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HomeMy WebLinkAboutS2-City Attorney ." .CITY 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 in the case of Lavon Dwyer v. City of San Bernardino Dept: CITY ATTORNEY Date: January 2, 2002 or; " ~l ;' iV','; L Synopsis of Previous Council Action: October 15,2001 - Mayor and Council approved the hiring of Mundell, Odium, & Haws to represent the City in the subject court action (Resolution No. 2001-330). Recommended motion: Adopt Resolution which rescinds Resolution No. 2001-330 and previous Professional Services Agreement; and authorize the Mayor to sign the revised Professional Services Agreement. -/4, ~-~ Signature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: \2w;YZ6:l"2 -\~ Agenda Item No. S J... 1-7-01- .- .-., . STAFF REPORT Council Meeting Date: January 7. 2002 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney January 2, 2002 Reyised Professional Services Agreement between the City of San Bernardino and the law firm of Mundell, OdIum, & Haws to represent the City in the case of Lavan Dwyer, et aL v. City of San Bernardino, et aL On October 15,2001, the Mayor and Common Council approved the law firm of Mundell, Odium, & Haws to represent the City in the above-referenced court action (Resolution No. 2001- 330). Attached hereto is a revised Professional Services Agreement which reflects such approval, including the initial threshold of $20,000.00 and the requirement of regular status reports. It is requested by the City Attorney that Resolution No. 2001-330 be rescinded, as well as the previous Professional Services Agreement, as it did not reflect the correct hourly rates. It is further requested that the floor motion be adopted so that the Mayor is authorized to execute the revised Professional Services Agreement on behalf of the City of San Bernardino with the law firm of Mundell, Odium, & Haws to represent the City in the case of Lavan Dwyer, et al. v. City of San Bernardino, et al. RLS/ed[dwyer.rpt] . , I . ~(Q)l?\7 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESCINDING RESOLUTION NO, 2001-330 AND AUTHORIZING THE EXECUTION 3 OF A REVISED PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM, & HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF 4 LA VON DWYER, et at. v. CITY OF SAN BERNARDINO, et at. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. Resolution No. 2001-330, and the previous Professional Services 8 Agreement, which was attached as Exhibit "A" thereto, is hereby rescinded. 9 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 10 to execute on behalf of said City a revised Professional Services Agreement between Mundell, II Odium, & Haws and the City of San Bernardino for legal services, a copy of which is attached 12 hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at 13 length, 14 SECTION 3. The authorization granted hereunder shall expire and be void and of no . IS further effect if the agreement is not executed by both parties and returned to the office of the City 16 Clerk within sixty (60) days following the effective date of the resolution. 17 1// 18 1// 19 1// 20 1// 21 /1/ 22 1// 23 1// 24 /1/ 25 1// 26 1// 27 /1/ . 28 1// RLS/ed [DWYERrev,RES] L__ 7 COUNCIL MEMBERS: 8 9 ESTRADA 10 LIEN 11 MCGINNIS 12 SCHNETZ 13 SUAREZ 14 ANDERSON . 15 MCCAMMACK 16 17 18 19 20 .. . . 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESCINDING RESOLUTION NO. 2001-330 AND AUTHORIZING THE EXECUTION 2 OF A REVISED PROFESSIONAL SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM, & HAWS AND THE CITY OF SAN BERNARDINO TO REPRESENT THE CITY IN THE CASE OF 3 LA VON DWYER, et al. 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 meetin 6 thereof, held on the day of AYES , 2002, by the following vote, to wit NAYS ABST AIN ABSENT CITY CLERK The foregoing Resolution is hereby approved this day of ,2002. 21 22 23 JUDITH VALLES, Mayor City of San Bernardino Approved as to form and 24 legal content: 25 JAMES F. PENMAN, City Attorney 26 27 By: ~ J,~~ 28 C RLS/ed [DWYERrev.RES] 2 .. . 24 25 26 . 27 28 .1 PROFESSIONAL SERVICES AGREEMENT 2 Lavon Dwyer, et al. v. City of San Bernardino, et al. San Bernardino Superior Court Case No. SCVSS 082249 3 4 I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of MUNDELL, om ,1 JM & HAWS (hereinafter "MO&H") are the parties to this Agreement. 2. MO&H will be representing the following entities in this litigation: 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 - $65.00 per hour. 5 6 7 8 9 10 11 12 13 The amounts expended under this agreement for attorneys fees shall not exceed 14 $20,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least quarterly. 15 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. MO&H may include a single charge in an amount not to exceed four percent (4%) offees in lieu of reimbursement for photocopying, telephone charges, and postage. 18 19 20 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and 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 22 23 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 RLs/js [DWYER.AGR] 1 .' . . '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 offault 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 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 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 & HAWS or other senior attorney 15 approved by the CITY shall try this case. 16 14. No client development costs are to be included in billings. 17 15. No continuing education expenses are to be included 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 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 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 26 of California, including Employment Liability with $250,000 limits 27 covering all persons providing service on behalf of MO&H and all risks 28 to such persons under this Agreement. MO&H shall require its Workers RLS/js [DWYER.AGR] 2 .' . . '1 Compensation carrier to waive all rights of subrogation against the CITY 2 and its officers and employees and any others for whom services are being 3 provided under this Agreement. 4 b) Comprehensive General and Automobile Liability 5 Insurance coverage to include contractual coverage and automobile 6 coverage for owned, hired and non-owned vehicles. The policy shall have 7 at least a combined single limit of $1,000,000 for bodily injury and 8 property damage. 9 c) Professional Liability Insurance with limits of at least 10 $ I ,000,000 per claim. In lieu of naming the CITY as an additional 11 insured, the policy may 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 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 City Attorney's Office, and shall maintain such insurance from the time MO&H commences performance of services hereunder until the completion of such services. 20 21 22 All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall 23 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 liabilities arising out ofthe performance of services hereunder. 26 27 All policies required above are to be primary and non-contributing with any Insurance or self-insurance programs carried or administered by the CITY or other parties 28 RLS/js [DWYER.AGR] 3 ,. . ~~~ ~ CITY QF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: January 11,2002 TO: Edna Anderson, Operations Supervisor YOUR COpy FROM: Michelle Taylor, Senior Secretary RE: Transmitting Documents for Signature - Resolution 2002-13 At the Mayor and Common Council meeting of January 7, 2002, the City of San Bernardino adopted Resolution 2002-13 - Resolution rescinding Resolution No. 2001-330 and authorizing the execution of a revised professional services agreement between Mundell, Odium & Haws and the City of San Bernardino to represent the City in the case of Lavon Dwyer, et al. v City of San Bernardino, et. al. Attached is one (I) original agreement. 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 be advised that the resolution and agreement will be null and void if not executed within 60 days, or by March 8, 2002. 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 of the above mentioned documents. Signed: ~ rLD.. 1/, ,II. .~ Date: 1/15/02- Please sign and return ";;R~_~."-...~ ~_ _""",,,,,".01"''''''''"m ~.' .:~." ~. . . ** FOR OFFICE USE ONL Y - NOT A PUBLIC DOCUME"'T ." RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): \ f)-02:. Item # 3>< Vote: Ayes 1-5 Nays -e- Change to motion to amend original documents: Resolution" d COd - 8 -----.-. -- -~------ Abstain -G- Absenr_" - ~__n Reso. # On Attachments: L- Contract term: Note on Resolution of Attachment stored separately: _.::::.- Direct City Clerk to (circle I): PUBLISH. POST. RECORD W/COlJNTY Null/Void After:J,QQQA:..'i~i3 ..~-O ~ B. - y. _._~-- Dale Sent to Mayor: \.--q -0;1. Re$o. Log L:pdaled .",... Seallmpre$Sed: _.__~~~_.. Dale of Mayor's Signalure: h b.nO;) Dale ofClerk/CDC Signature: 1- \O-Od- Date Memo/Letter Sent for Signature: I . I In 0 \ 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached: ;/' Date Returned: I - ~l< --t>J See Attached: See Attached: i ~: Ii -,: I i Request for Council Action & Staff Report Attached: YesL No By Updated Prior Resolutions (Other Than Below): Yes No-L By Updated CITV Personnel Folders (6413. 6429, 6433.10584,10585,12634): Yes No -L By Updated CDC Personnel Folders (5557): Yes NO+, By Updated Traffic Folders (3985. 8234, 655. 92-389): Ves No_ Bv Copies Distributed to: City Attorney (' Code Compliance Dev. Services EDA Finance V MIS Parks & Rec. Police Public Services Water Others: Notes: 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: --m:L- Date: k,) 'i(-Q;}- Revised 0 I / 12/0 I