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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Date: January 11,2006
Subject: Professional Services Agreement between the
City of San Bernardino and the law firm of AriasAaen
to represent the City of San Bernardino in the case of
Frank Ingram, Ill, Felicia Stansbury v. City of San
Bernardino, Chief Garrett Zimmon, Sergeant Baker,
Officer Dave Green, et at. United States District Court
Case No. EDCV 05-00925 V AP (SGLx)
From: JAMES F. PENMAN
City Attorney
Dept: CITY ATTORNEY
Synopsis of Previous Council Action:
Mayor and Council approved the hiring of AriasAaen to represent the City in the subject court action.
Recommended motion:
Adopt Resolution.
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Signature
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Reoort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: ,j.()O~- (~
Agenda Item No.~
1/)3/041
STAFF REPORT
Council Meeting Date: Januarv 23. 2006
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: January 11, 2006
A GENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Arias Aaen to represent the City of San Bernardino in the case of
Frank Ingram, Ill, Felicia Stansbury v. City of San Bernardino, Chief Garrett
Zimmon, Sergeant Baker, OffICer Dave Green, et aL - United States District
Court Case No. EDCV 05-00925 V AP (SGLx)
The Mayor and Common Council approved the law firm of AriasAaen to represent the City
in the above-referenced court action. Attached hereto is the Professional Services Agreement which
reflects such approval, including a ceiling of $25,000 on attorney fees and associated litigation
expenses and the requirement of regular status reports.
It is requested by the City Attorney that the floor motion be adopted so that the Mayor is
authorized to execute said Professional Services Agreement on behalf of the City of San Bernardino.
That the Mayor of the City of San Bernardino is hereby authorized and directed to execute
on behalf of the City of San Bernardino the Professional Services Agreement with the law firm of
AriasAaen to represent the City in the case of Frank Ingram, Ill. Felicia Stansbury v. City of San
Bernardino, Chief Garrett Zimmon, Sergeant Baker, Officer Dave Green, et al. - United States District Court
Case No. EDCV 05-00925 V AP (SGLx)
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RESOLUTION NO. t (Q) lP 1f'
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN ARIASAAEN AND THE CITY OF SAN
BERNARDINO TO REPRESENT THE CITY IN THE CASE OF Frank Ingram, Ill, Feticia
Stansbury v. City of San Bernardino, Chief Garrett Zim1110n, Sergeant Baker, Officer Dave
Green, et al. - United States District Court Case No. EDCV 05-00925 V AP (SGLx)
BE IT RESOLVED BY THE MA YOR AND COMMON COUNCIL OF THE CITY
OF SAN BERc'\lARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
to execute on behalf of said City a Professional Services Agreement between AriasAaen and the
City of San Bernardino for legal services, a copy of which is attached hereto marked Exhibit" A"
and incorporated herein by reference as fully as though set forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
further effect if the agreement is not executed by both parties and returned to the office of City
Clerk within sixty (60) days following effective date of the resolution.
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RESOLUTION OF THE !\fA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
7 SERVICES AGREEMENT BETWEEN ARIASAAEN AND THE CITY OF SAN
BER.1\'ARDINO TO REPRESENT THE CITY IN THE CASE OF Frank Ingram, III. Feticia
3 Stansbury v. City of San Bernardino, Chief Garrett Zimmon, Sergeant Baker, Officer Dave
Green, et at. - United States District Court Case No. EDCV 05-00925 YAP (SGLx)
4
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
meeting
,2006, by the following vote, to wit:
ABSTAIN ABSENT
CITY CLERK
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The foregoing Resolution is hereby approved this
day of
,2006.
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JUDITH V ALLES, Mayor
City of San Bernardino
23 Approved as to form and
legal content:
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JAMES F. PENMAN,
2S City Attorney
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PROFESSIO"iAL SERVICES AGREE\1E"\T
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frank Illf(ram, Ill, et at... City of Sail Bernardino, et at.
United States District Court Case No. CV 05-00925VAI,\SGLx)
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] The CITY OF SAN BERNARDINO (heremafter "CITY") and the law firm of
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ARIAS AAEN (hereinafter "Ai'.") arc thc pal11es to thJS Agreement
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2. AA will be rcpresentJng the follo'.vmg entities and persons In this litJgatJon: CITY
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OF SAN BERNARDINO, CHIEF GARRETT ZIMMON, SERGEANT BAKER and OFFICER
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DA VE GREEN. AA shall not reprcsent any clicnt in any type of clalIn against the CITY Without
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pnor wntten approval to do so from the CITY OF SAN BERNARDINO through the Clly
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Attorney's OffIce.
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3 AA shall be paid at the hourly rates set forth below:
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AttOlllC)'S - $135.00 per hour; and.
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Law Clcrks/Paraiegals - $60.00 per hour.
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The amounts expcnded undcr this agrcement fnr attorneys fees shall not exceed
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$25,000 WJthout fuI1her approval of the Mayor and Common CouncJl.
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4. Bills shall be submitted at Icast quarterl)'.
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5. The IlL'tual cost for filmg fees, telephonc charges, phOlocopymg, pOStllge, lodgmg,
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mJleage and related ira\cl costs shall bc ItemIzed when submitted to the CITY for reImbursement
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:\r\ may includc a smgle charge in an amount not to exceed four percent (4%) of fees In Iteu of
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reimbursement for photocopYIng, tclephone charges, and postage.
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6. If attorney's fees are charged "portal to pOI1al" (e.g., from office to couI1 and
retulll), thenAA shall not be entItled to reimbursement for mJleage and parking fees.
7. AA shall obtaIn approval from the CITY to retam expert consultants and other
professionals (not includmg couI1 repoI1ers) for purposes of dcfending the litigatIon AA may, if
It chooses, pay the fees and charges of such consultants and seck reimbursement from CITY on its
periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
It directly. Consultants shall not bill the CITY dJrectly WIthout pllor approval of the CITY'S
finance DepaI1rncnt.
RLS/Js [lngralll\Ingri:lrll ['rfSvcsAgr]
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Exhibit "A"
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Status repons II ill bc submitted to CITY through the City Attorney's OffJce
2 II heneler any "ignll]c3J1t evcnt occurs, and In any elent at least quarterly. Informat10n suff,c]ent
3 to set reserves. inclodlng, II ]thout IllnJtat10n. potentJaI habi]ity exposure and pcrcentage of fault
4 shall be Included,
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Copies of all opinions, pleadings, discovery and motions shall be provided to the
6 City Attorncy's OffIce which may rcproduce same and provide copics to other parties or attorneys
7 1n tillS, Dr other ]itJgat10n,
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10.
Copies of any corrcspondence and other documents sent to any of the defendants
9 in th,S action shall also be provided to the CITY through the City Attorney's Office.
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Any and all settlements shal] require CITY approval. Request for settlement
11 authonty shall he made through the City Attorney's Off1ce which shall obtain the ncccssary CITY
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12 approvals.
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In the event the settlement value of the case appcars to exceed $50,000. the City
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,\ttollley's Off1ce shall be notlf1cd ]mmediately.
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Only Joseph Anas of ARIAS AAEN or othcr senior attorney approved by the
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No chent dcvelopment costs are to be included in bilhngs.
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1\0 continUing educat10n expcn:;cs are to be 1ncluded in billings.
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Final billing shall be accompamcd by copies of the Request for Dismissal,
20 Sat1sfaction of Judgment, Release and any other final documents.
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17.
Either party may terrnlllate this contract at W]]1. AA will continue to rcprcsent the
22 CITY on the terms and cond1t10ns in thiS Agreemcnt until the case and file are transfen'ed to
23 anothcr attorney.
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18.
AA is an independcnt contractor as to the CITY.
AA shall maintain the followlI1g types of insurance with limits as shown:
a)
Workers Compensation as reqUired by the laws of the State of
Ca]J!'omia, includlIlg Employment L]abtlity with $250,000 I1mJts covering all
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Exhibit "A"
persons prO\ldlng senlce on behalf of AA and all nsks to such persons under
this Agreement. AA shall requlle Its Workers CompensatIon carner to waive all
nghts of subrogation agmnst the CITY and ItS officers and employees and any
others for whom services are being provided under thiS Agreement.
b) ComprehenSive General and Automobrle Liability Insurance
coverage to include contractual coverage and automobrle coverage for owned,
hired and non-owned vehicles. The polrcy shall have at least a combIncd SIngle
limit of SI ,000,000 for bodrly injury and property damage.
c) ProfeSSional Liabrllty Insurance with lrmits of at least S1.000,000
per claIm. In lreu of naming the CITY as an addil1onalmsurcd, the polrcy may
be endorsed as follows:
"Insurance co\erage afforded by thiS policy shall also apply to the
liabrlity assumed by the Insured under the Agreement with the CITY OF SAN
BERNARDINO for legal defense serVices, provided such lrabrllty results from
an error, omisSion or negligent act of the insured, Its officers. employees, agents
or subcontractors. All othcr proVIsIons of this polrcy are to remain unchanged."
AA shall furnish certificates of insurance and certified copies of all polrcles and
endorsemcnts to the City Attorney's Office evidencing the insurance coverage above requll'ed pnor
to the commcncement of performance of serVIces hereunder, which cel1ificates shall provide that
such msurancc shall not be terminated or expne without thirty (30) days wntten notice to the City
Attorney's Office, and shall mJlIltam such insurance from the time AA commences performance
of senlces hereunder untrl the completion of such services,
All poliCIes, with respect to the msurance coveragc above required, exccpt for the
Workers Compcnsation insurance coverage and professional liability coverage, If applicable, shall
obtain additIonal endorsements naming the CITY and all partIes representcd under this Agreement,
their employees, agents, volunteers and offIcers as additional named insured with respect to
Iiahilities ansing out of the perfonnance of services hereunder.
All policies required above are to be pnmary and non-contributing with any
1I1surance or self-lI1surance programs carned or admlI11stered by the CITY or other parties
RLS,'J' ;lngr.nn\lngr3rTI PrfSlcs.Ab'Tj
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Exhibit "A"
representcd undcr thIS Agreement.
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20.
All commul1lcations and bIllIngs to thc CITY are t( be dlrccted as follows:
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DATED
.2006
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DA TED __~, 2006
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21 Approved as to form and
legal content:
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JAMES F PEf'\MAN,
23 CIty Attomey
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25 By:
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City AttOl1','y'S OffIcc
CITY OF SAN BERNARDINO
300 NOl1h "0' Street
San Bernardino, CA 92418
ARIAS AAEN
By: Joseph Anas
CITY OF SAN BERNARDL\;O
By: Judith Valles, ".LrYDr
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PROFESSIONAL SERVICES AGREEMENT
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Frank Ingram, Ill, et all'. City of San Bernardino, et at.
United States District Court Case No. CV 05-00925V AP(SGLx)
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1. The CITY OF SAN BERNARDLNO (hereinafter "CITY") and the law firm of
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ARIAS AAE;\f (hcreinaftcr "AA") are the parties to this Agreemcnt.
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AA will be representing the following entities and persons in this litrgatlOn: CITY
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OF SAN BERNARDINO, CHIEF GARRETT ZIMMON, SERGEANT BAKER and OFFICER
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DA VE GREEN. AA shall not represent any client in any type of claim against the CITY without
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prior written approval to do so from the CITY OF SAN BERNARDINO through the City
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Attorney's Office.
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3. AA shall be paid at the hourly rates set forth below:
Attorneys - $135.00 per hour; and,
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Law Clerks/Paralegals - $60.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
$25,000 without further approval of the Mayor and Common Council.
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4. Bills shall be submitted at least quarterly.
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5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
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mIleage and related travel costs shall be itemized vvhen submitted to the CITY for reimbursement.
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AA may include a single charge in an amount not to exceed four percent \4%) of fees in lieu of
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reimbursement for photocopying, telephone charges, and postage.
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
return), thenAA shall not be entitled to reimbursement for mileage and parking fees.
7. AA shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. AA may, if
it chooses, pay the fees and chargcs of such consultants and seek reimbursement from CITY on its
periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY pay
it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
Finance Department.
RLS/Js ! Illgram\lllgram.PrfSvcsAgr ]
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8.
Status repoI1s will be submitted to CITY through the City Attorney's Office
2 whenever any sigmficant event occurs, and in any event at least qualterly. Information sufficient
3 to set resenes, including, without limitation, potential liability exposure and percentage of fault
4 shall be included.
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9.
Copies of all opinions, pleadings, discovery and mol1ons shall be provided to the
6 City Attorney's Office which may reproduce same and provide copies to other paI1ies or attorneys
7 in this, or other litigation.
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10.
Copies of any correspondence and other documents sent to any of the defendants
9 in this action shall also be provided to the CITY through the City Attorney's Office.
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Any and all settlements shall require CITY approval. Request for settlement
11 authonty shall be made through the City Attorney's Office which shall obtain the nccessary CITY
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12 approvals.
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In the event the scttlement value of the case appears to exceed $50,000, the City
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Attorney's Office shall be notified immediately.
13.
Only Joseph Arias of ARIAS AAEN or othcr senior attorney approved by the
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16 CITY shall try this case.
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No client development costs are to be included in billings.
IS.
No continuing education expenses arc to be included in billings.
16.
Final billing shall be accompanied by copies of the Request for Dismissal,
20 Satisfaction of Judgment, Release and any other final documents.
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17.
Either paI1y mayterminate this contract at will. AA will continue to represent the
22 CITY on the terms and conditions in this Agreement until the case and file are transferred to
23 another attomey.
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18.
AA is an independent contractor as to the CITY.
19.
AA shall maintain the following types of insurance with limits as shown:
a)
Workers Compensation as required by the laws of the Slate of
California, including Employment Liability with $250,000 limits covering all
RLS/Js [lngrarn\lngram.PrfSvcsAgrl
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persons providing scrvice on behalf of AA and all risks to such persons under
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this Agreement. AA shall require its Workers Compensation carrier to waive all
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lights of subrogation against the CITY and its officers and employees and any
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others for whom services are being provided under this Agreement.
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b)
Comprehensive General and Automobile Liability Insurance
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covcrage to includc contractual coverage and automobile coverage for owncd,
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hired and non-owned vehicles. The policy shall have at least a combined single
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limit of $1,000,000 for bodily injury and property damage.
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c)
Professional Liability Insurancc with limits of at least $1 ,000,000
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pcr claim. In licu of naming the CITY as an addItional insured, the policy may
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be endorsed as follows:
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"Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreemcnt with the CITY OF SAN
BERNARDINO for lcgal defense 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."
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15 AA shall furnish certificates of insurance and certified copies of all policies and
16 endorsemcnts to the City Attomey's Office evidencing the insurance coverage above required prior
17 to the commencement of perfonnance of services hereunder, which certificates shall provide that
18 such insurance shall not be termmated or expire without lhil1y (30) days written notice to thc City
19 Attomey's OffIce, and shall maintam such insurance from the time AA commences pcrformance
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 All policies required above are to be primary and non-contributing with any
27 Insurance or self-insurance programs carried or administered by the CITY or other parties
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represented under this Agrecment.
20. All communications and billings to the CITY are to be dirccted as follows:
DATED:
,2006
DATED:
.2006
Approved as to form and
legal content:
JAMES F PENMAN,
City Attoll1ey
City Attoll1ey's Office
CITY OF SAN BERNARDINO
300 North "D" Strect
San Bell1ardino, CA 92418
ARIAS AAEN
By: Joseph Anas
CITY OF SAN BERNARDINO
By: Judith Valles, Mayor
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RLS/js [lngram\lngfam PrfSvcsAgrj
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): V 171 00
Vote: AyeS~ Nays
Change to motion to amend original documents 0
Item # ~
Abstain
~
JtJtJb~r J
NulVVoid After: days /
Resolution # On Attachments: 0
PUBLISH 0
POST 0
Resolution #
Absent
Companion Resolutions
Note on Resolution of attachment stored separately: 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor: , ' }t{ , e ~
Date of Mayor's Signature: \-- ~-, Db
Date ofClerk/CDC Signature: Jr')(- ch
Reso. Log Updated: (
Seal Impressed: ~ ~
Reso. # on Staff Report 6
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Date Returned:
20d Reminder Letter Sent:
Not Returned: 0
,//
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413. 6429, 6433,10584,10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
Animal Control
o
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rn-1y)
o
Development Services 0
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City Administrator
City Attorney
Code Compliance
Others:
Notes:
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Ready to File: ~
Date:
Revised 12/18/03
Yes
No By
NO~BY=
No_ By_
No L yY:
NoLBy_
Yes
Yes
Yes
Yes
EDA 0 Information Services 0
Facilities ~. Parks & Recreation 0
Finance Police Department 0
Fire Department 0 Public Services 0
Human Resources 0 Water Department 0
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
January 26,2006
TO:
Robert Simmons, Senior Assistant City Attorney
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution Nos. 2006-15
At the Mayor and Common Council meeting of January 23, 1006, the City of San Bernardino
adopted Resolution No. 2006-15 - Resolution authorizing and the execution of a Professional
Services Agreement between Ariasaaen and the City of San Bernardino to represent the City in
the case of Frank Ingram, IlL Felicia Stansbury v. City of San Bernardino, Chief Garrett
Zimmon, Sergeant Baker, Officer Dave Green, et al., - United States District Court Case No.
EDCV 05-00925 V AP (SGLx).
Attached are one (1) original Professional Services Agreement and two (2) duplicate agreements
to be executed by Joseph Arias. Please obtain signatures in the appropriate locations and return
the ORIGINAL agreement to the City Clerk's Office as soon as possible, to my attention.
Please keep the other two (2) fully executed copies for your records and for the other party.
Please be advised that the resolution and contract will be null and void if not executed
within sixty (60) days, or by March 23, 2006.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Eileen Gomez
Senior Secretary
ipt of the above mentioned documents.
Signed:
Date:
l(17(OI..
Please sign and return
~"'Ol"
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INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
TO:
Eileen Gomez, Sr. Secretary
City Clerk's Office
FROM:
Josie Soria
Legal Secretary
DATE:
February 6, 2006
RE:
Frank Ingram, III, et al. v. City of San Bernardino, et al. - Resolution No.
Attached is the original Agreement between the City of San Bernardino and the law firm
of AriasAaen in the above-referenced matter.
Attachment
RLS/js{lngram.Gomez.Mem]
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