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HomeMy WebLinkAbout09A- City Attorney i 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 certain named Dept: CITY ATTORNEY officers and employees of the Fire Department in a pending Inland Counties Emergency Medical Agency Date: June 4,2010 investigation. Council Meeting of 06/07/10 Synopsis of Previous Council Action: On May 17, 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 a pending Inland Counties Emergency Medical Agency investigation. 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&Beckett,be adopted. afore Contact person: Diane C.Roth Phone: 5355 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: .20/0 - /02'] Agenda Item No. FAROTHTIREUCEMA Dolm RCA.wpd STAFF REPORT Council Meeting Date: June 7, 2010 TO: Mayor and Common Council FROM: City Attorney's Office DATE: May 19,2010 AGENDA: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a professional services agreement between Brunick, Mcelhaney&Beckett and the City of San Bernardino for legal services on behalf of firefighters in a pending inland counties emergency medical agency investigation. On May 17, 2010, the Mayor and Common Council approved the retention of the law firm ofBrunick,McElhaney&Beckett to represent various City Fire Department employees in a pending Inland Counties Emergency Medical Agency investigation. Attached hereto is a Professional Services Agreement providing for the representation,with a ceiling of$10,000 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 F:\ROTH\FIREVCEMA Dolen Staff Report.wpd COPY 1 RESOLUTION NO. 2010- 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT BETWEEN BRUNICK, MCELHANEY & BECKETT AND THE CITY OF SAN BERNARDINO FOR LEGAL SERVICES ON BEHALF OF FIREFIGHTERS IN AN 4 INLAND COUNTIES EMERGENCY MEDICAL AGENCY INVESTIGATION. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 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 in a pending investigation by Inland Counties 10 Emergency Medical Agency,a copy of which is attached hereto marked Exhibit"A"and incorporated 11 herein by reference as fully as though set forth at length. 12 SECTION 2. The authorization granted by this Resolution shall expire and be void and 13 of no further effect if the agreement is not executed by both parties and returned to the Office of the 14 City Clerk within sixty(60) days following the effective date of this Resolution. 15 16 17 18 19 20 21 22 / 23 / 24 25 26 27 28 FAR0TH\RES0S\Do1m PSA m ICEMA.wpd 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN BRUNICK,MCELHANEY&BECKETT AND THE CITY OF SAN BERNARDINO FORLEGAL SERVICES ON BEHALF OF FIREFIGHTERS 3 IN AN INLAND COUNTIES EMERGENCY MEDICAL AGENCY INVESTIGATION. 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 on the_day 6 of , 2010,by the following vote, to wit: 7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 9 DESJARDINS 10 BRINKER 11 SHORETT 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 Rachel Clark, City Clerk 17 The foregoing Resolution is hereby approved this_day of 2010. 18 19 20 PATRICK J. MORRIS, Mayor 21 City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, City Attorney 24 25 By: M 26 ® 27 28 FAR0TH\RES0S\Do1=PSA m ICEMA.wpd 2 1 PROFESSIONAL SERVICES AGREEMENT 2 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law fine of 3 BRUNICK,MCELHANEY&BECKETT(hereinafter"BM&B")are the parties to this Agreement. 4 2. BM&B will be representing the following persons in this matter: NORMAN 5 WALTERS, GREGORY SORIA, JR., SHIRLEY ALLEN, RODNEY MASCIS, MIKE 6 BOLLINGER, JOSEPH MUNOZ, MICHAEL ARVIZO, STEVE BROWN, and any other 7 designated employee of the CITY'S Fire Department called for an interview in the Inland Counties 8 Emergency Medical Agency's pending investigation of medical aid incidents. BM&B shall not 9 represent any client in any type of claim against the CITY without prior written approval to do so 10 from the CITY OF SAN BERNARDINO through the City 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 $10,000 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 5' 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 this matter. BM&B may, if it chooses, 26 pay the fees and charges of such consultants and seek reimbursement from the CITY on its periodic 27 statement, or it may forward the consultant's bill to the CITY with a request that the CITY pay it 28 directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance FAROTHWIREKEMA DoIen PSA.wpd Exhibit "A" Pagel I Department. `ftw 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 matter. 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 11. 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. Only Raymond F.Dolen ofBrunick,McElhaney&Beckett or another senior attorney © 14 approved by the City shall perform the legal services in this matter. 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 any final documents. 18 17. Either party may terminate this Agreement at will. BM&B will continue to represent 19 the individual City employees in this matter on the terms and conditions in this Agreement until the 20 case and file are transferred to another attorney. 21 18. BM&B is an independent contractor as to the CITY. 22 19. BM&B shall maintain the following types of insurance with limits as shown: 23 a) Workers Compensation as required by the laws of the State of California, 24 including Employment Liability with$250,000 limits covering all persons providing 25 service on behalf of BM&B and all risks to such persons under this Agreement. 26 BM&B shall require its Workers Compensation carrier to waive all rights of © 27 subrogation against the CITY and its officers and employees and any others for 28 whom services are being provided under this Agreement. FAROTITT REUCEMA Dolen PSA.wpd Page 2 I b) Comprehensive General and Automobile Liability Insurance coverage to 2 include contractual coverage and automobile coverage for owned, hired and non- 3 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 4 for bodily injury and property damage. 5 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. 6 In lieu of naming the CITY as an additional insured,the policy may be endorsed as 7 follows: 8 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 9 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 10 insured, its officers, employees, agents, or subcontractors. All other provisions of this policy are to remain unchanged." 11 12 BM&B shall furnish certificates of insurance and certified copies of all policies and 13 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 14 to the commencement of performance of services hereunder, which certificates shall provide that 15 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 16 Attorney's Office,and shall maintain such insurance from the time BM&B commences performance 17 of services hereunder until the completion of such services. 18 All policies, with respect to the insurance coverage above required, except for the 19 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall 20 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 21 their employees, agents, volunteers and officers as additional named insureds with respect to 22 liabilities arising out of the performance of services hereunder. 23 All policies required above are to be primary and non-contributing with any insurance 24 policies or self-insurance programs carried or administered by the CITY or other parties represented 25 under this Agreement. 26 27 28 FAROTHTIREVCEMA Dolen PSA.wpd Page 3 1 20. All communications and billings to the CITY are to be directed as follows: 2 City Attorney's Office CITY OF SAN BERNARDINO 3 300 North"D" Street San Bernardino, CA 92418 4 5 Dated: 12010 BRUNICK, MCELHANEY&BECKETT 6 7 By: Raymond F.Dolen 8 9 Dated: , 2010 CITY OF SAN BERNARDINO 10 1 I By: Patrick J. Morris, Mayor 12 13 Approved as to form: 14 JAMES F. PENMAN, City Attorney 15 By: 16 17 18 19 20 21 22 23 24 25 26 27 28 F:aOTHTIREVCEMA Doles PSA.wpd Page 4 I PROFESSIONAL SERVICES AGREEMENT 2 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 3 BRUNICK,MCELHANEY&BECKETT(hereinafter"BM&B")are the parties to this Agreement. 4 2. BM&B will be representing the following persons in this matter: NORMAN 5 WALTERS, GREGORY SORIA, JR., SHIRLEY ALLEN, RODNEY MASCIS, MIKE 6 BOLLINGER, JOSEPH MUNOZ, MICHAEL ARVIZO, STEVE BROWN, and any other 7 designated employee of the CITY'S Fire Department called for an interview in the Inland Counties 8 Emergency Medical Agency's pending investigation of medical aid incidents. BM&B shall not 9 represent any client in any type of claim against the CITY without prior written approval to do so 10 from the CITY OF SAN BERNARDINO through the City 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 $10,000 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 5' 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 this matter. BM&B may, if it chooses, 26 pay the fees and charges of such consultants and seek reimbursement from the CITY on its periodic 27 statement, or it may forward the consultant's bill to the CITY with a request that the CITY pay it 28 directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance FAROTHTIREUCEMA Dolen PSA.wpd Page 1 I 1 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 matter. 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. I 1 11. 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. Only Raymond F.Dolen ofBrunick,McElhaney&Beckett or another senior attorney 14 approved by the City shall perform the legal services in this matter. 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 any final documents. 18 17. Either party may terminate this Agreement at will. BM&B will continue to represent 19 the individual City employees in this matter on the terms and conditions in this Agreement until the 20 case and file are transferred to another attorney. 21 18. BM&B is an independent contractor as to the CITY. 22 19. BM&B shall maintain the following types of insurance with limits as shown: 23 a) Workers Compensation as required by the laws of the State of California, 24 including Employment Liabilitywith$250,000 limits covering all persons providing 25 service on behalf of BM&B and all risks to such persons under this Agreement. 26 BM&B shall require its Workers Compensation carrier to waive all rights of 27 subrogation against the CITY and its officers and employees and any others for 28 whom services are being provided under this Agreement. FAROTHT REUCEMA Dolen PSA.wpd Page 2 1 b) Comprehensive General and Automobile Liability Insurance coverage to 2 include contractual coverage and automobile coverage for owned, hired and non- 3 owned vehicles. The policy shall have at least a combined single limit of$1,000,000 4 for bodily injury and property damage. 5 c) Professional Liability Insurance with limits of at least$1,000,000 per claim. 6 In lieu of naming the CITY as an additional insured, the policy may be endorsed as 7 follows: 8 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the 9 CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the 10 insured,its officers, employees,agents,or subcontractors. All other provisions of this policy are to remain unchanged." 11 12 BM&B shall furnish certificates of insurance and certified copies of all policies and 13 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior 14 to the commencement of performance of services hereunder, which certificates shall provide that 15 such insurance shall not be terminated or expire without thirty(30) days written notice to the City 16 Attorney's Office,and shall maintain such insurance from the time BM&B commences performance 17 of services hereunder until the completion of such services. 18 All policies, with respect to the insurance coverage above required, except for the 19 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall 20 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 21 their employees, agents, volunteers and officers as additional named insureds with respect to 22 liabilities arising out of the performance of services hereunder. 23 All policies required above are to be primary and non-contributing with any insurance 24 policies or self-insurance programs carried or administered by the CITY or other parties represented 25 under this Agreement. ® 26 27 // 28 FAROTHTIREVCEMA Dolen PSA.wpd Page 3 1 20. All communications and billings to the CITY are to be directed as follows: 2 City Attorney's Office CITY OF SAN BERNARDINO 3 300 North"D" Street San Bernardino, CA 92418 4 5 Dated: , 2010 BRUNICK,MCELHANEY&BECKETT 6 7 By: Raymond F. Dolen 8 9 Dated: 2010 CITY OF SAN BERNARDINO 10 11 By: Patrick J. Moms,Mayor 12 - 13 Approved as to form: 14 JAMES F. PENMAN, City A orney 15 By: 16 17 18 19 20 21 22 23 24 25 26 C27 28 FAROTHTTREUCEMA Dolm PSA.wpd Page 4 i