HomeMy WebLinkAbout10-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: Professional Services Agreement between the City
CITY ATTORNEY of San Bernardino and the law firm of Mundell, Odlum &
Haws to represent the City of San Bernardino and Michael
Billdt, individually and as Chief of Police for the City of San
Bernardino in Michael Desrochers and Steve Lowes v. City
of San Bernardino, et al.
Dept: CITY ATTORNEY ORIGINAL
Date: January 10, 2007 MCC Meeting. January 22,2007
Synopsis of Previous Council Action:
01/08/07- Mayor and Council approved the hiring of Mundell, Odlum & Haws to represent the
City of San Bernardino and Michael Billdt, individually and as Chief of Police for the
City of San Bernardino in the subject court action.
Recommended motion:
That said resolution be adopted.
-411
Signature
Contact person: Stephanie D. Easland Phone: 5355
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None
Source:
Finance:
Committee Notes: A-TO s2&6) ?--20
Agenda Item No.
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STAFF REPORT
Council Meeting Date: January 22, 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: January 10, 2007
AGENDA ITEM: Professional Services Agreement between the City of San Bernardino
and the law firm of Mundell, Odlum & Haws to represent the City of
San Bernardino and Michael Billdt, individually and as Chief of Police
for the City of San Bernardino in the case of Michael Desrochers and
Steve Lowes v. City of San Bernardino, et al.
On December 21, 2006, the above-referenced court action was served on the City. On
January 8,2007,the Mayor and Common Council approved the hiring of Mundell,Odlum&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, Odlum & Haws to represent the City, et al. in the case of Michael Desrochers and Steve
Lowes v. City o f San Bernardino, et al.
Attachment
S D E/ed[Desroch ersLowes.StaffReport]
C (OPY l 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 AND STEVE
4 LOWES v. CITY OF SAN 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, Odlum &
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.
I 1 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
13 City Clerk within sixty (60) days following the effective date of the resolution.
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I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLL'M & HAWS AND THE CITY
OF SAN BERNARDINO IN THE CASE OF MICHAEL DESROCHERS AND STEVE
3 LOWES v. CITY OF 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 2007, by the following vote, to
7 wit:
8 COUNCIL MEMBERS : AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17
18 CITY CLERK
19
20 2007. The foregoing Resolution is hereby approved this day of
21
22 Patrick J. Morris, Mayor
23 City of San Bernardino
Approved as to form:
24
JAMES F. PENMAN,
25 City Attorney
26
27 By:
Lm-
28 0
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EXHIBIT "A"
1 PROFESSIONAL SERVICES AGREEMENT
k
2 MICHAEL DESROCHERS and STEVE LOWES v. CITY OFSANBER ARDIA"O, et al.
3 United States District Court Case No. EDCV06-1408 (JCRx)
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 CITY OF SAN BERNARDINO and MICHAEL BILLDT, individually and as Chief of Police for
8 the City of San Bernardino. MO&H shall not represent any client in any type of claim against the
9 CITY without prior written approval to do so from the CITY OF SAN BERNARDINO through the
10 City Attorney's Office.
11 3. MO&H shall be paid at the hourly rates set forth below:
12 Attorneys - $200.00 per hour; and,
13 Law Clerks/Paralegals - $65.00 per hour.
14 The amounts expended under this agreement for attorneys fees shall not exceed
15 $20,000 without further approval of the Mayor and Common Cou,-,.il.
16 4. Bills shall be submitted at least on a monthly basis and no later than the 5`h day of
17 each succeeding month.
18 5. The actual cost for filing fees,telephone charges.photocopying,postage,lodging,
19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20 MO&H may include a single charge in an amount.not to exceed four percent (4%)of fees in lieu
2.1 of reimbursement for photocopying. telephone charges, and postage.
22 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
23 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
24 7. MO&H shall obtain approval from the CITY to retain expert consultants and other
25 professionals(not including court reporters)for purposes of defending the litigation. MO&H may,
26 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
2 7 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
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S DF/ed[Desroc hers I-owes Prof5vcsAgr) 1
EXHIBIT "A"
pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 Finance Department.
8. Status reports will be submitted to CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
to set reserves, including. without limitation, potential liability exposure and percentage of fault
shall be included.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this, or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the defendants
11 in this action shall also be provided to the CITY through the City Attorney's Office.
12 11. Any and all settlements shall require CITY approval. Request for settlement
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 approvals.
13 12. In the event the settlement value of the case appears to exceed 550,000, the City
1 Attorney's Office shall be notified immediately.
--7 13. Only James A.Odium ofMUNDELL,ODLUM&HAWS or other senior attorney
approved by the CITY shall tn7 this case.
14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
2 2 Satisfaction of Judgment, Release and any other final documents.
2 3 17. Either party may terminate this contract at will. MO&H will continue to represent
4 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attornev.
26 18. MO&H is an independent contractor as to the CITY.
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EXHIBIT "A"
19. MO&H shall maintain the following types of insurance "ith limits as shoxn:
a) Workers Compensation as required by the laws of the State of
3 California, including Employment Liability with $250,000 limits covering all
4 persons providing service on behalf of MO&H and all risks to such persons
5 under this Agreement. MO&H shall require its Workers Compensation carrier
6 to wain e all rights of subrogation against the CITY and its officers and
? employees and any others for whom services are being provided under this
8 Agreement.
9 b) Comprehensive General and Automobile Liability Insurance
10 coverage to include contractual coverage and automobile coverage for owned,
11 hired and non-owned vehicles. The policy shall have at least a combined single
12 limit of$1,000,000 for bodily injury and property damage.
- c) Professional Liability Insurance with limits ofat least$1,000,000
i 4 per claim. In lieu of naming the CITY as an additional insured, the policy may
be endorsed as follows:
16 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
1 BERNARDINO for legal defense services, provided such liability results from
an error, omission or negligent act of the insured,its officers,employees,agents
18 or subcontractors. All other provisions of this policy are to remain unchanged."
19 MO&H shall furnish certificates of insurance and certified copies of all policies
2 -
and endorsements to the City Attorney's Office evidencing the insurance coverage above required
21 prior to the commencement of performance of services hereunder,which certificates shall provide
22 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
L3 City Attorney's Office, and shall maintain such insurance from the time MO&H commences
2 Y performance of services hereunder until the completion of such services.
2 5 All policies,with respect to the insurance coverage above required,except for the
2 6 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
27 obtain additional endorsements naming the CITY and all parties represented under this.Agreement,
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EXHIBIT "A"
1 their employees, agents, volunteers and officers as additional named insured with respect to
� 2
liabilities arising out of the performance of services hereunder.
3 All policies required above are to be priman and non-contributing with any
4 insurance or self-insurance programs carried or administered by the CITY or other parties
5 represented under this .Agreement.
6 20. All communications and billings to the CITY are to be directed as follows:
7 City Attorney's Office
CITY OF SAN BERNARDINO
8 300 North "D" Street
San Bernardino, CA 92418
9
10 DATED: January , 2007 MUNDELL, ODLUM & HAWS
11
12
By-. James A. Odlum
13
14
15
DATED: January 2007 CITY OF SAN BERNARDINO
16
17 By: Patrick J. Morris, Mayor
18
19
20
21 Approved as to form:
22 JAMES F. PENMAN,
Citv Attornev
23
24
By:
25
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. COPY
1 PROFESSIONAL SERVICES AGREEMENT
2 1IICHAEL DESROCHERS and STEVE LOWES v. CITY OF SAN BERNARDINO, et al.
3 United States District Court Case No. EDCV06-1408 (JCRx)
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 CITY OF SAN BERNARDINO and MICHAEL BILLDT, individually and as Chief of Police for
8 the City of San Bernardino. MO&H shall not represent any client in any type of claim against the
9 CITY without prior written approval to do so from the CITY OF SAN BERNARDENO through the
10 City Attorney's Office.
11 3. MO&H shall be paid at the hourly rates set forth below:
12 Attorneys - $200.00 per hour; and,
13 Law Clerks/Paralegals - $65.00 per hour.
14 The amounts expended under this agreement for attorneys fees shall not exceed
15 $20.000 without further approval of the Mayor and Common Council.
16 4. Bills shall be submitted at least on a monthly basis and no later than the 5`h day of
17 each succeeding month.
18 5. The actual cost for filing fees,telephone charges,photocopying,postage,lodging,
19 mileage and related travel costs shall be itemized when submitted to the CITY for reimbursement.
20 MO&H may include a single charge in an amount not to exceed four percent (4%) of fees in lieu
21 of reimbursement for photocopying, telephone charges, and postage.
2 2 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and
23 return), then MO&H shall not be entitled to reimbursement for mileage and parking fees.
24 7. MO&H shall obtain approval from the CITY to retain expert consultants and other
25 professionals(not including court reporters)for purposes of defending the litigation. MO&H may,
26 if it chooses, pay the fees and charges of such consultants and seek reimbursement from CITY on
27 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
28 ///
SDE'ed(DesrochersLo%%es ProfN csAer] 1
1 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
2 Finance Department.
3 8. Status reports will be submitted to CITY through the City Attorney's Office
4 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
5 to set reserves, including, without limitation, potential liability exposure and percentage of fault
6 shall be included.
7 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
8 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
9 in this, or other litigation.
10 10. Copies of any correspondence and other documents sent to any of the defendants
11 in this action shall also be provided to the CITY through the City Attorney's Office.
12 11. Any and all settlements shall require CITY approval. Request for settlement
13 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
14 approvals.
15 12. In the event the settlement value of the case appears to exceed $50,000, the City
16 Attorney's Office shall be notified immediately.
17 13. Only James A.Odlum of MUNDELL,ODLUM&HAWS or other senior attorney
18 approved by the CITY shall try this case.
19 14. No client development costs are to be included in billings.
20 15. No continuing education expenses are to be included in billings.
21 16. Final billing shall be accompanied by copies of the Request for Dismissal,
22 Satisfaction of Judgment, Release and any other final documents.
23 17. Either party may terminate this contract at will. MO&H will continue to represent
24 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
25 another attornev.
26 18. MO&H is an independent contractor as to the CITY.
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1 19. MO&H shall maintain the following types of insurance with limits as shown:
2 a) Workers Compensation as required by the laws of the State of
3 California, including Employment Liability with $250,000 limits covering all
4 persons providing service on behalf of MO&H and all risks to such persons
S under this Agreement. MO&H shall require its Workers Compensation carrier
6 to waive all rights of subrogation against the CITY and its officers and
7 employees and any others for whom services are being provided under this
8 Agreement.
9 b) Comprehensive General and Automobile Liability Insurance
10 coverage to include contractual coverage and automobile coverage for owned,
11 hired and non-owned vehicles. The policy shall have at least a combined single
12 limit of$1,000,000 for bodily injury and property damage.
13 C) Professional Liability Insurance with limits of at least$1,000,000
14 per claim. In lieu of naming the CITY as an additional insured, the policy may
1 S be endorsed as follows:
16 "Insurance coverage afforded by this policy shall also apply to the
liability assumed by the Insured under the Agreement with the CITY OF SAN
17 BERNARDINO for legal defense services, provided such liability results from
an error, or negligent act of the insured, its officers.employees, agents
18 or subcontractors. All other provisions of this policy are to remain unchanged."
19 MO&H shall furnish certificates of insurance and certified copies of all policies
20 and endorsements to the Citv Attorney's Office evidencing the insurance coverage above required
21 prior to the commencement of performance of services hereunder,which certificates shall provide
22 that such insurance shall not be terminated or expire without thirty (30) days written notice to the
23 City. Attorney's Office, and shall maintain such insurance from the time MO&H commences
24 performance of services hereunder until the completion of such services.
2S All policies.with respect to the insurance coverage above required,except for the
26 Workers Compensation insurance coverage and professional liability coverage,if applicable,shall
27 obtain additional endorsements naming the CITY and all parties represented under this Agreement,
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SDG/ed[DesrochersLowesProfSvcsAgr] 3
• 1 their employees, agents, volunteers and officers as additional named insured with respect to
2 liabilities arising out of the performance of services hereunder.
3 All policies required above are to be primary and non-contributing with any
4 insurance or self-insurance programs carried or administered by the CITY or other parties
5 represented under this Agreement.
6 20. All communications and billings to the CITY are to be directed as follows:
7 City Attorney's Office
CITY OF SAN BERNARDINO
8 300 North "D" Street
San Bernardino, CA 92418
9
10 DATED: January 2007 MUNDELL, ODLUM & HAWS
11
12
By: James A. Odlum
13
14
Am DATED: January 2007 CITY OF SAN BERNARDINO
15
15
17 By: Patrick T. Morris, Mayor
18
19
20
21 Approved as to form:
22 JAMES F. PENMAN,
City Attorney
23
24
25 By:
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