HomeMy WebLinkAbout09-City Attorney
C1TY 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 and San Bernardino Fire Department
in Patrick Major v. San Bernardino Fire Department, City of
San Bernardino, et al.
Dept: CITY ATTORNEY
Date: October 11, 2005
MCC Meeting: October 17,2005
ORIGINAL
Synopsis of Previous Council Action:
02/07/05-
Mayor and Council approved the hiring of Mundell, Odium & Haws to represent the
City and San Bernardino Fire Department in the subject court action.
Recommended motion:
The Mayor and Common Council adopt the resolution.
Contact person:
Stephanie D. Easland
Phone:
5355
Supporting data attached: Staff Reoort
Ward:
All
FUNDING REQUIREMENTS:
Amount:
None
Source:
Finance:
Committee Notes:
~~ c ~ Of)~~j36
Agenda Item No.
q
! [)f/7 /OS'
SDE/ed[Major.rca]
STAFF REPORT
Council Meeting Date: October 17. 2005
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
October 11,2005
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 Patrick Major v. San Bernardino Fire
Department, City of San Bernardino, et al.
On September 21, 2005, the above-referenced court action was served on the City. On
February 7, 2005, the Mayor and Common Council approved the law firm of Mundell, Odium &
Haws to represent the City if such a lawsuit was filed against the City. 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 ofthe 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 Patrick Major v. San Bernardino Fire
Department, City of San Bernardino, et al.
Attachment
SD E/ed[Major. StaftRpt]
RESOLUTION NO.
CC~f1f
"
RESOLUTION OF THE MAYOR Al\TI COMMO;\, COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY
OF SAN BERNARDINO IN THE CASE OF PATRICK MAJOR v. SAN BERNA.RDINO FIRE
DEPARTMENT, CITY OF SAN BERNARDINO, et al.
BE IT RESOLVED BY THE MAYOR A!\TI COMMON COL'NCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
3
4
5
6
7
8
9
10
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
to execute on behalf of said City a Professional Services Agreement between Mundell, OdIum &
Haws and the City of San Bernardino for legal services, a copy of which is attached hereto
marked Exhibit" A" and incorporated herein by reference as fully as though set forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
11
12
further effect if the agreement is not executed by both parties and returned to the Office of the
13
City Clerk within sixty (60) days following the effective date of the resolution.
1"; I I I
15 1//
16 1//
17 1//
18 1//
19 III
20 III
21 III
22/ III
,,~ 1//
...c.)
24 III
25 III
26 III
27 III
28 I I I
Sl.lE/ed[MaJOT Res]
RESOLUTION OF THE MAYOR A!\'D COMMON COUNCIL OF THE CITY OF
SAN BERJ'IARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
, SERVICES AGREEMENT BETWEEN MUNDELL, ODLU!\1 & HAWS AND THE CITY
OF SAN BERNARDINO IN THE CASE OF PATRICK MAJOR v. SAN BERNARDINO FIRE
3 DEPARTMENT, CITY OF SAN BERNARDINO, et al.
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting
day of
,2005, by the fol/owing vote, to
AYES
NAYS
ABSTAIN ABSENT
CITY CLERK
20
2005.
The foregoing Resolution is hereby appruved this
day of
21
22
23
JUDITH VALLES, Mayor
City of San Bernardino
25
24 Approved as to form and
legal content:
JAMES F. PENi\1AN,
26 City Attorney
~: By: Jl1~),.(V
/' /
i /
S[~/~VJ<"1aJor Res]
}
.l
( ~~...},,-_.,~.__.-<--."-
')
PROFESSIONAL SERVICES AGREEMENT
2
PATRICK MAJOR v. SAN BERNARDINO FIRE DEPARTMENT,
CITY OF SAN BERlVARDINO, et 01.
Sail Bernardino Superior Court Case No. SCVSS 129136
3
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 SAN BERNARDINO FrRE DEPARTMENT and THE CITY OF SAN BERNARDINO. MO&H
8 shall not represent any client in any type of claim against the CITY without prior written approval
9 to do so from the CITY OF SAN BERNARDINO through the City Attorney's Office.
10
3.
MO&H shall be paid at the hourly rates set forth below:
11 Attorneys - $150.00 per hour; and,
12 Law Clerks/Paralegals - $50.00 per hour,
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 $20,000 without further p.pproval of the Mayor and Common Council.
15
4.
Bills shall be suhmitted at least quarterly.
16
5.
The actual cost for filing fees. telephone charges, photocopying, postage, lodging,
17 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
18 MC&H may include a -ingle charge in an amount not to exceed four percent (4%) of fees in lieu
20
19 of reimbursement for photocopying, telephone charges, and postage.
I
6.
If attorney's fees are charged "portal to portal" (e.g., from office to court and
22
21 retill11), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
7.
MO&I I shall clbtain approval from the CITV to retain expert consultants and other
23 professionals (not including court reporters) for purposes of defending the litigation. MO&H may,
24 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
25 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
26 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
27 Finance Department.
28
8.
Status reports will be submitted to CITY through the City A Horney's Office
SD E/ed[ Major ProfSvcsAgr]
1
EXHIBIT "A"
20
1 whenever any significant event occurs, and in any event at least quarterly. Infonnation sufficient
2 to set reserves, including, without limitation, potential liability exposure and percentage of faul:
3 shall be included.
4
Copies of all opinions, pleadings, discovery and motions shall be provided to the
9.
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
II.
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
II approvals.
12
12.
[n the event the settlement value of the case appears to exceed $50.000, the City
13 Attorney's Office shall be notitied immediately.
14
13.
Only James A. OdIum ofMU"NlJELL, ODLUM & HA WS or other senior attorney
15 approved by the CITY shall try this case.
16
14.
No client development costs arc to be included in billings.
No continuing education expenses are to be included in billings.
17
15.
18
16.
Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final dOCWllents.
17.
Either part)' may terminate this contract at \vill. MO&H will continue to represent
21 the CITY on the tenm and conditions in this Agreement wltil the case and file are transferred to
22 another attorney.
23
24
25
26
27
28
18.
MO&H is an independent contractor as to the CITY.
19.
MO&H shalll11aintain the following types of insurance with limits as shown:
a)
Workers Compensation as required by the laws of the State of
California, including Employment Liability with $250,000 limits covering all
persons providing service on behalf of MO&II and all risks to such persons
under this Agreement. MO&H shall require its Workers Compensation carrier
SDEled,MaJor ProfSvcsAgr)
2
EXHIBIT "A"
1
to waIve all rights of subrogation against the CITY and its officers and
2
employees and any others for whom seryices are being provided under this
3
Agreement.
4
b)
Comprehensive General and Automobile Liability Insurance
5
coverage to include contractual coverage and automobile coverage for owned,
6
hired and non-owned vehicles. The policy shall have atlcast a combined single
7
limit of $1 ,000,000 for bodily injury and property damage.
8
c)
Professional Liability Insurance with limits of at least $1 ,000,000
9 per claim. In lieu of naming the CITY as an additional insured, the policy may
lObe endorsed as follows:
11 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
12 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
13 or subcontractors. All other provisions oftms policy are to remain unchanged."
14 MO&H shall furnish certificates of insurance and certified copies of all policies
15 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
16 prior to the commencement of performance. of services hereunder, wmch certificates shall provide
17 that such insurance shall not be terminated or expire without thirty (30) days \-vritten notice to the
18 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
19 perfornlance 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 II1surance or self-insurance programs carried or administered by the CITY or other parties
27 represented under this Agreement.
28 III
S D E/ectl Ma)orProfSvcsAgr]
3
EXHIBIT "A"
1
20.
All communications and billings to the CITY arc to be directed as follows:
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
,2005
MUNDELL, ODLUM & HA WS
2
3
4
DA TED: October
5
6
'7
8
9
DATED: October
By: James A. OdIum
,2005
CITY OF SAN BER.~ARDINO
10
11
12
13
14
15
16
17
By: Judith Valles, Mayor
18 A pproved as to [ann and
legal content:
19
JAMES F. PENMAN,
20 City Attorney
21
22
23
24
25
26
27
28
By:
'1
Ii
./_.'...;,/t........-..,
/1
//' I
/
!
S DE/ed [M aJor, Prors vcsAgr ]
.J
.I
4
EXHIBIT "A"
1
PROFESSIONAL SERVICES AGREEMENT
2
PA TRICK MAJOR v. SA/V BERNARDINO FIRE DEPARTMENT,
CITY OF SAN BERNARDINO, et at.
Sal/ Bernardino Superior Court Case No. SCVSS 129136
3
4
1.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5 MUNDELL, ODLUM & IIA WS (hereinafter "MO&H") arc the parties to this Agreement.
6
2.
MO&I I will be representing the following entities and persons in this litigation:
7 SAN BERNARDINO FIRE DEP AR TMENT and THE CITY OF SAN BERNARDINO. ~10&I I
8 shall not represent any client in any type of claim against the CITY without prior written approval
9 to do so ii'om the CITY OF SAN BERNARDINO through the City Attorney's Office.
10
3.
1\10&H shall be paid at the hourly rates set forth below:
11 Attorneys - $ ] 50.00 per hour; and,
12 La\\/ Clerks/Paralegals - $50.00 per hour.
13 The amounts expended under this agreement for attorneys fees shall not exceed
14 52(1.000 without further approval of the Mayor and Comlllon CounciL
lS
4.
Bills shall be submitted at least quarterly.
16
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
1 7 mileage and related tran'] costs shall be itemized when submitted to the CITY for reimbursement.
20
19 of reimbursement for photocopying, telephone charges, and postage.
18 MO&II may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
6.
If attorney's fees are charged "portal to portal" (e.g, from office to court and
22
21 return), 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
23 professionals (not including court rep0l1crs) for purposes of defending the litigation. MO&H may,
24 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CrTY on
25 its periodic statement, or it may forward the consultant's bill '0 CITY with a request that the CITY
26 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
27 Finance Department.
28
8.
Status reports will be submitted to CrTY through the City Attorney's Office
SDE/ed[Malor ProfSvcsAgr]
1
1 whenever any significant event occurs, and in any event at least quarterly. Information suffIcient
2 to set reserves~ including, \vithout 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 scnt to any of the defendants
8 in this action shall also be provided to the CITY through the City Attorney's Office.
9 II. Any and all settlements shall require CITY approval. Request for scttlement
10 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
11 approvals.
12 ] 2. In the event the settlement value of the case appears to exceed $50,000, the City
13 Altorney's Office shall be notifIed immediately.
14 13. Only James A. Odlulll of MUNDELL. ODLUM & 111\ WS or other senior attorney
15 approved by the CITY shall try this casc.
16 14. No clicnt development costs are to be included in billings.
17 15. No continuing education expenses are to be inc luded 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.
20 ] 7. Either party may terminate this contract at will. MO&H will continue to represent
21 the CITY on the terms and conditions in this Agreemcnt 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
SDUed[Major P,oIS\"csAgr]
2
1
to waIve all rights of subrogation against the CITY and its officers and
2
employees and any others for whom services are being provided under this
3
Agreement.
4
b)
Comprehensive General and Automobile Liabi lity Insurance
5
coverage to include contractual coverage and automobile coverage for owned,
6
hired and non-owned vehicles. The policy shall have at least a combined single
7
limit of $1.000,000 for bodily injury and property damage.
8
c)
Professional Liability Insurance with limits of at least $1 ,000,000
9 per claim. In lieu of naming the CITY as an additional insured. the policy may
lObe endorsed as follows:
11 "Insurance coverage afforded by this policy shall also apply to the
liability assumed bv the Insured under the Agreement with the CITY OF SAN
12 BERNARDINO for legal defense services, p;ovided such liability results from
an error, omission or negligent act of the insured, its officers. employees, agents
13 or subcontractors. l\ II other provisions of this policy are to renlain unchanged. It
14 MO&H shall furnish certificates of insurance and certified copies of all policies
15 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
16 prior to the commencement of perfom1ance of services hereunder, which certiticates shall provide
1 7 that such insurance shall not be term inatcd or expire without thirty (30) days written notice to the
18 City Attorney's Office, and shall maintain such insurance from the time :vlO&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 pal1ies 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 II1surance or self-insurance programs carried or administered by the CITY or other parties
27 represented under this Agreement.
28 III
SDE/cd I "-laJor ProfSvcsAgr J
3
17
1
20.
All communications and billings to the CITY are to be directed as follows:
'"'
"-
3
4
DA TED: October
,2005
5
6
7
8
9
DATED: O,lober
,2005
10
11
12
13
14
15
16
18 Approved 3S to form and
legal content:
19
J:\IvIES F. PENMAN.
20 City Attorney
22
21 /1
j!
) ,?
'.../~ I~,~j
, -:/"-
,'-..-.."."....-
23
24
25
26
27
28
,
I !
~ j
By" '.,../
'-7 .
;.;:-.-..+,.....
SDE/edl Major ProrsvcsAgr]
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
MUNDELL, ODLUM & HA WS
By: James A. Odium
CITY OF SAN BERNARDINO
By: Judith Valles, Mayor
4