HomeMy WebLinkAbout11- City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Diane C. Roth Subject: Professional Services Agreement between the
Sr. Assistant City Attorney City of San Bernardino and the law firm of Brunick,
McElhaney & Beckett to represent the City of San
Dept: CITY ATTORNEY Bernardino, and all named officers and employees in
the case of Terrell Markham v. City of San Bernardino,
Date: January 20,2010 et al.
Synopsis of Previous Council Action:
On January 19, 2010,the Mayor and Common Council approved the retention of the law firm of Brunick,
McElhaney&Beckett to represent the City of San Bernardino,and all named officers and employees in the
case of Terrell Markham, et al, v. City of San Bernardino, et al.
Recommended motion:
That the accompanying resolution,authorizing the execution of a Professional Services Agreement between
the City of San Bernardino and the law firm of Brunick,McElhaney&Becke a adopted.
ature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
C;2-
FAROTMLitigation Cases-Outside Counsc1\ Markharn\Markham.RCA.wpd
STAFF REPORT
Council Meeting Date: February 1, 2010
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: January 20, 2010
AGENDA: Professional Services Agreement between the City of San Bernardino and the
law firm of Brunick, McElhaney & Beckett to represent the City of San
Bernardino, and all individually named officers and employees in the case of
Terrell Markham, et al. v. City of San Bernardino, et al., United States District
Court Case No. CV 09-08455-ODW
On January 19,2010,the Mayor and Common Council approved the retention of the law firm
of Brunick, McElhaney&Beckett to represent the City of San Bernardino, and all named officers
and employees in the case entitled Terrell Markham, et al. v. City of San Bernardino, et al.,United
States District Court Case No. CV 09-08455-ODW.
Attached hereto is a Professional Services Agreement providing for the representation,with
a ceiling of$25,000 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
FAROTHTitigation Cases-Outside Counsel\Markham\Markham.StaffReport.wpd
COPY
1 RESOLUTION NO. 2010-
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-ODW
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
7
8 SECTION 1. 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, et al. V. City
11 of San Bernardino, et al.,United States District Court Case No.CV 09-08455-ODW,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 effect 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.
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FAOTH\Litigation Cases-Outside CounselU4arkham\Markham.Reso3vpd
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
z 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-ODW
4
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 meeting thereof, held on the_day
8
of 2010, by the following vote, to wit:
9
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
10
ESTRADA
11
BAXTER
12
BRINKER
13
SHORETT
14
KELLEY
15
JOHNSON
16
MC CAMMACK
17
18
Rachel Clark, City Clerk
19
20 The foregoing Resolution is hereby approved this_day of , 2010.
21
22
23 PATRICK J. MORRIS, Mayor
City of San Bernardino
24
Approved as to form:
25
JAMES F. PENMAN,
26 City Attorney
27
By:
28
FOROTH\Litigation Cases-Outside Counse1\Markham\Markham.Reso2pd
1 PROFESSIONAL SERVICES AGREEMENT
2 TERRELL MARKHAM et al v. CITY OF SAN BERNARDINO, et aL
UNITED STATES DISTRICT COURT CASE NO. CV 09-08455-ODW
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, OFFICER ADAM AFFRUNTI, SGT. JAMES BEACH, and SGT.
8 RODNEY TOPPING, and any other designated officer or employee of the CITY in the case of
9 Terrell Markham, et al v. City of San Bernardino, et al., United States District Court Case No. CV
10 09-08455-ODW. BM&B shall not represent any client in any type of claim against the CITY
11 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 Clerks/Paralegals - $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 5th day of
19 each succeeding month.
20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
21 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. If attorney fees are charged "portal to portal"(e.g., from office to court and 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 if it chooses,pay the fees and charges of such c``onsulltants and seek reimbursement from the CITY
F BOTH\Litigation Cases-Ouuide CounseAMarkIRTxh, j��DSess'QnaTS,vcs.Agr nt.wpd Page 1
1 on its periodic statement, or it may forward the consultant's bill to the CITY with a request 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 event 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 parties or attorneys in this
10 or other litigation.
11 10. Copies of any correspondence 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 11. 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 ofBrunick,McElhaney&Beckett or another senior attorney
18 approved by the City shall conduct the trial of this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate 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 file are transferred to
25 another attorney.
26 18. BM&B is an independent contractor as to the CITY.
27 19. BM&B shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of California,
FAROTH\Utigation Cases-Outside Counse)Warkh l5 �bilsSmr�l9kos.Ageement.wpd Page 2
I including Employment Liability with$250,000 limits covering all persons providing
2 service on behalf of BM&B and all risks to such persons under this Agreement.
3 BM&B shall require its Workers Compensation carver 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 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
1 1 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
14 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
15 insured, its officers, employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
16
17 BM&B shall furnish certificates of insurance and certified copies of all policies and
18 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
19 to the commencement of performance of services hereunder, which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time BM&B commences performance
of services hereunder until the completion of such services.
22
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
36 their employees, agents, volunteers and officers as additional named insureds with respect to
liabilities arising out of the performance of services hereunder.
27
28
Exhibit "A"
+ F:aOT Utigation Cases-outside Counsel\larkham\Markham.ProfessionalSvcs.Agreement.wpd Page 3
f
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 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North"D" Street
7 San Bernardino, CA 92418
8 Dated: 2010 BRUNICK,MCELHANEY & BECKETT
9
10 By: Raymond F. Dolen
11
12
13 Dated: 2010 CITY OF SAN BERNARDINO
(� 14
15 By: Patrick J. Moms, Mayor
16
17
18
Approved as to form:
19
20 JAMES F. PENMAN,
City Attorney
21
22 By:
23
24
25
26
27
28
Exhibit "A"
FAROMLingation Cases-Outside Counx]\Markham\Markham.Professimal5ves.Agreemmt.wpd Nee 4
1 PROFESSIONAL SERVICES AGREEMENT
2 TERRELL MARKHAM et al v. CITY OF SAN BERNARDINO, el al.
UNITED STATES DISTRICT COURT CASE NO. CV 09-08455-ODW
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, OFFICER ADAM AFFRUNTI, SGT. JAMES BEACH, and SGT.
8 RODNEY TOPPING, and any other designated officer or employee of the CITY in the case of
9 Terrell Markham, et al v..City of San Bernardino, et al.,United States District Court Case No. CV
10 09-08455-ODW. BM&B shall not represent any client in any type of claim against the CITY
11 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 Clerks/Paralegals - $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 51" day of
19 each succeeding month.
20 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
21 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. If attorney fees are charged"portal to portal"(e.g., from office to court and 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 if it chooses,pay the fees and charges of such consultants and seek reimbursement from the CITY
FA OTH\Litigation Cases-Outside Counsei\Markham\ Markham.Pmfessiona]Svcs.ALcreem t.wpd Page 1
I on its periodic statement, or it may forward the consultant's bill to the CITY with a request 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 event 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 parties or attorneys in this
10 or other litigation.
11 10. Copies of any correspondence 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 11. 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 ofBrunick,McElhaney&Beckett or another senior attorney
18 approved by the City shall conduct the trial of this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate 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 file are transferred to
25 another attorney.
26 18. BM&B is an independent contractor as to the CITY.
I
{
27 19. BM&B shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of California,
F:\POTH\Litigation Cases-Outside Counse]\Markham\ Markham.Professiona1Svcs.Agreement.wpd Page 2
I including Employment Liability with$250,000 limits covering all personsproviding
'— 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
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 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
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
14 CITY OF SAN BERNARDINO for legal services, provided such
liability results from an error, omission or negligent act of the
15 insured, its officers, employees, agents, or subcontractors. All other
16 provisions of this policy are to remain unchanged."
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
19 to the commencement of performance of services hereunder, which certificates shall provide that
20 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
21 Attorney's Office,and shall maintain such insurance from the time BM&B commences performance
22 of services hereunder until the completion of such services.
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability 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
27 liabilities arising out of the performance of services hereunder.
28
F:\ROTWUngation Cases-Outside CounselUlarkham\Markham.ProfessionalSvcs.AgreemrnLwpd Page 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 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North"D" Street
San Bernardino, CA 92418
7
Dated: 2010 BRUNICK, MCELHANEY &BECKETT
8
9
10 By: Raymond F. Dolen
11
12
Dated: 2010 CITY OF SAN BERNARDINO
13
_ 14
15 By: Patrick J. Moms, Mayor
16
17
18
Approved as to form:
19
20 JAMES F. PENMAN,
City Attorney
21
22 By:
23
24
25
26
27
28
F\ROTH\Litigation Cascs-Outsidc CounsNU Markham\Markham.ProfessionalSvcs.Agreemencwpd Page 4