HomeMy WebLinkAboutMARTIN L. FACKLER, M.D. - 2000-11-06). 616U£I�, altm
Council/Agency Meeting Held:
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied _
w4ty r s.Si nature
Council Meeting Date: November 6, 2000 Department ID Number: CA 00-20
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
c
SUBMITTED TO: HONORABLE MAYOR AND CIT COUNCIL MEMBERS
SUBMITTED BY: GAIL HUTTON, City Attorney d
PREPARED BY: GAIL HUTTON, City Attorney
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
EEEssue, 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(6): Do not approve the waiver of insurance requirements for
Professional, General and Workers' Compensation liability insurance.
OL
QUEST FOR COUNCIL ALMON
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):
RCA Author: SFF/JEG
1
Not Applicable
Settlement Committee's Recommendation for IBAR Settlement
Company, Inc.
2 I Settlement Committee's Recommendation for RMS &b Associates Inc.
3. Settlement Committee's Recommendtion for Martin L. Fackler M.D.
00-20 Consutant Davis.doc -2- 10/30/00 10:12 AM
ATTACHMENT #3
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH
AND
MARTIN L. FACKLER, M.D
FOR
CONSULTATION AND EXPERT WITNESS SERVICES
6� Nov
THIS AGREEMENT, made and entered into this day of 2000,
by and between the City of Huntington Beach, a municipa corporation o e 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:
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 if 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: Fackler. -Davis
10/18/00 - #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 $0.27 per mile. All other travel expenses shall be I.I. R 4
approved in advance. Requests for approval shall be submitted at least 14 days in advance �1 i Ie_
allow for reduced transportation fares. Meals are not billable.to the CITY, without prior D(
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.
2
SF-2000 Agree: Fackler. -Davis
10/18/00 - #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.
7. 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
10/18/00 - #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.
4
SF-2000 Agree: Fackler. -Davis
10/18/00 - #2
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
MARTIN L. FACKLER, M.D., F.A.C.S.
an individual
:7��Oo� /_9
By:
Martin L. ackl r
CITY OF HUNTINGTON BEACH, a
California unic. al corporation
r
//i�ity Attorney
APPROVED AS TO FORM:
v City Attorney S�
REVIEWED AND APPROVED: +"'��
C' Administrator 5
SF-2000 Agree: Fackler. -Davis
10/18/00 - #2
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON 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
CITY OF HUNTINGTON BEACH
APPLICATION FOR INSURANCE REQUIREMENTS WAIVER OR MODIFICATION
1. Name/Title/Department of Reque
2. Date of Request e�x
I Name of Contractor/Permi
Es
Staff Member —51,G VY- Fe%l
DO
Description of work to be MIMI", WA azs C_
5. Value of Contract
6. Length of Contract I-Zuryk,-D`7O,12 d�L cas
7. Type of Insurance Waiver or Modification Requested:�
1,(Jj—jter''s` [�rnt�POlvt2 D� 1iil h.l
(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 1,1/yJ9 i 14eqy ✓�o.S�1� P.
10. Identify the risks to the City if this request for waiver or modifications granted LDw zls .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 Si,tature/Date� �`'�%' I i l l/'3 l �`
Settlement Committee approv Pis]is not] required for this waiver. If Settlement Committee approval is required,
submit this form to City Attomffice to be placed on the agenda. Recommendation: ApproveDeny_
City.Council appr al [is [is not] required for this waiver. If City Council approval is required, attach this form to the
RCA after considers ' y the Settlement Committee. This insurance waiver [is not] on City Council agenda.
Reviewer's initials:
NO
ul�
jmp/mis/inswaiveri3/1 4/00