HomeMy WebLinkAbout32-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
ORIGINAL
From: JAMES F. PENMAN Subject: Professional Services Agreement between the City
CITY ATTORNEY of San Bernardino and the law firm of Mundell, Odlum &
Haws to represent the City in the case of San Bernardino City
Professional Firefighters, Local 891, v. City of San Bernardino
and San Bernardino Fire Department, San Bernardino Superior
Court, Case No. 1007708.
Dept: CITY ATTORNEY
Date: June 16, 2010 MCC Meeting: June 21, 2010
Synopsis of Previous Council Action:
6/15/2010 Mayor and Council approved the hiring of Mundell, Odlum&Haws to represent the
City of San Bernardino and San Bernardino Fire Department in the subject court action.
Recommended motion:
That said resolution be adopted.
,41110:— /
Signature
Contact person: Diane Roth Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Committee Notes: We.ra c:=1-0/d
Agenda Item No. 52—
(,1&l I I °
STAFF REPORT
Council Meeting Date: June 21, 2010
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: June 16, 2010
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino
and the law firm of Mundell, Odlum & Haws to represent the City of
San Bernardino in the case of San Bernardino City Professional
Firefighters,Local891 v. City of San Bernardino and San Bernardino Fire
Department,San Bernardino County Superior Court,Case No.1007708.
The Mayor and Common Council approved the law firm of Mundell, Odlum & Haws to
represent the City in the above-referenced litigation. 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 City Manager
is authorized to execute the Professional Services Agreement on behalf of the City of San
Bernardino.
Attachment
rme
1 RESOLUTION NO.
u
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE
LAW FIRM OF MUNDELL, ODLUM & HAWS IN THE CASE OF SAN BERNARDINO
4 CITY PROFESSIONAL FIREFIGHTERS,LOCAL 891 v. CITY OF SAN BERNARDINO,SAN
BERNARDINO FIRE DEPARTMENTSAN BERNARDINO COUNTY SUPERIOR COURT,
5 CASE NO. 1007708.
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 the City of
10 San Bernardino and Mundell,Odlum&Haws for legal services in the case of San Bernardino City
11 Professional Firefighters, Local 891 v. City of San Bernardino and San Bernardino Fire
12 Department, San Bernardino County Superior Court,Case No. 1007708,a copy of which is attached
13 hereto marked Exhibit"A"and incorporated herein by reference as fully as though set forth at length.
14 SECTION 2. The authorization granted hereunder shall expire and be void and of no further
15 effect if the agreement is not executed by both parties and returned to the Office of the City Clerk
16 within sixty (60) days following the effective date of the resolution.
17
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1
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE
3 LAW FIRM OF MUNDELL, ODLUM & HAWS IN THE CASE OF SAN BERNARDINO
CITY PROFESSIONAL FIREFIGHTERS,LOCAL 891 v.CITY OF SAN BERNARDINO,SAN
4 BERNARDINO FIRE DEPARTMEN SAN BERNARDINO COUNTY SUPERIOR COURT,
CASE NO. 1007708.
5
6
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
8 Common Council of the City of San Bernardino at a meeting thereof, held
9 on the day of , 2010, by the following vote, to wit:
10 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
11 MARQUEZ
12 DESJARDINS
13 BRINKER
14 SHORETT
15 KELLEY
16 JOHNSON
17 MCCAMMACK
18
19
20 Rachel G. Clark, City Clerk
The foregoing Resolution is hereby approved this day of 2010.
21
22
23 Patrick J. Morris, Mayor
24 City of San Bernardino
Approved as to form:
25
JAMES F. PENMAN,
26 City Attorney
27
28 By: / /
1 PROFESSIONAL SERVICES AGREEMENT
2 MUNDELL, ODLUM & HAWS
3 San Bernardino City Professional Firefighters, Local 891 v.
City of San Bernardino and San Bernardino Fire Department
4 San Bernardino County Superior Court, Case No. 1007708
5 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
6 MUNDELL, ODLUM&HAWS (hereinafter "MO&H") are the parties to this Agreement.
7 2. MO&H will be representing the City of San Bernardino and the San Bernardino
8 Fire Department in the case of San Bernardino City Professional Firefighters, Local 891 v. City
9 of San Bernardino and San Bernardino Fire Department, San Bernardino County Superior Court,
10 Case No. 1007708. MO&H shall not represent any client in any type of claim against the CITY
11 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
12 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 $25,000 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.
2 0 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.
2 2 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
2 3 of reimbursement for photocopying, telephone charges, and postage.
2 4 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
2 5 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
2 6 7. MO&H shall obtain approval from the CITY to retain expert consultants and other
2 7 professionals(not including court reporters)for purposes of defending the litigation. MO&H may,
2 8 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
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
10 in 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 11. 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.
2 0 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.
2 4 17. Either party may terminate this contract at will. MO&H will continue to represent
2 5 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
2 6 another attorney.
2 7 18. MO&H is an independent contractor as to the CITY.
2 8 19. MO&H shall maintain the following types of insurance with limits as shown:
2
1 a) Workers Compensation as required by the laws of the State of
2 California, including Employment Liability with $250,000 limits covering all
3 persons providing service on behalf of MO&H and all risks to such persons
4 under this Agreement. MO&H shall require its Workers Compensation carrier
5 to waive all rights of subrogation against the CITY and its officers and
6 employees and any others for whom services are being provided under this
7 Agreement.
8 b) Comprehensive General and Automobile Liability Insurance
9 coverage to include contractual coverage and automobile coverage for owned,
10 hired and non-owned vehicles. The policy shall have at least a combined single
11 limit of$1,000,000 for bodily injury and property damage.
12 c) Professional Liability Insurance with limits of at least$1,000,000
13 per claim. In lieu of naming the CITY as an additional insured, the policy may
14 be endorsed as follows:
15 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
16 BERNARDINO for legal defense services, provided such liability results from
an error,omission or negligent act of the insured,its officers,employees, agents
17 or subcontractors. All other provisions of this policy are to remain unchanged."
18 MO&H shall furnish certificates of insurance and certified copies of all policies
19 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
2 0 prior to the commencement of performance of services hereunder, which certificates shall provide
21 that such insurance shall not be terminated or expire without thirty(30) days written notice to the
2 2 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
2 3 performance of services hereunder until the completion of such services.
2 4 All policies, with respect to the insurance coverage above required,except for the
2 5 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
2 6 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
2 7 their employees, agents, volunteers and officers as additional named insured with respect to
2 8 liabilities arising out of the performance of services hereunder.
3
•
1 All policies required above are to be primary and non-contributing with any
2 insurance or self-insurance programs carried or administered by the CITY or other parties
3 represented under this Agreement.
4 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 DATED: , 2010 MUNDELL, ODLUM &HAWS
9
10
By: James A. Odlum
11
12
DAZED: , 2010 CITY OF SAN BERNARDINO
13
14
15 By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
2 0 JAMES F. PENMAN,
City Attorney
21
22
By:
23
24
25
26
27
28
4
1 PROFESSIONAL SERVICES AGREEMENT
2 MUNDELL, ODLUM & HAWS
3 San Bernardino City Professional Firefighters, Local 891 v.
City of San Bernardino and San Bernardino Fire Department
4 San Bernardino County Superior Court, Case No. 1007708
5 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
6 MUNDELL, ODLUM&HAWS (hereinafter "MO&H") are the parties to this Agreement.
7 2. MO&H will be representing the City of San Bernardino and the San Bernardino
8 Fire Department in the case of San Bernardino City Professional Firefighters, Local 891 v. City
9 of San Bernardino and San Bernardino Fire Department, San Bernardino County Superior Court,
10 Case No. 1007708. MO&H shall not represent any client in any type of claim against the CITY
11 without prior written approval to do so from the CITY OF SAN BERNARDINO through the City
12 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 $25,000 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.
2 0 5. The actual cost for filing fees,telephone charges,photocopying,g �P Py g,postage,lodging,
21 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
2 2 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
2 3 of reimbursement for photocopying, telephone charges, and postage.
2 4 6. If attorney's fees are charged "portal to portal"
(e.g., from office to court and
2 5 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
2 6 7. MO&H shall obtain approval from the CITY to retain expert consultants and other
2 7 professionals(not including court reporters)for purposes of defending the litigation. MO&H may,
2 8 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on
1
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
10 in 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 11. 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.Odlum of MUNDELL,ODLUM&HAWS or other senior attorney
19 approved by the CITY shall try this case.
2 0 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
2 2 16. Final billing shall be accompanied by copies of the Request for Dismissal,
2 3 Satisfaction of Judgment, Release and any other final documents.
2 4 17. Either party may terminate this contract at will. MO&H will continue to represent
2 5 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
2 6 another attorney.
2 7 18. MO&H is an independent contractor as to the CITY.
2 8 19. MO&H shall maintain the following types of insurance with limits as shown:
2
1 a) Workers Compensation as required by the laws of the State of
2 California, including Employment Liability with $250,000 limits covering all
3 persons providing service on behalf of MO&H and all risks to such persons
4 under this Agreement. MO&H shall require its Workers Compensation carrier
5 to waive all rights of subrogation against the CITY and its officers and
6 employees and any others for whom services are being provided under this
7 Agreement.
8 b) Comprehensive General and Automobile Liability Insurance
9 coverage to include contractual coverage and automobile coverage for owned,
10 hired and non-owned vehicles. The policy shall have at least a combined single
11 limit of$1,000,000 for bodily injury and property damage.
12 c) Professional Liability Insurance with limits of at least$1,000,000
13 per claim. In lieu of naming the CITY as an additional insured, the policy may
14 be endorsed as follows:
15 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
16 BERNARDINO for legal defense services
provided such liability results from
an error,omission or negligent act of the insured,its officers,employees,agents
17 or subcontractors. All other provisions of this policy are to remain unchanged."
18 MO&H shall furnish certificates of insurance and certified copies of all policies
19 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
2 0 prior to the commencement of performance of services hereunder, which certificates shall provide
21 that such insurance shall not be terminated or expire without thirty(30) days written notice to the
22 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
2 3 performance of services hereunder until the completion of such services.
2 4 All policies,with respect to the insurance coverage above required,except for the
2 5 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
2 6 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
2 7 their employees, agents, volunteers and officers as additional named insured with respect to
2 8 liabilities arising out of the performance of services hereunder.
3
•
1 All policies required above are to be primary and non-contributing with any
2 insurance or self-insurance programs carried or administered by the CITY or other parties
3 represented under this Agreement.
4 20. All communications and billings to the CITY are to be directed as follows:
5 City Attorney's Office
CITY OF SAN BERNARDINO
6 300 North "D" Street
San Bernardino, CA 92418
7
8 DATED: , 2010 MUNDELL, ODLUM &HAWS
9
10
By: James A. Odium
11
12
DATED: , 2010 CITY OF SAN BERNARDINO
13
14
15 By: Patrick J. Morris, Mayor
16
17
18
19 Approved as to form:
2 0 JAMES F. PENMAN,
City Attorn-
21
22
By:
I ,
23
24
25
26
27
28
4