HomeMy WebLinkAbout2010-011
1
RESOLUTION NO. 2010- 11
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
AGREEMENT BETWEEN BRUNICK, MCELHANEY & BECKETT AND THE CITY OF
4 SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF TERRELL MARKHAM, et
al v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT CASE NO.
5 CV 09-08455-0DW
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
7
8 SECTION I. The Mayor of the City of San Bernardino is hereby authorized and directed
9 to execute on behalf of said City a Professional Services Agreement between Brunick, McElhaney &
10 Beckett and the City of San Bernardino for legal services in the case of Terrell Markham, el al. v. Cily
11 o/San Bernardino. el al., United States District Court Case No. CV 09-08455-0DW, a copy of which
12 is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth
13 at length.
14 SECTION 2. The authorization granted by this Resolution shall expire and be vOId and
15 of no further effcct if the agreement is not executed by both parties and returned to the Office of the
16 City Clerk within sixty (60) days following the effective date of this Resolution.
17 /II
18 /II
19 /II
20 /II
21 /11
22 /II
23 1/1
24 /II
25 III
26 /II
27 /II
28 /II
F:\ROHf\Litigation Cases - OUlsid~ Counscl\Markham\Markham.Rcso~'Pd
2010-11
1 RESOLUTION OFTHEMA YORAND COMMON COUNCIL OFTHE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN BRUNICK, MCELHANEY & BECKETT AND THE CITY OF
SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF TERRELL MARKHAM, et
3 al v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT CASE NO.
CV 09-08455-0DW
4
5
1/1
1/1
6
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 joint
Common Council of the City of San Bernardino at a regular meeting thereof, held on the Istday
8
of Februarv
, 20 I 0, by the following vote, to wit:
9
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
10
ESTRADA -L
11
BAXTER -L
12
BRINKER ----L-
13
SHORETT -L
14
KELLEY ---L.
15
JOHNSON ---L.
16
MC CAMMACK ------X-
17
18 8.~J h. U<A..~
Rac el Clark, City Clerk
19
20
The foregoing Resolution is hereby approved :"i~day of Feb~uary, 2010.
21
22
ayor
23
24
Approved as to form:
25
26
JAMES F. PENMAN,
c;~.
By: ~~
27
28
F:\ROTH\Litigation Cases - Outside Counsd\Markham\Markham,Rcso:il.-pd
2010-11
PROFESSIONAL SERVICES AGREEMENT
2
3
TERRELL MARKHAM et al v. CITY OF SAN BERNARDINO, et al.
UNITED STATES DISTRICT COURT CASE NO. CV 09-08455-0DW
4
I.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 BRUNICK, MCELHANEY & BECKETT (hereinafter "BM&B") are the parties to this Agreernent.
6
2.
BM&B will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO, OFFICER ADAM AFFRUNTI, SGT. JAMES BEACH, and SGT.
8 RODNEY TOPPING, and any other designated officer or ernpJoyee of the CITY in the case of
9 Terrell Markham, el al v. City of San Bernardino, el al., United States District Court Case No. CV
10 09-08455-0DW. BM&B shall not represent any client in any type of clairn against the CITY
I I without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
12 Attorney's Office.
13
3.
BM&B shall be paid at the hourly rates set forth below:
14 Attorneys - $145.00 per hour; and,
15 Law ClerkslParalegals - $70.00 per hour.
16 The amounts expended under this agreement for attorney fees shall not exceed
17 $25,000 without further approval of the Mayor and Common Council.
18
4.
Bills shall be submitted at least on a monthly basis and no later than the 5'h day of
19 each succeeding month.
20
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
2 I mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 BM&B may include a single charge in an amount not to exceed four percent (4%) of attorney fees
23 in lieu of reimbursement for photocopying, telephone charges, and postage.
24
6.
Ifattorney fees are charged "portal to portal" (e.g., from office to court aDd return),
25 then BM&B shall not be entitled to reimbursement for mileage and parking fees.
26
7.
BM&B shall obtain approval from the CITY to retain expert witnesses, consultants.
27 and other professionals (not including court reporters) for purposes of the litigation. BM&B may,
28 ifit chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
EXHIBIT "A"
F:\ROTII\Lltigatlon Casc~ - Outside Counscl\A1arkham\Markham.ProfcssionalSvcs.Agreemcnt.\\."pd
Page 1
2010-11
on its periodic statement, or it may forward the consultant's bill to the CITY with a rcquest that the
2 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
3 CITY'S Finance Department.
4
8.
Status reports will be submitted to the CITY through the City Attorney's Office
5 whenever any significant event occurs, and in any evcnt at least quarterly. Information sufficient to
6 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
7 be included.
8
9.
Copies of all opinions, pleadings, discovery and motions shall be provided to the City
9 Attorney's Office which may reproduce same and provide copies to other partics or attorneys in this
10 or other litigation.
11
10.
Copies of any correspondencc and other documents sent to any of the parties in this
12 action shall also be provided to the CITY through the City Attorney's Office.
13
II.
Any and all settlements shall require CITY approval. Request for settlement authority
14 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
15
12.
In the event the settlement value of this case appears to exceed $50,000.00 the City
16 Attorney's Office shall be notified immediately.
17
13.
Only Raymond F. Dolen of Brunick, McElhaney & Beckett or another senior attorney
18 approved by the City shall conduct the trial of this case.
19
20
21
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 accompanicd by copies of thc Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23
17.
Either party may ternlinate this Agreement at will. BM&B will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and tile are transferred to
25 another attorney.
26
27
28
18.
19.
a)
BM&B is an independent contractor as to the CITY.
BM&B shall maintain the following types of insurance with limits as shown:
Workers Compensation as required by the laws of the State of Cali fomi a,
EXHIBIT "A"
F:\ROTII\Litigation Cases - Outside Counscl\Markham\MarkhJm.ProfcssionalSvcs.Agreemcnt.\\-rd
Page 2
2010-11
2
including Employment Liability with $250,000 limits covering all persons providing
service on behalf of BM&B and all risks to such persons under this Agreement.
3
BM&B shall require its Workers Compensation carrier to waive all rights of
4
subrogation against the CITY and its officers and employees and any others for
5
whom services are being provided under this Agreement.
6
b)
Comprehensive General and Automobile Liability Insurance coverage to
7
include contractual coverage and automobile coverage for owned, hired and non-
8
owned vehicles. The policy shall have at least a combined single limit of$ 1 ,000,000
9
for bodily injury and property damage.
10
Professional Liability Insurancc with limits of at least $ I ,000,000 per claim.
c)
11
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
12
follows:
13
"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 rcmain unchanged."
14
15
16
BM&B shall furnish certificates of insurance and certified copies of all policies and
17
18
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
to the commencement of performance of services hereunder, which certi ficates shall provide that
19
20
21
such insurancc shall not be terminated or expire without thirty (30) days written notice to the City
Attorney's Officc, and shall maintain such insurancc from the time BM&B commences perfornlance
of services hereunder until the completion of such services.
22
23
All policies, with rcspect to the insurance coverage above required, except for the
24
Workers Compensation insurance coverage and profcssionalliability coverage, if applicable, shall
25
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26
their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
27
III
EXHIBIT "A"
28
F:\ROTII\Litlgation Cases. Outside Counsel\Markham\Markham. ProfcssionalSvcs.Agreemcnt. wpd
Page 3
2010-11
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
8
9
Dated: p.:if.
10
II
20.
All communications and billings to the CITY are to be directed as follows:
1 ,2010
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
BRUNICK, MCELHANEY & BECKETT
~~&~
CITY OF SAN BERNARDINO
~yor
EXHIBIT "A"
F:\KOTII\Litigatlon Cases. Outside Counsc\\Markham\Markhaml'rofcssionalSvcs.Agrccmcnt.,....pd
Page 4