HomeMy WebLinkAbout08-City Attorney
CITY OF SAN BERNARDINO
- REQUEST FOR COUNCIL ACTION
~
Subject: Professional Services Agreement between the City
of San Bernardino and the law firm of Mundell, Odium &
Haws to represent the City in San Bernardino Police Officers
Association; Richard Lawhead; Carol Donnelly v. City of San
Bernardino; and Does 1 through 10, inclusive.
From: JAMES F. PENMAN
CITY ATTORNEY
Dept: CITY ATTORNEY
Date: March 4,2009
MCC Meeting: March 16,2009
Synopsis of Previous Council Action:
02/1 7/09-
Mayor and Council approved the hiring of Mundell, Odium & Haws to represent the
City in the subject court action.
Recommended motion:
The Mayor and Common Council adopt the resolution.
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' ~\"-O~.l'''C ccr;:"(ct,,
\ Signature
Contact person: Stephanie D. Easland
Supporting data attached: Staff Report
Phone:
Ward:
5355
All
FUNDING REQUIREMENTS:
Amount:
None
Source:
Committee Notes:
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Finance:
2~9- ~9
Agenda Item No. ~
3-jt~-o't
F:\EAS LAND\Police Department\SBPOALawheadvCity.rca. wpd
STAFF REPORT
Council Meeting Date: March 16.2009
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman. City Attorney
March 4, 2009
Professional Services Agreement between the City of San Bernardino
and the law firm of Mundell, OdIum & Haws to represent the City in
San Bernardino Police Officers Association; Richard Lawhead; Carol
Donnelly v. City of San Bernardino, and Does 1 through 10, inclusive.
On February 17,2009, the Mayor and Common Council approved the law firm of Mundell,
OdIum & Haws to represent the City in the above-referenced court action. Attached hereto is the
Professional Services Agreement which reflects such approval. including a ceiling of $20,000 on
attorney fees and the requirement ofregular 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 in the case of San Bernardino Police Officers
Association; Richard Lawhead; Carol Donnelly v. City of San Bernardino, and Does 1 through
10, inclusive.
Attachment
F:\EASLAND\Police Department\SBPOALawheadvC ity .staffreport. wpd
II
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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 POLICE OFFICERS
4 ASSOCIATION; RICHARD LAWHEAD; CAROL DONNELLY v. CITY OF SAN
BERNARDINO; and DOES 1 through 10, inclusive.
5
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
II marked Exhibit "A" and incorporated herein by 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 1/1
16 11/
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19 1/1
20 1/1
21 11/
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25 /1/
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28 1/1
F:\EASLAND\Police Department\SBPOALawheadvCity .Res.wpd
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I RESOLUTION OF TIlE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING TIlE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND TIlE CITY
OF SAN BERNARDINO IN TIlE CASE OF SAN BERNARDINO POLICE OFFICERS
3 ASSOCIATION; RICHARD LAWHEAD; CAROL DONNELLY v. CITY OF SAN
BERNARDINO; and DOES 1 through 10, inclusive.
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
day of
meeting
, 2009, by the following vote, to
7 thereof, held on the
8 wit:
9 COUNCIL MEMBERS:
10 ESTRADA
II BAXTER
12 BRINKER
I3 VACANT
14 KELLEY
15 JOHNSON
16 MCCAMMACK
17
AYES
NAYS
ABSTAIN
ABSENT
18
19
20
21
22
23
24
CITY CLERK
The foregoing Resolution is hereby approved this
2009,
day of
PATRICK J. MORRIS, Mayor
City of San Bernardino
25 Approved as to form:
26 JAMES F. PENMAN,
City Attorney
27
28
LAND\Police Department\SBPOALawheadvCity.Res.wpd Z
1 PROFESSIONAL SERVICES AGREEMENT
2 SAN BERNARDINO POLlCE OFFICERS ASSOClA TION; RICHARD LA WHEAD;
CAROL DONNELLYv. CITY OF SAN BERNARDINO; and DOES 1 through 10, inclusive.
3 San Bernardino Superior Court Case No. CIVDS 902362
4
I.
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. MO&H shall not represent any client in any type of claim against
8 the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through
9 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 attorneys 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 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
F:\EASLAND\PoJice Department\sBPOALawheadvCity .PSA.wpd
EXHIBIT" A"
I:
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25
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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.
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 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.
19. MO&H 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 MO&H and all risks to such persons
F:\EASLAND\Police Department\SBPOALawheadvCity,PSAwpd 2
EXHIBIT "A"
20
21
22
23
24
25
26
27
28
1
under this Agreement. MO&H shall require its Workers Compensation carrier
to waive all rights of subrogation against the CITY and its officers and
2
3
employees and any others for whom services are being provided under this
4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile coverage for owned,
7
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.
8
9
c)
Professional Liability Insurance with limits of at least $1 ,000,000
10
per claim. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as follows:
11
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."
13
14
15
MO&H shall furnish certificates of insurance and certified copies of all policies
16
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
17
18
that such insurance shall not be terminated or expire without thirty (30) days written notice to the
19
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.
All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
All policies required above are to be primary and non-contributing with any
msurance or self-insurance programs carried or administered by the CITY or other parties
represented under this Agreement.
F:\EASLAND\Police Department\SBPOALawheadvCity.PSA.wpd 3
EXHIBIT "A"
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II
1
20.
All communications and billings to the CITY are to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 924 18
2
3
4
5
OA TED: March _,2009
MUNDELL, OOLUM & HAWS
6
7
By: James A. OdIum
8
9
OA TED: March _,2009
CITY OF SAN BERNARDINO
10
11
12
By: Patrick J. Morris, Mayor
13
Approved as to form:
JAMES F. PENMAN,
City Attorney
By:
F:\EASLAND\Police Department\sBPOALawheadvCity.PSA.wpd 4
EXHIBIT "A"
I'
d
"
1 PROFESSIONAL SERVICES AGREEMENT
2 SAN BERNARDINO POLICE OFFICERS ASSOCIA TION; RICHARD LA WHEAD;
CAROL DONNELLY v. CITY OF SAN BERNARDINO; and DOES I through 10, inclusive.
3 San Bernardino Superior Court Case No. CIVDS 902362
4
J.
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. MO&H shall not represent any client in any type of claim against
8 the CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through
9 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 attorneys 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 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
28 Finance Department.
F:\EASLAND\Police Department\SBPOALawheadvCity, PSA.wpd
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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.
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 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.
19. MO&H 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 $250,000 limits covering all
persons providing service on behalf of MO&H and all risks to such persons
F:\EASLAND\Police Department\sBPOALawheadvCitv.PSA.wpd 2
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under this Agreement. MO&H shall require its Workers Compensation carrier
to waive all rights of subrogation against the CITY and its officers and
employees and any others for whom services are being provided under this
Agreement.
b) Comprehensive General and Automobile Liability Insurance
coverage to include contractual coverage and automobile coverage for owned,
. hired and non-owned vehicles. The policy shall have at least a combined single
limit of$I,OOO,OOO for bodily injury and property damage.
c) Professional Liability Insurance with limits of at least $1 ,000,000
per claim. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as follows:
"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
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.
All policies, with respect to the insurance coverage above required, except for the
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
their employees, agents, volunteers and officers as additional named insured with respect to
liabilities arising out of the performance of services hereunder.
All policies required above are to be primary and non-contributing with any
msurance or self-insurance programs carried or administered by the CITY or other parties
represented undetthis Agreement.
F:\EASLAND\Police Depanment\sBPOALawheadvCity.PSA. \\ pd ,
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II
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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
2
3
4
5
DA TED: March _, 2009
MUNDELL, ODLUM & HAWS
6
7
By: James A. OdIum
8
9
DATED: March_. 2009
CITY OF SAN BERNARDINO
10
11
12
By: Patrick J. Morris, Mayor
13
14
15
Approved as to form:
JAMES F. PENMAN,
City Attorney
F:\EASLAND\PoJice Oepartment\SBPOALawheadvCity.PSAwpd 4