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,
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: 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 Shirley Allen v. City of San Bernardino, et
al.
From: JAMES F. PENMAN
City Attorney
Date: October 13, 2003
ORIGINAL
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.
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Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Reoort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
"Re::c,$! 'ZOO'~- 2~L
Agenda Item No. 10
10/ :1.0/03
.
STAFF REPORT
Council Meeting Date: October 20. 2003
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Conunon Council
James F. Penman, City Attorney
October 13, 2003
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 Shirley Allen v. City of San Bernardino, et
al.
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 Shirley Allen v. City of San Bernardino,
etal.
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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 SHIRLEY ALLEN v. CITY OF SAN
4 BERNARDINO, et al.
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 "A" 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 City
13 Clerk within sixty (60) days following effective date of the resolution.
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SDE/Js [ALLEN.RES) I
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
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 SHIRLEY ALLEN v. CITY OF SAN
3 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 thereof,
6 held on the
day of
, 2003, by the following vote, to wit:
7 COUNCIL MEMBERS:
8 ESTRADA
9 LONGVILLE
10 MCGINNIS
11 DERRY
12 SUAREZ
13 ANDERSON
14 MCCAMMACK
IS
16
NAYS
ABSTAIN ABSENT
AYES
CITY CLERK
17
The foregoing Resolution is hereby approved this
day of
,2003.
JUDITH V ALLES, Mayor
City of San Bernardino
Approved as to form and
legal content:
JAMES F. PENMAN,
City Attorney
SDEijs IALLEN.RES]
2
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1
PROFESSIONAL SERVICES AGREEMENT
2
SHIRLEY ALLEN v. CITY OF SA.N BERNARDINO, et al.
San Bernardino Superior Court Case No. SCVSS 102087
3
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
4
MUNDELL, ODLUM & HA WS (hereinafter "MO&H") are the parties to this Agreement.
5
6
2. MO&H will be representing the following entities and persons in this litigation:
7
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.
8
9
10
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The amounts expended under this agreement for attorneys fees shall not exceed
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$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,
15
16
mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
17
MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
18
of reimbursement for photocopying, telephone charges, and postage.
19
6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
20
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
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
22
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Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office
SDEijs[ALLEN AGR)
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Exhibit "A"
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whenever any significant event occurs, and in any event at least quarterly. Information sufficient
2
to set reserves, including, without limitation, potential liability exposure and percentage of fault
3 shall be included.
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
4
9.
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 orother senior attorney
15 approved by the CITY shall try this case.
16
14.
No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
Final billing shall be accompanied by copies of the Request for Dismissal,
19 Satisfaction of Judgment, Release and any other final documents.
17
15.
Either party may terminate this contract at will. MO&H will continue to represent
21 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
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16.
20
17.
22 another attorney.
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18.
19.
MO&H is an independent contractor as to the CITY.
MO&H shall maintain 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&H and all risks to such persons
SDEijslALLEN AGR}
2
Exhibit "A"
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under this Agreement. MO&H shall require its Workers Compensation carrier
2
to waive all rights of subrogation against the CITY and its officers and
3
employees and any others for whom services are being provided under this
4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile coverage for owned,
7
hired and non-owned vehicles. The policy shall have at least a combined single
8
limit of $1,000,000 for bodily injury and property damage.
9
c)
Professional Liability Insurance with limits of at least $ I ,000,000
10
per claim. In lieu of naming the CITY as an additional insured, the policy may
11
be endorsed as follows:
12
"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."
13
14
15 MO&H shall furnish certificates of insurance and certified copies of all policies
16 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
17 prior to the commencement of performance of services hereunder, which certificates shall provide
18 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
19 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
20 performance of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented underthis Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26 All policies required above are to be primary and non-contributing with any
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Insurance or self-insurance programs carried or administered by the CITY or other parties
SOEiJs[ALLEN AGR]
3
Exhibit "A"
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1 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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DATED:
,2003
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DATED:
,2003
21 Approved as to form and
legal content:
22
JAMES F. PENMAN,
23 City Attorney
24
25 By:
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City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 924 I 8
MUNDELL, ODLUM & HAWS
By: James A. Odium
CITY OF SAN BERNARDINO
By: Judith Valles, Mayor
SDE/jslALLEN AGR]
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Exhibit "A"
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1
PROFESSIONAL SERVICES AGREEMENT
SHIRLEY ALLEN v. CITY OF SAN BERNARDINO, et al.
San Bernardino Superior Court Case No. SCVSS 102087
2
3
4
5
6
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:
7
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.
8
9
10
11
12
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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.
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.
17
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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 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
Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office
SDEijs[ALLEN.AGR]
1
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1 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
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
17
18
14.
No client development costs are to be included in billings.
No continuing education expenses are to be included in billings.
Final billing shall be accompanied by copies of the Request for Dismissal,
15.
16.
19 Satisfaction of Judgment, Release and any other final documents.
20
17.
Either party may terminate this contract at will. MO&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
24
25
26
27
28
MO&H is an independent contractor as to the CITY.
18.
19.
MO&H shall maintain 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&H and all risks to such persons
SDE/js[ALLEN.AGR]
2
1
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
,,-
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2
3
4
Agreement.
5
b)
Comprehensive General and Automobile Liability Insurance
6
coverage to include contractual coverage and automobile coverage for owned,
hired and non-owned vehicles. The policy shall have at least a combined single
7
8
limit of $1 ,000,000 for bodily injury and property damage.
9
c)
Professional Liability Insurance with limits of at least $1 ,000,000
10
per claim. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as follows:
11
12
"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."
13
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15
MO&H shall furnish certificates of insurance and certified copies of all policies
16 and endorsements to the City Attorney's Office evidencing the insurance coverage above required
17 prior to the commencement of performance of services hereunder, which certificates shall provide
18 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
19 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
20 performance of services hereunder until the completion of such services.
21 All policies, with respect to the insurance coverage above required, except for the
22 Workers Compensation insurance coverage and professional liability coverage, if applicable, shall
23 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
24 their employees, agents, volunteers and officers as additional named insured with respect to
25 liabilities arising out of the performance of services hereunder.
26 All policies required above are to be primary and non-contributing with any
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27
Insurance or self-insurance programs carried or administered by the CITY or other parties
28
SDEljs[ALLEN.AGR]
3
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
October 23, 2003
TO:
Edna DiVellis, Operations Supervisor
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2003-282
At the Mayor and Common Council meeting of October 20, 2003, the City of San Bernardino
adopted Resolution 2003-282 - 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 Shirley Allen v. Citv of San Bernardino.
Attached is one (I) original agreement. Please obtain signatures in the appropriate location and
return the original agreement to the City Clerk's Office as soon as possible, to my attention.
Please be advised that the resolution and agreement will be null and void if not executed
within 60 days, or by December 19, 2003.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt ofthe above mentioned documents.
Signed: ~ I.JJfV.llh.', Dr- ~
Please sign and return
Date: J D I A '7 /" "'l
I ,
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
November 10, 2003
TO:
Veronica Martinez, Senior Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution 2003.282 - Mundell, Odium & Haws
CC:
Attached is a fully executed copy of the professional services agreement with Mundell, OdIum &
Haws to represent the City in the case of Shirlev Allen v. Citv of San Bernardino. The original
agreement is on file in the City Clerk's Office.
If you have any questions, please call me at ext. 3206.
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted):
Vote: Ayes 1- l\ I
ie> 2-o-0:?'
~-0 Nays
\0
Item #
..Gr
Abstain
Change to motion to amend original documents: -
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: ~
Direct City Clerk to (circle 1): PUBLISH, POST, RECORD W/COUNTY
Date Sent to Mayor: Id- L \-03
Date of Mayor's Signature: iO' Z. -z- 0 3
Date ofClerk/CDC Signature: lo-~3-03.
Resolution #
,;200 3".;)~';)'
Absent S
h
NulllVoid After: <00 DA-l So J \"2.-I"\-<t=<'
J
By: -
Reso. Log Updated:
Seal Impressed:
,/"
V'
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: xDate Returned: \ \- \()-o ')
See Attached:
See Attached:
Date Memo/Letter Sent for Signature:
10-22,- O?-,
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):
Copies Distributed to:
City Attorney V
Parks & Rec.
Code Compliance Dev. Services
Police Public Services Water
Notes:
Yes /' No By
Yes No~ By
Yes No.L By
Yes NO~ By
Yes No. By
EDA
Finance V
MIS
Others:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.l
Ready to File: _
Date:
Revised 01112/01