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.CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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From: JAMES F. PENMAN
City Attorney
Subject:
Professional Services Agreement between the City
of San Bernardino and the law firm of Mundell,
Odium, & Haws to represent the City in the case of
Lavon Dwyer v. City of San Bernardino
Dept: CITY ATTORNEY
Date: January 2, 2002
or; " ~l ;' iV','; L
Synopsis of Previous Council Action:
October 15,2001 - Mayor and Council approved the hiring of Mundell, Odium, & Haws to
represent the City in the subject court action (Resolution No. 2001-330).
Recommended motion:
Adopt Resolution which rescinds Resolution No. 2001-330 and previous Professional Services Agreement;
and authorize the Mayor to sign the revised Professional Services Agreement.
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Signature
Contact person: James F. Penman
Phone:
5255
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
Finance:
Council Notes:
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Agenda Item No. S J...
1-7-01-
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STAFF REPORT
Council Meeting Date: January 7. 2002
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
January 2, 2002
Reyised Professional Services Agreement between the City of San
Bernardino and the law firm of Mundell, OdIum, & Haws to represent
the City in the case of Lavan Dwyer, et aL v. City of San Bernardino, et aL
On October 15,2001, the Mayor and Common Council approved the law firm of Mundell,
Odium, & Haws to represent the City in the above-referenced court action (Resolution No. 2001-
330). Attached hereto is a revised Professional Services Agreement which reflects such approval,
including the initial threshold of $20,000.00 and the requirement of regular status reports.
It is requested by the City Attorney that Resolution No. 2001-330 be rescinded, as well as
the previous Professional Services Agreement, as it did not reflect the correct hourly rates. It is
further requested that the floor motion be adopted so that the Mayor is authorized to execute the
revised Professional Services Agreement on behalf of the City of San Bernardino with the law firm
of Mundell, Odium, & Haws to represent the City in the case of Lavan Dwyer, et al. v. City of San
Bernardino, et al.
RLS/ed[dwyer.rpt]
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RESCINDING RESOLUTION NO, 2001-330 AND AUTHORIZING THE EXECUTION
3 OF A REVISED PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM, &
HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF
4 LA VON DWYER, et at. v. CITY OF SAN BERNARDINO, et at.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. Resolution No. 2001-330, and the previous Professional Services
8 Agreement, which was attached as Exhibit "A" thereto, is hereby rescinded.
9 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
10 to execute on behalf of said City a revised Professional Services Agreement between Mundell,
II Odium, & Haws and the City of San Bernardino for legal services, a copy of which is attached
12 hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
13 length,
14 SECTION 3. The authorization granted hereunder shall expire and be void and of no
. IS further effect if the agreement is not executed by both parties and returned to the office of the City
16 Clerk within sixty (60) days following the effective date of the resolution.
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RLS/ed [DWYERrev,RES]
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7 COUNCIL MEMBERS:
8
9 ESTRADA
10 LIEN
11 MCGINNIS
12 SCHNETZ
13 SUAREZ
14 ANDERSON
. 15 MCCAMMACK
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. 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO RESCINDING RESOLUTION NO. 2001-330 AND AUTHORIZING THE EXECUTION
2 OF A REVISED PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM, &
HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF
3 LA VON DWYER, et al. v. CITY OF SAN 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
meetin
6 thereof, held on the
day of
AYES
, 2002, by the following vote, to wit
NAYS
ABST AIN ABSENT
CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2002.
21
22
23
JUDITH VALLES, Mayor
City of San Bernardino
Approved as to form and
24 legal content:
25 JAMES F. PENMAN,
City Attorney
26
27 By: ~ J,~~
28 C
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.1
PROFESSIONAL SERVICES AGREEMENT
2
Lavon Dwyer, et al. v. City of San Bernardino, et al.
San Bernardino Superior Court Case No. SCVSS 082249
3
4
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
MUNDELL, om ,1 JM & HAWS (hereinafter "MO&H") are the parties to this Agreement.
2. MO&H will be representing the following entities in this litigation: CITY OF
SAN BERNARDINO. MO&H 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. MO&H shall be paid at the hourly rates set forth below:
Attorneys - $150.00 per hour; and,
Law Clerks/Paralegals - $65.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
14
$20,000 without further approval of the Mayor and Common Council.
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 when submitted to the CITY for reimbursement.
MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu
of reimbursement for photocopying, telephone charges, and postage.
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6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
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return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
7. MO&H shall obtain approval from the CITY to retain expert consultants and other
22
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professionals (not including court reporters) for purposes of defending the litigation. MO&H 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
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
RLs/js [DWYER.AGR]
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'1 whenever any significant event occurs, and in any event at least quarterly, Information sufficient
2 to set reserves, including, without limitation, potential liability exposure and percentage offault
3 shall be included,
4 9, Copies of all opinions, pleadings, discovery and motions shall be provided to the
5 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
6 in this, or other litigation,
7 10, Copies of any correspondence and other documents sent to any of the defendants
8 in this action shall also be provided to the CITY through the City Attorney's Office,
9 II, Any and all settlements shall require CITY approvaL Request for settlement
10 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
11 approvals.
12 12. In the event the settlement value of the case appears to exceed $50,000, the City
13 Attorney's Office shall be notified immediately.
14 13. Only James A. Odium of MUNDELL, ODLUM & HAWS or other senior attorney
15 approved by the CITY shall try this case.
16 14. No client development costs are to be included in billings.
17 15. No continuing education expenses are to be included in billings.
18 16. Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final documents.
20 17. Either party may terminate this contract at wilL MO&H will continue to represent
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
22 another attorney.
23 18. MO&H is an independent contractor as to the CITY.
24 19. MO&H shall maintain the following types of insurance with limits as shown:
25 a) Workers Compensation as required by the laws of the State
26 of California, including Employment Liability with $250,000 limits
27 covering all persons providing service on behalf of MO&H and all risks
28 to such persons under this Agreement. MO&H shall require its Workers
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Compensation carrier to waive all rights of subrogation against the CITY
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and its officers and employees and any others for whom services are being
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provided under this Agreement.
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b)
Comprehensive General and Automobile Liability
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Insurance coverage to include contractual coverage and automobile
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coverage for owned, hired and non-owned vehicles. The policy shall have
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at least a combined single limit of $1,000,000 for bodily injury and
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property damage.
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c)
Professional Liability Insurance with limits of at least
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$ I ,000,000 per claim. In lieu of naming the CITY as an additional
11
insured, the policy may be endorsed as follows:
12
"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."
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MO&H shall furnish certificates of insurance and certified copies of all policies
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and endorsements to the City Attorney's Office evidencing the insurance coverage above required
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prior to the commencement of performance of services hereunder, which certificates shall provide
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that such insurance shall not be terminated or expire without thirty (30) days written notice to the
City Attorney's Office, and shall maintain such insurance from the time MO&H commences
performance of services hereunder until the completion of such services.
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All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
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obtain additional endorsements naming the CITY and all parties represented under this Agreement,
25
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out ofthe 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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RLS/js [DWYER.AGR]
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CITY QF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
January 11,2002
TO:
Edna Anderson, Operations Supervisor
YOUR COpy
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2002-13
At the Mayor and Common Council meeting of January 7, 2002, the City of San Bernardino
adopted Resolution 2002-13 - Resolution rescinding Resolution No. 2001-330 and authorizing
the execution of a revised professional services agreement between Mundell, Odium & Haws and
the City of San Bernardino to represent the City in the case of Lavon Dwyer, et al. v City of San
Bernardino, et. al.
Attached is one (I) original agreement. 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 be advised that the resolution and agreement will be null and void if not executed
within 60 days, or by March 8, 2002.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt of the above mentioned documents.
Signed: ~ rLD.. 1/, ,II. .~
Date: 1/15/02-
Please sign and return
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** FOR OFFICE USE ONL Y - NOT A PUBLIC DOCUME"'T ."
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): \ f)-02:. Item # 3><
Vote: Ayes 1-5 Nays -e-
Change to motion to amend original documents:
Resolution" d COd - 8
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Abstain -G- Absenr_" - ~__n
Reso. # On Attachments: L- Contract term:
Note on Resolution of Attachment stored separately: _.::::.-
Direct City Clerk to (circle I): PUBLISH. POST. RECORD W/COlJNTY
Null/Void After:J,QQQA:..'i~i3 ..~-O ~
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Dale Sent to Mayor:
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Re$o. Log L:pdaled .",...
Seallmpre$Sed: _.__~~~_..
Dale of Mayor's Signalure: h b.nO;)
Dale ofClerk/CDC Signature: 1- \O-Od-
Date Memo/Letter Sent for Signature: I . I In 0 \
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: ;/' Date Returned: I - ~l< --t>J
See Attached:
See Attached:
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Request for Council Action & Staff Report Attached: YesL No By
Updated Prior Resolutions (Other Than Below): Yes No-L By
Updated CITV Personnel Folders (6413. 6429, 6433.10584,10585,12634): Yes No -L By
Updated CDC Personnel Folders (5557): Yes NO+, By
Updated Traffic Folders (3985. 8234, 655. 92-389): Ves No_ Bv
Copies Distributed to:
City Attorney (' Code Compliance
Dev. Services
EDA
Finance V
MIS
Parks & Rec.
Police
Public Services
Water
Others:
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.l
Ready to File: --m:L-
Date: k,) 'i(-Q;}-
Revised 0 I / 12/0 I