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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Professional Services Agreement between the
City of San Bernardino and the law firm of Mundell,
OdIum & Haws to represent the City of San Bernardino
in the case of Mohammed Fawzi Hassan, an Individual
and Armada Transport, Inc. v. City of San Bernardino,
Fred Wilson, City Administrator, Judith Valles, James
F. Penman, and Garrett W. Zilllmon as individuals, et al.
United States District Court Case No. EDCV 05-328
V AP (SGLx)
Dept: CITY ATTORNEY
Date: May 3, 2005
Synopsis of Previous Council Action:
Mayor and Council approved the hiring of Mundell, Odium & Haws to represent the City in the subject court
action.
Recommended motion:
Adopt Resolution.
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: 11. .,
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Agenda Item No.
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STAFF REPORT
Council Meeting Date: Mav 16. 2005
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DA TE: May 3, 2005
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino and the
law firm of Mundell, Odium & Haws to represent the City of San Bernardino
in the case of Mohammed Fawzi Hassan, an Individual and Armada Transport,
Inc. v. City of San Bernardino, Fred Wilson, City Administrator, Judith Valles,
James F. Penman, and Garrett W. Zimmon as individuals, et al. United States
District Court Case No. EDCV 05-328 V AP (SGLx)
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 $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, Odium & Haws to represent the City in the case of Mohammed Fawzi Hassan, an
Individual and Annada Transport, Inc. v. City of San Bernardino, Fred Wi/son, City Administrator,
Judith Valles, James F. Penman, and Garrett W. Zimmon as individuals, et al. United States District
Court Case No. EDCV 05-328 V AP (SGLx)
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RESOLUTION NO. t ~ f?Y'
2 RESOLUTION OF THE MA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BEIU\'ARDlNO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY
OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF Mohammed Fawzi
4 Hassan, all 11Idil'idual alld Armada Transport, Inc, I', City of Sail Bernardino, Fred Wilsoll, City
Admillistrator, Judith Valles, James F. Pen11lan, alld Garrett W, 2i11lmon as illdil'iduals, et al.
5 United States District Court Case No. EDCV 05.328 VAl' (SGLx)
6 BE IT RESOLVED BY THE MA )'OR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERJ'iARDINO 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 marked
II 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 City
14 Clerk within sixty (60) days following effective date of the resolution.
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RLS/js [Hassan Res]
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RESOLUTION OF THE l\fA YOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY
OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF Mohammed Fawzi
3 J/assall, an Individual alld Armada Transport, Inc. 1'. City of San Bernardillo, Fred Wilson, City
.4dmillistrator, Judith Valles, James F. Pellman, alld Garrett W. Zimmon as individuals, et al.
4 United States District Court Case No. EDCV 05-328 V AP (SGLx)
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
7 thereof, held on the
day of
,2005, by the following vote, to wit:
8 COUNCIL MEMBERS:
AYES
NAYS
ABST AIN
ABSENT
9 ESTRADA
10 LONGVILLE
] I MCGINNIS
]2 DERRY
[3 KELLEY
0 14 JOHNSON
15 MCCAf\lMACK
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The foregoing Resolution is hereby approved this
CITY CLERK
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Approved as to form and
24 legal content:
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RLS/Js IHassan.Res) 2
day of
,2005.
JUDITH VALLES, Mayor
City of San Bernardino
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PHOFESSIONAL SEHVICES AGREEMENT
2
/'vIolzammed Fawzi Hassall, all Individual alld Armada Trallsport, Illc. I'.
City of Sail Bernardillo, Fred lVilson, City A dmill iSlrator, Judith Valles,
James F. Pellmall, alld Garrett lV. Zimmoll as indil'iduals, et al.
United States District COllrt Case No. EDCV 05-328 V AP (SGLx)
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I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
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I\IUNDELL, ODLUM & HA WS (hereinafter "MO&H") are the parties to this Agreement.
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2. MO&J-I will be representing the following entities and persons in this litigation:
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crTY Of SAN BERNARDINO, Fred Wilson, City Administrator, Judith Valles, James f. Penman,
and Gan'ert W. Zimmon. MO&H shall not represent any client in any type of claim against the
10
CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
City Attorney's Office.
3. MO&H shall be paid at the hourly rates set forth below:
Attorneys - $150.00 per hour; and,
Law Clerks/Paralegals - $65.00 per hour.
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The amounts expended under this agreement for attorneys fees shall not exceed
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$25,000 without further approval of the Mayor and Common Council.
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4. Bills shall be submitted at least quarterly.
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5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
19
mileage and related travel costs shall be itemized when submitted to the CITY for reimburscment.
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MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
of reimbursemcnt for photocopying, telephone charges, and postage.
6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
retum), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
7. MO&H shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
if it chooses, pay the fees and charges of such consultants and seck reimbursement from CITY on
its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
RLS/J>' [lIassan PrfSvc>I\g.)
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Finance Dcpartment.
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8. Status rep0l1s will be submitted to CITY through the City Attol1ley's Officc
3 whcncver any significant cvcnt occurs, and in any event at least quarterly. Information sufficient
4 to set reservcs, including, without limitation, potential liability exposure and pcrcentage of fault
5 shall be included.
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9.
Copies of all opinions, pleadings, discovery and motions shall be provided to the
7 City Attol1ley's Office which may reproduce same and provide copies to other parties or attomeys
8 in this, or other litigation.
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10.
Copies of any correspondence and other documents sent to any of the defcndants
10 in this action shall also be provided to the CITY through the City AtlOIlley's Office.
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II.
Any and all settlemcnts shall require CITY approval. Requcst for settlement
12 authority shall be madc through the City AttoIlley's Office which shall obtain the necessary CITY
13 approvals.
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]2.
In the event thc settlement valuc of the case appcars to exceed $50,000, the City
15 Attol1ley's Office shall be notified immediately.
16
13.
Only James A. Odium of MUNDELL, ODLUM & HA WS or other senior attorney
17 approved by thc CITY shall try this case.
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14.
No client dcvelopment costs are to be included in billings.
IS.
No continuing education expenses are to be included in billings.
16.
Final bil]ing shall bc accompanied by copics of thc Requcst for Dismissal,
21 Satisfaction of Judgment, Release and any other final documents.
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17.
Either party may tcrminate this contract at will. MO&H will continue to rcpresent
23 thc CITY on the terms and conditions in this Agreement until the casc and file are transferred to
24 another attorney.
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RLS/js [HassanPrfSvcsAgr]
18.
MO&H is an independent contractor as to the CITY.
19.
MO&H shall maintain thc following types of insurance with limits as shown:
a)
Workers Compensation as required by the laws of the State of
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California, including Employment Liability with $250,000 limits covering all
2
persons providing service on behalf of MO&H and all risks to such persons
under this Agreement. MO&H shall require its Workers Compensation carrier
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to waive all rights of subrogation against the CITY and its officers and
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employees and any others for whom services are being provided under this
6
Agreement.
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b)
Comprehensive General and Automobile Liability Insurance
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coverage to include contractual coverage and automobile coverage for owned,
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hired and non-owned vehicles. The policy shall have at least a combined single
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limit of $1 ,000,000 for bodily injury and property damage.
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c)
Professional Liability Insurance with limits of at least $ 1,000.000
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per claim. In lieu of naming the CITY as an additional insured, the policy may
13
be endorsed as follows:
14
"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 elTor, omission or negligent act of the insured, its officers, employees, agents
or subcontractors. All other provisions of this policy are to remain unchanged."
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1 7 MO&H sh31l furnish certificates of insurance and certified copies of all policies
18 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
19 plior to the commencement of performance of services hereunder, which certificates shall provide
20 that such insurance shall not be terminated or expire without thirty (30) days wlitten notice to the
21 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
22 performance of services hereunder until the completion of such services.
23 All policies, with respect to the insurance coverage above required, except for the
24 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
25 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
26 their employees, agents, volunteers and officers as additional named insured with respect to
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liabilities arising out of the perfonnance of services hereunder.
RLSijS IlIassan PrfSvcsAgr)
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All policies required above are to be primary and non-contributing with any
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Insurance or self-insurance programs can-ied or administered by the CITY or other panics
3 represented under this Agreement.
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20.
All communications and billings to the CITY are to be directed as follows:
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City Attomey's Office
CITY OF SAN BERNARDINO
300 Nonh "0" Street
San Bernardino, CA 92418
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DA TED:
,2005
MUI\TDELL, ODLUM & HA WS
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By: James A. OdIum
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DATED:
,2005
CITY OF SAN BERNARDINO
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By: Judith Valles, Mayor
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23 Approved as to form and
legal content:
24
JAMES F. PENMAN,
25 City Attorney
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KLS/jS [lIassan PrfSvcsAgr]
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
M"t;"g D"e (D", Ad?",d)' <it ~ ( .5" Item # 1 D
Vote: Ayes ~ Nays
Resolution #
}o b)' , ( l/
Absent ,ff ~
Abstain
Change to motion to amend original documents 0
Companion Resolutions
NulI/Void After: ~
days/
Resolution # On Attachments: 0
Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
'.'<
:-~
Reso. Log Updated: ~
Seal Impressed: '6,
Date of Clerk/CDC Signature: . Reso. # on S~eport
Date Memo/Letter Sent for Signaturet: /2;16 Date Returned: b' 2fl1 tb~ Not Returned: 0
1 st Reminder Letter Sent: 2nd Reminder Letter Sent:
Date Sent to Mayor:
Date of Mayor's Signature:
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Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes~
Yes
Yes
Yes
Yes
No By_
No""'- By_
No / By_
-:;7
No_ By_
No '/BY_
Copies Distributed to:
~~!~ Animal Control 0 EDA V Information Services 0
t.:
i::'> City Administrator ~ Facilities Parks & Recreation 0
.'
City Attorney Finance Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Others:
Notes:
R"dy to FH, i
Date: &/ ; '1.-1 V ~
Revised 12/18/03
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
May 20, 2005
TO:
James Penman, City Attorney
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2005-111
At the Mayor and Common Council meeting of May 16, 2005, the City of San Bernardino
adopted Resolution No. 2005-111 - Resolution authorizing the execution of a Professional
Service Agreement between Mundell, Odium & Haws and the City to represent the City in the
case of Mohammed Fawzi Hassan, an Individual and Armada Transport, Inc., v. City of San
Bernardino, Fred Wilson, City Administrator, Judith Valles, James F. Penman, and Garrett W.
Zimmon as individuals, et at. United States District Court Case No. EDCV 05-328 VAP (SGLx).
Attached are one (1) original agreement and two (2) duplicate original agreements. Please obtain
signatures in the appropriate location and return the ORIGINAL agreement to the City Clerk's
Office to my attention. Please keep the fully executed copies for your records and for the other
party.
Please be advised that the resolution and contract will be null and void if not executed
within 60 days from the date of adoption.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Eileen Gomez
Senior Secretary
I hereby acknowledge receipt of the above mentioned documents.
::Od ~/~:
Please sign and return
...
R~r.HIVED..CIT'( CtEHl(
INTER OFFICE MEMORAtItOOM
OFFICE OF THE CITY Ai!TJilI2f'Jfi2Vn
CITY OF SAN BERNARDINO
.ro o!: ---It J
TO:
Eileen Gomez, Senior Secretary
City Clerk's Office
FROM:
Robert L. Simmons, Sr. Assistant City Attorney
DATE:
June 20, 2005
RE:
Mohammed Fawzi Hassan, et at. v. City of San Bernardino, et al. - Professional
Services Agreement
Attached is the executed original Professional Services Agreement in the Claim of
Mohammed Fawzi Hassan, et al. v. City of San Bernardino, et al.
~~
Robert L. Simmons
Sr. Assistant City Attorney
Attachment.
RLS/js [Hassan.Mem]