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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: Resolution of the Mayor and Common
Council of the City of San Bernardino Authorizing the
Execution of a Professional Services Agreement with
Mundell, OdIum & Haws, LLP and the City of San
Bernardino for Legal Services in the Case of Travis
Walker v. City of San Bernardino, et al. (TORT
CLAIM)
From: JAMES F. PENMAN
City Attorney
Date: June 15,2009
Synopsis of Previous Council Action:
June I, 2009 - Mayor and Common Counsel approved the retention of the law firm of Mundell, OdIum &
Haws, LLP to represent the City of San Bernardino and individual defendants in the Tort Claim of Travis
Walker v. City of San Bernardino, et al.
Recommended motion:
Adopt resolution.
~:;e?-/
Signature
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Id ~"
d009- /57
Agenda Item No. 62
(P-/~"'(Y/
F:\ROTH\Outside counse]\2Q09 Outside Counsel\Travis Walker v. City\Walker.RCA.wpd
STAFF REPORT
Council Meeting Date: June 15, 2009
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
June 11, 2009
Resolution of the Mayor and Common Council of the City of San Bernardino
Authorizing the Execution of a Professional Services Agreement with Mundell,
OdIum & Haws, LLP and the City of San Bernardino for Legal Services in the
Case of Travis Walker v. City of San Bernardino, et al. (Government Claim)
On June 1,2009, the Mayor and Common Council approved the retention of the law firm of
Mundell, OdIum & Haws, LLP to represent the City of San Bernardino and all named City
employees in the government claim of Travis Walker.
Attached hereto is a Professional Services Agreement providing for the representation, with
a ceiling of$25,000.00 on attorneys' fees and a requirement of regular status reports.
It is requested by the City Attorney that the proposed resolution be adopted, authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City\Walker.StaffReport.wpd
I
RESOLUTION NO.
(CO~1f
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT WITH MUNDELL, ODLUM & HAWS, LLP AND THE CITY
OF SAN BERNARDINO FOR LEGAL SERVICES IN THE CLAIM OF TRA VIS WALKER.
4
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to
8 execute on behalf of said City a Professional Services Agreement between Mundell, Odium & Haws,
9 LLP and the City of San Bernardino for legal services in the Claim afTravis Walker, a copy of which
10 is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth
11 at length.
12 SECTION 2. The authorization granted by this Resolution shall expire and be void and of
13 no further effect if the 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 this Resolution.
15 I II
16 I II
17 I II
18 III
19 I II
20 III
21 III
22 III
23 III
24 III
25 III
26 III
27 I II
28 III
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City\Walker.Resolution.wpd
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES
2 AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS, LLP AND THE CITY OF SAN
BERNARDINO FOR LEGAL SERVICES IN THE CLAIM OF TRA VIS WALKER.
3
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
meeting thereof, held
6 on the day of
7 COUNCIL MEMBERS: AYES
8 ESTRADA
9 BAXTER
10 BRINKER
11 SHORETT
12 KELLEY
13 JOHNSON
14 MCCAMMACK
15
16
17
, 2009, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
Rachel G. Clark, City Clerk
18 The foregoing Resolution is hereby approved this _ day of June, 2009.
19
20
21
Patrick J. Morris, Mayor
City of San Bernardino
22 Approved as to Form:
23 JAMES F. PENMAN,
24 City AU7 , .
25 B~ ~/
26
27
28
F:\ROTH\Outside counsel\2009 Outside CounseI\Travis Walker v. City\Walker.Resolution.wpd
Exhibit IIA II
1
2
3
PROFESSIONAL SERVICES AGREEMENT
TRA VIS WALKER v. CITY OF SAN BERNARDINO, et at.
(TORT CLAIM)
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 MUNDELL, ODLUM & HAWS, LLP (hereinafter "MOH") are the parties to this Agreement.
6
2.
MOH will represent the following entities and persons with respect to the
7 Government Claim of TRAVIS WALKER: CITY OF SAN BERNARDINO and any designated
8 officer or employee of the CITY who may be named as a defendant. MOH shall not represent any
9 client in any type of claim against the CITY without prior written approval to do so from the CITY
10 OF SAN BERNARDINO through the City Attorney's Office.
11
3.
MOH shall be paid at the hourly rates of $200.
12 The amounts expended under this agreement for attorney fees shall not exceed
13 $25,000 without further approval of the Mayor and Common Council.
14
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
15 each succeeding month.
16
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 MOH may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
19 lieu of reimbursement for photocopying, telephone charges, and postage.
20
6.
If attorney fees are charged "portal to portal" (e.g., from office to court and return),
21 then MOR shall not be entitled to reimbursement for mileage and parking fees.
22
7.
MOH shall obtain approval from the CITY to retain expert witnesses, consultants,
23 and other professionals (not including court reporters) for purposes of the litigation. MOH may, if
24 it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
25 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
26 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
27 CITY'S Finance Department.
28 III
F:\ROTH\Outside coufisel\2009 Outside Counsel\Travis Walker v. City\Walker.ProfServicesAgr.wpd
1 8. Status reports will be submitted to the CITY through the City Attorney's Office
2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
3 set reserves, including, without limitation, potential liability exposure and percentage of fault, shall
4 be included.
5 9. Copies of any correspondence and other documents sent to any of the parties in this
6 action shall also be provided to the CITY through the City Attorney's Office.
7 10. Copies of all opinions shall be provided to the CITY through the City Attorney's
8 Office.
9 11. Any and all settlements shall require CITY approval. Request for settlement authority
10 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
1 I 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
12 Attorney's Office shall be notified immediately.
13 13. Only James Odium ofMOR shall perform the legal work hereunder.
14 14. No client development costs are to be included in billings.
15 15. No continuing education expenses are to be included in billings.
16 16. Final billing shall be accompanied by copies of the Request for Dismissal,
17 Satisfaction of Judgment, Release and any other final documents.
18 17. Either party may terminate this Agreement at will. MOR will continue to represent
19 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
20 another attorney.
21 18. MOR is an independent contractor as to the CITY.
22 19. MOR shall maintain the following types of insurance with limits as shown:
23 a) Workers Compensation as required by the laws of the State ofCalifomia,
24 including Employment Liability with $250,000 limits covering all persons providing
25 service on behalf ofMOR and all risks to such persons under this Agreement. MOR
26 shall require its Workers Compensation carrier to waive all rights of subrogation
27 against the CITY and its officers and employees and any others for whom services
28 are being provided under this Agreement.
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City~alker.ProfServicesAgL\vPd
I
2
3
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$1 ,000,000
for bodily injury and property damage.
4
5
6
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
7
follows:
8
"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 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."
9
10
11
12 MOH shall furnish certificates of insurance and certified copies of all policies and
13 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
14 to the commencement of performance of services hereunder, which certificates shall provide that
IS such insurance shall not be terminated or expire without thirty (30) days written notice to the City
16 Attorney's Office, and shall maintain such insurance from the time MOH commences performance
17 of services hereunder until the completion of such services.
18 All policies, with respect to the insurance coverage above required, except for the
19 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
20 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
21 their employees, agents, volunteers and officers as additional named insured with respect to
22 liabilities arising out of the performance of services hereunder.
23 All policies required above are to be primary and non-contributing with any insurance
24 policies or self-insurance programs carried or administered by the CITY or other parties represented
25 under this Agreement.
26 III
27 III
28 III
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City\Walker,ProfServicesAgr.wpd
4
5 Dated: June _,2009
6
7
8
9
10 Dated: June _,2009
11
12
13
14
15
16 Approved as to form:
17
JAMES F. PENMAN,
18 City Attorney
19
By:
20
21
22
23
24
25
26
27
28
1
2
3
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
MUNDELL, ODLUM & HAWS, LLP
By: James Odium
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTH\Outside counsel\2009 Outside Counsel\Travls Walker v. City'l4.ralker.ProfServicesAgr.wpd
1
PROFESSIONAL SERVICES AGREEMENT
2
TRA VIS WALKER v. CITY OF SAN BERNARDINO, et aI.
(TORT CLAIM)
3
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 MUNDELL, ODLUM & HAWS, LLP (hereinafter "MOH") are the parties to this Agreement.
6
2.
MOH will represent the following entities and persons with respect to the
7 Government Claim of TRAVIS WALKER: CITY OF SAN BERNARDINO and any designated
8 officer or employee ofthe CITY who may be named as a defendant. MOH shall not represent any
9 client in any type of claim against the CITY without prior written approval to do so from the CITY
10 OF SAN BERNARDINO through the City Attorney's Office.
II
3.
MOH shall be paid at the hourly rates of $200.
12 The amounts expended under this agreement for attorney fees shall not exceed
13 $25,000 without further approval of the Mayor and Common Council.
14
4.
Bills shall be submitted at least on a monthly basis and no later than the 5th day of
15 each succeeding month.
16
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 MOH may include a single charge in an amount not to exceed four percent (4%) of attorney fees in
19 lieu of reimbursement for photocopying, telephone charges, and postage.
20
6.
If attorney fees are charged "portal to portal" (e.g., from office to court and return),
21 then MOH shall not be entitled to reimbursement for mileage and parking fees.
22
7.
MOH shall obtain approval from the CITY to retain expert witnesses, consultants,
23 and other professionals (not including court reporters) for purposes of the litigation. MOH may, if
24 it chooses, pay the fees and charges of such consultants and seek reimbursement from the CITY on
25 its periodic statement, or it may forward the consultant's bill to the CITY with a request that the
26 CITY pay it directly. Consultants shall not bill the CITY directly without prior approval of the
27 CITY'S Finance Department.
28 III
F:\ROTH\Qutside counsel\2009 Outside Counsel\Travis Walker v. City\Walker.ProfServicesAgr.wpd
1 8. Status reports will be submitted to the CITY through the City Attorney's Office
2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient to
3 set reserves, including, without limitation, potential liability exposure and percentage offault, shall
4 be included.
5 9. Copies of any correspondence and other documents sent to any of the parties in this
6 action shall also be provided to the CITY through the City Attorney's Office.
7 10. Copies of all opinions shall be provided to the CITY through the City Attorney's
8 Office.
9 11. Any and all settlements shall require CITY approval. Request for settlement authority
10 shall be made through the City Attorney's Office which shall obtain the necessary CITY approvals.
II 12. In the event the settlement value of this case appears to exceed $50,000.00 the City
12 Attorney's Office shall be notified immediately.
13 13. Only James Odium ofMOR shall perform the legal work hereunder.
14 14. No client development costs are to be included in billings.
15 15. No continuing education expenses are to be included in billings.
16 16. Final billing shall be accompanied by copies of the Request for Dismissal,
17 Satisfaction of Judgment, Release and any other final documents.
18 17. Either party may terminate this Agreement at will. MOR will continue to represent
19 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
20 another attorney.
21 18. MOR is an independent contractor as to the CITY.
22 19. MOR shall maintain the following types of insurance with limits as shown:
23 a) Workers Compensation as required by the laws of the State of California,
24 including Employment Liabilitywith $250,000 limits covering all persons providing
25 service on behalf ofMOR and all risks to such persons under this Agreement. MOR
26 shall require its Workers Compensation carrier to waive all rights of subrogation
27 against the CITY and its officers and employees and any others for whom services
28 are being provided under this Agreement.
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City~alker.ProfServicesAgr.wpd
1
b)
Comprehensive General and Automobile Liability Insurance coverage to
2
include contractual coverage and automobile coverage for owned, hired and non-
3
4
owned vehicles. The policy shall have at least a combined single limit of$l,OOO,OOO
for bodily injury and property damage.
5
c)
Professional Liability Insurance with limits of at least $1,000,000 per claim.
6
In lieu of naming the CITY as an additional insured, the policy may be endorsed as
7
follows:
8
"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 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."
9
10
11
12 MOR shall furnish certificates of insurance and certified copies of all policies and
13 endorsements to the City Attorney's Office evidencing the insurance coverage above required prior
14 to the commencement of performance of services hereunder, which certificates shall provide that
15 such insurance shall not be terminated or expire without thirty (30) days written notice to the City
16 Attorney's Office, and shall maintain such insurance from the time MOR commences performance
17 of services hereunder until the completion of such services.
18 All policies, with respect to the insurance coverage above required, except for the
19 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
20 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
21 their employees, agents, volunteers and officers as additional named insured with respect to
22 liabilities arising out of the performance of services hereunder.
23 All policies required above are to be primary and non-contributing with any insurance
24 policies or self-insurance programs carried or administered by the CITY or other parties represented
25 under this Agreement.
26 III
27 III
28 III
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. CityW"alker.ProfServicesAgr.wpd
1
2
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
3
4
5 Dated: June - ,2009
6
7
8
9
10 Dated: June _,2009
11
12
13
14
15
16 Approved as to form:
17
JAMES F. PENMAN,
18 ;z,~
19
20
21
22
23
24
25
26
27
28
MUNDELL, ODLUM & HAWS, LLP
By: James OdIum
CITY OF SAN BERNARDINO
By: Patrick J. Morris, Mayor
F:\ROTH\Outside counsel\2009 Outside Counsel\Travis Walker v. City~alker.PTofServicesAgr.wpd