HomeMy WebLinkAbout2011-309
I
RESOLUTION NO. 2011-309
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO TERMINATING THE PROFESSIONAL SERVICES AGREEMENT
WITH BRUNICK, McELHANEY & BECKETT AND AUTHORIZING THE EXECUTION OF
A PROFESSIONAL SERVICES AGREEMENT WITH THE LAW FIRM OF ORRICK,
POPKA, FORTINO & BRISLIN FOR LEGAL SERVICES IN THE CASE OF TERRELL
MARKHAM, et al v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT
CASE NO. CV 09-08455-0DW
3
4
5
6
WHEREAS, Attorney Raymond Dolen of the law firm of Brunick, McElhaney & Beckett
7
has been providing excellent representation to the City of San Bernardino and its named employees in
8
the case of Terrell Markham, et al. v. City of San Bernardino, et aI., United States District Conrt Case
9
No. CV 09-08455-0DW; and,
10
WHEREAS, Attorney Raymond F. Dolen has left the law firm of Brunick, McElhaney &
11
Beckett, and joined the law firm of Orrick, Popka, Fortino & Brislin;
12
THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF
13 THE CITY OF SAN BERNARDINO AS FOLLOWS:
14 SECTION 1. The Professional Services Agreement between the City of San Bernardino and
15 the law firm of Brunick, McElhaney & Beckett and the City of San Bernardino for legal services in the
16 case of Terrell Markham, et al. v. City of San Bernardino, et aI., United States District Court Case No.
17 CV 09-08455-0DW, approved by Resolution No. 2010-11, is hereby terminated.
18 SECTION 2. The Mayor of the City of San Bernardino is hereby authorized and directed to
19 execute on behalf of said City a Professional Services Agreement between Orrick, Popka, Fortino &
20 Brislin and the City of San Bernardino for legal services in the case of Terrell Markham, et al. v. City of
21 San Bernardino, et al., United States District Court Case No. CV 09-08455-0DW, a copy of which is
22 attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
23 length.
24 SECTION 3. The authorization granted by this Resolution shall expire and be void and of
25 no further effect if the agreement is not executed by both parties and returned to the Office of the City
26 Clerk within sixty (60) days following the effective date of this Resolution.
27 SECTION 4. The Agreement is effective September 26, 2011; any action taken under the
28 Agreement between September 26,2011 and the effective date of this Resolution is hereby ratified.
1
2011-309
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO TERMINATING THE PROFESSIONAL SERVICES AGREEMENT
WITH BRUNICK, McELHANEY & BECKETT AND AUTHORIZING THE EXECUTION OF
A PROFESSIONAL SERVICES AGREEMENT WITH THE LAW FIRM OF ORRICK,
POPKA, FORTINO & BRISLIN FOR LEGAL SERVICES IN THE CASE OF TERRELL
4 MARKHAM, et al v. CITY OF SAN BERNARDINO, et al., UNITED STATES DISTRICT COURT
CASE NO. CV 09-08455-0DW
1
2
3
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 j oint regular meeting thereof, held on the
8
5th day of December
, 2011, by the following vote, to wit:
9
10
COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
11
MARQUEZ
x
12
JENKINS
x
13
x
BRINKER
14
SHORETT
x
15
x
KELLEY
16
x
JOHNSON
17
x
MCCAMMACK
18
~~k,~~~
City of San Bernardino
19
20
21
-uY
The foregoing Resolution is hereby approved this ~ day of December, 2011.
22
23
Patri k Morris, Mayor
City 0 an Bernardino
24
25
Approved as to form:
26
JAMES F. PENMAN, City Attorney
27
BY:~a<_-~~
28
2
2011-309
1 PROFESSIONAL SERVICES AGREEMENT
2 TERRELL MARKHAM et at v. CITY OF SAN BERNARDINO, et at.
3 UNITED STATES DISTRICT COURT CASE NO. CV 09-08455-0DW
4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ORRICK,
5 POPKA, FORTINO & BRISLIN (hereinafter "OPFB") are the parties to this Agreement.
6 2. OPFB will be representing the following entities and persons in this litigation: CITY OF
7 SAN BERNARDINO, OFFICER ADAM AFFRUNTI, SGT. JAMES BEACH, and SGT. RODNEY
8 TOPPING, and any other designated officer or employee of the CITY in the case of Terrell Markham,
9 et ai v. City of San Bernardino, et ai., United States District Court Case No. CV 09-08455-0DW.
10 OPFB shall not represent any client in any type of claim against the CITY without prior written
11 approval to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
12 3. OPFB 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 $25,000
16 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 each
18 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 OPFB may include a single charge in an amount not to exceed four percent (4%) of attorney fees in lieu
22 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), then
24 OPFB shall not be entitled to reimbursement for mileage and parking fees.
25 7. OPFB shall obtain approval from the CITY to retain expert witnesses, consultants, and
26 other professionals (not including court reporters) for purposes of the litigation. OPFB may, ifit
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 pay
2011-309
1 it directly. Consultants shall not bill the CITY directly without prior approval ofthe CITY'S Finance
2 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 set
5 reserves, including, without limitation, potential liability exposure and percentage of fault, shall be
6 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 or
9 other litigation.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10.
Copies of any correspondence and other documents sent to any of the parties in this
action shall also be provided to the CITY through the City Attorney's Office.
11. Any and all settlements shall require CITY approval. Request for settlement authority
shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12. In the event the settlement value ofthis case appears to exceed $50,000.00 the City
Attorney's Office shall be notified immediately.
13. Only Raymond F. Dolen of Orrick, Popka, Fortino & Brislin or another senior attorney
approved by the City shall conduct the trial of this case.
14. No client development costs are to be included in billings.
15. No continuing education expenses are to be included in billings.
16. Final billing shall be accompanied by copies of the Request for Dismissal, Satisfaction
of Judgment, Release and any other final documents.
17. Either party may terminate this Agreement at will. OPFB will continue to represent the
CITY on the terms and conditions in this Agreement until the case and file are transferred to another
attorney.
18.
19.
OPFB is an independent contractor as to the CITY.
OPFB shall maintain the following types of insurance with limits as shown:
a) Workers Compensation as required by the laws of the State of
California,including Employment Liability with $250,000 limits covering all persons
providing service on behalf of OPFB and all risks to such persons under this Agreement.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2011-309
OPFB 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.
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 of
$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 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."
OPFB shall furnish certificates of insurance and certified copies of all policies and
endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to
the commencement of performance 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 Attorney's
Office, and shall maintain such insurance from the time OPFB 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 insureds with respect to liabilities
arising out of the performance of services hereunder.
2011-309
1 All policies required above are to be primary and non-contributing with any insurance policies
2 or self-insurance programs carried or administered by the CITY or other parties represented under this
3 Agreement.
4
20.
All communications and billings to the CITY are to be directed as follows:
6
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
5
7
8
21.
The effective date of this Agreement is September 26, 2011.
9
Dated: ~, 2011
10
11
12 Dated: ~, 2011
13
14
15
16 Approved as to form:
CITY OF SAN BERNARDINO
18
JAMES F. PENMAN,
City Attorn;:y
" ~
By: ~ /~/F
,
17
19
20
21
22
23
24
25
26
27
28