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HomeMy WebLinkAboutIBAR Settlement Company. Inc. - 2000-11-06� � — J. 616Uew)�, coa� Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied LA DPAAi— _ pg- It r�'s Signature Council Meeting Date: November 6, 2000 Department ID Number: CA 00-20 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION 0 -i SUBMITTED TO: HONORABLE MAYOR AND CITYCOUNCIL MEMBERS == SUBMITTED BY: GAIL HUTTON, City Attorney IV, PREPARED BY: GAIL HUTTON, City Attorney�� l= SUBJECT: Approve Waiver of Insurance Requirements for IBAR Settlement Company, Inc.; RMS & Associates and Martin L. Fackler M.D., for Consultant and Expert Witnesses Services Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Whether to approve the waiver of insurance requirements for IBAR Settlement Company, Inc.; RMS & Associates and Martin L. Fackler M.D., for consultant and expert witnesses services regarding the case entitled Davis v. City of Huntington Beach, USDC, Case No. SA CV 00-54 GLT(Eex) and OCSC, Case No. OOCC09935. Funding Source: Self Insurance Liability, Contract Legal Services, Account # 55235610.69375 Dollar amount not to exceed $20,000 for eah contract. Recommended Action: Approve a waiver of insurance for general and professional liability as recommended by the settlement committee for three professional services agreements to be entered into at a later date between the City Attorney and IBAR Settlement Company, Inc.; RMS & Associates and Martin L. Fackler M.D. for which City Council approval is not necessary as the agreement cost is not to exceed $20,000. Alternative Action(s): Do not approve the waiver of insurance requirements for Professional, General and Workers' Compensation liability insurance. JNQUEST FOR COUNCIL ACTIGN MEETING DATE: November 6, 2000 DEPARTMENT ID NUMBER: CA 00-20 Analysis: The City Attorney is defending the case entitled Davis v. City of Huntington Beach, USDC, Case No. SA CV 00-54 GLT(Eex) and OCSC, Case No. OOCC09935. It is necessary to retain expert witnesses in this proceeding. While the professional services contracts are for under $20,000 each, and can be entered into by the City Attorney, any insurance waiver requires City Council approval. Staff recommends that the City Council approve the waiver of insurance requirements for Professional, General and Workers' Compensation liability insurance for each of the three contracts. The risk of an expert witness taking any action that could impose liability is remote. Additionally, the Settlement committee's recommendation to accept the waivers is attached. Environmental Status: Attachment(s): 1 Not Applicable Settlement Committee's Recommendation for IBAR Settlement Company, Inc. 2 1 Settlement Committee's Recommendation for RMS &b Associates Inc. 3. 1 Settlement Committee's Recommendtion for Martin L. Fackler M.D. RCA Author: SFF/JEG 00-20 Consutant Davls.doc -2- 10/30/00 10:12 AM ATTACHMENT #1 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND 113AR SETTLEMENT COMPANY, INC. FOR FOR CONSULTATION AND EXPERT WITNESS SERVICES THIS AGREEMENT, made and entered into this VO day of NOeMl3g 2000, by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and IBAR SETTLEMENT COMPANY, INC., a California corporation, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of an expert in economics to serve as a consultant and/or an expert witness in the proceeding entitled Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935; and CONSULTANT has-been selected to perform. said -.services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: WORK STATEMENT CONSULTANT shall serve as a consultant and/or an expert witness in the proceeding entitled: Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935. CONSULTANT shall provide those services as more specifically instructed by Thomas Feeley, Esq., of Law Offices of Thomas J. Feeley, P.C., special counsel to the CITY in Davis v. City, et al. CONSULTANT hereby designates Raymond G. Schultz, Ph.D., who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. CONSULTANT shall provide the following services: ■ Preparation and availability for deposition and trial, if necessary; ■ Perform all work necessary in order to provide credible testimony in deposition and trial; ■ Provide CITY and/or special counsel with consulting services_ relating to depositions and trial testimony of opposing experts; and ■ All other work requested by CITY and/or special counsel. 2. TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of the CONSULTANT are to commence as soon as practicable after the execution of this Agreement. SF-2000 Agree: 1BAR. - Davis 10/13/00 - #2 COMPENSATION CONSULTANT's fee for such services shall be as follows: Raymond E. Schultz $200.00/hr.in connection with consultation, document review, planning composing and writing reports, searching for information research, preparing for testimony, etc. $400.00/hr. for deposition and trial testimony Compensation for additional employees of CONSULTANT shall be as set forth in Exhibit A, attached. Total compensation for report work under this Agreement including costs and expenses, shall not exceed Twenty Thousand Dollars ($20,000.00). CONSULTANT shall prepare a monthly statement which will set forth the nature of the services provided during the preceding period, the names and hours of each individual providing services, and the total number of hours and amount of fees attributable to providing such services. In addition, CONSULTANT shall be entitled to monthly reimbursement from CITY for out-of-pocket expenses incurred in connection with the provisions of said legal services, such as court costs; deposition fees, long distance telephone charges, messenger and delivery fees, photocopying and other reproduction costs, investigation fees, expert witness fees, and charges for travel time outside of the Southern California area at the direction of special counsel. Said monthly statement shall include the total amount of such expenses incurred during the preceding period. Automobile expenses are limited to $0.27 per mile. All other travel expenses shall be approved in advance. Requests for approval of travel expenses shall be submitted at least 14 days in advance, to allow for reduced transportation fares. Meals are not billable to the CITY, without prior arrangement. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service bills/costs should accompany the billing for each single item that exceeds $75.00. The fee for the sending or receiving of facsimiles will not exceed $0.25 per page. The CITY will not pay a fee or charge for telephone calls or facsimiles to the CITY. Photocopier costs shall be no more than the actual cost of duplication, or $.10 per page, whichever is less. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the case. There shall be no charge for secretarial time, secretarial overtime, or word processing charges. CITY shall pay CONSULTANT'S monthly statement within thirty (30) days of receipt unless the CITY disputes the statement. SF-2000 Agree: ]BAR. -Davis 10/13/00 - #2 • • 4. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that all materials prepared hereunder, including all original drawings, designs, reports, both field and office notices, calculations, maps and other documents, shall be turned over to CITY upon CITY's written notification. Said materials may be used by CITY as it otherwise sees fit. Title to said materials shall pass to the CITY upon payment of fees determined to be earned by CONSULTANT to the point of termination or completion of this Agreement. CONSULTANT shall be entitled to retain copies of all data prepared hereunder. 5.. INDEMNIFICATION AND HOLD HARMLESS CONSULTANT hereby agrees to indemnify, defend, and hold and save harmless CITY, its officers and employees from any and all liability, including any claim of liability and any and all losses or costs arising out of the negligent performance of this Agreement by CONSULTANT, its officers or employees. 6. WORKERS' COMPENSATION CONSULTANT shall comply with all of the provisions of the Workers Compensation Insurance and Safety Acts of the State of California, the applicable provisions of the California Labor Code and all amendments thereto; and all similar state or federal acts or laws applicable; and -shall indemnify, defend and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including attorney fees and costs presented, brought or recovered against CITY, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by CONSULTANT under this Agreement. CONSULTANT shall obtain and furnish evidence to CITY of maintenance of statutory workers compensation insurance and employers liability in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence; One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee; and Two Hundred Fifty Dollars ($250,000) bodily injury by disease, policy limit. 7. INSURANCE In addition to the workers' compensation insurance and CONSULTANT's covenant to indemnify CITY, CONSULTANT shall obtain and furnish to CITY the following insurance policies covering the PROJECT: A. General Liability Insurance A policy of general public liability insurance, including motor vehicle coverage. Said policy shall indemnify CONSULTANT, its officers, agents and employees, while acting within the scope of their duties, against any and all claims of arising out of or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and SF-2000 Agree: 1BAR. -Davis 10/13/00 - ##2 blanket contractual liability, of $1,000,000 per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than $1,000,000. Said policy shall name CITY, its officers, and employees as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONSULTANT's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. B. Professional Liability Insurance. CONSULTANT shall acquire a professional liability insurance policy covering the work performed by it hereunder. Said policy shall provide coverage for CONSULTANT's professional liability in an amount not less than $500,000 per claim. A claims made policy shall be acceptable. 8. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the . foregoing insurance coverages as required by this Agreement; said certificates shall: 1. provide the name and policy number of each carrier and policy; 2. shall state that the policy is currently in force; 3. shall promise to provide that such policies will not be canceled or modified without thirty (30) days', prior written notice of CITY; 4. and shall state as follows: "The above detailed coverage is not subject to any deductible or self -insured retention, or -any other form of similar type limitation." CONSULTANT shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CONSULTANT under the Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. 9. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. CONSULTANT shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, 4 SF-2000 Agree: IBAR. -Davis 10/13/00 - #2 unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, -if any, in connection with the services to. be performed hereunder. 10. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not PROJECT is fully complete. Any termination of this Agreement by CITY .shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. 11. ASSIGNMENT AND SUBCONTRACTING This Agreement is a personal service contract and the supervisory work hereunder shall not be delegated by CONSULTANT to any other person or entity without the consent of CITY. 12. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 13. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or.employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 14. NOTICES Any notice or special instructions required to be given in writing under this Agreement shall be given either by. personal delivery by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed as follows: TO CITY: Scott Field Assistant City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 with a copy to: 5 TO CONSULTANT: I13AR Settlement Company, Inc. 910 Huntington Drive San Marino, California 91108 SF-2000 Agree: IBAR. -Davis 10/30/00 - #2 Thomas J. Feeley, Esq. 700 So. Flower, Suite 2300 Los Angeles, CA 90017-4101 15. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 16. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309;.the City Attorney -is the exclusive legal: -counsel for: CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 17. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. Balance of page intentionally left blank 0 SF-2000 Agree: IBAR. -Davis 10/13/00 - #2 18. ENTIRETY The foregoing sets forth the entire Agreement between the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT IBAR SETTLEMENT COMPANY, INC a California corporation By: Name (Print or type) Its: (circle otie) Chairman/Presiden ice President AND By: t Z Name i7 (Print or type Its: (circle one) Secretary hief�ffice Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a California municipal corporation City Attorney �t q91 l?te p. APPROVED AS TO FORM: i ►' City Attorney r to l �o ty� t o d /� REVIEWED AND APPROVED: 7 Cit Administrator SF-2000 Agree: IBAR. - Davis 10/3/00 - #2 • • CITY OF HUNTINGTON BEACH APPLICATION'FOR INSURANCE REQUIREMENTS WAIVER OR MODIFICATION 1. Name/Title/Department of Requesting Staff Member 2. Date of Request 5. Value of Contract 6. Length of Contract 4&L a/I aL dar, e� 7. Type of Insurance Waiver or Modification Requested: �/`O SS/ n� c� 2✓1Prir� /W.T rane— (a) Limits: (b) Coverage 8. Have you contacted Risk Management to determine if professional liability coverage is available through SCOPE' Reason for Request for Waiver or Reduction of Limits Oz/ j i 7�e d k�,LarJSu� 10. Identify the risks to the City if this request for waiver or modifications granted20a ) As K Department Head Signature (This section to be completed by Risk Manager) Recommendation: Approve Deny Risk Manager's Signature/Date (This section to be completed by City Attorney) Recommendation: Approve Deny City Attorney's Signature/Date_ Settlement Committee appro I [is [is not] required for this waiver. If Settlement Committee approval is required, submit this form to City Attom s Office to be placed on the agenda. Recommendation: Approve t� Deny City.Council approva is] is not] required for this waiver. If City Council approval is required, attach this form to the - RCA after consideration y the Settlement Committee. This insurance waiver [is not] on City Council agenda. Reviewer's initials: XC-1 U� jmp/mis/inswaiver/3/1 -1/00 ATTACHMENT #2 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND R.M.S. AND ASSOCIATES, INC. FOR CONSULTATION AND EXPERT WITNESS SERVICES THIS AGREEMENT, made and entered into this day of 2000, by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and R.M.S. AND ASSOCIATES, INC., a California corporation, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of an expert in police tactics to serve as a consultant and/or an expert witness in the proceeding entitled Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935; and CONSULTANT has been selected to perform said services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: WORK STATEMENT CONSULTANT shall serve as a consultant and/or an expert witness in the proceeding entitled: Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935. CONSULTANT shall provide those services as more specifically instructed by Thomas Feeley, Esq., of Law Offices of Thomas J. Feeley, P.C., special counsel to the CITY in Davis v. City, et al. CONSULTA\TT hereby designates Robert Smitson who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. CONSULTANT shall provide the following services: ■ Preparation and availability for deposition and trial, if necessary; ■ Perform all work necessary in order to provide credible testimony in deposition and trial; ■ Provide CITY and/or special counsel with consulting services relating to depositions and trial testimony of opposing experts; and ■ All other work requested by CITY and/or special counsel. 2. TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of the CONSULTANT are to commence as soon as practicable after the execution of this Agreement. SF-2000 Agree: RMS & Assoc. - Davis 10/30/00 - #2 3. COMPENSATION CONSULTANT's fee for such services shall be as follows: Robert M. Smitson $145.00/hr.in connection with consultation, research, insight, analysis of file material, written reports, walk through and court preparation, $275/hr. for deposition and trial testimony; A non-refundable retainer of $1,000 may be requested for case evaluation. Total compensation for report work under this Agreement including costs and expenses, shall not exceed Twenty Thousand Dollars ($20,000.00). CONSULTANT shall prepare a monthly statement which will set forth the nature of the services provided during the preceding period, the names and hours of each individual providing services, and the total number of hours and amount of fees attributable to providing such services. In addition, CONSULTANT shall be entitled to monthly reimbursement from CITY for out-of-pocket expenses incurred in connection with the provisions of said legal services, such as court costs, deposition fees, long distance telephone charges, messenger and delivery fees, photocopying and other reproduction costs, investigation fees, expert witness fees, and charges for travel time outside of the Southern California area at the direction of special counsel. Said monthly statement shall include the total amount of such expenses incurred during the preceding period. Automobile expenses are limited to $0.27 per mile. All other travel expenses shall be approved in advance. Requests for approval shall be submitted at least 14 days in advance, to allow for reduced transportation fares. Meals are not billable to the CITY, without prior arrangement. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service bills/costs should accompany the billing for each single item that exceeds $75.00. The fee for the sending or receiving of facsimiles will not exceed $0.25 per page. The CITY will not pay a fee or charge for telephone calls or facsimiles to the CITY. Photocopier costs shall be no more than the actual cost of duplication, or $.10 per page, whichever is less. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the case. There shall be no charge for secretarial time, secretarial overtime, or word processing charges. CITY shall pay CONSULTANT'S monthly statement within thirty (30) days of receipt unless the CITY disputes the statement, SF-2000 Agree: RIMS & Assoc. - Davis 10/30/00 - #2 4. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that all materials prepared hereunder, including all original drawings, designs, reports, both field and office notices, calculations, maps and other documents, shall be turned over to CITY upon CITY's written notification. Said materials may be used by CITY as it otherwise sees fit. Title to said materials shall pass to the CITY upon payment of fees determined to be earned by CONSULTANT to the point of termination or completion of this Agreement. CONSULTANT shall be entitled to retain copies of all data prepared hereunder. 5. INDEMNIFICATION AND HOLD HARMLESS CONSULTANT hereby agrees to indemnify, defend, and hold and save harmless CITY, its officers and employees from any and all liability, including any claim of liability and any and all losses or costs arising out of the negligent performance of this Agreement by CONSULTANT, its officers or employees. 6. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. CONSULTANT shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. 8. ASSIG\T 4ENT AND SUBCONTRACTING This Agreement is a personal service contract and the supervisory work hereunder shall not be delegated by CONSULTANT to any other person or entity without the consent of CITY. 9. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement.. SF-2000 Agree: RMS & Assoc. - Davis 10/30/00 - #2 10. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 11. NOTICES Any notice or special instructions required to be given in writing under this Agreement shall be given either by personal delivery by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed as follows: TO CITY: Scott Field Assistant City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 with a copy to: Thomas J. Feeley, Esq. 700 So. Flower, Suite 2320 Los Angeles, CA 90017-4101 12. IMMIGRATION TO CONSULTANT: Robert M. Smitson R.M.S. and Associates, Inc. 9754 Portada Drive Whittier, CA 90603 CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 13. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 4 SF-2000 Agree: RMS & Assoc. - Davis 10/30/00 - #2 14. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 15. ENTIRETY The foregoing sets forth the entire Agreement between the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT CITY OF HUNTINGTON BEACH, a R.M.S. and ASSOCIATES, INC.. California municipal corporation a California corporation By. City Attorney Name APPROVFT) AS TO FORM - (Print or type) Its: (circle one) Chairman/President/Vice President AND iM Name (Print or type) Its: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer City Attorney REVIEWED AND APPROVED: 5 City Administrator SF-2000 Agree: RMS & Assoc. - Davis 101301:00 - #2 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND R.M.S. AND ASSOCIATES, INC. FOR CONSULTATION AND EXPERT WITNESS SERVICES Table of Contents 1 Work Statement........................................................................................................1 2 Time of Performance................................................................................................1 3 Compensation...........................................................................................................2 4 Disposition of Plans, Estimates and Other Documents ............................................ 3 5 Independent Contractor............................................................................................. 3 6 Termination of Agreement........................................................................................ 3 7 Assignment and Subcontracting................................................................................ 3 8 Copyrights/Patents.....................................................................................................3 9 CITY Employees and Officials..................................................................................4 10 Notices.................................................................................:....................................4 11 Immigration.............................................................................................................4 12 Legal Services Subcontracting Prohibited...............................................................4 13 Attorney's Fees......................................................................................................... 5 14 Entirety.................................................................................................................... 5 CITY OF HUNTINGTON BEACH APPLICATION FOR NSURANCE REQUIREMENTS WAIVER OR MODIFICATION 1. NametTitte/Department of Requesting Staff Member Seo'f- ici e 2. Date of Request 3. Name of Contractor/Permittee /4•fJZf 4. Description of work to be performed 60—e- en�-ih/ d ,©Outs IA el')4V 0'� eq "S.00- 64 e �6 cv DD- 5. Value of Contract, 6. Length of C i 7. Type of Insurance Waiver or Modification Requested: (a) Limits: (b) Coverage 8. Have you contacted Risk Management to determine if professional liability coverage is available through SCOPE? / 9. Reason for Request for Waiver or Reduction of Limits .0 Z40 i 710,/ 10. Identify the risks to the City if this request for waiver or modifications granted ZoiGo Ask. Department Head Signature �Z� (This section to be completed by Rise Manager) Recommendation: Approve Deny Risk Manager's Signature/Date •/ (This section to be completed by C ^..4ttorney) Recommendation: Approve Deny City Attorney'sSignature/Date `%� /mil' / /J/ OZ�7 i Settlement Committee appro al 's] is not] required for this waiver. If Settlement Co::imittee approval is equired, submit this form to City Attorney s Office to be placed on the agenda. Recommendation: Approve Deny City Council app val [is] is not] required for this waiver. If City Council approval is required, attach this form to the - RCA after considerat y the Settlement Committee. This insurance waiver [is noti on City Council agenda. Reviewer's ir;nal : jmpi mis/inswaiver/3/ 1 4/00 ATTACHMENT #3 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND MARTIN L. FACKLER, M.D FOR CONSULTATION AND EXPERT WITNESS SERVICES THIS AGREEMENT, made and entered into this day of 2000, by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and MARTIN L. FACKLER, M.D., an individual, hereinafter referred -to as "CONSULTANT." WHEREAS, CITY desires to engage the services of an expert in wound ballistics to serve as a consultant and/or an expert witness in the proceeding entitled Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935; and CONSULTANT has been selected to perform said services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: I. WORK STATEMENT CONSULTANT shall serve as a consultant and/or an expert witness in the proceeding entitled: Davis v. City of Huntington Beach, et al., USDC Case No. SA CV 00-54 GLT (Eex), OCSC Case No. OOCC09935. CONSULTANT shall provide those services as more specifically instructed by Thomas Feeley, Esq., of Law Offices of Thomas J. Feeley, P.C., special counsel to the CITY in Davis v. City, et al. CONSULTANT hereby designates Martin L. Fackler who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. CONSULTANT shall provide the following services: ■ Preparation and availability for deposition and trial, if necessary; ■ Perform all work necessary in order to provide credible testimony in deposition and trial; ■ Provide CITY and/or special counsel with consulting services relating to depositions and trial testimony of opposing experts; and ■ All other work requested by CITY and/or special counsel. 2. TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of the CONSULTANT are to commence as soon as practicable after the execution of this Agreement. SF-2000 Awe: Fackler. -Davis 10/30/00 - =2 3. COMPENSATION CONSULTANT's fee for such services shall be as follows: Martin L. Fackler $250.00/hr.in connection with consultation, document review, planning composing and writing reports, searching for information research, preparing for testimony, etc. $250.00/hr. for an eight -hour day for each day or part of a day for courtroom testimony, or waiting to give testimony $400.00/hr. for deposition testimony with a minimum of two hours if travel is required Travel and lodging expenses, plus $100.00/hr. for time spent traveling. Total compensation for report work under this Agreement including costs and expenses, shall not exceed Twenty Thousand Dollars ($20,000.00). CONSULTANT shall prepare a monthly statement which will set forth the nature of the services provided during the preceding period, the names and hours of each individual providing services, and the total number of hours and amount of fees attributable to providing such services. In addition, CONSULTANT shall be entitled to monthly reimbursement from CITY for out-of-pocket expenses incurred in connection with the provisions of said legal services, such as court costs, deposition fees, long distance telephone charges, messenger and delivery fees,. photocopying and other reproduction costs, investigation fees, expert witness fees, and charges for travel time outside of the Southern California area at the direction of special counsel. Said monthly statement shall include the total amount of such expenses incurred during the preceding period. Automobile expenses are limited to 50.27 per mile. All other travel expenses shall be approved in advance. Requests for approval shall be submitted at least 14 days in advance, to allow for reduced transportation fares. Meals are not billable to the CITY, without prior arrangement. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service bills/costs should accompany the billing for each single item that exceeds $75.00. The fee for the sending or receiving of facsimiles will not exceed $0.25 per page. The CITY will not pay a fee or charge for telephone calls or facsimiles to the CITY. Photocopier costs shall be no more than the actual cost of duplication, or $.10 per page, whichever is less. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the case. . There shall be no charge for secretarial time. secretarial overtime, or word processing charges. CITY shall pay CONSULTANT'S monthly- statement within thirty (30) days of receipt unless the CITY disputes the statement. SF-2000 Agree: Fackler. -Davis 10/30/00 - #2 4. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that all materials prepared hereunder, including all original drawings, designs, reports, both field and office notices, calculations, maps and other documents, shall be turned over to CITY upon CITY's written notification. Said materials may be used by CITY as it otherwise sees fit. Title to said materials shall pass to the CITY upon payment of fees determined to be earned by CONSULTANT to the point of termination or completion of this Agreement. CONSULTANT shall be entitled to retain copies of all data prepared hereunder. INDEMNIFICATION AND HOLD HARMLESS CONSULTANT hereby agrees to indemnify, defend, and hold and save harmless CITY, its officers and employees from any and all liability, including any claim of liability and any and all losses or costs arising out of the negligent performance of this Agreement by CONSULTANT, its officers or employees. 6. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. CONSULTANT shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder. T. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. 8. ASSIGNMENT AND SUBCONTRACTING , This Agreement is a personal service contract and the supervisory work hereunder shall not be delegated by CONSULTANT to any other person or entity without the consent of CITY. 9. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. SF-2000 Agree: Fackler. - Davis 10/30/00 - #2 • • 10. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 11. NOTICES Any notice or special instructions required to be given in writing under this Agreement shall be given either by personal delivery by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed as follows: TO CITY: Scott Field Assistant City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 with a copy to: Thomas J. Feeley, Esq. 700 So. Flower, Suite 2320 Los Angeles, CA 90017-4101 12. IMMIGRATION TO CONSULTANT: Martin L. Fackler, M.D. 211 Star Lake Drive Hawthorne, FL 32640 CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 13. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not. liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 14. ATTORNEY'S FEES In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 9 SF-2000 Agree: Fackler. -Davis 10/30/00 - 112 15. ENTIRETY The foregoing sets forth the entire Agreement between the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT CITY OF HUNTINGTON BEACH, a MARTIN L. FACKLER, M.D., F.A.C.S. California municipal corporation an individual City Attorney By: Martin L. Fackler APPROVED AS TO FORM: City Attorney REVIEWED AND APPROVED: W City Administrator SF-2000 Agree: Fackler. - Davis 10/30/00 - #2 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGI'ON BEACH AND MARTIN L. FACKLER, M.D. FOR CONSULTATION AND EXPERT WITNESS SERVICES Table of Contents 1 Work Statement........................................................................................................1 2 Time of Performance................................................................................................1 3 Compensation........................................................................................................... 2 4 Disposition of Plans, Estimates and Other Documents ............................................. 3 5 Indemnification and Hold Harmless.........................................................................3 6 Independent Contractor............................................................................................. 3 7 Termination of Agreement........................................................................................ 3 8 Assignment and Subcontracting................................................................................ 3 9 Copyrights/Patents...................................................................................................... 3 10 CITY Employees and Officials................................................................................4 11 Notices.....................................................................................................................4 12 Immigration............................................................................................................. 4 13 Legal Services Subcontracting Prohibited...............................................................4 14 Attorney's Fees.......................................................................................................... 4 15 Entirety.................................................................................................................... 5 C7 • CITY OF HUNTINGTON BEACH APPLICATION FOR INSURANCE REQUIREMENTS WAIVER OR MODIFICATION Name/Title/Department of Requestin& Staff Member 2. Date of Req 3 4 Em Name of Contractor/Pem-dttee /A///a�t ti . lrzte elect In . ,0 . Description of work to be performed �n_scf/�r.��-/E�caon7` Gyi 5. Value of Contract_ 6. Length of Contract 7. Type of Insurance Waiver or Modification Requested:�S W,,1,t/ — G Pi9P6'2� j,&C,e !-s` I Z I, (a) Limits: (b) Coverage 8. Have you contacted Risk Management to determine if professional liability coverage is available through SCOPE' 9. Reason for Request for Waiver or Reduction of Limits l ow i he 10. Identify the risks to the City if this request for waiver or modifications granted COG[J ze S 4 Department Head Signature (This section to be completed by Risk Manager) Recommendation: Approve Deny Risk Manager's Signature/Date (This section to be completed by City,4rrorney) Recommendation: Approve Deny City Attorney's Signature,/Date C�u� / P Settlement Committee approv is] is not] required for this waiver. If Settlement Committee approval is required, submit this form to City Attorn Office to be placed on the agenda. Recommendation: ApproveDeny_ City Council appr 0'y [is not] required for this waiver. If City Council approval is required, attach this form to the RCA after considera the Settlement Committee. This insurance waiver [is not] on City Council agenda. Reviewer's initials: ul� jmpimis'inswaiver/3/1.i/00 7j RCA ROUTING SHEET INITIATING DEPARTMENT: CITY ATTORNEY'S OFFICE SUBJECT: Waiver of Insurance Requirements for Gladstein & Associates and Martin Collette, dba EconOne, for Consultant and Expert Witnesses Services COUNCIL MEETING DATE: November 6, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) Signed in full by the City Attorne Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial r Attached EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED. :;: FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial City Clerk EXPLANATION.FOR .RETURN •-OF .ITEM: RCA Author: