlS and
24 conditions in this Agreement until the case and file are transferred to another attorney.
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18.
19.
a)
AL&G is an independent contractor as to the CITY.
AL&G shall maintain the following types of insurance with limits as shown:
Workers Compensation as required by the laws of the State of California,
including Employment Liabilitywith $250,000 limits covering all persons providing
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SM D/eJ [R0meroPrt~erv .Agreement ]
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service on behalf of AL&G and all risks to such persons under this Agreement.
AL&G shall require its Workers Compensation caJTier 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.
b) Comprehensive General and Automobile Liability Insurance coverage to
include contractual coverage and automobile coverage for owned, hired and non-
owned vehicles. The policy shall have at least a combined single limit ofS 1 ,000,000
for bodily injury and property damage.
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
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 enor, omission or negligent act of the
insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
AL&G shall fumish certificates of insurance and certified copies of all policies and
endorsements to the City Attomey's Office evidencing the insurance coverage above required prior
to the commencement of perfonllance 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
Altomev's Office, and shall maintain such insurance from the time AL&G commences performance
of services hereunder until the completion of such services.
All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
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
liabilities arising out of the perfomlance of services hereunder.
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SMR/eJIRomeroPrfServ Agreementj
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All policies required above are to be primary and non-contributing with any insurance or self-
2 insurance programs carried or administered by the CITY or other pal1ies represented under this
3 Agreement.
4 20. I All communications and billings to the CITY are to be directed as fol]ows:
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8 Dated:
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13 Dated:
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CIS
16
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
,2005
ARIAS, LOCKWOOD & GRAY
By: Joseph Arias
,2005
CITY OF SAN BERNARDINO
By: Judith Valles, Mayor
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19 Approved as to Conn and
legal content:
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JAMES F. PENMAN,
City Attorney
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BY~ 7 (e,.____
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s ~ 1 B Ie J I Romero PrfServ. Agreemen l)
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Ad~pted): ~ Item # \ l
Vote: Ayes lO Nays
Resolution #
~t;J5'-(/Y
Absent ~ Y
Abstain
Change to motion to amend original documents D
Companion Resolutions
NullNoid After: days /
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/COUNTY D
By:
,.j
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Reso. Log Updated: ~
Seal Impressed: ~
Reso. # on Staff Report [k("
</
G ' )"7 I Date Returned: r; }7 t I)) Not Returned: D
2nd Reminder Letter Sent:
Date Sent to Mayor:
Date Memo/Letter Sent for Signature:
I st Reminder Letter Sent:
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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):
Yes / No By_
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Yes No By_
Yes NO/~ By_
Yes NO-L- By__
Yes No / By_
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Copies Distributed to:
. Animal Control D EDA V Information Services D
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~j City Administrator Facilities Parks & Recreation D
City Attorney Finance Police Department D
Code Compliance D Fire Department D Public Services D
Development Services D Human Resources D Water Department D
Others:
Notes:
Ready to File:
Date:
Revised 12/18/03
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
May 20, 2005
TO:
James Penman, City Attorney
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2005-112
At the Mayor and Common Council meeting of May 16, 2005, the City of San Bernardino
adopted Resolution No. 2005-112 - Resolution authorizing the execution of a Professional
Service Agreement between Arias, Lockwood & Gray and the City to represent City Attorney
James F. Penman, as an individual and in his official capacity; and Councilmember Wendy
McCammack, as an individual and in her official capacity; in the case of Fire Captain Ralph P.
Romero, an individual v. City Attorney James Penman, et al.
Attached are one (1) original agreement and two (2) duplicate original agreements. Please obtain
signatures in the appropriate location and return the ORIGINAL agreement to the City Clerk's
Office to my attention. Please keep the fully executed copies for your records and for the other
party.
Please be advised that the resolution and contract will be null and void if not executed
within 60 days from the date of adoption.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Eileen Gomez
Senior Secretary
I hereby acknowledge receipt of the above mentioned documents.
Signed: Q illVor)
Date: 51 J/rs
Please sign and return