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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Resolution of the Mayor arid Co~on
Council of the City of San Bernardino Authorizing the
Execution of a Professional Services Agreement with
Brunick, McElhaney & Beckett and the City of San
Bernardino for Legal Services in the Case of Robert
Walker v. City of San Bernardino, et al. San Bernardino
Superior Court Case No. CIVSS 814767
From: JAMES F. PENMAN
City Attorney
Date: June JL 2009
Synopsis of Previons Council Action: None
Recommended motion: That the Resolution be adopted.
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Contact person: Robert L. Simmons
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
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Agenda Item No.
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F:\SIMMONS\ Walker\ Walker.ReA. wpd
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 Authorizing the Execution of a Professional
Services Agreement with Brunick, McElhaney & Beckett and the City of San Bernardino
for Legal Services in the Case of Robert Walker. v. City of San Bernardino, et al., San
Bernardino Superior Court Case No. CIVSS 814767
On June 1,2009, the Mayor and Common Council approved the retention ofthe law firm of
Brunick, McElhaney & Beckett to represent the City of San Bernardino in the case entitled Robert
Walker v. City of San Bernardino, et al., San Bernardino County Superior Court Case No. CIVSS
814767.
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of $25,000.00 on attorneys fees and a requirement ofregular 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\ Walker\ W alker.StaftReport.wpd
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1 RESOLUTION NO.
2 RESOLUTION OF THE MA YORAND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN BRUNICK, McELHANEY & BECKETT AND THE
CITY OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF ROBERT
4 WALKER v. CITY OF SAN BERNARDINO, et aL, SAN BERNARDINO SUPERIOR COURT
CASE NO. CIVSS 814767
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City a Professional Services Agreement between Brunick, McElhaney
9 & Beckett and the City of San Bernardino for legal services, a copy of which is attached hereto
10 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 II/
15 II/
16 II/
17 II/
18 1/1
19 1/1
20 1/1
21 II/
22 1/1
23 II/
24 1/1
25 II/
26 III
27 III
28 III
F:\SIMMONS\Walker\Outside Counscl.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 BRUNICK, McELHANEY & BECKETT AND THE CITY OF
SAN BERNARDINO FOR LEGAL SERVICES IN THE CASE OF ROBERT WALKER v.
3 CITY OF SAN BERNARDINO, et al., SAN BERNARDINO SUPERIOR COURT CASE NO.
CIVSS 814767
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6
day of
7
COUNCIL MEMBERS:
8
ESTRADA
9
BAXTER
10
BRINKER
11
SHORETT
12
. KELLEY
13
JOHNSON
14
MC CAMMACK
15
Common Council of the City of San Bernardino at a
, 2009, by the following vote, to wit:
meeting thereof, held on the _
AYES
NAYS
ABSTAIN ABSENT
16
Rachel Clark, City Clerk
17
18
The foregoing Resolution is hereby approved this _ day of
,2009.
19
20
21
22
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
26
27
28
2
F:\STh1MONS\Walker\Outside Counsel.Res. wpd
PATRlCKJ. MORRIS, Mayor
City of San Bernardino
Exhibit "An
1
2
3
4
PROFESSIONAL SERVICES AGREEMENT
ROBERT WALKER v. CITY OF SAN BERNARDINO, et aL
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVSS 814767
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 BRUNICK, McELHANEY & BECKETT (hereinafter "BM&B") are the parties to this Agreement.
6
2.
BM&B will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO and OFFICER CHRIS FLOWERS, and any designated officer or
8 employee of the CITY. BM&B shall not represent any client in any type of claim against the CITY
9 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
10 Attorney's Office.
11
3.
BM&B shall be paid at the hourly rates set forth below:
12 Attorneys - $145.00 per hour; and,
13 Law Clerks/Paralegals - $70.00 per hour.
14 The amounts expended under this agreement for attorney fees shall not exceed
15 $25,000 without further approval of the Mayor and Common Council.
16
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
17 each succeeding month.
18
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20 BM&B may include a single charge in an amount not to exceed four percent (4%) of attorney fees
21 in lieu of reimbursement for photocopying, telephone charges, and postage.
22
6.
If attorney fees are charged "portal to portal" (e.g., from office to court and return),
23 then BM&B shall not be entitled to reimbursement for mileage and parking fees.
24
7.
BM&B shall obtain approval from the CITY to retain expert witnesses, consultants,
25 and other professionals (not including court reporters) for purposes of the litigation. BM&B may,
26 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
27 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
28 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
F:\SIMMONS\ Walker\ Walker,ProfessionaISvc.Agrmt. wpd 1
I CITY'S Finance Department.
2 8. Status reports will be submitted to the CITY through the City Attorney's Office
3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
4 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
5 be included.
6 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.
9 10. Copies of any correspondence and other documents sent to any of the parties in this
10 action shall also be provided to the CITY through the City Attorney's Office.
11 II. Any and all settlements shall require CITY approval. Request for settlement authority
12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
13 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
14 Attorney's Office shall be notified immediately.
IS 13. Only Raymond Dolen ofBRUNICK, McELHANEY & BECKETT or another senior
16 attorney approved by the City shall conduct the trial of 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 Agreement at will. BM&B will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. BM&B is an independent contractor as to the CITY.
25 19. BM&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 California,
27 including Employment Liability with $250,000 limits covering all persons providing
28 service on behalf of BM&B and all risks to such persons under this Agreement.
F:\sIMMONS\Walker\Walker.ProfessionalSvc.Agnnt.wpd 2.
1
BM&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 Agreement.
2
3
4
b)
Comprehensive General and Automobile Liability Insurance coverage to
5
include contractual coverage and automobile coverage for owned, hired and non-
6
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
for bodily injury and property damage.
7
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
10
follows:
11
"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
14
15 BM&B shall furnish certificates of insurance and certified copies of all policies and
16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
17 to the commencement of performance of services hereunder, which certificates shall provide that
18 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
19 Attorney's Office, and shall maintain such insurance from the time BM&B commences performance
20 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 III
27 III
28
F:'.sIMMONS\Walker\Walker.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:
5
6
7
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
8 Dated: June _, 2009
BRUNICK, McELHANEY & BECKETT
9
10
11
By: Raymond F. Dolen
12
13 Dated: June _' 2009
14
CITY OF SAN BERNARDINO
15
16
By: Patrick J. Morris, Mayor
17
18
19 Approved as to form:
20
21
22
23
24
25
26
27
28
JAMES F. PENMAN,
:;z~
F :\SIM:MONS\ Walker\ Walker.ProfessionalSvc.Agrmt.wpd 4
I
PROFESSIONAL SERVICES AGREEMENT
ROBERT WALKER v. CITY OF SAN BERNARDINO, et aL
SAN BERNARDINO SUPERIOR COURT CASE NO. CIVSS 814767
2
3
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 BRUNICK, McELHANEY & BECKETT (hereinafter "BM&B") are the parties to this Agreement.
6
2.
BM&B will be representing the following entities and persons in this litigation: CITY
7 OF SAN BERNARDINO and OFFICER CHRIS FLOWERS, and any designated officer or
8 employee ofthe CITY. BM&B shall not represent any client in any type of claim against the CITY
9 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
10 Attorney's Office.
II
BM&B shall be paid at the hourly rates set forth below:
3.
12 Attorneys - $145.00 per hour; and,
13 Law Clerks/Paralegals - $70.00 per hour.
14 The amounts expended under this agreement for attorney fees shall not exceed
15 $25,000 without further approval of the Mayor and Common Council.
16
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
4.
17 each succeeding month.
18
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20 BM&B may include a single charge in an amount not to exceed four percent (4%) of attorney fees
21 in lieu of reimbursement for photocopying, telephone charges, and postage.
22
6.
If attorney fees are charged "portal to portal" (e.g., from office to court and return),
23 then BM&B shall not be entitled to reimbursement for mileage and parking fees.
24
7.
BM&B shall obtain approval from the CITY to retain expert witnesses, consultants,
25 and other professionals (not including court reporters) for purposes of the litigation. BM&B may,
26 if it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY
27 on its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
28 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
F:\SIMMONS\ Walker\ Walker.ProfessionalSvc.Agrmt. wpd 1
1 CITY'S Finance Department.
2 8. Status reports will be submitted to the CITY through the City Attorney's Office
3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
4 set reserves, including, without limitation, potential liability exposure and percentage offault, shall
5 be included.
6 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.
9 10. Copies of any correspondence and other documents sent to any of the parties in this
10 action shall also be provided to the CITY through the City Attorney's Office.
11 II. Any and all settlements shall require CITY approval. Request for settlement authority
12 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
13 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
14 Attorney's Office shall be notified immediately.
15 13. Only Raymond Dolen ofBRUNICK, McELHANEY & BECKETT or another senior
16 attorney approved by the City shall conduct the trial of 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 Agreement at will. BM&B will continue to represent
22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attorney.
24 18. BM&B is an independent contractor as to the CITY.
25 19. BM&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 California,
27 including Employment Liabilitywith $250,000 limits covering all persons providing
28 service on behalf of BM&B and all risks to such persons under this Agreement.
F:\SIMMONS\ Walker\ Walker.ProfessionalSvc.Agrmt. wpd 2
1
BM&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 Agreement.
2
3
4
b)
Comprehensive General and Automobile Liability Insurance coverage to
5
include contractual coverage and automobile coverage for owned, hired and non-
6
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
for bodily injury and property damage.
7
8
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
9
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
10
follows:
11
12
"Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
13
14
15 BM&B shall furnish certificates of insurance and certified copies of all policies and
16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
17 to the commencement of performance of services hereunder, which certificates shall provide that
18 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
19 Attorney's Office, and shall maintain such insurance from the time BM&B commences performance
20 of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26 III
27 III
28
F :\SlMMON$\ Walker\ Walker .ProfessionalSvc.Agrmt. 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
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
6
7
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 C;Z
22
23 By,' ,4
24
25
26
27
28
BRUNICK, McELHANEY & BECKETT
By: Raymond F. Dolen
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\SIMMONS\ Walker\ W alker.ProfessionalSvc.Agrmt. wpd 4