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HomeMy WebLinkAbout10-Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION c 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 of San Bernardino, and City of San Bernardino Fire Department in the case of San Bernardino City Professional Firefighters, Local 891 v. City of San Bernardino, San Bernardino Fire Department, et al. Dept: CITY ATTORNEY Date: June 20, 2008 MCC Meeting: July 7, 2008 Synopsis of Previous Council Action: 06/16/08- Mayor and Council ratified the hiring of Mundell, OdIum & Haws to represent the City of San Bernardino and San Bernardino Fire Department in the subject court action. Recommended motion: The Mayor and Common Council adopt the resolution. o .~ Signature Contact person: Steohanie D. Easland Phone: 5355 Supporting data attached: Staff Reoort Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Committee Notes: Agenda Item No. J 0 7/1/Df o F:\EASLAND\Fire Dcpanmenl\SBPFF,rca. 7.7 .08.wpd c o STAFF REPORT Council Meeting Date: Julv 7. 2008 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney June 24, 2008 Professional Services Agreement between the City of San Bernardino and the law firm of Mundell, Odium & Haws to represent the City of San Bernardino and San Bernardino Fire Department in the case of San Bernardino City Professional Firefighters, Local 891 v. City of San Bernardino, San Bernardino Fire Department, et aL On June I ] , 2008, the Mayor and Common Council ratified the hiring of Mundell, Odium & Haws to represent the City and San Bernardino Fire Department in the subject court action. 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 and San Bernardino Fire Department in the case of San Bernardino City Professional Firefighters. Local 891 v. City of San Bernardino, San Bernardino Fire Department, et al. " o F:\EASLANDIFire Department\SBPFF.rpt.7.7.08.wpd o I 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 THE CITY OF SAN BERNARDINO AND THE LAW FIRM OF MUNDELL, ODLUM & HAWS IN THE CASE OF SAN BERNARDINO 4 CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891 v. CITY OF SAN BERNARDINO, SAN BERNARDINO FIRE DEPARTMENT, et aI. 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 9 to execute on behalf of said City a Professional Services Agreement between the City of 10 San Bernardino and Mundell, Odium & Haws for legal services, a copy of which is attached II hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at 12 length. 13 SECTION 2. The authoriZation granted hereunder shall expire and be void and of no 14 further effect if the agreement is not executed by both parties and returned to the Office of the o IS City Clerk within sixty (60) days following the effective date of the resolution. 16 1// 17 /1/ 18 1// 19 /1/ 20 1// 21 1// 22 1// 23 1// 24 1// 25 1// 26 1// 27 1// 0 28 11/ F:\EASLAND\Fire Department\$BPFF.reso. 7.7 .08.wpd 9 COUNCIL MEMBERS: 10 ESTRADA I I BAXTER 12 BRINKER 13 DERRY 14 KELLEY o IS JOHNSON 16 MCCAMMACK 17 18 19 20 o o I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTIlORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE LAW FIRM OF MUNDELL, ODLUM & HAWS IN THE CASE OF SAN BERNARDINO 3 CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891 v. CITY OF SAN BERNARDINO, SAN BERNARDINO FIRE DEPARTMENT, et al. 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting ,2008, by the following vote, to 7 thereof, held on the 8 wit: day of AYES NAYS ABSTAIN ABSENT Rachel G. Clark, City Clerk The foregoing Resolution is hereby approved this 21 2008. 22 day of 23 24 Patrick J. Morris, Mayor City of San Bernardino Approved as to form: 25 JAMES F. PENMAN, 26 City Attorney 27 fl 28 By:.J{h.,. }-, ~ F:aANDIFire DepartmentISBPFF.reso.7.7.08.wpd 2 o o o 23 24 25 26 27 28 1 PROFESSIONAL SERVICES AGREEMENT SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891 v. CITY OF SAN BERNARDINO, et a/. San Bernardino Superior Court Case No. CIVSS 807685 2 3 4 5 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 in this litigation: CITY OF 6 7 SAN BERNARDINO and SAN BERNARDINO FIRE DEPARTMENT. MO&H shall not 8 9 represent any client in any type of claim against the CITY without prior written approval to do so 10 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 - $200.00 per hour; and, Law Clerks/Paralegals - $65.00 per hour. 11 12 13 14 The amounts expended under this agreement for attorney's fees shall not exceed 15 $20,000 without further approval of the Mayor and Common Council. 4. Bills shall be submitted at least on a monthly basis and no later than the 5th day of 16 17 each succeeding month. 5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging, 18 19 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. 20 21 6. If attorney's fees are charged "portal to portal" (e.g., from office to court and 22 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 1// F:IEASLAND\Fire DepanmentISBPFF.ProfSvcsAgr.7.7.08.wpd 1 o o o 1 2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY's 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. o 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 II. 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. Odium 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 IS. 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 2 5 another attorney. 26 27 28 18. MO&H is an independent contractor as to the CITY. 1// 1// F:\EASLANDlFire DepartmentISBPFF.Pro!1;vcsAgr.7.7.08.wpd 2 c o o 20 21 22 23 24 25 26 27 28 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 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 Agreement. 4 5 6 7 8 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 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." MO&H shall furnish certificates of insurance and certified copies of all policies 15 16 17 18 19 and endorsements to the City Attorney's Office evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide 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. All policies, with respect to the insurance coverage above required, except for the Workers' Compensation insurance coverage and professional liability coverage, if applicable, shall III III F:\EASLAND\Fire Departmcnt\SBPFF.ProfSvcsAgr.7.7.08.wpd 3 o o o 1 obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to 2 3 liabilities arising out of the performance of services hereunder. 4 All policies required above are to be primary and non-contributing with any 5 insurance or self-insurance programs carried or administered by the CITY or other parties 6 represented under this Agreement. 7 All communications and billings to the CITY are to be directed as follows: City Attorney's Office CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 20. 8 9 10 11 MUNDELL, ODLUM & HAWS DATED: 12 13 By: James A. Odium 14 15 DATED: CITY OF SAN BERNARDINO 16 17 18 By: Patrick 1. Morris, Mayor 19 20 21 22 Approved as to form: 23 JAMES F. PENMAN, City Attorney 24 25 ,/~ 26 27 28 F:\EASLANDIFire DepartmentISBPFF.ProfSvcsAgr.7.7.08.wpd 4