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HomeMy WebLinkAbout2007-376 , ' 1 RESOLUTION NO. 2007-376 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 3 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO AND SAN BERNARDINO FIRE DEPARTMENT IN THE CASE 4 OF RICHARD "SCOIT" MOSS, et aI. v. CITY OF SAN BERNARDINO, et aI. 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 Mundell, 9 OdIum & Haws and the City of San Bernardino and San Bernardino Fire Department for legal 10 services, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by 11 reference as fully as though 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. 15 //1 16 //1 17 //1 18 //1 19 //1 20 //1 21 //1 22 //1 23 //1 24 //1 25 //1 26 //1 27 //1 28 //1 SDE/ed[Moss.reso.wpd , ' I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTIlORlZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO AND SAN BERNARDINO FIRE DEPARTMENT IN THE CASE 3 OF RICHARD "SCOIT" MOSS, et aI. v. CITY OF SAN BERNARDINO, et aI. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a joint rggular meeting 7 thereof, held on the 4th day of September 8 wit: , 2007, by the following vote, to 9 COUNCIL MEMBERS: AYES 10 ESTRADA x 11 BAXTER x 12 BRINKER X 13 DERRY X 14 KELLEY X IS JOHNSON X 16 MCCAMMACK 17 NAYS ABSTAIN ABSENT x 18 19 ~LW)Ol~~~cLJj) a) CITY CE 20 The foregoing Resolution is hereby approved this ,6T;V day of September 21 2007. 22 23 ~~ Esther Estrada, Mayor Pro Tern City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, 26 City Attorney 27 28 By: :l. 2 , '. II 2007-376 1 PROFESSIONAL SERVICES AGREEMENT 2 RICHARD "SCOTT" MOSS, et aL v. CITY OF SAN BERNARDINO, et al. United States District Court Case No. ED CV 07-01027 SGL (Opx) 3 4 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of 5 MUNDELL, ODLUM & HAWS (hereinafter "MO&H") are the parties to this Agreement. 6 2. MO&H will be representing the following entities in this litigation: CITY OF 7 SAN BERNARDINO and SAN BERNARDINO FIRE DEPARTMENT. MO&H shall not 8 represent any client in any type of claim against the CITY without prior written approval to do so 9 from the CITY OF SAN BERNARDINO through the City Attorney's Office. 10 3. MO&H shall be paid at the hourly rates set forth below: 11 Attorneys - $200.00 per hour; and, 12 Law Clerks/Paralegals - $65.00 per hour. 13 The amounts expended under this agreement for attorney's fees shall not exceed 14 $20,000 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 5th 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 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu 20 of 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 22 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees. 23 7. MO&H shall obtain approval from the CITY to retain expert consultants and other 24 professionals (not including court reporters) for purposes of defending the litigation. MO&H may, 25 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on 26 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY 27 ,I /I 28 ,1,1,1 SDE/ed[Moss.ProfSvcsAgr] 1 . . 2007-376 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. II. 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 of the case appears to exceed $50,000, the City Attorney's Office shall be notified immediately. 13. Only James A. Odium of MUNDELL, ODLUM & HAWS or other senior attorney approved by the CITY shall try this case. 14. No client development costs are to be included in billings. IS. 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. MO&H 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. MO&H is an independent contractor as to the CITY. III III SDE/ed[Moss.ProfSvcsAgr] 2 . , 2007-376 1 19. MO&H shall maintain the following types of insurance with limits as shown: 2 a) Workers Compensation as required by the laws of the State of 3 California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of MO&H and all risks to such persons under this Agreement. MO&H 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. 4 5 6 7 8 9 b) Comprehensive General and Automobile Liability Insurance 10 coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single 11 12 limit of $1,000,000 for bodily injury and property damage. 13 c) Professional Liability Insurance with limits of at least $1 ,000,000 14 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: 15 16 "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." MO&H shall furnish certificates of insurance and certified copies of all policies 17 18 19 20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide 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. 21 22 23 24 25 All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 26 27 1// 1// 28 SDE/ed[Moss.ProfSvcsAgr] 3 , '. 2007-376 1 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 2 their employees, agents, volunteers and officers as additional named insured with respect to 3 liabilities arising out of the performance of services hereunder. 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 represented under this Agreement. 4 5 6 7 20. All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 8 9 10 DATED: q-ll-Ol, MUNDELL, ODLUM & HAWS 11 12 13 By: A. OdIum 14 15 DATED: ;1L/d-t:J 7 , 16 CITY OF SAN BERNARDINO By ~y Mumg" 17 18 19 20 21 Approved as to form: 22 JAMES F. PENMAN, City Attorney 23 24 25 26 27 28 SDE/ed[Moss.ProfSvcsAgr] 4