HomeMy WebLinkAbout09-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 of San Bernardino in
San Bernardino City Professional Firefighters Union,
Local 891 v. City of San Bernardino, et aI., Public
Employment Relations Board Unfair Practice Charge No.
LA-CE-714-M.
Dept: CITY ATTORNEY
Date: September 7, 2011
MCC Meeting: September 19, 2011
Synopsis of Previous Council Action:
None.
Recommended motion:
The Mayor and Common Council adopt the resolution.
~'~~Jl22~
Contact person: Steohanie D. Easland
Supporting data attached: Staff Report
Phone:
Ward:
5355
All
FUNDING REQUIREMENTS:
Amount:
None
Source:
Finance:
Committee Notes:
Agenda Item No.----.iFq
ql/9J/l
F:\EASLAND\Fire Deoartment\SBCPFF PERB Unfair Practice Che:\RCAwDd
STAFF REPORT
Council Meeting Date: September 19. 2011
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
September 9, 2011
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 San Bernardino City Professional Firefighters, Local
891 v. City of San Bernardino, et al., Public Employment Relations Board
Unfair Practice Charge No. LA-CE-714-M
On August II, 20 II, the above-referenced Public Employment Relations Board Unfair
Practice Charge was served on the City. On September 6, 20 II, the Mayor and Common Council
ratified the hiring of Mundell, Odium & Haws to represent the City, et al. in the subject action.
Attached hereto is the Professional Services Agreement which reflects such hiring, including a
ceiling of $25,000 on attorney fees and the requirement of regular status reports.
It is requested by the City Attorney that the proposed Resolution be adopted, authorizing the
Mayor to execute the Professional Services Agreement on behalf of the City of San Bernardino.
Recommendation: Adopt Resolution.
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\STAFFREPORT,wpd
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 MUNDELL, ODLUM & HA WS AND THE CITY OF
SAN BERNARDINO IN THE CASE OF SAN BERNARDINO CITY PROFESSIONAL
4 FIREFIGHTERS, LOCAL 891 v. CITY OF SAN BERNARDINO, ET AL., Public Employment
Relations Board Unfair Practice Charge No. LA-CE-714-M.
5
6
7
8
9
10
II
12
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
to execute on behalf of said City a Professional Services Agreement between Mundell, OdIum &
Haws and the City of San Bernardino for legal services, a copy of which is attached hereto marked
Exhibit "A" and incorporated herein by reference as though fully set forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no further
effect if the agreement is not executed by both parties and returned to the Office of the City Clerk
13
within sixty (60) days following the effective date of the resolution.
14
1//
15
1//
16
1//
17
1//
18
/1/
19
1//
20
1//
21
/1/
22
/1/
23
1//
24
1//
25
1//
26
/1/
27
/1/
28
F:\EASLAND\Firc Departmenl\SBCPFF PERB Unfair Practice Chg\RESQ,wpd 1
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, ODLUM & HAWS AND THE CITY OF
SAN BERNARDINO IN THE CASE OF SAN BERNARDINO CITY PROFESSIONAL
3 FIREFIGHTERS, LOCAL 891 v. CITY OF SAN BERNARDINO, ET AL., Public Employment
Relations Board Unfair Practice Charge No. LA-CE-714-M.
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 thereof, held
7 on the day of
8 COUNCIL MEMBERS: AYES
9 MARQUEZ
10 JENKINS
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
IS MCCAMMACK
16
17
, 20 II, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
CITY CLERK
18
19
The foregoing Resolution is hereby approved this _ day of
,2011.
20
21
22
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
23
JAMES F. PENMAN,
24 ~ty ~~rney CJ
25 B~'~ ~ r1MJ,O /?G:>~ cuJ
26
27
28
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\RESO.wpd 2
21
22
23
24
25
26
27
28
1 PROFESSIONAL SERVICES AGREEMENT
2 SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891 v.
CITY OF SAN BERNARDINO, et al.
3 Public Employment Relations Board Unfair Practice Charge
No. LA-CE-714-M
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.
6
7
2. MO&H will be representing the following entities and persons in this litigation:
CITY OF SAN BERNARDINO for the purpose of rendering legal services in the administrative
matter of San Bernardino City Professional Firefighters, Local 89 J v. City of San Bernardino, et
ai, Public Employment Relations Board Unfair Practice Charge No. LA-CE-714-M. MO&H shall
not represent any client in any type of claim against the CITY without prior written approval to do
8
9
10
11
12
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 - $200.00 per hour; and,
Law Clerks/Paralegals - $65.00 per hour.
13
14
15
The amounts expended under this agreement for attorneys fees shall not exceed
16
17
$25,000 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 51h day of
18
each succeeding month.
19
20
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.
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. M O&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
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\PSA.MOH.wpd
EXHIBIT "A"
1 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office
5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
loin this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 II. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000, the City
17 Attorney's Office shall be notified immediately.
18 13. Only James A. Odium of MUNDELL, ODLUM & HA WS or other senior attorney
19 approved by the CITY shall try this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Either party may terminate this contract at will. MO&H will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. MO&H is an independent contractor as to the CITY.
28 /II
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\PSi.MOH.wpd
EXHIBIT "A"
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
4
5
6
7
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
15 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, 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
20 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
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.
25 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,
28 their employees, agents, volunteers and officers as additional named insured with respect to
F:\EASLAND\Fire Oepartment\SBCPFF PERB Unfair Practice Chg\PSi,MOH,wpd
EXHIBIT "A"
1 liabilities arising out of the performance of services hereunder.
2 All policies required above are to be primary and non-contributing with any
3 insurance or self-insurance programs carried or administered by the CITY or other parties
4 represented under this Agreement.
5
20.
All communications and billings to the CITY are to be directed as follows:
6
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
7
8
9
DATED: September _,2011
MUNDELL, ODLUM & HAWS
10
11
By: James A. OdIum
12
13
DATED: September ,2011
CITY OF SAN BERNARDINO
14
15
16
By: Patrick J. Morris
Mayor
17
18
19
20 Approved as to form:
21 JAMES F. PENMAN,
City Attorney
22
23
24
25
26
27
28
By:
F;\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\PSti.MOH,wpd
EXHIBIT "A"
1 PROFESSIONAL SERVICES AGREEMENT
2 SAN BERNARDINO CITY PROFESSIONAL FIREFIGHTERS, LOCAL 891 v.
CITY OF SAN BERNARDINO, et al.
3 Public Employment Relations Board Unfair Practice Charge
No. LA-CE-714-M
4
I. The CITY OF SAN BERNARDINO (hereinafter "CITY") and the law firm of
5
6
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:
CITY OF SAN BERNARDINO for the purpose of rendering legal services in the administrative
matter of San Bernardino City Professional Firefighters, Local 891 v. City of San Bernardino, et
ai, Public Employment Relations Board Unfair Practice Charge No. LA-CE-7l4-M. MO&H shall
not represent any client in any type of claim against the CITY without prior written approval to do
7
8
9
10
11
12
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 - $200.00 per hour; and,
Law Clerks/Paralegals - $65.00 per hour.
The amounts expended under this agreement for attorneys fees shall not exceed
13
14
15
16
17
$25,000 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
18
each succeeding month.
19
5. The actual cost for filing fees, telephone charges, photocopying, postage, lodging,
20
21
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.
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.
22
23
24
25
26
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
27
28
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\PSl.MOH.wpd
1 its periodic statement, or it may forward the consultant's bill to CITY with a request that the CITY
2 pay it directly. Consultants shall not bill the CITY directly without prior approval of the CITY'S
3 Finance Department.
4 8. Status reports will be submitted to CITY through the City Attorney's Office
5 whenever any significant event occurs, and in any event at least quarterly. Information sufficient
6 to set reserves, including, without limitation, potential liability exposure and percentage of fault
7 shall be included.
8 9. Copies of all opinions, pleadings, discovery and motions shall be provided to the
9 City Attorney's Office which may reproduce same and provide copies to other parties or attorneys
loin this, or other litigation.
11 10. Copies of any correspondence and other documents sent to any of the defendants
12 in this action shall also be provided to the CITY through the City Attorney's Office.
13 II. Any and all settlements shall require CITY approval. Request for settlement
14 authority shall be made through the City Attorney's Office which shall obtain the necessary CITY
15 approvals.
16 12. In the event the settlement value of the case appears to exceed $50,000, the City
17 Attorney's Office shall be notified immediately.
18 13. Only James A. Odium of MUNDELL, ODLUM & HAWS or other senior attorney
19 approved by the CITY shall try this case.
20 14. No client development costs are to be included in billings.
21 15. No continuing education expenses are to be included in billings.
22 16. Final billing shall be accompanied by copies of the Request for Dismissal,
23 Satisfaction of Judgment, Release and any other final documents.
24 17. Either party may terminate this contract at will. MO&H will continue to represent
25 the CITY on the terms and conditions in this Agreement until the case and file are transferred to
26 another attorney.
27 18. MO&H is an independent contractor as to the CITY.
28 III
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\psR.MOH,wpd
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
6
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
3
4
5
7
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
15 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, omission or negligent act of the insured, its officers, employees, agents
18 or subcontractors. All other provisions ofthis policy are to remain unchanged."
19 MO&H shall furnish certificates of insurance and certified copies of all policies
20 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
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.
25 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,
28 their employees, agents, volunteers and officers as additional named insured with respect to
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\Psii.MOH.wpd
1 liabilities arising out of the performance of services hereunder.
2 All policies required above are to be primary and non-contributing with any
3 insurance or self-insurance programs carried or administered by the CITY or other parties
4 represented under this Agreement.
5
20.
All communications and billings to the CITY are to be directed as follows:
6
City Attorney's Office
CITY OF SAN BERNARDINO
300 North "D" Street
San Bernardino, CA 92418
7
8
9
DATED: September _,2011
MUNDELL, ODLUM & HAWS
10
11
By: James A. OdIum
12
13
DATED: September _,2011
CITY OF SAN BERNARDINO
14
15
16
By: Patrick 1. Morris
Mayor
17
18
19
20 Approved as to form:
21 JAMES F. PENMAN,
City Attorney
22
23
24
25
26
27
28
F:\EASLAND\Fire Department\SBCPFF PERB Unfair Practice Chg\PSti.MOH.wpd