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ORiGiNAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Date: June 22, 2009
Subject: Resolution oftbe Mayor and Common Council
Autborizing tbe Execution of a Professional Services
Agreement witb Arias & Lockwood and tbe City of San
Bernardino for Legal Services in tbe Case of Mekione
Samatua, et al. v. City of San Bernardino, et al. (TORT
CLAIM)
From: JAMES F. PENMAN
City Attorney
Dept: CITY ATTORNEY
Synopsis of Previous Council Action:
June 15,2009 - Mayor and Common Counsel approved tbe retention ofthe law firm of Arias & Lockwood to
represent tbe City of San Bernardino and individual defendants in tbe Tort Claim ofMekione Samatua, et al.
v. City of San Bernardino, et al.
Recommended motion:
Adopt resolution.
Contact person: James F. Penman
?~
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Peso ~() 9- /dt)
Agenda Item No.-1D
1-(,-ott
F:\ROTH\Outsidc counsel\2009 Outside Counsel\Samatua, ct a1. v. City\Samatua.RCAwpd
STAFF REPORT
Council Meeting Date: July 6, 2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
June 22, 2009
Resolution of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement Between Arias
& Lockwood and the City of San Bernardino for Legal Services in the Case of
Mekione Samatua, et al. v. City of San Bernardino, et al. (Government Claim)
On June 15,2009, the Mayor and Common Council approved the retention of the law firm
of Arias & Lockwood to represent the City of San Bernardino and all named City employees in the
tort claim ofMekione Samatua, et a!.
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of$25,000.00 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\Outsidc counse]\2009 Outside Counsel\Samatua, et al. v, City\Samatua.StaffReport.wpd
(C(Q)(PY
1
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT WITH ARIAS & LOCKWOOD FOR LEGAL SERVICES IN
THE CLAIM OF MEKlONE SAMATUA, ET AL.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
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OF SAN BERNARDINO 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 Arias & Lockwood and the
City of San Bernardino for legal services in the Claim ofMekione Samatua, et ai, a copy of which is
attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth
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at length.
SECTION 2. The authorization granted by this Resolution 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 the City
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Clerk within sixty (60) days following the effective date of this Resolution.
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F:\ROTH\Outside counsel\2009 Outside Counsel\Samatua, et al. v. City\Samatua.Resolution,wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN ARIAS & LOCKWOOD AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE ClAIM OF MEKIONE SAMATUA, ET
3 AL
4
5
6
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof, held
,2009, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
Rachel G. Clark, City Clerk
19
20
21
22
The foregoing Resolution is hereby approved this _ day of June, 2009.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to Form:
23
JAMES F. PENMAN,
24 City Attorney
25
By:
26
27
28
F:\ROTH\Outside counsel\2009 Outside Counsel\Samatua, et al. v. City\Samatua.Resolution.wpd
Exhibit "A"
I
2
3
PROFESSIONAL SERVICES AGREEMENT
MEKIONE SAMATUA, ET AL. v. CITY OF SAN BERNARDINO, et at.
(TORT CLAIM)
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
6
2.
A&L will represent the following entities and persons with respect to the Government
7 Claim ofMEKlONE SAMATUA, ET AL. v. CITY OF SAN BERNARDINO and any designated
8 officer or employee of the CITY who may be named as a defendant. A&L shall not represent any
9 client in any type of claim against the CITY without prior written approval to do so from the CITY
10 OF SAN BERNARDINO through the City Attorney's Office.
11
3.
A&L 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 $25,000 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 5th 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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
21 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
25 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
F:\ROTH\Outside counsel\2009 Outside Counsel\Samatua, et a!. v. City!;~matua.PTOfServiceSAgr.WPd
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Finance Department.
8. Status reports will be submitted to the 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 offault, shall
be included.
9. Copies of any correspondence and other documents sent to any of the parties in this
action shall also be provided to the CITY through the City Attorney's Office.
10. Copies of all opinions shall be provided to the CITY through the City Attorney's
Office.
1 ~ 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 of this case appears to exceed $50,000.00 the City
Attorney's Office shall be notified immediately.
13. Only Joseph Arias of A&L shall perform the legal work hereunder.
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 partymay terminate this Agreement at will. A&L 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. A&L is an independent contractor as to the CITY.
19. A&L 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 persons providing
service on behalf of A&L and all risks to such persons under this Agreement. A&L
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
F:\ROTH\Outside counsel\2009 Outside Counse]\Samatua, et al. v. City2;amatua.ProfService.<:AQTv.'Tlrl
I
2
are being provided under this Agreement.
b)
Comprehensive General and Automobile Liability Insurance coverage to
3
4
include contractual coverage and automobile coverage for owned, hired and non-
owned vehicles. The policy shall have at least a combined single limit of$1 ,000,000
for bodily injury and property damage.
5
6
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
7
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
8
follows:
9
"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 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."
10
11
12
13 A&L shall furnish certificates of insurance and certified copies of all policies and
14 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
IS to the commencement of performance of services hereunder, which certificates shall provide that
16 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
17 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
18 of services hereunder until the completion of such services.
19 All policies, with respect to the insurance coverage above required, except for the
20 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
21 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
22 their employees, agents, volunteers and officers as additional named insured with respect to
23 liabilities arising out of the performance of services hereunder.
24 All policies required above are to be primary and non-contributing with any insurance
25 policies or self-insurance programs carried or administered by the CITY or other parties represented
26 under this Agreement.
27 III
28 III
F:\ROTH\Outside cQunsel\2009 Outside Counsel\Samatua, et aI. v. Cityi,amatua,ProfServicesAgr.wpd
1
2
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5
PROFESSIONAL SERVICES AGREEMENT
MEKIONE SAMA TUA, ET AL. v. CITY OF SAN BERNARDINO, et aL
(TORT CLAIM)
20.
All communications and billings to the CITY are to be directed as follows:
6
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
7
8 Dated: June _,2009
9
10
11
12
13 Dated: June _,2009
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19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22
By:
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ARIAS & LOCKWOOD
By: Joseph Arias
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTIDOutside counsel\2009 Outside Counsel\Samatua, et al. v. Ci~amatua.ProfServicesAgr,WDd
I
PROFESSIONAL SERVICES AGREEMENT
MEKIONE SAMATUA, ET AL. v. CITY OF SAN BERNARDINO, et aL
(TORT CLAIM)
2
3
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of ARIAS
5 & LOCKWOOD (hereinafter "A&L") are the parties to this Agreement.
6
2.
A&L will represent the following entities and persons with respect to the Government
7 Claim ofMEKlONE SAMATUA, ET AL. v. CITY OF SAN BERNARDINO and any designated
8 officer or employee of the CITY who may be named as a defendant. A&L shall not represent any
9 client in any type of claim against the CITY without prior written approval to do so from the CITY
10 OF SAN BERNARDINO through the City Attorney's Office.
11
3.
A&L 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 $25,000 without further approval of the Mayor and Common Council.
16
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
4.
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 A&L may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
21 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 A&L shall not be entitled to reimbursement for mileage and parking fees.
24
7.
A&L shall obtain approval from the CITY to retain expert witnesses, consultants, and
25 other professionals (not including court reporters) for purposes of the litigation. A&L may, if it
26 chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on its
27 periodic statement, or it may forward the consultant's bill to the CITY with a request that the CITY
28 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
F:\ROTH\Outside counsel\2009 Outside CounseJ\Samatua, et a1. v. Cityl;amatua.ProfServicesAgr'''''Pd
1 Finance 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 offault, shall
5 be included.
6 9. Copies of any correspondence and other documents sent to any of the parties in this
7 action shall also be provided to the CITY through the City Attorney's Office.
8 10. Copies of all opinions shall be provided to the CITY through the City Attorney's
9 Office.
10 11. Any and all settlements shall require CITY approval. Request for settlement authority
11 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
12 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
13 Attorney's Office shall be notified immediately.
14 13. Only Joseph Arias of A&L shall perform the legal work hereunder.
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 the Request for Dismissal,
18 Satisfaction of Judgment, Release and any other final documents.
19 17. Either party may terminate this Agreement at will. A&L will continue to represent
20 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
21 another attorney.
22 18. A&L is an independent contractor as to the CITY.
23 19. A&L shall maintain the following types of insurance with limits as shown:
24 a) Workers Compensation as required by the laws of the State of California,
25 including Employment Liability with $250,000 limits covering all persons providing
26 service on behalf of A&L and all risks to such persons under this Agreement. A&L
27 shall require its Workers Compensation carrier to waive all rights of subrogation
28 against the CITY and its officers and employees and any others for whom services
F:\ROTH\Outside couns~t\1009 Outside Counsel\Samatua, et al. v. City2!amatua.ProfServicesAgr.wpd
1
2
are being provided under this Agreement.
b)
Comprehensive General and Automobile Liability Insurance coverage to
3
include contractual coverage and automobile coverage for owned, hired and non-
owned vehicles. The policy shall have at least a combined single limit of$l ,000,000
for bodily injury and property damage.
4
5
6
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
7
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
8
follows:
9
10
11
"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 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."
12
13 A&L shall furnish certificates of insurance and certified copies of all policies and
14 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
15 to the commencement of performance of services hereunder, which certificates shall provide that
16 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
17 Attorney's Office, and shall maintain such insurance from the time A&L commences performance
18 of services hereunder until the completion of such services.
19 All policies, with respect to the insurance coverage above required, except for the
20 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
21 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
22 their employees, agents, volunteers and officers as additional named insured with respect to
23 liabilities arising out of the performance of services hereunder.
24 All policies required above are to be primary and non-contributing with any insurance
25 policies or self-insurance programs carried or administered by the CITY or other parties represented
26 under this Agreement.
27 III
28 III
F:\ROTH\Ou.tside counsel\20Q9 Outside Counsel\Samatua, et at v. City~amatua.ProfServicesAgr.wpd
I
2
3
4
PROFESSIONAL SERVICES AGREEMENT
MEKlONE SAMA TUA, ET AL. v. CITY OF SAN BERNARDINO, et al.
(TORT CLAIM)
20.
All communications and billings to the CITY are to be directed as follows:
5
6
7
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
8 Dated: June _, 2009
9
ARIAS & LOCKWOOD
10
By: Joseph Arias
II
12
13 Dated: June _,2009
14
15
16
17
18
19 Approved as to form:
20
JAMES F. PENMAN,
21 City Attorney
22 /~
23
24
25
26
27
28
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTH\Outside counse]\2009 Outside Counsel\Samatua, et a1. v. Ci~amatua.ProfServicesAgr.wpd