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HomeMy WebLinkAbout34- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION i . �- 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 of San Bernardino, Common Council of the City of San Bernardino; Patrick J. Morris, in his official capacity as Mayor of the City of San Bernardino; and, Charles McNeely, in his official capacity as City Manager of the City of San Bernardino in San Bernardino Public Employees'Association, Robert Michael Yandell, et al. v. City of San Bernardino, et al. Dept: CITY ATTORNEY Date: November 3, 2010 MCC Meeting: November 15, 2010 Synopsis of Previous Council Action: 11/01/10- Mayor and Council approved the hiring of Mundell, Odlum&Haws to represent the City of San Bernardino, Common Council of the City of San Bernardino; Patrick J. Morris, in his official capacity as Mayor of the City of San Bernardino; and, Charles McNeely, in his official capacity as City Manager of the City of San Bernardino in the subject court action. Recommended motion: The Mayor and Common Council adopt the resolution. c I i E s --- Signature Contact person: Stephanie D. Easland Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Committee Notes: a 2010 -- F:\EASLAND\SBPEA\SBPEAYandell.rca.wpd i STAFF REPORT Council Meeting Date: November 15, 2010 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: November 3,2010 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, Common Council of the City of San Bernardino; Patrick J. Morris, in his official capacity as Mayor of the City of San Bernardino; and, Charles McNeely, in his official capacity as City Manager of the City of San Bernardino in the case of San Bernardino Public Employees'Association, Robert Michael Yandell, et al. v. City of San Bernardino, et al. On October 25, 2010, the above-referenced court action was served on the City. On November 1, 2010, the Mayor and Common Council approved the hiring of Mundell, Odlum & 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, Odlum & Haws to represent the City, et al. in the case of San Bernardino Public Employees'Association, Robert Michael Yandell, et al. v. City of San Bernardino, et al. Attachment F:\EASLAND\SBPEA\SBPEAYandellvCity.StatlReport.wpd COPY I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL,ODLUM&HAWS AND THE CITY OF 4 SAN BERNARDINO IN THE CASE OF SAN BERNARDINO PUBLIC EMPLOYEES' ASSOCIATION, ROBERT MICHAEL YANDELL, et al. v. CITY OF SAN BERNARDINO, et 5 al. 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, Odlum & 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 if the agreement is not executed by both parties and returned to the Office of the City 14 Clerk within sixty (60) days following the effective date of the resolution. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F:\EASLAND\SBPEA\SBPEAYandell.Res.wpd 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL,ODLUM&HAWS AND THE CITY OF 3 SAN BERNARDINO IN THE CASE OF SAN BERNARDINO PUBLIC EMPLOYEES' ASSOCIATION, ROBERT MICHAEL YANDELL, et al. v. CITY OF SAN BERNARDINO, et 4 al. 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 , 2010, by the following vote, to wit: 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 DESJARDINS 11 BRINKER 12 SHORETT 13 KELLEY Q14 JOHNSON 15 MCCAMMACK 16 17 CITY CLERK 18 19 The foregoing Resolution is hereby approved this day of 52010. 20 21 Patrick J. Morris, Mayor City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, 24 City Attorney 25 By: 26 27 28 F:\EASLAND\SBPEA\SBPEAYandell.Res.wpd 2 1 PROFESSIONAL SERVICES AGREEMENT 2 SAN BERNARDINO PUBLIC EMPLOYEES'ASSOCIATION, ROBERT MICHAEL YANDELL, et al. v. CITY OF SAN BERNARDINO, et al. 3 San Bernardino Superior Court Case No. CIVDS 1014651 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,COMMON COUNCIL OF THE CITY OF SAN BERNARDINO; 8 PATRICK J. MORRIS, in his official capacity as Mayor of the City of San Bernardino; and, 9 CHARLES MCNEELY, in his official capacity as City Manager of the City of San Bernardino. 10 MO&H shall not represent any client in any type of claim against the CITY without prior written 11 approval to do so from the CITY OF SAN BERNARDINO through 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 5`h 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\SBPEA\SBPEAYandell.PSA.MOH.ExhA.wpd 1 Exhibit °A° 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. 17 13. Only James A.Odlum 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 28 F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.ExhA.wpd 2 Exhibit °A° 1 19. MOM 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 MOM and all risks to such persons 5 under this Agreement. MOM shall require its Workers Compensation carrier 6 to waive all rights of subrogation against the CITY and its officers and 7 employees and any others for whom services are being provided under this 8 Agreement. 9 b) Comprehensive General and Automobile Liability Insurance 10 coverage to include contractual coverage and automobile coverage for owned, 11 hired and non-owned vehicles. The policy shall have at least a combined single 12 limit of$1,000,000 for bodily injury and property damage. 13 c) Professional Liability Insurance with limits of at least$1,000,000 14 per claim. In lieu of naming the CITY as an additional insured, the policy may 15 be endorsed as follows: 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 17 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act of the insured,its officers,employees, agents 18 or subcontractors. All other provisions of this policy are to remain unchanged." 19 MOM shall furnish certificates of insurance and certified copies of all policies 20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required 21 prior to the commencement of performance of services hereunder,which certificates shall provide 22 that such insurance shall not be terminated or expire without thirty(30) days written notice to the 23 City Attorney's Office, and shall maintain such insurance from the time MOM commences 24 performance of services hereunder until the completion of such services. 25 All policies,with respect to the insurance coverage above required,except for the 26 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 27 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 28 /// F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.ExhA.wpd 3 Exhibit "A° 1 their employees, agents, volunteers and officers as additional named insured with respect to 2 liabilities arising out of the performance of services hereunder. 3 All policies required above are to be primary and non-contributing with any 4 insurance or self-insurance programs carried or administered by the CITY or other parties 5 represented under this Agreement. 6 20. All communications and billings to the CITY are to be directed as follows: 7 City Attorney's Office CITY OF SAN BERNARDINO 8 300 North "D" Street San Bernardino, CA 92418. 9 10 DATED: November , 2010 MUNDELL, ODLUM& HAWS 11 12 By: James A. Odlum 13 14 DATED: November 52010 CITY OF SAN BERNARDINO 15 16 17 By: Patrick J. Morris Mayor 18 19 20 21 Approved as to form: 22 JAMES F. PENMAN, City Attorney 23 24 By: 25 26 27 28 F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.ExhA.wpd 4 Exhibit "All 1 PROFESSIONAL SERVICES AGREEMENT 2 SAN BERNARDINO PUBLIC EMPLOYEES'ASSOCIATION,ROBERT MICHAEL YANDELL, et al. v. CITY OF SAN BERNARDINO, et al. 3 San Bernardino Superior Court Case No. CIVDS 1014651 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,COMMON COUNCIL OF THE CITY OF SAN BERNARDINO; 8 PATRICK J. MORRIS, in his official capacity as Mayor of the City of San Bernardino; and, 9 CHARLES MCNEELY, in his official capacity as City Manager of the City of San Bernardino. 10 MO&H shall not represent any client in any type of claim against the CITY without prior written 11 approval to do so from the CITY OF SAN BERNARDINO through 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\SBPEA\SBPEAYandeII.PSA.MOH.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. 17 13. Only James A.Odlum 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 28 F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.wpd 2 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 6 to waive all rights of subrogation against the CITY and its officers and 7 employees and any others for whom services are being provided under this 8 Agreement. 9 b) Comprehensive General and Automobile Liability Insurance 10 coverage to include contractual coverage and automobile coverage for owned, 11 hired and non-owned vehicles. The policy shall have at least a combined single 12 limit of$1,000,000 for bodily injury and property damage. 13 c) Professional Liability Insurance with limits of at least$1,000,000 14 per claim. In lieu of naming the CITY as an additional insured, the policy may 15 be endorsed as follows: 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 17 BERNARDINO for legal defense services,provided such liability results from an error,omission or negligent act of the insured,its officers,employees,agents 18 or subcontractors. All other provisions of this policy are to remain unchanged." I19 MO&H shall furnish certificates of insurance and certified copies of all policies 20 and endorsements to the City Attorney's Office evidencing the insurance coverage above required 21 prior to the commencement of performance of services hereunder,which certificates shall provide 22 that such insurance shall not be terminated or expire without thirty(30)days written notice to the 23 City Attorney's Office, and shall maintain such insurance from the time MO&H commences 24 performance of services hereunder until the completion of such services. 25 All policies,with respect to the insurance coverage above required,except for the 26 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall 27 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 28 /// F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.wpd 3 1 their employees, agents, volunteers and officers as additional named insured with respect to 2 liabilities arising out of the performance of services hereunder. 3 All policies required above are to be primary and non-contributing with any 4 insurance or self-insurance programs carried or administered by the CITY or other parties 5 represented under this Agreement. 6 20. All communications and billings to the CITY are to be directed as follows: 7 City Attorney's Office CITY OF SAN BERNARDINO 8 300 North "D" Street San Bernardino, CA 92418 9 10 DATED: November , 2010 MUNDELL, ODLUM & HAWS 11 12 By: James A. Odlum 13 14 DATED: November , 2010 CITY OF SAN BERNARDINO 15 16 17 By: Patrick J. Morris Mayor 18 19 20 21 Approved as to form: 22 JAMES F. PENMAN, City Attorney 23 24 By: ' 25 26 27 28 F:\EASLAND\SBPEA\SBPEAYandell.PSA.MOH.wpd 4