HomeMy WebLinkAbout2007-461
1
RESOLUTION NO. 2007-461
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 IN THE CASE OF MICHAEL DESROCHERS AND STEVE
4 LOWES 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 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
11 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 III
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F:\EASLAND\Desrochers\DesrochersLowes.State.Res. wpd
I
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY
3 OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERS AND STEVE
LOWES v. CITY OF SAN BERNARDINO, et al.
4
5 I HEREBY CERTIFY that the foregoing Resolution was dilly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a joint regular
meeting
7 thereof, held on the 3rd day of December
8 wit:
, 2007, by the following vote, to
9 COUNCIL MEMBERS: AYES
10 ESTRADA x
II BAXTER X
12 BRINKER X
13 DERRY X
14 KELLEY X
IS JOHNSON X
16 MCCAMMACK
17
NAYS
ABSTAIN
ABSENT
x
18
19
4/;M! ~f);j
The foregoing Resolution is hereby approved this .s~ day of December
20 2007.
21
22
Approved as to form:
23
JAMES F. PENMAN,
24 City Attorney
25
26 ,Ie
27
28
F:\EASLAND\Desrochers\DesrochersLowes.State.Res. wpd 2
1 PROFESSIONAL SERVICES AGREEMENT
2 MICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et aL
San Bernardino Superior Court Case No. CIVSS 708367
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 and persons in this litigation:
7 CITY OF SAN BERNARDINO; MICHAEL BILLDT, individually and as Chief of Police for the
8 San Bernardino Police Department; FRANK MANKIN, individually and as Assistant Chief of
9 Police for the San Bernardino Police Department; and, BRIAN BOOM, individually and as a
10 Lieutenant for the San Bernardino Police Department. MO&H shall not represent any client in any
11 type of claim against the CITY without prior written approval to do so from the CITY OF SAN
12 BERNARDINO through the City Attorney's Office.
13
3.
MO&H shall be paid at the hourly rates set forth below:
14 Attorneys - $200.00 per hour; and,
15 Law Clerks/Paralegals - $65.00 per hour.
16 The amounts expended under this agreement for attorneys fees shall not exceed
17 $20,000 without further approval of the Mayor and Common Council.
18
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
19 each succeeding month.
20
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu
23 of reimbursement for photocopying, telephone charges, and postage.
24
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
25 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
26
7.
MO&H shall obtain approval from the CITY to retain expert consultants and other
27 professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
28 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
SDE/ed[DesrochersLowes.State.ProfSvcsAgr]
1
EXHIBIT "A"
1 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office
5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
lOin this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 I 1. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000, the City
17 Attorney's Office shall be notified immediately.
18 13. Only JamesA. Odium of MUNDELL, ODLUM&HA WS or other senior attorney
19 approved by the CITY shall try this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Either party may terminate this contract at will. MO&H will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. MO&H is an independent contractor as to the CITY.
28 1/1
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2
EXHIBIT "A"
1
19.
MO&H shall maintain the following types of insurance with limits as shown:
2
a)
Workers Compensation as required by the laws ofthe State of
3
California, including Employment Liability with $250,000 limits covering all
persons providing service on behalf of MO&H and all risks to such persons
under this Agreement. MO&H shall require its Workers Compensation carrier
to waive all rights of subrogation against the CITY and its officers and
employees and any others for whom services are being provided under this
Agreement.
4
5
6
7
8
9
b)
Comprehensive General and Automobile Liability Insurance
10
coverage to include contractual coverage and automobile coverage for owned,
11
hired and non-owned vehicles. The policy shall have at least a combined single
12
limit of$I,OOO,OOO 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
15 be endorsed as follows:
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
17 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
18 or subcontractors. All other provisions of this policy are to remain unchanged."
19 MO&H shall furnish certificates of insurance and certified copies of all policies
20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
21 prior to the commencement of performance of services hereunder, which certificates shall provide
22 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
23 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
24 performance of services hereunder until the completion of such services.
25 All policies, with respect to the insurance coverage above required, except for the
26 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
27 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
28 1//
SDE/ed[DesrochersLowes.State.ProtSvcsAgr]
3
EXHIBIT "A"
1 their employees, agents, volunteers and officers as additional named insured with respect to
2 liabilities arising out of the performance of services hereunder.
3 All policies required above are to be primary and non-contributing with any
4 insurance or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement.
6
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
7
8
9
10
DATED: December _,2007
MUNDELL, ODLUM & HAWS
11
12
13
By: James A. Odium
14
15
DATED: December _,2007
CITY OF SAN BERNARDINO
16
17
By: Fred Wilson, City Manager
18
19
20
21
Approved as to form:
22
JAMES F. PENMAN,
City Attorney
23
24
25
26
27
28
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4
EXHIBIT "A"
2007-461
1
PROFESSIONAL SERVICES AGREEMENT
MICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et aL
San Bernardino Superior Court Case No. CIVSS 708367
2
3
4
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
1.
5 MUNDELL, ODLUM & HAWS (hereinafter "MO&H") are the parties to this Agreement.
6
2.
MO&H will be representing the following entities and persons in this litigation:
7 CITY OF SAN BERNARDINO; MICHAEL BILLDT, individually and as Chief of Police for the
8 San Bernardino Police Department; FRANK MANKIN, individually and as Assistant Chief of
9 Police for the San Bernardino Police Department; and, BRIAN BOOM, individually and as a
10 Lieutenant for the San Bernardino Police Department. MO&H shall not represent any client in any
11 type of claim against the CITY without prior written approval to do so from the CITY OF SAN
12 BERNARDINO through the City Attorney's Office.
13
3.
MO&H shall be paid at the hourly rates set forth below:
14 Attorneys - $200.00 per hour; and,
15 Law ClerkslParalegals - $65.00 per hour.
16 The amounts expended under this agreement for attorneys fees shall not exceed
17 $20,000 without further approval of the Mayor and Common Council.
18
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
4.
19 each succeeding month.
20
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
22 MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu
23 of reimbursement for photocopying, telephone charges, and postage.
24
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
25 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
26
7.
MO&H shall obtain approval from the CITY to retain expert consultants and other
27 professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
28 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
SDE/ed[DesrochersLowes.State. ProfSvcsAgr]
1
2007-461
1 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office
5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
lOin this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 II. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000, the City
17 Attorney's Office shall be notified immediately.
18 13. Only James A. OdIum of MUNDELL, ODLUM & HAWS or other senior attorney
19 approved by the CITY shall try this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Either party may terminate this contract at will. MO&H will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. MO&H is an independent contractor as to the CITY.
28 /II
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2
2007-461
1
MO&H shall maintain the following types of insurance with limits as shown:
19.
2
Workers Compensation as required by the laws of the State of
a)
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
Comprehensive General and Automobile Liability Insurance
b)
10
coverage to include contractual coverage and automobile coverage for owned,
11
hired and non-owned vehicles. The policy shall have at least a combined single
12
limit of $1 ,000,000 for bodily injury and property damage.
13
Professional Liability Insurance with limits of at least $1 ,000,000
c)
14 per claim. In lieu of naming the CITY as an additional insured, the policy may
15 be endorsed as follows:
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
17 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
18 or subcontractors. All other provisions of this policy are to remain unchanged."
19 MO&H shall furnish certificates of insurance and certified copies of all policies
20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
21 prior to the commencement of performance of services hereunder, which certificates shall provide
22 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
23 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
24 performance of services hereunder until the completion of such services.
25 All policies, with respect to the insurance coverage above required, except for the
26 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
27 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
28 III
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3
2007-461
1 their employees, agents, volunteers and officers as additional named insured with respect to
2 liabilities arising out of the performance of services hereunder.
3 All policies required above are to be primary and non-contributing with any
4 insurance or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement.
6
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
7
8
9
10
DATED: December (ro, 2007
MUNDELL, ODLUM & HAWS
11
12
13
By:
14
15
DATED: December S,2007
16
17
By:
18
19
20
21 Approved as to form:
22 JAMES F. PENMAN,
City Attorney
23
24
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25
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28
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