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CiTY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
CITY ATIORNEY
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, City of San
Bernardino Police Department, Michael Billdt, Police Chief for
the City of San Bernardino, and Frank Mankin, Assistant Police
Chief for the City of San Bernardinoin Michael Desrochers v.
City of San Bernardino. et al.
Dept: CITY A TIORNEY
Date: July 11, 2006
MCC Meeting: July 24, 2006
ORIGINAL
Synopsis of Previous Council Action:
07/10/06-
Mayor and Council ratified the hiring of Mundell, Odium & Haws to represent the City
of San Bernardino, City of San Bernardino Police Department, Michael Billdt, Police
Chief for the City of San Bernardino, and Frank Mankin, Assistant Police Chief for the
City of San Bernardino in the subject court action.
-'
Recommended motion:
The Mayor and Common Council adopt the resolution.
1'P~
Signature
Contact person:
Stephanie D. Easland
Phone:
5355
Supporting data attached: Staff Re1,Jort
Ward:
All
FUNDING REQUIREMENTS:
Amount:
None
Source:
Finance:
Committee Notes:
R -ESD. J.nD~' J~ I
7/J.LJ~
Agenda Item No.3
C'n.""_-'rn._~_~_k_~ _~~ 1
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TO:
FROM:
DATE:
AGENDA ITEM:
STAFF REPORT
Council Meeting Date: .Tulv 24. 2006
Mayor and Common Council
James F. Penman, City Attorney
July 13,2006
Professional Services Agreement between the City of San Bernardino
and the law firm of Mundell, OdIum & Haws to represent the City of
San Bernardino, City of San Bernardino Police Department, Michael
Billdt, Police Chief for the City of San Bernardino, Frank Mankin,
Assistant Police Chief for the City of San Bernardino in the case of
Michael Desrochers v. City of San Bernardino, et aI.
On June 29, 2006, the above-referenced court action was served on the City. On July 10,
2006, the Mayor and Common Council ratified the hiring of Mundell, OdIum & Haws to represent
the City in the subject 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, et al. in the case of Michael Desrochers v. City of
San Bernardino, et al.
Attachment
SDFJed[Major.StaffRpt]
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RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
3 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY
OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERS v. CITY OF
4 SAN BERNARDINO, et aI.
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 marked
10 Exhibit n A n and incorporated herein by reference as fully as though set forth at length.
II 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 the City
13 Clerk within sixty (60) days following the effective date of the resolution.
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20 II /
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25 II /
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SDEled[Desrochen.Res]
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1 RESOLUTION OF THE MAYOR 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 IN THE CASE OF MICHAEL DESROCHERS v. CITY OF
3 SAN BERNARDINO, et al.
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
AYES
, 2006, by the following vote, to wit:
7 COUNCIL MEMBERS:
8 ESTRADA
9 BAXTER
10 MCGINNIS
11 DERRY
12 KELLEY
13 JOHNSON
14 MCCAMMACK
15
16
17
18
19
NAYS ABSTAIN ABSENT
CITY CLERK
The foregoing Resolution is hereby approved this
day of
,2006.
20
21
Patrick J. Morris, Mayor
City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN,
City Attorney
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1
PROFESSIONAL SERVICES AGREEMENT
MICHAEL DESROCHERS v. CITY OF SAN BERNARDINO, et aI.
San Bernardino Superior Court Case No. SCVSS 139150
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
3
4
5
6
2. MO&H will be representing the following entities and persons in this litigation:
7
CITY OF SAN BERNARDINO POLICE DEPARTMENT, MICHAEL Bll..LDT, Police Chieffor
8
9
the City of San Bernardino, FRANK MANKIN, Assistant Police Chief for the City of
San Bernardino and THE CITY OF SAN BERNARDINO. MO&H shall not represent any client
10
in any type of claim against the CITY without prior written approval to do so from the CITY OF
11
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
$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.
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19
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MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu
21
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 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
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SDFJed[Desrochers.ProfSvcsAgr]
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1 Finance Department.
2 8. Status reports will be submitted to CITY through the City Attorney's Office
3 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
4 to set reserves, including, without limitation, potential liability exposure and percentage of fault
5 shall be included.
6 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
7 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
8 in this, or other litigation.
9 10. Copies of any correspondence and other documents sent to any of the defendants
lOin this action shall also be provided to the CITY through the City Attorney's Office.
11 11. Any and all settlements shall require CITY approval. Request for settlement
12 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
13 approvals.
14 12. In the event the settlement value of the case appears to exceed $50,000, the City
15 Attorney's Office shall be notified immediately.
16 13. Only James A. Odium of MUNDEll, ODLUM & HAWS or other senior attorney
17 approved by the CITY shall try this case.
18 14. No client development costs are to be included in billings.
19 15. No continuing education expenses are to be included in billings.
20 16. Final billing shall be accompanied by copies of the Request for Dismissal,
21 Satisfaction of Judgment, Release and any other final documents.
22 17. Either party may terminate this contract at will. MO&H will continue to represent
23 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
24 another attorney.
25 18. MO&H is an independent contractor as to the CITY.
26 19. MO&H shall maintain the following types of insurance with limits as shown:
27 a) Workers Compensation as required by the laws of the State of
28 California, including Employment Liability with $250,000 limits covering all
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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
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
3
4
5
6
Agreement.
b)
Comprehensive General and Automobile Liability Insurance
7
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.
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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."
16 MO&H shall furnish certificates of insurance and certified copies of all policies
17 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
18 prior to the commencement of performance of services hereunder, which certificates shall provide
19 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
20 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
21 performance of services hereunder until the completion of such services.
22 All policies, with respect to the insurance coverage above required, except for the
2 3 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
24 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
25 their employees, agents, volunteers and officers as additional named insured with respect to
26 liabilities arising out of the performance of services hereunder.
27
All policies required above are to be primary and non-contributing with any
28 insurance or self-insurance programs carried or administered by the CITY or other parties
SDEied(Desrochers.ProfSvcsAgr]
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I
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted):.1 \11..\\ rfL> Item # ~ Resolution #
Vote: AyesJi"))~ Cff-- Abstain<b-
Change to motion to amend original documents D Companion Resolutions
LOD6-d---~ \
AbsenFA-
NulJ/Void After: (PO days I q - :2,;)- ora
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/COUNTY D
By:
Date Sent to Mayor: ~ 0 (,p
Date of Mayor's Signature: 1/ (J~
Date ofClerklCDC Signature: 11:J-7 / /)0
Reso. Log Updated: 1)(1
Seal Impressed: ~
Reso. # on Staff Report ~
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
1<' - / - D k- Date Returned: ~ Not Returned: D
2'd Reminder Letter Sent:
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 4-
Yes
No
NoL
No ;(
NoL
NoL
By_
By_
By_
By_
By_
Yes
Yes
Yes
Copies Distributed to:
Animal Control D EDA D Information Services D
City Administrator D Facilities D Parks & Recreation D
City Attorney D Finance D Police Department D
Code Compliance D Fire Department D Public Services D
Development Services D Human Resources D Water Department D
Others:
Notes:
Ready to File: ~
Date:
Revised 12/18/03
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
August I, 2006
YOUR COPY
TO:
Edna DiVellis, Operations Supervisor
FROM:
Sandra Medina, Assistant to the City Clerk
RE:
Transmitting Documents for Signature - Resolution No. 2006-261
At the Mayor and Common Council rneeting of July 24, 2006, the City of San Bernardino
adopted Resolution No. 2006-261 - Resolution authorizing the execution of a professional
services agreement between Mundell, Odium & Haws and the City of San Bernardino in the
Case of Michael Desrochers v. City of San Bernardino, et al.
Attached are one (1) original Professional Services Agreernent and one (1) duplicate agreement
to be executed by Mundell, Odlurn & Haws. Please obtain signatures in the appropriate
locations and return the ORIGINAL agreement to the City Clerk's Office as soon as possible, to
Dodie Otterbein, Records Management Coordinator. Please forward the other fully executed
copy to 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 Friday, September 22, 2006.
If you have any questions, please do not hesitate to contact Dodie Otterbein, Records
Managernent Coordinator, at ex!. 3215. Thank you.
L/Ii:;&flin~
- 0 - - Assistant to the City Clerk
I hereby acknowledge receipt of the above mentioned documents.
Si""mlr-' & '"
Date: 'll~ D~
Please sign and return