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HomeMy WebLinkAbout12-City Attorney "i.> C- ~~'~_~'"~~C'- . 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 Kimberlyn Hearns v. City of San Bernardino. Dept: CITY ATTORNEY Date: July 19,2005 MCC Date: August I, 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 Reoort Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: ~, "noS. ;),60 Agenda Item NO.----Ld..- 811105' ~~<" ~ , STAFF REPORT Council Meeting Date: Aueust 1. 2005 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney July 19, 2005 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 Kimberlyn Hearns v. City of San Bernardino 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 $20,000 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 Kimberlyn Hearns v. City of San Bernardino. !!l:f.')'~'" " o RESOLUTION NO. C~ f)f 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 3 AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF KIMBERLYN HEARNS v. CITY 4 OF SAN BERNARDINO. 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 8 to execute on behalf of said City a Professional Services Agreement between Mundell, Odium & 9 Haws and the City of San Bernardino for legal services, a copy of which is attached hereto 10 marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. 11 SECTION 2. The authorization granted hereunder shall expire and be void and of no 12 further effect if the agreement is not executed by both parties and returned to the office of City 13 Clerk within sixty (60) days following effective date of the resolution. 14 I I / o 15 I I I 16 I I I 17 III 18 I I I 19 I I I 20 I I I 21 1/1 22 / I I 23 I / I 24 I I I 25 / I ! 26 I I I 27 I I I 28 o JEG/ae [Heams2.RES] 1 ~~-=- 'Lr't. ~~-~~. < H~ H_~~_~'~_<'<._''"_''~_~~_' ~ -",- ,; o 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF S~ BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES 2 AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF KlMBERLYN HEARNS v. CITY 3 OF SAN BERNARDINO. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 thereof, held on the 7 wit: 8 COUNCIL MEMBERS: 9 ESTRADA 10 LONGVILLE 11 MCGINNIS 12 DERRY 13 KELLEY 14 JOHNSON 0 15 MCCAMMACK 16 17 5 Common Council of the City of San Bernardino at a day of meeting , 2005, by the following vote, to AYES NAYS ABSTAIN ABSENT CITY CLERK 18 19 20 2005. 21 22 The foregoing Resolution is hereby approved this day of JUDITH V ALLES, Mayor City of San Bernardino 23 24 Approved as to form and legal content: 25 JAMES F. PENMAN, 26 City Attorney 27 By: l---. f ) 0 28 "JC:~ JEaeamS2,RES] 2 o o o ~ " 1 PROFESSIONAL SERVICES AGREEMENT KIMBERLYN HEARNS v. CITY OF SAN BERNARDINO. United States District Court Case No. CV 05-04524 GHK(RZx) 1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of MUNDELL, ODLUM & HAWS (hereinafter "MO&H") are the parties to this Agreement. 2. MO&H will be representing the following entities and persons in this litigation: CITY OF SAN BERNARDINO. MO&H shall not represent any client in any type of claim against the 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 - $50.00 per hour. The amounts expended under this agreement for attorneys fees shall not exceed $20,000 without further approval of the Mayor and Common Council. 2 3 4 5 6 7 8 9 10 11 12 13 14 4. Bills shall be submitted at least quarterly. 15 16 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement. MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu of reimbursement for photocopying, telephone charges, and postage. 17 18 19 20 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and return), then MO&H shall not be entitled to reimbursement for mileage and parking fees. 7. M O&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 seek 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 Finance Department. 21 22 23 24 25 26 27 8. Status reports will be submitted to CITY through the City Attorney's Office 28 JEG/dn[HEARNS2.AGR) 1 o o o j 1 whenever any significant event occurs, and in any event at least quarterly. Information sufficient I 2 to set reserves, including, without limitation, potential liability exposure and percentage of fault 3 shall be included. 4 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the 5 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys 6 in this, or other litigation. 7 10. Copies of any correspondence and other documents sent to any of the defendants 8 .in this action shall also be provided to the CITY through the City Attorney's Office. 9 11. Any and all settlements shall require CITY approval. Request for settlement 10 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY 11 approvals. 12 12. In the event the settlement value of the case appears to exceed $50,000, the City 13 Attorney's Office shall be notified immediately. 14 13. Only James A. OdIum of MUNDELL, ODLUM & HA WS or other senior attorney 15 approved by the CITY shall try this case. 16 14. No client development costs are to be included in billings. 17 15. No continuing education expenses are to be included in billings. 18 16. Final billing shall be accompanied by copies of the Request for Dismissal, 19 Satisfaction of Judgment, Release and any other final documents. 2 0 1 7. Either party may terminate this contract at will. M O&H will continue to represent 21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to . 22 another attorney. 23 18. MO&H is an independent contractor as to the CITY. 24 19. MO&H shall maintain the following types of insurance with limits as shown: 25 a) Workers Compensation as required by the laws of the State of 26 California, including Employment Liability with $250,000 limits covering all 27 persons providing service on behalf of MO&H and all risks to such persons 28 under this Agreement. MO&H shall require its Workers Compensation carrier JEGidn[HEARNS2.AGR] 2 o o o .. 1 to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. 2 3 4 b) Comprehensive General and Automobile Liability Insurance 5 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. 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 follows: "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 error, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions of this policy are to remain unchanged." MO&H shall furnish certificates of insurance and certified copies of all policies and endorsements to the City Attorney's Office evidencing the insurance coverage above required 6 7 8 9 10 11 12 13 14 15 16 prior to the commencement of performance of services hereunder, which certificates shall provide 1 7 that such insurance shall not be terminated or expire without thirty (30) days written notice to the 18 City Attorney's Office, and shall maintain such insurance from the time MO&H commences 19 performance of services hereunder until the completion of such services. 20 All policies, with respect to the insurance coverage above required, except for the 21 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 22 obtain additional endorsements naming the CITY and all parties represented under this Agreement, 23 their employees, agents, volunteers and officers as additional named insured with respect to 24 liabilities arising out of the performance of services hereunder. 25 All policies required above are to be primary and non-contributing with any 26 insurance or self-insurance programs carried or administered by the CITY or other parties 27 represented under this Agreement. 28 ill JEGJdn[IIEARNS2.AGR) 3 ~~~",,~~,," , . . o o o .-~.~~ 1 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 2 3 4 DATED: ,2005 MUNDELL, ODLUM & HAWS 5 6 7 By: Jim OdIum 8 9 DATED: ,2005 CITY OF SAN BERNARDINO 10 11 12 By: Judith Valles, Mayor 13 14 15 16 17 18 19 20 Approved as to form and legal content: 21 JAMES F. PENMAN, 22 City Attorney 23 BY';'''~ ? (; .~ '" ~~ 24 25 26 27 28 JEG/dn[HEARNS2.AGR] 4 .- . ..... '" ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** .- - , ~ RESOLUTION AGENDA ITEM TRACKING FORM Moeting Date (Date ~)' ~,(, 0)" Item # Vote: Ayes Nays Change to motion to amend original documents 0 l~ Resolution # tft) OS -A~O Abstain Companion Resolutions Absent NulWoid After: days / Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0 PUBLISH 0 POST 0 RECORD W/COUNTY 0 By: ~ ~ Date Sent to Mayor: g/ }1 () S' Date of Mayor's Signature: ~r 1.l?'S--- Date of Clerk/CDC Signature: ~/ l{, 0) /" f'lrJ,o"$ Reso. Log Updated: IZ1/' Seal Impressed: ci Date Memo/Letter Sent for Signature: 151 Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Not Returned: 0 I i ,.,: 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~ No NOZ NoL By_ NoL~y_ NoL By_ By_ By_ Yes Yes Yes Yes Copies Distributed to: i Animal Control 0 EDA 0 Information Services 0 ~ City Administrator r Facilities 0 Parks & Recreation 0 ~; City Attorney Finance 0 Police Department 0 Code Compliance 0 Fire Department 0 Public Services 0 Development Services 0 Human Resources 0 Water Department 0 Others: Notes: Ready to File: Date: B,t? I o{' Revised 12/18/03 ^ .^^~~^.^^.'^' , , ,-CC:"_;->-'1;-' ,';,~ ,.,!'."T-;''''^K>?''''''''''~-''-"''''' --. " ~,,;< ""''C;''-''':,''S';7__-;''''_'f_'c','_'1__<'c:'':;'C''!;,'(',;r"':;,;"':<"'H,~"r~-~'C'_~ .' . ,~ CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: August 10, 2005 TO: Edna Di Vellis, Operations Supervisor FROM: Eileen Gomez, Senior Secretary RE: Transmitting Documents for Signature - Resolution Nos. 2005-260 At the Mayor and Common Council meeting of August 1, 2005, the City of San Bernardino adopted Resolution No. 2005-260 - Resolution authorizing the execution of a professional services agreement between Mundell, OdIum & Haws and the City of San Bernardino to represent the City in the case of Kimberlyn Hearns v. City of San Bernardino. Attached is one (1) original revised professional services agreement and two (2) duplicate original agreements to be executed by Mundell, OdIum & Haws. Please obtain signatures in the appropriate locations and return the ORIGINAL agreement to the City Clerk's Office as soon as possible, to my attention. Please keep the fully executed copies for your records and for the other party. Please be advised that the resolution and agreement will be null and void if not executed within sixty (60) days, or by Friday, September 30, 2005. If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you. Eileen Gomez Senior Secretary tf2 Please sign ad return s'\!:::f,.i}~:~ ~..~~~~ lt~.>~ ~"_ !-.-r "'c:".)~"1'.:~.'.'..' ,::,l....~~"'~ c" ~'..;r>;::!~ .~.;~. ,jJ~\\t.'" ~::: '<~~~;:;!~\~.\ INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO TO: Eileen Gomez, Senior Secretary FROM: Jolena E. Grider, Deputy CityAttomey fJ[.f)) ~ Ii DATE: August 22, 2005 d)frOS-' ~ 0 ~\y Kimberlyn Hearns v. City of San Bernardino USDC Case No.: CV 05-04524 GHK (RZx) N filii RE: ~ ~ ~'~ ... Please find the Original of the Professional Services Agreement between Mundell, Odium & Haws, LLP regarding the above-mentioned matter. c~:. GriderIForms[Hearns.gomez.mem]