HomeMy WebLinkAbout09- City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Professional Services Agreement between the
City Attorney City of San Bernardino and the law firm of Boomazian,
Jensen & Garthe to represent the City in the case
Dept: CITY ATTORNEY Landmark American Insurance Company v. City of San
Bernardino, San Bernardino Superior Court Case No.
Date: November 18, 2010 CIVDS 1015159
Synopsis of Previous Council Action:
November 15, 2010-Mayor and Council approved retention of Boomazian,Jensen&Garthe to represent
the City in the case Landmark American Insurance Company v. City of San Bernardino, San Bernardino
Superior Court Case No. CIVDS 1015159
Recommended motion:
That said Resolution be adopted.
r'
rgnature
Contact person: Donn Dimichele Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: Zp/p _,379
Agenda Item No. 1
STAFF REPORT
Council Meeting Date: December 6, 2010
TO: Mayor and Common Council
FROM: Diane C. Roth, Senior Assistant City Attorney
DATE: November 30,2010
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Boornazian,Jensen&Garthe to represent the City of San Bernardino
in the case entitled Landmark American Insurance Company v. City of San
Bernardino, et al.,San Bernardino Superior Court Case No. CIVDS 1015159.
On November 15,2010,the Mayor and Common Council approved retention of the law firm
of Boornazian,Jensen &Garthe to represent the City of San Bernardino regarding the case entitled
LandmarkAmerican Insurance Company v. City of San Bernardino, et al.,San Bernardino Superior
Court Case No. CLADS 1015159. Donn Dimichele of this office will be lead attorney with the
assistance of Mr. Garthe.
Attached hereto is the Professional Services Agreement which reflects such approval,
including a ceiling of$25,000 on attorney fees and the requirement of regular status reports.
It is requested by the City Attorney that the following floor motion be adopted authorizing
the Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
"That the Mayor of the City of San Bernardino and Common Council authorize and direct
the Mayor of the City of San Bernardino to execute on behalf of the City of San Bernardino the
Professional Services Agreement with the law firm of Boomazian,Jensen&Garthe to represent the
City of San Bernardino regarding the case entitled Landmark American Insurance Company v. City
of San Bernardino, et al., San Bernardino Superior Court Case No. CLADS 1015159."
COPY
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING THE RETENTION OF BOORNAZIAN,JENSEN&
3 GARTHE TO REPRESENT THE CITY IN THE CASE ENTITLED LANDMARK
AMERICAN INSURANCE COMPANY V. CITY OF SAN BERNARDINO,SAN
4 BERNARDINO SUPERIOR COURT CASE NO. CIVDS 1015159.
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
8 directed to execute on behalf of said City a Professional Services Agreement between
9 Boornazian, Jensen & Garthe and the City of San Bernardino for legal services, a copy of
10 which is attached hereto marked Exhibit "A" and incorporated herein by reference as though
11 fully set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
13 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 the resolution.
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1
I
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO APPROVING THE HIRING OF BOORNAZIAN,JENSEN & GARTHE
TO REPRESENT THE CITY IN THE CASE ENTITLED LANDMARK AMERICAN
3 INSURANCE COMPANY R CITY OF SAN BERNARDINO,SAN BERNARDINO
SUPERIOR COURT CASE NO. CIVDS 1015159.
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a meeting
7 thereof, held on the day of , 2010, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ
10 DESJARDINS
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17
Rachel G. Clark, City Clerk
18
19 The foregoing Resolution is hereby approved this day of
2010.
20
21
22 PATRICK J. MORRIS, Mayor
City of San Bernardino
23
Approved as to form:
24
25 '
By; /"s.
26 f JAMES F. PENMA
City Attorney
27
28 CAD'ocuments and Setdngs\dmlynmkiUacal Settings\Temporary Internet Files\Content.Outlook\QR6HQ6AOV.andm kCOUNCIL Resolutionre
PSA Garthempd
2
1 PROFESSIONAL SERVICES AGREEMENT
C2 Landmark American Insurance Company, an Oklahoma Corporation
v. City of San Bernardino
3 SAN BERNARDINO SUPERIOR COURT CASE NO.: CIVDS 1015159
4
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5
BOORNAZIAN, JENSEN&GARTHE(hereinafter `BJ&G") are the parties to this Agreement.
6
2. BJ&G will be representing the following entities and persons in this litigation: CITY
7
OF SAN BERNARDINO. BJ&G shall not represent any client in any type of claim against the
8
CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
9
City Attorney's Office.
10
3. BJ&G shall be paid at the hourly rates set forth below:
11
Attorneys - $225.00 per hour; and,
12
Law Clerks/Paralegals - $75.00 per hour.
13
The amounts expended under this agreement for attorneys fees shall not exceed
14
$25,000 without further approval of the Mayor and Common Council.
/S
4. Bills shall be submitted at least on a monthly basis and no later than the 5'° day of
16
each succeeding month.
17
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19
BJ&G may include a single charge in an amount not to exceed four percent(4%) of fees in lieu of
20
reimbursement for photocopying, telephone charges, and postage.
21
6. If attorney's fees are charged"portal to portal"(e.g.,from office to court and return),
22
then BJ&G shall not be entitled to reimbursement for mileage and parking fees.
23
7. BJ&G shall obtain approval from the CITY to retain expert consultants and other
24
professionals (not including court reporters)for purposes of defending the litigation.BJ&G may,if
25
it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on its
26
periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY pay
27
it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance
18
F:\DMICHELEUandmark\andm k.COUNCIL-PSA Oarthe.wpd
Exhibit "A"
I Department.
2 8. Status reports will be submittedto CITY through the CityAttomey's Office whenever
3 any significant event occurs, and in any event at least quarterly. Information sufficient to set
4 reserves,including,without limitation,potential liability exposure and percentage of fault shall be
5 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 litigation.
9 10. Copies of any correspondence and other documents sent to any of the defendants in
10 this 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. In the event the settlement value of this case appears to exceed$50,000.00 the City
14 Attorney's Office shall be notified immediately.
.5 13. Only David J. Garthe of BOORNAZIAN, JENSEN & GARTHE or other senior
16 attorney approved by the City shall try this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
21 17. Either party may terminate this contract at will. BJ&G will continue to represent the
22 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
23 attorney.
24 18. BJ&G is an independent contractor as to the CITY.
25 19. BJ&G shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of California,
27 including Employment Liability with$250,000 limits covering all persons provi di n L
?8 service on behalf of BJ&G and all risks to such persons under this Agreement.
F:\DIMICHELE\Landm k\and=k.COUNCIL-PSA Garthe.wpd
1 BJ&G shall require its Workers Compensation carrier to waive all rights of
2 subrogation against the CITY and its officers and employees and any others for
3 whom services are being provided under this Agreement.
4 b) Comprehensive General and Automobile Liability Insurance coverage to
5 include contractual coverage and automobile coverage for owned, hired and non-
6 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
7 for bodily injury and property damage.
8 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
9 In lieu of naming the CITY as an additional insured,the policy may be endorsed as
10 follows:
I 1 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
12 CITY OF SAN BERNARDINO for legal defense services,provided
such liability results from an error, omission or negligent act of the
13 insured, its officers,employees, agents, or subcontractors. All other
provisions of this policy are to remain unchanged."
14
15 BJ&G shall furnish certificates of insurance and certified copies of all policies and
16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
17 to the commencement of performance of services hereunder, which certificates shall provide that
18 such insurance shall not be terminated or expire without thirty(30)days written notice to the City
19 Attorney's Office,and shall maintain such insurance from the time BJ&G commences performance
20 of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26
27
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!fir/ F:\DMICHELEUAnd=rk\Lndmazk.COUNCIL-PSA Garthe.wpd
I All policies required above are to be primary and non-contributing with any insurance or self-
2 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:
5 City Attorney's Office
CTFY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino,CA 92418
7
8 Dated: 2010 BOORNAZIAN,JENSEN&GARTHE
9
10
By: David J. Garthe
11
12
13 Dated: 2010 CITY OF SAN BERNARDINO
14
.5
By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
23
24
25
26
27
,)8
F.,OMICHELEV.and=k\andm k.COUNCn.-PSA Garthempd
I PROFESSIONAL SERVICES AGREEMENT
C2 Landmark American Insurance Company, an Oklahoma Corporation
v. City of San Bernardino
3 SAN BERNARDINO SUPERIOR COURT CASE NO.: CIVDS 1015159
4
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5
BOORNAZIAN, JENSEN & GARTHE (hereinafter"BJ&G") are the parties to this Agreement.
6
2. BJ&G will be representing the following entities and persons in this litigation: CITY
7
OF SAN BERNARDINO. BJ&G shall not represent any client in any type of claim against the
8
CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
9
City Attorney's Office.
10
3. BJ&G shall be paid at the hourly rates set forth below:
11
Attorneys - $225.00 per hour; and,
12
Law Clerks/Paralegals - $75.00 per hour.
13
The amounts expended under this agreement for attorneys fees shall not exceed
14
$25,000 without further approval of the Mayor and Common Council.
15
4. Bills shall be submitted at least on a monthly basis and no later than the 5`s day of
16
each succeeding month.
17
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
18
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
19
BJ&G may include a single charge in an amount not to exceed four percent (4%) of fees in lieu of
20
reimbursement for photocopying, telephone charges, and postage.
21
6. If attorney's fees are charged"portal to portal"(e.g.,from office to court and return),
22
then BJ&G shall not be entitled to reimbursement for mileage and parking fees.
23
7. BJ&G shall obtain approval from the CITY to retain expert consultants and other
24
professionals(not including court reporters)for purposes of defending the litigation.BJ&G may, if
25
it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on its
26
periodic statement,or it may forward the consultant's bill to CITY with a request that the CITY pay
27
it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S Finance
�8
F:1d)QdICHELEVandmark\landm k.COUPICIL-PSA Garthempd
I Department.
2 8. Status reports will be submitted to CITY through the City Attorney's Office whenever
3 any significant event occurs, and in any event at least quarterly. Information sufficient to set
4 reserves, including, without limitation,potential liability exposure and percentage of fault shall be
5 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 litigation.
9 10. Copies of any correspondence and other documents sent to any of the defendants in
10 this 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. In the event the settlement value of this case appears to exceed$50,000.00 the City
14 Attorney's Office shall be notified immediately.
t 5 13. Only David J. Garthe of BOORNAZIAN, JENSEN & GARTHE or other senior
16 attorney approved by the City shall try this case.
17 14. No client development costs are to be included in billings.
18 15. No continuing education expenses are to be included in billings.
19 16. Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment,Release and any other final documents.
21 17. Either party may terminate this contract at will. BJ&G will continue to represent the
22 CITY on the terms and conditions in this Agreement until the case and file are transferred to another
23 attorney.
24 18. BJ&G is an independent contractor as to the CITY.
25 19. BJ&G shall maintain the following types of insurance with limits as shown:
26 a) Workers Compensation as required by the laws of the State of California,
27 including Employment Liability with$250,000 limits covering all persons providing
?8 service on behalf of BJ&G and all risks to such persons under this Agreement.
F:\DIMICHELE\andm kUand=k.COUNCR.-PSA Garthe.wpd
I BJ&G shall require its Workers Compensation carrier to waive all rights of
2 subrogation against the CITY and its officers and employees and any others for
3 whom services are being provided under this Agreement.
4 b) Comprehensive General and Automobile Liability Insurance coverage to
5 include contractual coverage and automobile coverage for owned, hired and non-
6 owned vehicles. The policy shall have at least a combined single limit of$1,000,000
7 for bodily injury and property damage.
8 c) Professional Liability Insurance with limits of at least$1,000,000 per claim.
9 In lieu of naming the CITY as an additional insured, the policy may be endorsed as
10 follows:
11 "Insurance coverage afforded by this policy shall also apply
to the liability assumed by the Insured under the Agreement with the
12 CITY OF SAN BERNARDINO for legal defense services,provided
such liability results from an error, omission or negligent act of the
13 insured,its officers,employees, agents,or subcontractors. All other
provisions of this policy are to remain unchanged."
14
15 BJ&G shall furnish certificates of insurance and certified copies of all policies and
16 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
17 to the commencement of performance of services hereunder, which certificates shall provide that
18 such insurance shall not be terminated or expire without thirty(30) days written notice to the City
19 Attorney's Office,and shall maintain such insurance from the time BJ&G commences performance
20 of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage,if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26 ///
27 ///
?8 ///
F:UAMICHELEUandmarkUandmark.COUNCIL-PSA Garthe.wpd
I All policies required above are to be primary and non-contributing with any insurance or self
-
'�- 2 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:
5 City Attorney's Office
CTFY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: 2010 BOORNAZIAN,JENSEN &GARTHE
9
10
By: David J. Garthe
11
12
13 Dated: 2010 CITY OF SAN BERNARDINO
14
15
By: Patrick J. Morris, Mayor
16
17
is
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney „
�,.
22 By � L';.
23
24
25
26
27
,8
F:\DIMICHELE\L ndm k\Undm k.000NCIL-PSA Garthempd