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HomeMy WebLinkAbout07.C- City Attorney RESOLUTION(ID#2065) DOC ID: 2065 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: James F. Penman M/CC Meeting Date: 10/15/2012 Prepared by: Richard D. Luczak, (909) 384- 5355 Dept: City Attorney Ward(s): N/A Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of a Professional Services Agreement Between the City of San Bernardino and Mundell, Odlum & Haws, LLP to Represent the City of San Bernardino in the Matter of International Union of Operating Engineers, Local 12 V. City of San Bernardino,Unfair Practice Charge No. LA-CE-795-M Financial Impact: Account Budgeted Amount: $25,000.00 Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. Motion: Adopt the Resolution. Synopsis of Previous Council Action: (� September 4,2012--the MCC approved retaining Mundell, Odlum&Haws to represent the City and any employees in the above-referenced Unfair Practice Charge. Background: The City of San Bernardino is currently involved in an Unfair Practice Charge filed by the IUOE (which represents most general unit employees). The Mayor and Common Council have approved retention of the law firm of Mundell, Odlum & Haws to represent the City of San Bernardino and its employees regarding the case entitled IUOE, Local 12 v. City of San Bernardino, Unfair Practice Charge No. LA-CE-795-M. 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. City Attorney Review: Supporting Documents: Resolution (PDF) agrmt 2065 (PDF) Updated: 10/9/2012 by Heidi Aten Packet Pg. 40 E a © 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE HIRING OF MUNDELL, ODLUM & 3 HAWS, LLP TO REPRESENT THE CITY REGARDING THE CASE ENTITLED INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 12 V. CITY OF 4 SAN BERNARDINO, UNFAIR PRACTICE CHARGE NO. LA-CE-795-M. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE y 3 6 CITY OF SAN BERNARDINO AS FOLLOWS: _ xs 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and E 8 directed to execute on behalf of said City a Professional Services Agreement between 0 9 Mundell, Odlum & Haws, LLP and the City of San Bernardino for legal services regarding 10 International Union of Operating Engineers, Unfair Practice Charge No. LA-CE-795-M, a o 11 copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference 12 as though fully set forth at length. 13 SECTION 2. The authorization granted hereunder shall expire and be void and of c N 14 no further effect if the agreement is not executed by both parties and returned to the Office r 15 of the City Clerk within sixty (60) days following the effective date of the resolution. a 16 / / / 17 18 / / / Ln 0 19 20 / / / S 0 21 22 23 24 25 26 27 28 Packet Pg.41 7.C.a t 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF V SAN BERNARDINO APPROVING THE HIRING OF MUNDELL, ODLUM & 2 HAWS, LLP TO REPRESENT THE CITY REGARDING THE CASE ENTITLED INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 12 V. CITY OF 3 SAN BERNARDINO, UNFAIR PRACTICE CHARGE NO, LA-CE-795-M. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and N 6 Common Council of the City of San Bernardino at a meetin g i 0e 7 thereof,held on the_day of , 2012,by the following vote, to wit: S 8 O Council Members: AYES NAYS ABSTAIN ABSENT d 9 c 10 MARQUEZ w 0 11 JENKINS c c 12 VALDIVIA =' m z 13 SHORETT N 14 KELLEY s 15 a' 16 JOHNSON o 17 MCCAMMACK 18 0 19 Gerogeann Hanna, City Clerk c 20 The foregoing resolution is hereby approved this day of 2012. C 21 22 E 23 Patrick J. Moms, Mayor City of San Bernardino =° 24 a Approved as to form: 25 JAMES F. PENMAN, 26 City Attorney 27 By: `- 28 Packet P42 7.C.b I PROFESSIONAL SERVICES AGREEMENT 2 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 12 . v. CITY OF SAN BERNARDINO, 3 Unfair Practice Charge No. LA-CE-795-M 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 in this litigation: CTIT OF °a 7 SAN BERNARDINO,and ALL INDIVIDUAL DEFENDANTS. MO&H shall not represent any 8 client in any type of claim against the CITY without prior written approval to do so from the CITY O m 9 OF SAN 13ERNARDINO through the City Attorneys Office. a c 10 3. MO&H shall be paid at the hourly rates set forth below; 0 11 Attorneys-$200.00 per hour; and, e 0 c 12 Law Clerks/Paralegals-$65.00 per hour. d 13 The amounts expended under this agreement for attorney's fees shall not exceed c 14 $25,000 without further approval of the Mayor and Common Council. r 15 4. Bills shall be submitted at least on a monthly basis and no later than the 5"day of c 16 each succeeding month. 17 5. The actual cost for filing fees,telephone charges, d g ,photocopying,postage,lodging, rr 18 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. LO 0 19 MO&H may include a single charge in an amount not to exceed four percent(4%)of fees in lieu in 20 of reimbursement for hotoco fD P pying, telephone charges, and postage. ° N 21 6. If attorney's fees are charged "portal to portal" E P (e.g, from office to court and 22 return),then MO&H shall not be entitled to reimbursement for mileage and parking fees. r c 23 7. MO&H shall obtain approval from the CITY to retain expert consultants and other 24 professionals(not including court reporters)for purposes ofdefendingthelitigation. MO&H in 2 5 if it chooses,pay the fees and charges of such consultants and seek reimbursement from CITY on 2 6 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 CITrs. 28 Finance Department. P:ILUCZAKUUOE12v.City.795.PSA.MOH.wpd 1 Packs Pg.43- 0 1 8. Status reports will be submitted to CITY through the City Attorney's Office 2 whenever any significant event occurs, and in any event at least quarterly. Information sufficient 3 to set reserves, including,without limitation,potential liability exposure and percentage of fault 4 shall be included. 5 9. Copies of all opinions,pleadings,discovery 3 1'Y motions shall be provided to the x 6 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys 7 in this, or other litigation. v O 8 10. Copies of any correspondence and other documents sent to any of the defendants m 9 in this action shall also be provided to the CITY through the City Attorney's Office. 10 11. Any and all settlements shall require CITY approval. Request for settlement ° c 11 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 12 approvals. m x 13 12. In the event the settlement value of the case e app ars to exceed$50,000,the City N 14 Attorney's Office shall be notified immediately. L 15 13. Only James A.Odlum ofMUNDELL,ODLUM&HAWS or othersenior attorney c 0 16 approved by the CITY shall try this case. 0 17 14. No client development costs are to be included in billings. d 18 15. No continuing education expenses are to be included in billings. ° 0 19 16. Final billing shall be accompanied by copies of the Request for Dismissal, m 20 Satisfaction of Judgment,Release and any other final documents. ° N 21 . 17. Either £ party this atwill. MO&H will continue to represent m 22 the CITY on the terms and conditions in this Agreement until the case and file are transferred to d 23 another attorney. E r U r 24 18. MO&H is an independent contractor as to the CITY, Q 25 26 27 28 P:%LUCZAK VUOE12v.City.795.FSA.MOH.wpd 2 "�Packef;Pg.44 1 19. MO&H shall maintain the following types of insurance with limits as shown: 2 a) Workers Compensation as required by the laws of the State of 3 California, including Employment Liability with$250,000 limits covering all 4 persons providing service on behalf of MO&H and all risks to such persons 5 under this Agreement. MO&H shall require its Workers' Compensation carrier m x 6 to waive all rights of subrogation against the CITY and its officers and ae E 7 employees and any others for whom services are being provided under this v 8 Agreement. 0 m a 9 b) Comprehensive General and Automobile Liability Insurance e 10 coverage to include contractual coverage and automobile coverage for owned, c 11 hired and non-owned vehicles. The policy shall have at least a combined single c 12 limit of$1,000,000 for bodily injury and property damage. � rn 13 c) Professional Liability Insurance with limits ofatleast$1,000,000 N 14 per claim. In lieu of naming the CITY as an additional insured, the policy may 15 be endorsed as follows: c 0 16 "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN o 17 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act o€the insured,its officers,employees,agents ;O 18 or subcontractors. All other provisions of this policy are to remain unchanged." c Cli 19 MO&H shall furnish certificates of insurance and certified copies of all policies LO 20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required E 21 prior to the commencement of performance of services hereunder,which certificates shall provide m 22 that such insurance shall not be terminated or expire without thirty(30)days written notice to the r 23 City Attorney's Office, and shall maintain such insurance from the time MO&H commences r E U M 24 performance of services hereunder until the completion of such services. a 25 All policies,with respect to the insurance coverage above required,except for the 26 Workers'Compensation insurance coverage and professional liability coverage,ifapplicable,shall 27 28 P:�LUCZAKVUOE12v.City.795.PSA.MOH.wpd 3 Packe$P9,.45,... "*47 C.b y' O1 obtain additional endorsements naming the CITY and all Parfies r e presentedunderthisAgreement, 2 their employees, agents, volunteers and officers as additional named insured with respect to 3 liabilities arising out of the performance of services hereunder. 4 All policies required above are to be primary and non-contributing with any 5 insurance or self-insurance programs carried or administered by the CITY or other parties R x 6 represented under this Agreement. xs E 7 20. All communications and billings to the CITY are to be directed as follows: .2 8 City Attorney's Office CITY OF SAN BERNARDINO a 9 300 North"D" Street r San Bernardino, CA 92418 10 c c 11 DATED: MUNDELL, ODLL M&HAWS c d 12 m 13 c N By:James A. Odlum o 14 s 15 r c DATED: CITY OF SAN BERNARDINO 16 0 17 18 By:Patnck J.Morns, Mayor c N 19 u� 20 N 21 E m Approved as to form: m 22 JAMES F. PENMAN, 23 City Attorney C 24 Q 25 13 e 26 27 28 `w P:1W CZAKUUOE12v.Ciry.795.PSA.MOFI.wpd 4 v�� PacketPg:4,6