HomeMy WebLinkAbout08-City Attorney
e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: 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 IN THE
CASE OF EVA WALKER v. CITY OF SAN
BERNARD/NO, et al.
Dept: CITY ATTORNEY
Date: September 5. 2007
MCC MEETING: September 17, 2007
Synopsis of Previous Council Action:
09/04107 -
Mayor and Common Council authorized the retention of Brunick, McElhaney & Beckett to
represent the City of San Bernardino and Lionel J. Nash in the subject court action.
Recommended motion:
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Adopt Resolution.
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Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff ReDort
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.J
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TO:
FROM:
DATE:
AGENDA ITEM:
STAFF REPORT
Council Meeting Date: Seotember 17. 2007
Mayor and Common Council
James F. Penman, City Attorney
September 5, 2007
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 Lionel J. Nash in the case of Eva Walker v. City
of San Bernardino, et al.
On September 4, 2007, the Mayor and Common Council authorized the hiring of Brunick,
McElhaney & Beckett to represent the City and Lionel 1. Nash in the subject court action. 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 floor motion be adopted so that the City Manager
is authorized to execute said Professional Services Agreement on behalf of the City of San
Bernardino.
Attachment
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN BRUNICK,McELHANEY & BECKETT AND THE
CITY OF SAN BERNARDINO IN THE CASE OF EVA WALKER v. CITY OF SAN
4 BERNARDINO, et al.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and
8 directed to execute on behalf of said City a Professional Services Agreement between Brunick,
9 McElhaney & Beckett and the City of San Bernardino for legal services, a copy of which is attached
10 hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length.
II SECTION 2. The authorization granted hereunder shall expire and be void and of no further
12 effect if the agreement is not executed by both parties and returned to the Office of the City Clerk
13 within sixty (60) days following the effective date of the resolution.
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28 III
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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 IN THE CASE OF EVA WALKER v. CITY OF SAN
3 BERNARDINO, et al.
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
6 on the day of ,2007, by the following vote, to wit:
7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
8 ESTRADA
9 BAXTER
10 BRINKER
11 DERRY
12 KELLEY
13 JOHNSON
14 MCCAMMACK
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CITY CLERK
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The foregoing Resolution is hereby approved this _ day of
,2007.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
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PROFESSIONAL SERVICES AGREEMENT
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Eva Walker v. City of San Bernardino, Lionel J. Nash, et al.
San Bernardino Superior Court Case No. CIVSS703417
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
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BRUNICK, McELHANEY & BECKETT (hereinafter "BMB") are the parties to this Agreement.
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2. BMB will be representing the following entities in this litigation: CITY OF
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SAN BERNARDINO and UONEL J. NASH. BMB shall not represent any client in any type of
claim against the CITY without prior written approval to do so from the CITY OF SAN
BERNARDINO through the City Attorney's Office.
3. BMB shall be paid at the hourly rates set forth below:
Attorneys - $145.00 per hour; and,
Law Clerks/ParaIegals - $70.00 per hour.
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The amounts expended under this agreement for attorney's 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 on a monthly basis and no later than the 5th day of
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each succeeding month.
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5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
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mi leage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
BMB 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), then BMB shall not be entitled to reimbursement for mileage and parking fees.
7. BMB shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. BMB may,
if it chooses, pay the fees and charges 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
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pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office
whenever any significant event occurs, and in any event at least quarterly. Information sufficient
to set reserves, including, without limitation, potential liability exposure and percentage of fault
shall be included.
9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
in this, or other litigation.
10. Copies of any correspondence and other documents sent to any of the defendants
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 ofthe case appears to exceed $50,000, the City
Attorney's Office shall be notified immediately.
13. Only Raymond F. Dolen of BRUNICK, MCELHANEY & BECKETT or other
senior attorney approved by the CITY shall try 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 contract at will. BMB 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. BMB is an independent contractor as to the CITY.
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19.
BMB 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
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persons providing service on behalf of BMB and all risks to such persons under
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this Agreement. BMB 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.
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b)
Comprehensive General and Automobile Liability Insurance
coverage to include contractual coverage and automobile coverage for owned,
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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 Insurance with limits of at least $1 ,000,000
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per claim. In lieu of naming the CITY as an additional insured, the policy may
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 Agreement with the CITY OF SAN
BERNARDINO for legal 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."
18 BMB shall furnish certificates of insurance and certified copies of all policies and
19 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
20 to the commencement of performance of services hereunder, which certificates shall provide that
21 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
22 Attorney's Office, and shall maintain such insurance from the time BMB commences performance
23 of services hereunder until the completion of such services.
24 All policies, with respect to the insurance coverage above required, except for the
25 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
26 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
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their employees, agents, volunteers and officers as additional named insured with respect to
28 liabilities arising out of the performance of services hereunder.
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All policies required above are to be primary and non-contributing with any
insurance or self-insurance programs carried or administered by the CITY or other parties
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3 represented under this Agreement.
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20.
All communications and billings to the CITY are to be directed as follows:
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City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
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DATED:
BRUNICK, MCELHANEY & BECKETT
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By: Raymond F. Dolen
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DATED:
CITY OF SAN BERNARDINO
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By: Fred Wilson, City Manager
18 Approved as to form:
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19 JAMES F. PENMAN,
City Attorney
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