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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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 of San Bernardino;
San Bernardino Civil Service Board; San Bernardino Fire
Department; and Fire Chief Michael Conrad in
San Bernardino City Professional Firefighters, Brian
Crowell, and Byron Kuhn v. City of San Bernardino;
San Bernardino City Civil Service Board;
San Bernardino Fire Department: Fire Chief Michael
Conrad; Does 1-10, inclusive
Dept: CITY ATTORNEY
Date: December 15,2010
MCC Meeting: December 20, 2010
Synopsis of Previous Council Action:
12/06/1 0-
Mayor and Council approved the hiring of Mundell, OdIum & Haws to represent the
City of San Bernardino; San Bernardino Civil Service Board; San Bernardino Fire
Department; and Fire Chief Michael Conrad in the subject court action.
Recommended motion:
The Mayor and Common Council adopt the resolution.
Contact person:
Stephanie D. Easland
Phone:
5355
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
None
Source:
Finance:
Committee Notes:
Agenda Item No. 3 q
/d- -CJt) - dtJ/ 0
F:\EASLAND\Fire Department\SBCPFFCroweIIKuhn. rea. wpd
STAFF REPORT
Council Meeting Date: December 20. 2010
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
December 15,2010
Professional Services Agreement between the City of San Bernardino
and the law firm of Mundell, OdIum & Haws to represent the City of
San Bernardino; San Bernardino City Civil Service Board;
San Bernardino Fire Department; and Fire Chief Michael Conrad in the
case of San Bernardino City Professional Firefighters; Brian Crowell; and
Byron Kuhn v. City of San Bernardino, et al.
On November 17, 2010, the above-referenced court action was served on the City. On
December 6,2010, the Mayor and Common Council approved the hiring of Mundell, OdIum &
Haws to represent the City, et al. 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 Mayor is
authorized to execute said Professional Services Agreement on behalf of the City of San Bernardino.
That the Mayor of the City of San Bernardino is hereby authorized and directed to execute
on behalf of the City of San Bernardino the Professional Services Agreement with the law firm of
Mundell, OdIum & Haws to represent the City, et al. in the case of San Bernardino Professional
Firefighters; Brian Crowell; and Byron Kuhn v. City of San Bernardino, et al.
Attachment
F:IEASLANDIFire DepartmentISBCPFFCrowellKuhn.StaffReport. wpd
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 MUNDELL, ODLUM & HAWS AND THE CITY OF
SAN BERNARDINO IN THE CASE OF SAN BERNARDINO CITY PROFESSIONAL
4 FIREFIGHTERS; BRIAN CROWELL; AND BYRON KUHN v. CITY OF SAN BERNARDINO;
SAN BERNARDINO CITY CIVIL SERVICE BOARD; SAN BERNARDINO FIRE
5 DEPARTMENT; FIRE CHIEF MICHAEL CONRAD; DOES 1-10, inclusive.
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
9 to execute on behalf of said City a Professional Services Agreement between Mundell, OdIum &
10 Haws and the City of San Bernardino for legal services, a copy of which is attached hereto marked
11 Exhibit "A" and incorporated herein by reference as though fully set forth at length.
12 SECTION 2. The authorization granted hereunder shall expire and be void and of no
13 further effect ifthe agreement is not executed by both parties and returned to the Office ofthe City
14 Clerk within sixty (60) days following the effective date of the resolution.
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28 /11
F:\EASLANDIFire DepartmentISBCPFFCrowellKuhn.Res.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF
SAN BERNARDINO IN THE CASE OF SAN BERNARDINO CITY PROFESSIONAL
3 FIREFIGHTERS; BRIAN CROWELL; AND BYRON KUHN v. CITY OF SAN BERNARDINO;
SAN BERNARDINO CITY CIVIL SERVICE BOARD; SAN BERNARDINO FIRE
4 DEPARTMENT; FIRE CHIEF MICHAEL CONRAD; DOES 1-10, inclusive.
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
meeting thereof,
7 held on the day of
8 COUNCIL MEMBERS: AYES
9 MARQUEZ
10 DESJARDINS
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17
18
, 2010, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
CITY CLERK
19
20
21
22
23
The foregoing Resolution is hereby approved this
day of
,2010.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
24 City Attorney
25
26
27
28
f~
F:\EASLANDIFire DepartmentlSBCPFFCrowellKuhn.Reswpd 2
1
PROFESSIONAL SERVICES AGREEMENT
SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS;
BRIAN CROWELL; BYRON KUHN v. CITY OF SAN BERNARDINO, et al.
San Bernardino Superior Court Case No. CIVDS 1012967
2
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, SAN BERNARDINO CIVIL SERVICE BOARD;
8 SAN BERNARDINO FIRE DEP AR TMENT, FIRE CHIEF MICHAEL CONRAD and DEPUTY
9 CHIEF MAT FRATUS. MO&H shall not represent any client in any type of claim against the
10 CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
11 City Attorney's Office.
12
3.
MO&H shall be paid at the hourly rates set forth below:
13 Attorneys - $200.00 per hour; and,
14 Law Clerks/Paralegals - $65.00 per hour.
15 The amounts expended under this agreement for attorneys fees shall not exceed
16 $25,000 without further approval of the Mayor and Common Council.
17
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
18 each succeeding month.
19
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
2 0 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
21 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
22 of reimbursement for photocopying, telephone charges, and postage.
23
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
24 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
25
7.
M O&H shall 0 btain approval from the CITY to retain expert consultants and other
26 professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
28 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
F :\EASLAND\F ire Department\SBCPFFCrowellKuhnPSA M OH.Exh. ~d
EXHIBIT "All
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 Finance Department.
3 8. Status reports will be submitted to CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
5 to set reserves, including, without limitation, potential liability exposure and percentage of fault
6 shall be included.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this, or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the defendants
11 in this action shall also be provided to the CITY through the City Attorney's Office.
12 11. Any and all settlements shall require CITY approval. Request for settlement
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 approvals.
15 12. In the event the settlement value of the case appears to exceed $50,000, the City
16 Attorney's Office shall be notified immediately.
1 7 13. Only James A. OdIum of MUNDELL, ODLUM & HAWS or other senior attorney
18 approved by the CITY shall try this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this contract at will. M O&H will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
2 5 another attorney.
26 18. MO&H is an independent contractor as to the CITY.
27 19. MO&H shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of
F:\EASLANDlFire Department\SBCPFFCroweIlKuhn.PSA.M OH.Exh. wpd
EXHIBIT "A"
5
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
1
2
3
4
6
Agreement.
7
b)
Comprehensive General and Automobile Liability Insurance
8
coverage to include contractual coverage and automobile coverage for owned,
9
hired and non-owned vehicles. The policy shall have at least a combined single
10
limit of $1 ,000,000 for bodily injury and property damage.
11
c)
Professional Liability Insurance with limits of at least $1 ,000,000
12 per claim. In lieu of naming the CITY as an additional insured, the policy may
13 be endorsed as follows:
14 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
15 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
16 or subcontractors. All other provisions of this policy are to remain unchanged."
1 7 MO&H shall furnish certificates of insurance and certified copies of all policies
18 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
19 prior to the commencement of performance of services hereunder, which certificates shall provide
20 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
21 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
22 performance of services hereunder until the completion of such services.
23 All policies, with respect to the insurance coverage above required, except for the
2 4 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insured with respect to
27 liabilities arising out of the performance of services hereunder.
28 All policies required above are to be primary and non-contributing with any
F:\EASLAND\F ire Department\SBCPFFCrowellKuhn. PSA.MO H.Exh. WjJd
EXHIBIT IIAII
1 insurance or self-insurance programs carried or administered by the CITY or other parties
2 represented under this Agreement.
3
20.
All communications and billings to the CITY are to be directed as follows:
4
5
6
7
DATED: December _,2010
8
9
10
11
DATED: December _,2010
12
13
14
15
16
17
18 Approved as to form:
19 JAMES F. PENMAN,
City Attorney
20
21
By:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
MUNDELL, ODLUM & HAWS
By: James A. OdIum
CITY OF SAN BERNARDINO
By: Patrick J. Morris
Mayor
22
23
24
25
26
27
28
F:\EASLAND\F ire Department\SBCPFFCrowellKuhn.PSA. MOH. Exh. wpd
EXHIBIT nAn
1
PROFESSIONAL SERVICES AGREEMENT
SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS;
BRIAN CROWELL; BYRON KUHN v. CITY OF SAN BERNARDINO, et al.
San Bernardino Superior Court Case No. CIVDS 1012967
2
3
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 MUNDELL, ODLUM & HA WS (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, SAN BERNARDINO CIVIL SERVICE BOARD;
8 SAN BERNARDINO FIRE DEPARTMENT, FIRE CHIEF MICHAEL CONRAD and DEPUTY
9 FIRE CHIEF MAT FRATUS. MO&H shall not represent any client in any type of claim against
10 the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through
11 the City Attorney's Office.
12
3.
MO&H shall be paid at the hourly rates set forth below:
13 Attorneys - $200.00 per hour; and,
14 Law Clerks/Paralegals - $65.00 per hour.
15 The amounts expended under this agreement for attorneys fees shall not exceed
16 $25,000 without further approval of the Mayor and Common Council.
17
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
18 each succeeding month.
19
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
20 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
21 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
22 of reimbursement for photocopying, telephone charges, and postage.
23
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
24 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
25
7.
MO&H shall obtain approval from the CITY to retain expert consultants and other
26 professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
27 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
28 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
F:\EASLAND\Fire Department\SBCPFFCrowellKuhn.PSAMOH.wpd 1
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 Finance Department.
3 8. Status reports will be submitted to CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
5 to set reserves, including, without limitation, potential liability exposure and percentage of fault
6 shall be included.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this, or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the defendants
11 in this action shall also be provided to the CITY through the City Attorney's Office.
12 11. Any and all settlements shall require CITY approval. Request for settlement
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 approvals.
15 12. In the event the settlement value of the case appears to exceed $50,000, the City
16 Attorney's Office shall be notified immediately.
1 7 13. Only James A. OdIum of MUNDELL, ODLUM & HAWS or other senior attorney
18 approved by the CITY shall try this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this contract at will. MO&H will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attorney.
26 18. MO&H is an independent contractor as to the CITY.
27 19. MO&H shall maintain the following types of insurance with limits as shown:
28 a) Workers Compensation as required by the laws of the State of
F:\EASLAND\Fire Department\SBCPFFCrowellKuhn.PSAMOH.wpd 2
1
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
2
3
4
5
6
Agreement.
7
b)
Comprehensive General and Automobile Liability Insurance
8
coverage to include contractual coverage and automobile coverage for owned,
9
hired and non-owned vehicles. The policy shall have at least a combined single
10
limit of $1 ,000,000 for bodily injury and property damage.
11
c)
Professional Liability Insurance with limits of at least $1 ,000,000
12 per claim. In lieu of naming the CITY as an additional insured, the policy may
13 be endorsed as follows:
14 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
15 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
16 or subcontractors. All other provisions of this policy are to remain unchanged."
1 7 MO&H shall furnish certificates of insurance and certified copies of all policies
18 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
19 prior to the commencement of performance of services hereunder, which certificates shall provide
20 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
21 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
22 performance of services hereunder until the completion of such services.
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insured with respect to
2 7 liabilities arising out of the performance of services hereunder.
28 All policies required above are to be primary and non-contributing with any
F:\EASLAND\Fire Department\SBCPFFCrowellKuhn.PSA.MOH.wpd 3
10
1 insurance or self-insurance programs carried or administered by the CITY or other parties
2 represented under this Agreement.
3
20.
All communications and billings to the CITY are to be directed as follows:
4
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
5
6
7
DATED: December _,2010
MUNDELL, ODLUM & HAWS
8
9
By: James A. OdIum
11
CITY OF SAN BERNARDINO
DATED: December _,2010
12
13
14
By: Patrick J. Morris
Mayor
15
16
17
18 Approved as to form:
19 JAMES F. PENMAN,
City Attorney
20
21
22
23
24
25
26
27
28
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