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ORIGiNAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Resolution ofthe Mayor and Common Council
of the City of San Bernardino Authorizing the Execution
of a Professional Services Agreement with Arias &
Lockwood and the City of San Bernardino for Legal
Services in the Case of Edward King and Aja Jaeger v.
City of San Bernardino, et al., USDC Case No. CV -09-
01339-SJO (PJWx)
From: JAMES F. PENMAN
City Attorney
Date: June 15, 2009
Synopsis of Previous Council Action:
June 1,2009 - Mayor and Common Counsel approved the retention of the law firm of Arias & Lockwood
to represent the City of San Bernardino and individual defendants in the case of Edward King and AjaJaeger
v. City of San Bernardino, et al.
Recommended motion:
Adopt resolution.
~r~
"'--t
ignature
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
~o 2009- /6:3
Agenda Item No. 1{7
r,-(')"-0Cf
F:\ROTH\Outside counsel\2009 Outside Counsel\KingJaeger v. City\KingJaeger,RCAwpd
STAFF REPORT
Council Meeting Date: June 15,2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
James F. Penman, City Attorney
June 11,2009
Resolution of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between Arias
& Lockwood and the City of San Bernardino for Legal Services in the Case of
Edward King, et al. v. City of San Bernardino, et al.
On June I, 2009, the Mayor and Common Council approved the retention of the law firm of
Arias & Lockwood to represent the City of San Bernardino and Officers Adam Affrunti and
Elizabeth Contreras in the case entitled Edward King, et al. v. City of San Bernardino, et al., United
States District Court, Case No. CV-09-01339-SJO (PJWx).
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 by the City Attorney that the proposed resolution be adopted, authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
F:\ROTH\Outside counse]\2009 Outside Counsel\KingJaeger v. City\KingJaeger.StaffReport.wpd
1
RESOLUTION NO.
(C(Q)rP)!
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
3 AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN BERNARDINO
FOR LEGAL SERVICES IN THE CASE OF EDWARD KING, et aL v. CITY OF SAN
4 BERNARDINO, et al., UNITED STATES DISTRICT COURT, CASE NO. CV-09-01339-SJO
(PJWx).
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 Arias & Lockwood and
9 the City of San Bernardino for legal services in the case of Edward King, et AI. V. City of San
10 Bernardino, et AI., United States District Court, Case No. Cv-09-01339-SJO (P1Wx), a copy of which
11 is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth
12 at length.
13 SECTION 2. The authorization granted by this Resolution shall expire and be void and
14 of no further effect if the agreement is not executed by both parties and returned to the Office of the
15 City Clerk within sixty (60) days following the effective date of this Resolution.
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:\ROTH\Outside counsel\2009 Outside Counsel\KingJaeger v. City\KingJaeger.Reso.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 ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE CASE OF EDWARD KING, et at. v. CITY
3 OF SAN BERNARDINO, et aL, UNITED STATES DISTRICT COURT, CASE NO. CV-09-
01339-SJO (PJWx).
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, held on the _day
7 of
, 2009, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES
9 ESTRADA
10 BAXTER
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17
NAYS
ABSTAIN ABSENT
Rachel Clark, City Clerk
18
19
The foregoing Resolution is hereby approved this _ day of
,2009.
20
21
22
PATRICKJ. MORRIS, Mayor
City of San Bernardino
23
Approved as to form:
24
JAMES F. PENMAN,
C;Z
By: c?
25
26
27
28
F:\ROTH\Outside counsel\2009 Outside Counsel\KingJaeger v. City\KingJaeger.Reso.wpd
Exhibit "A"
1 PROFESSIONAL SERVICES AGREEMENT
2 EDWARD KING and AJA JAEGER v. CITY OF SAN BERNARDINO,
OFFICER ADAM AFFRUNTI in his individual capacity; OFFICER ELIZABETH
3 CONTRERAS in her individual capacity; and DOES 1 -10, inclusive
UNITED STATES DISTRICT COURT CASE NO. CV 09-01339-SJO (PJWx)
4
5
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm ofARlAS
6 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
7
2.
A&L will represent the following entities and persons in this litigation: CITY OF
8 SAN BERNARDINO, OFFICER ADAM AFFRONT! and ELIZABETH CONTRERAS, and any
9 designated officer or employee of the CITY who may be named as a defendant. A&L shall not
10 represent any client in any type of claim against the CITY without prior written approval to do so
11 from the CITY OF SAN BERNARDINO through the City Attorney's Office.
12
3.
A&L 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 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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
22 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
25
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
26 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
27 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
28 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
F:\ROTH\Qutside counsel\2Q09 Outside Counsel\KingJaeger v. City\PnlessionalSvc.Agrmtwpd
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 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
11 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 Joseph Arias of A&L or another senior attorney approved by the City shall
17 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. A&L 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. A&L is an independent contractor as to the CITY.
26 19. A&L 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 $250,000 limits covering all persons providing
F:\ROTH\Outside counsel\2009 Outside Counse]\KjngJaeger v. City\PrJessionalSvc,Agnnt.wpd
1
service on behalf of A&L and all risks to such persons under this Agreement. A&L
shall require its Workers Compensation carrier to waive all rights of subrogation
against the CITY and its officers and employees and any others for whom services
2
3
4
are being provided under this Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance coverage to
6
7
include contractual coverage and automobile coverage for owned, hired and non-
owned vehicles. The policy shall have at least a combined single limit of$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 A&L 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 A&L 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:\ROTH\Outside counsel\2009 Outside CounseJ\KingJaeger v. City\PrJessionalSvc,Agnnt.wpd
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 "0" Street
San Bernardino, CA 92418
5
6
7
8 Dated: June _,2009
9
10
11
12
13 Dated: June _,2009
14
15
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
23
24
25
26
27
28
ARIAS & LOCKWOOD
By: Joseph Arias
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTH\Outside counsel\2009 Outside Counsel\KingJaeger v. City\PrdtessionalSvc.Agnnt.wpd
1 PROFESSIONAL SERVICES AGREEMENT
2 EDWARD KING and AJA JAEGER v. CITY OF SAN BERNARDINO,
OFFICER ADAM AFFRUNTI in his individual capacity; OFFICER ELIZABETH
3 CONTRERAS in her individual capacity; and DOES 1 -10, inclusive
UNITED STATES DISTRICT COURT CASE NO. CV 09-01339-SJO (PJWx)
4
5
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm ofARlAS
6 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
7
2.
A&L will represent the following entities and persons in this litigation: CITY OF
8 SAN BERNARDINO, OFFICER ADAM AFFRUNTI and ELIZABETH CONTRERAS, and any
9 designated officer or employee of the CITY who may be named as a defendant. A&L shall not
10 represent any client in any type of claim against the CITY without prior written approval to do so
11 from the CITY OF SAN BERNARDINO through the City Attorney's Office.
12
3.
A&L 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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
22 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
25
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
26 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
27 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
28 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
F:\ROTH\Outside counse]\2009 Outside Counsel\KingJaeger v. City\PrJ-essionalSvc.Agrmt.wpd
I pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 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 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 Joseph Arias of A&L or another senior attorney approved by the City shall
17 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. A&L 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. A&L is an independent contractor as to the CITY.
26 19. A&L 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 Liabilitywith $250,000 limits covering all persons providing
F:\ROTH\Outside counse]\2009 Outside CounseJ\KingJaeger v. City\Pn;kssionalSvc.Agrmt.wpd
1
service on behalf of A&L and all risks to such persons under this Agreement. A&L
2
3
4
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
10
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:
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
16 A&L 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 A&L 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:\ROTH\Outside counsel\2009 Outside Counsel\KingJaeger v. City\PrJessionalSvc.Agrmt.wpd
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
11
12
ARIAS & LOCKWOOD
By: Joseph Arias
13 Dated: June _' 2009
14
15
CITY OF SAN BERNARDINO
16
By: Patrick J. Morris, Mayor
17
18
19 Approved as to form:
20
21
JAMES F. PENMAN,
:::;L ~
22
23
24
25
26
27
28
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