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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Subject: Resolution amending Professional Services
Agreement between the City of San Bernardino and the
law firm of Mundell, Odium & Haws regarding
representation related to conducting a personnel
investigation.
Dept: CITY ATTORNEY
Date: February 13,2006
MlCC Date: February 21, 2006
Synopsis of Previous Council Action:
January 25, 2006 - Resolution No. 2006-16 - Mayor and Council approved the hiring of Mundell, Odium &
Haws for the purpose of conducting a personnel investigation.
Recommended motion:
Adopt Resolution.
Resolution of the Mayor and Common Council of the City of San Bernardino
amending Professional Services Agreement between Mundell, Odium & Haws and
the City of San Bernardino regarding representation related to conducting a
personnel investigation.
L?f~
'(j:ature
Contact person: Steohanie D. Easland
Phone:
5355
Supporting data attached: Staff Reoort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
,:)-oOb # l( 3
Agenda Item No.
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1/1J JD~J
SDE/ed[PSA.Odlum.PersonnelInv I.rea]
ST AFF REPORT
Council Meeting Date: Februarv 21. 2006
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
February 21, 2006
Resolution of the Mayor and Common Council of the City of San Bernardino
amending Professional Services Agreement between Mundell, Odium & Haws
and the City of San Bernardino regarding representation related to conducting
a personnel investigation.
On January 25, 2006, the Mayor and Common Council approved a resolution to hire
Mundell, OdIum & Haws ("MO&H") to represent the City for the purpose of conducting a personnel
investigation.
In a letter dated February 8, 2006, James OdIum of MO&H stated that the Law
Clerk/Paralegal rate was erroneously decreased from $65.00 per hour to $50.00 per hour and
requested the rate be corrected.
The hourly rate for Law ClerkslParalegals in the Professional Services Agreement reads:
"Law Clerks/Paralegals - $50.00 per hour." This was an oversight and has been corrected to read:
"Law Clerks/Paralegals - $65.00 per hour."
Attached hereto is the amended Professional Services Agreement which reflects the change
above. No other changes have been made to this Agreement.
It is requested by the City Attorney that the following floor motion be adopted amending the
Professional Services Agreement with MO&H:
"That the Mayor and Common Council of the City of San Bernardino approve the amended
Professional Services Agreement between MO&H and the City of San Bernardino regarding
representation related to conducting a personnel investigation."
RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AMENDING PROFESSIONAL SERVICES AGREEMENT BETWEEN
3 J\;IUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO REGARDING
REPRESENTATION RELATED TO CONDUCTING A PERSONNEL INVESTIGATION.
4
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 an amended Professional Services Agreement between Mundell,
9 Odium & Haws and the City of San Bernardino for legal services, a copy of which is attached
10 hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at
11 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.
15 /II
16 /II
17 /II
18 I I I
19 II/
20 II/
21 II/
22 /II
23 II/
24 1/1
25 /II
26 II/
27 II/
28 /1/
SDE/cd [PSA Odium. PcrsonnellnvAmcndedReso ]
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AMENDING PROFESSIONAL SERVICES AGREEMENT BETWEEN
2 MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO REGARDING
REPRESENTATION RELATED TO CONDUCTING A PERSONNEL INVESTIGATION.
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting
6 thereof, held on the
day of
, 2006, by the following vote, to
7 wit:
8 COUNCIL MEMBERS: AYES
9 ESTRADA
10 LONGVILLE
I I MCGINNIS
12 DERRY
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17
18
NAYS
ABST AIN
ABSENT
CITY CLERK
19
20 2006.
The foregoing Resolution is hereby approved this
day of
21
22
23
JUDITH VALLES, Mayor
City of San Bernardino
24 Approved as to form and
legal content:
25
26 By: .k}N~" ..:;. {J.r,..,::,,_
/J JAMES F. PENMAN
( City Attorney
. /
27
28
S DEled I PSA Odium Person nellnvAmendedRcso]
2
1
2
AMENDED PROFESSIONAL SERVICES AGREEMENT
I.
The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law finn of
3 MlTNDELL, ODLUM & HA \VS (hereinafter "MO&I-!") arc the parties to this Agreement.
4
2.
MO&H will be representing the CITY for the purpose of conducting a personnel
6
5 investigation as authorized by the Mayor and Council on January 9, 2006.
3.
MO&H shall be paid al Ihe hourly rates set forth below:
7 A ttomeys - $150.00 per hour; and,
8 Law Clerks/Paralegals - $6500 per hour.
9 The amounts expended under this agreement for attorneys fees shall nOl exceed
11
10 S20,000 without further approval of the Mayor and Common Council.
12
4.
Bills shall be submitted at least qualierly.
5.
The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
13 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
14 Iv10&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
16
15 of rcim burscment for photocopying, telephone charges, and postage.
6.
If attorney's fees arc charged "portal to portal" (e.g., from office to court and
17 return), then I\10&H shall not be entitled to reimbursement for mileage and parking fees.
18
7.
MO&H shall obtain approval from the CITY to retain expert consultants and other
19 professionals (not including couri reporters) for purposes of conducting a personnel investigation.
20 MO&H may, if it chooses, pay the fees and charges of such consultants and seek reimbursement
21 from CITY on its periodic statement, or it may forward the consultant's bi~ to CITY with arequest
22 that the CITY pay it directly. Consultants shall not bill the CITY directly without prior approval
23 of the CITY'S Finance Department.
24
8.
25 whenever any significant event occurs, and in any event at least quarterly.
Status repolis will be submitted to CITY through the City Attorney's Office
26
9.
27
10.
Copies of all opinions shall be provided to the City Attorney's Office.
28 shall perform the legal work set forth in this agreement.
Only James A. OdIum ofMO& H or other senior attorney approved by the CITY
SDE/ed[PersonneIJnv Odium AmendcdProfSvcsAgr]
1
eXHIBIT "A"
1
I]
No client development costs are to be included in billings.
2
12.
No continuing education expenses are to be included in billings
3
13.
Either MO&l-I or the CITY may terminate this contract at vvilL MO&l-I will
4 continue to represent the CITY on the terms and conditions in this Agreement until the file is
5 transferred to another attorney.
6
] 4.
MO&!-I is an independent contractor as to the CITY.
7
15.
MO&l-I shall maintain the following types of insurance with limits as shown:
8
a)
Workers Compensation as required by the laws of the State of
9
California, including Employment Liability with $250,000 limits covering all
10
persons providing service on behalf of MO&I I and all risks to such persons
11
under this Agreement. !\10&H shall require its Workers Compensation carrier
12
to waive all rights of subrogation against the CITY and its officers and
13
employees and any others for whom services are being provided under this
14
Agreement.
15
b)
Comprehensive General and Automobile Liability Insurance
16
coverage to include contractual coverage and automobile coverage for owned,
17
hired and non-ovvned vehicles. The policy shall have at least a combined single
18
limit of $1 ,000,000 for bodily injury and property damage.
19
c)
Professional Liability Insurance with limits of at least $1 ,000,000
20 per claim. In lieu of naming the CITY as an additional insured, the policy may
21 be endorsed as follows:
22 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
23 BERNARDINO for legal defense services, provided such liability results from
an enor, omission or negligent act of the insured, its officers, employees, agents
24 or subcontractors. All other provisions of this policy are to remain unchanged."
25 MO&H shall furnish certificates of insurance and certified copies of all policies
26 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
27 prior to the commencement of performance of services hereunder, which certificates shall provide
28 that such insurance shall not be terminated or expire without thirty (30) days VvTitten notice to the
SDE/cd[Personncllnv OdIum AmendcdProfSvc~Agr]
2
EXHIBIT "A"
20
21
22
23
24
2S
26
27
28
1
City Attomey's Office, and shall maintain such insurance from the time !\10&J-I commences
2
performance of services hereunder until the completion of such services.
3
All policies, with respect to the insurance coverage above required, except for the
4
Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
S
obtain additional endorsements naming the CITY and all parties represented under this Agreement,
6
their employees, agents, volunteers and officers as additional named insured with respect to
7
liabilities arising out of the performance of services hereunder.
8
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10
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. II
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III
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3
EXHIBIT "A"
1 AI] policies required above are to he primary and non-contributing with any
2 Illsurance or self-insurance programs calTied or administered by the CITY or other parties
3 represented under this Agreement.
4
16.
All communications and billings to the CITY are to be directed as follows:
5
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418
6
7
DATED
,2006
MUNDELL, ODLUM & HA WS
8
9
10
By: James A. OdIum
11
12
DATED
,2006
CITY OF SAN BERNARDINO
13
14
15
By: Judith Valles, Mayor
16
Approved as to form and
17 legal content:
18 JAi\1ES F. PENMAN,
City Attorney
19
20
21
22
23
24
25
26
27
28
By:
SDEled[PcrsonnelInv OdIum Amcndedl'rnISvcsAgr)
4
EXHIBIT "A"
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AMENDED PROFESSIONAL SERVICES AGREEMENT
1. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
MUNDELL, ODLUM & HA WS (hereinafter "MO&H") are the parties to this Agreement.
2. MO&H will be representing the CITY for the purpose of conducting a persormel
investigation as authorized by the Mayor and Council on January 9, 2006.
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.
The amounts expended under this agreement for attorneys fees shall not exceed
$20,000 without further approval of the Mayor and Common Council.
4. Bills shall be submitted at least quarterly.
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%) of fees in lieu
of reimbursement for photocopying, telephone charges, and postage.
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. MO&H shall obtain approval from the CITY to retain expert consultants and other
professionals (not including court reporters) for purposes of conducting a persormel investigation.
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.
8. Status reports will be submitted to CITY through the City Attorney's Office
whenever any significant event occurs, and in any event at least quarterly.
9. Copies of all opinions shall be provided to the City Attorney's Office.
10. Only James A. OdIum ofMO& H or other senior attorney approved by the CITY
shall perform the legal work set forth in this agreement.
1
S D fled [Person nelln v. Od I u m. Amended ProfS vcsAgr ]
1
II.
No client development costs .are to be included in billings.
2
12.
No continuing education expenses are to be included in billings.
3
13.
Either MO&H or the CITY may terminate this contract at will. MO&H will
4 continue to represent the CITY on the terms and conditions in this Agreement until the file is
5 transferred to another attorney.
6
14.
MO&H is an independent contractor as to the CITY.
7
IS.
MO&H shall maintain the following types of insurance with limits as shown:
8
a)
Workers Compensation as required by the laws of the State of
9
California, including Employment Liability with $250,000 limits covering all
10
persons providing service on behalf of MO&H and all risks to such persons
11
under this Agreement. MO&H shall require its Workers Compensation carrier
12
to waive all rights of subrogation against the CITY and its officers and
13
employees and any others for whom services are being provided under this
14
Agreement.
15
b)
Comprehensive General and Automobile Liability Insurance
16
coverage to include contractual coverage and automobile coverage for owned,
17
hired and non-owned vehicles. The policy shall have at least a combined single
18
limit of $1,000,000 for bodily injury and property damage.
19
c)
Professional Liability Insurance with limits of at least $1 ,000,000
20 per claim. In lieu of naming the CITY as an additional insured, the policy may
21 be endorsed as follows:
22 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
23 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured, its officers, employees, agents
24 or subcontractors. All other provisions of this policy are to remain unchanged."
2 5 MO&H shall furnish certificates of insurance and certified copies of all policies
26 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
27 prior to the commencement of performance of services hereunder, which certificates shall provide
28 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
SDE/ed [Personnellnv. Od lurn ArnendedProtS vcsAgr]
2
1 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
2 performance of services hereunder until the completion of such services.
3 All policies, with respect to the insurance coverage above required, except for the
4 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
5 obtain additional endorsements naming the CITY and all parties represented under this Agreement
6 their employees, agents, volunteers and officers as additional named insured with respect to
7 liabilities arising out of the performance of services hereunder.
8 II I
9 II I
10 III
11 III
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20 III
21 I I I
22 III
23 III
24 III
25 III
26 III
27 III
28 III
SDE/edfPersonncl!nv. Odium AmendedProtS vcsAgr]
3
1 All policies required above are to be primary and non-contributing with any
2 msurance or self-insurance programs carried or administered by the CITY or other parties
3 represented under this Agreement.
4
16.
All communications and billings to the CITY are to be directed as follows:
5
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
6
7
DA TED:
,2006
MUNDELL, ODLUM & HA WS
8
9
10
By: James A. OdIum
11
12
DA TED:
,2006
CITY OF SAN BERNARDINO
13
14
15
By: Judith Valles, Mayor
16
Approved as to form and
1 7 legal content:
18 JAMES F. PENMAN,
City Attorney
19
20
21
22
23
24
25
26
27
28
,\
\ I .
By: \r-(!.'1"L~
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\
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S DE/ed[ PcrsonnclIn v. Odlum.AmendedProfS vcsAgr ]
4
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Moo"', n"" (D." AdOPC;" ~ H'm' J I
Vote: Ayes. Nays
R,w"";,,' )OD!o - _V7
Abstain Absent.
Companion Resolutions
Change to motion to amend original documents 0
PUBLISH 0
POST 0
Note on Resolution of attachment stored separately: 0
RECORD W/COUNTY 0 By:
t
NulVVoid After: days /
Resolution # On Attachments: 0
Date Sent to Mayor: 1-" ) '7 ' 0 p
Date of Mayor's Signature: ~ -;.~" ()re,
Date ofClerk/CDC Signature: )- }7 "BkJ
Reso. Log Updated: ;::'V.
Seal Impressed: 'b/
Reso. # on Staff Report
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Date Returned:
2"d Reminder Letter Sent
Not Returned: 0
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
JNO_ By_
No ~BY_
No 7 By
No :;:~
No_ By_
Yes
Copies Distributed to:
Animal Control
City Administrator
City Attorney
Code Compliance
Development Services
Others:
o
~
o
o
EDA
o
o
o
o
o
Information Services
o
o
D
D
o
Facilities
Parks & Recreation
Police Department
Public Services
Water Department
Finance
Fire Department
Human Resources
Notes:
!
Reo',. ,;re1-
7} to
Dat:'J; !~, Q
Revised 12/18/03
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
February 28, 2006
TO:
Stephanie Easland, Assistant City Attorney
FROM:
Eileen Gomez, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution Nos. 2006-43
At the Mayor and Common Council meeting of February 21,2006, the City of San Bernardino
adopted Resolution No. 2006-43 ~ Resolution amending Professional Services Agreement
between Mundell, OdIum & Haws and the City of San Bernardino regarding representation
related to conducting a personnel investigation.
Attached are one (1) original Professional Services Agreement and two (2) duplicate agreements
to be executed by James A. Odium. 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 other two (2) 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 sixty (60) days, or by Thursday, April 20, 2006.
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.
Signed:
~~o~
Please sign and return
Date: