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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Resolution ofthe Mayor and Common Council
Authorizing the Execution of a Professional Services
Agreement with Arias & Lockwood and the City of San
Bernardino for Legal Services in the Claim of Sheryl
Nash., et 01. v. City of San Bernardino, et 01.
From: JAMES F. PENMAN
City Attorney
Date: July 15, 2009
Synopsis of Previous Council Action:
July 6, 2009 - Mayor and Common Council approved the retention of the law firm of Arias & Lockwood to
represent the City of San Bernardino and individual defendants in the Claim of Sheryl Nash, et at. v. City of
San Bernardino, et 01.
Recommended motion:
Adopt resolution.
0~
7' t-~__
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
g"C)
d.CV9- Ol.b5
Agenda Item No. 9
1- 1-0-09
F:\ROTH\Outside counsel\2009 Outside Counsel\Sheryl Nash, et al v. City\Nash.RCA.wpd
STAFF REPORT
Council Meeting Date: July 20, 2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
July 16, 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 Claim of
Sheryl Nash, et al. v. City of San Bernardino, et al.
On July 6,2009, the Mayor and Common Council approved the retention ofthe law firm of
Arias & Lockwood to represent the City of San Bernardino and all named City employees in the
claim of Sheryl Nash, et at.
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 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 counsel\2009 Outside Counsel\Sheryl Nash. et al v. City\Nash,StaffReport.wpd
(Ccorv
1
RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT WITH ARIAS & LOCKWOOD FOR LEGAL SERVICES IN
THE CLAIM OF SHERYL NASH, ET AL.
4
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to
8 execute on behalf of said City a Professional Services Agreement between Arias & Lockwood and the
9 City of San Bernardino for legal services in the Claim of Sheryl Nash, et al., a copy of which is
10 attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth
11 at length.
12 SECTION 2. The authorization granted by this Resolution shall expire and be void and of
13 no further effect if the agreement is not executed by both parties and returned to the Office of the City
14 Clerk within sixty (60) days following the effective date of this Resolution.
15 III
16 III
17 III
18 I II
19 III
20 III
21 III
22 I I I
23 I I I
24 III
25 III
26 III
27 I I I
28 III
F:\ROTH\Outside counsel\2009 Outside Counsel\Sheryl Nash, et al v. City\Nash.Resolution.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 CLAIM OF SHERYL NASH, ET AL
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof, held
6 on the
day of July, 2009, by the following vote, to wit:
7 COUNCIL MEMBERS: AYES
8 ESTRADA
9 BAXTER
10 BRINKER
11 SHORETT
12 KELLEY
13 JOHNSON
14 MCCAMMACK
15
16
17
NAYS
ABSTAIN ABSENT
Rachel G. Clark, City Clerk
18 The foregoing Resolution is hereby approved this _ day of July, 2009.
19
20
21
Patrick J. Morris, Mayor
City of San Bernardino
22 Approved as to Form:
23 JAMES F. PENMAN,
City Attorney
24
25 By:
26
-:)- ",.
7'~
27
28
F:\ROTH\Outside counsc:I\2009 Outside Counsel\Sheryl Nash, et al v. City\Nash.Resolution.wpd
Exhibit "A"
I
2
PROFESSIONAL SERVICES AGREEMENT
SHERYL NASH, ET AL v. CITY OF SAN BERNARDINO, ET AL.
(GOVERNMENT CLAIM)
3
4
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
1.
5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
6
A&L will represent the CITY and any designated officer or employee of the CITY
2.
7 who may be named as a defendant with respect to the Government Claim of SHERYL NASH, ET
8 AL. v. CITY OF SAN BERNARDINO, ET AL. A&L shall not represent any client in any type of
9 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.
A&L shall be paid at the hourly rates set forth below:
12 Attorneys - $145.00 per hour; and,
13 Law ClerksfParalegals - $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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
21 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
25 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
F:\ROTH\Outside counse]\2009 Outside Counsel\Sheryl Nash, et al v. dtyINash.ProfServicesAgr.wpd
I 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 any correspondence and other documents sent to any of the parties in this
7 action shall also be provided to the CITY through the City Attorney's Office.
8 10. Copies of all opinions shall be provided to the CITY through the City Attorney's
9 Office.
10 II. Any and all settlements shall require CITY approval. Request for settlement authority
II shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
13 Attorney's Office shall be notified irrimediately.
14 13. Only Joseph Arias of A&L shall perform the legal work hereunder.
15 14. No client development costs are to be included in billings.
16 15. No continuing education expenses are to be included in billings.
17 16. Final billing shall be accompanied by copies of the Request for Dismissal,
18 Satisfaction of Judgment, Release and any other final documents.
19 17. Either party may terminate this Agreement at will. . A&L will continue to represent
20 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
21 another attorney.
22 18. A&L is an independent contractor as to the CITY.
23 19. A&L shall maintain the following types of insurance with limits as shown:
24 a) Workers Compensation as required by the laws of the State ofCalifomia,
25 including Employment Liability with $250,000 limits covering all persons providing
26 service on behalf of A&L and all risks to such persons under this Agreement. A&L
27 shall require its Workers Compensation carrier to waive all rights of subrogation
28 against the CITY and its officers and employees and any others for whom services
F:\ROTH\Outside counsel\2009 Outside CounsePSheryl Nash. et a] v. clty\Nash.ProfServicesAgr,wpd
1
are being provided under this Agreement.
2
3
b)
Comprehensive General and Automobile Liability Insurance coverage to
include contractual coverage and automobile coverage for owned, hired and non-
4
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
5
for bodily injury and property damage.
6
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
7
8
9
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
follows:
10
"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."
11
12
13 A&L shall furnish certificates of insurance and certified copies of all policies and
14 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
IS to the commencement of performance of services hereunder, which certificates shall provide that
16 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
17 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
18 of services hereunder until the completion of such services.
19 All policies, with respect to the insurance coverage above required, except for the
20 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
21 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
22 their employees, agents, volunteers and officers as additional named insured with respect to
23 liabilities arising out of the performance of services hereunder.
24 All policies required above are to be primary and non-contributing with any insurance
25 policies or self-insurance programs carried or administered by the CITY or other parties represented
26 under this Agreement.
27 III
28 III
F:\ROTH\Outside counsel\2009 Outside Counsel\Sheryl Nash, et al v. cly\Nash.ProfServicesAgr,wpd
1
2
3
4
PROFESSIONAL SERVICES AGREEMENT
SHER YL NASH, ET AL. v. CITY OF SAN BERNARDINO, ET AL.
(TORT CLAIM)
20.
All communications and billings to the CITY are to be directed as follows:
5
6
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: July _, 2009
9
10
11
12
13 Dated: July _, 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\SheryJ Nash, et a1 v. ci\y\Nash.ProfServicesAgr.wpd
I
2
3
4
PROFESSIONAL SERVICES AGREEMENT
SHERYL NASH, ET AL. v. CITY OF SAN BERNARDINO, ET AL
(GOVERNMENT CLAIM)
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law fIrm of ARIAS
5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
6
2.
A&L will represent the CITY and any designated officer or employee of the CITY
7 who may be named as a defendant with respect to the Government Claim of SHERYL NASH, ET
8 AL. v. CITY OF SAN BERNARDINO, ET AL. A&L shall not represent any client in any type of
9 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.
A&L 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 ofthe 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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
21 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
25 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
F:\ROTIDOutside counse]\2009 Outside Counsel\Sheryl Nash, et at v. c1y\Nash.ProfServicesAgr.WPd
I 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 any correspondence and other documents sent to any of the parties in this
7 action shall also be provided to the CITY through the City Attorney's Office.
8 10. Copies of all opinions shall be provided to the CITY through the City Attorney's
9 Office.
10 II. Any and all settlements shall require CITY approval. Request for settlement authority
II shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of A&L shall perform the legal work hereunder.
15 14. No client development costs are to be included in billings.
16 15. No continuing education expenses are to be included in billings.
17 16. Final billing shall be accompanied by copies of the Request for Dismissal,
18 Satisfaction of Judgment, Release and any other final documents.
19 17. Either party may terminate this Agreement at will. A&L will continue to represent
20 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
21 another attorney.
22 18. A&L is an independent contractor as to the CITY.
23 19. A&L shall maintain the following types of insurance with limits as shown:
24 a) Workers Compensation as required by the laws of the State of California,
25 including Employment Liability with $250,000 limits covering all persons providing
26 service on behalf of A&L and all risks to such persons under this Agreement. A&L
27 shall require its Workers Compensation carrier to waive all rights of subrogation
28 against the CITY and its officers and employees and any others for whom services
F:\ROTH\Outside counsel\2009 Outside Counsel\Sheryl Nash, et al v. c2y\Nash.ProfServicesAgr:wpd
1
are being provided under this Agreement.
2
b)
Comprehensive General and Automobile Liability Insurance coverage to
3
include contractual coverage and automobile coverage for owned, hired and non-
4
owned vehicles. The policy shall have at least a combined single limit of$I,OOO,OOO
for bodily injury and property damage.
5
6
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
7
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
8
follows:
9
"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 ofthis policy are to remain unchanged."
10
11
12
13 A&L shall furnish certificates of insurance and certified copies of all policies and
14 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
15 to the commencement of performance of services hereunder, which certificates shall provide that
16 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
17 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
18 of services hereunder until the completion of such services.
19 All policies, with respect to the insurance coverage above required, except for the
20 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
21 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
22 their employees, agents, volunteers and officers as additional named insured with respect to
23 liabilities arising out of the performance of services hereunder.
24 All policies required above are to be primary and non-contributing with any insurance
25 policies or self-insurance programs carried or administered by the CITY or other parties represented
26 under this Agreement.
27 III
28 III
F:\ROTH\Outside counsel\2009 Outside Counse]\Sheryl Nash, et 31 v. c;ly\Nash.ProfServicesAgr.wpd
1
2
3
4
5
PROFESSIONAL SERVICES AGREEMENT
SHERYL NASH, ET AL v. CITY OF SAN BERNARDINO, ET AL.
(TORT CLAIM)
20.
All communications and billings to the CITY are to be directed as follows:
6
7
8 Dated: July _,2009
9
JO
11
12
13 Dated: July _' 2009
14
15
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22 - jl.---,
By: ."
23
24
25
26
27
28
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
ARIAS & LOCKWOOD
By: Joseph Arias
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTH\Outside counsel\2009 Outside Counsel\Sheryl Nash, et al v. c4y\Nash.ProfServicesAgr.wpd