HomeMy WebLinkAboutRMS AND ASSOCIATES INC. - 2000-11-06 Council/Agency Meeting Held: b
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denied _
It r s Signature
.Council Meeting Date: November 6, 2000 Department ID Number: CA 00-2.0
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
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SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
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SUBMITTED BY: GAIL HUTTON, City Attorney��
PREPARED BY: GAIL HUTTON, City Attorney
SUBJECT: Approve Waiver of Insurance Requirements for IBAR Settlement y;
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.
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WQUEST FOR COUNCIL ACOON
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: Not Applicable
Attachment(s):
City Clerk's
Page Number No. Description
SePakd-XP- 1 Settlement Committee's Recommendation for IBAR Settlement
Company, Inc.
2 Settlement Committee's Recommendation for RMS &b Associates Inc.
�, ap 3. Settlement Committee's Recommendtion for Martin L. Fackler M.D.
RCA Author: SFF/JEG
00-20 Consutant Davis.doc -2- 10/30/00 10:12 AM
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 6114 day of NdOU—M15EK 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:
1. 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 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.
1
SF-2000 Agree: RMS&Assoc.-Davis
10/19/00-#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.
2
SF-2000 Agree: RMS&Assoc.-Davis
10/19/00-#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.
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.
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SF-2000 Agree: RMS&Assoc.-Davis
10/19/00-#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: TO CONSULTANT:
Scott Field Robert M. Smitson
Assistant City Attorney R.M.S. and Associates, Inc.
City of Huntington Beach 9754 Portada Drive
2000 Main Street Whittier, CA 90603
Huntington Beach, CA 92648
with a copy to:
Thomas J. Feeley, Esq.
700 So. Flower, Suite 2320
Los Angeles, CA 90017-4101
12. 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.
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.
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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 con)oration
Attorney
M .SM!TS&V 11
Name(�_�i APPROVED AS TO FORM:
(Print or type)
Its: (circle one)ChairmanfPresidenqVice President - -
AND // ` /-" City Attorney I
REVIEWED AND APPROVED:
Name City Administrator
Print or type)
Its: (circle on Secretary/ hief Financial Officer/Asst.
Secretary.-Treasurer; .
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SF-2000 Agree: RMS&Assoc.-Davis
10/19/00-#2
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH
AND
AND ASSOCIATES, INC.
FOR"-
CONSULTATION AND EXPERT WITNESS SERVICES
Table of Contents
1 Work Statement........................................................................................................1
2 Time of Performance.................................................................................................I
3 Compensation.........................
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 INSURANCE REQUIREMENTS WAIVER OR MODIFICATION
1. Name/Title/Department of Requesting Staff Member
2. Date of Request l0,_/off /l7�
;. Name of Contractor/Permirtee aiVS ./7;90
4. Description of work to be performed ,1,642,0"t-lyi7�i)e�s �n c>
��s.� eni-i6/eol oovis V. 6,',c oT 1/ ��sOc C'�se5�9 L'v Do-sy.,GLf(tp)
5. Value of Contract
6. Length of Contract a1/l!i'Q Y7e2r A2—/ lf l—, ,.
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 /m i 6e.�/ E 4,2aStlre,
10. Identify the risks to the City if this request for waiver or modifications granted
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 `%� � ' / / /J/ o
Settlement Committee appro al ' ] is not] required for this waiver. If Settlement Committee 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 not] on City Council agenda.
Reviewer's initial
jmp/mis/inswaiver/1/14/00
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INTERINSURANCE EXC*E of the Automobile Club •
�ERNCA��`u AMENDMENT OF AUTOMOBILE INSURANCE DECLARATIONS
PLEASE READ:This endorsement changes the declarations as indicated in the"Subject of Amendment' space below. Insurance is in effect only
for the vehicles,coverages and limits of liability shown on this endorsement.
ITEM 1.YOUR NAME AND ADDRESS PROCESS DATE AUTO POLICY NUMBER
4-19-00 G 104o865
SMITSON, ROBERT M AND 'TERRY R PRI EFFECTIVE DATE OF THIS AMENDMENT:
9754 PORTADA DR 4-19-00 12:01 A.M.
WHITTIER CA 90603-1326
EXPIRATION DATE OF THIS POLICY:
2-27-01 12:01 A.M.
(PACIFIC STANDARD TIME)
ITEM 2.DESCRIPTION OF VEHICLES
VEH. YEAR MAKE IDENTIFICATION NO. RESIDENCE ANTI-THEFT DEVICE AIR
NO. LEASED FINANCED ZIP CODE ANNUAL MILES ELECTRONIC BAGS
LOCATOR OTHER
1 93 FORD 1FMDU34x9PUC15521 NO NO 90603 10,001 - 15,000 NO YES NO
3 00 JAG SAJDA23C8YLF12555 NO NO 90603 5,001 - 7,500 NO YES YES
VEHICLE SPECIAL EOUIPMENT* SOUND EOUIPMENT* PARKED
NUMBER CAMPER/ 2-WAY TELE• IN
VAN CONV. OTHER RADIO PHONE RADIO OTHER GARAGE
1 YES
3 YES
* WARNING: Under Part III of the policy(Physical Damage),special coverage limitations apply unless coverage was
specifically purchased for certain equipment.Coverage is indicated by an"X"in the appropriate equipment column.
ITEM 3.COVERAGES(COVERAGES ARE NOT IN EFFECT UNLESS INDICATED)
POLICY I-LIABILITY' 11-MEDICAL III-PHYSICAL DAMAGE IV-UNINSURED MOTORIST
PART
COVER- 8-PROPERTY C M WCAR L-UNINSURED F-BODILY INJURY UNIN-
AGES A-BODILY INJURY DAMAGE MED.PAY. EXCESS D-COMPREHENSIVE RENTAL E-COLLISION MOTORIST SURED 8 UNDERINSURED
MED.PAY. EXPENSE COLLISION MOTOR VEHICLES
THOUSANDI THOUSAND THOUSAND THOUSAND THOUSAND ACTUAL CASH I ACTUAL CASH THOUSAND THOUSAND
DOLLARS DOLLARS DOLLARS DOLLARS DOLLARS VALUE OR LESS DOLLARS VALUE OR LESS UNINS. UNINS. DOLLARS i DOLLARS
VEH. EACH EACH EACH EACH EACH LIMI7 OF SPECIFIED PER DAY LIMIT OF SPECIFIED DED. C INS EACH I EACH
NO. PERSON OCCUR. OCCUR. PERSON PEnCON LIABILITY DEDUCTIBLE LIABILITY DEDUCTIBLE WAIVER PERSON I ACCIDENT
1 100 300 100 2 ACV 100 30 ACV 250 30 16o
M 3 100 300 100 2 ACV 100 30 ACV 250 x 30 60
T
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PREMIUM DISCOUNT(S) APPLIED TO THIS POLICY SUBJECT OF AMENDMENT
LONG-TIME INSD. GOOD DRIVER VEHICLE CHANGE COVERAGE CHANGE
ANTI-THEFT MULTI VEHICLE MISCELLANEOUS CHANGE
GARAGE PARKING AIR BAGS
THIS IS NOT A BILL
AMENDMENT ADDITIONAL PREMIUM OR CREDIT
NUMBER ADD CREDIT
1 $502.00
E04990A
ATTACH TO YOUR POLICY (SEE REVERSE)
oyo9l� -
�` � INTERINSURANCE EXCHANG of the Automobile Club
fq� AMENDMENT OF AUTOMOWNSURANCE DECLARATIONS—(CONTINIO AUTO POLICY NUMBER G 1040865
POLICY EFFECTIVE DATE 2-27-00
ITEM 4.DRIVERS(UNLESS EXCLUDED)
DRIVER DATE MARITAL DRIVER'S LICENSE YEAR FIRST
NO. NAME GENDER OF BIRTH STATUS NUMBER LICENSED
1 SMITSON, ROBERT M MALE 12- 7-36 MARRIED D 547911 52
2 SMITSON, TERRY R FEMALE 3-28-4o MARRIED G 761518 56
DRIVER DRIVING RECORD STATUTORY DRIVER RATED GOOD DRIVER IMPROVEMENT CERTIFICATES
NO. Pp NCIPA R OAT NO.OF TRAFFIC CONVICTIONS GOOD STATUS VEHICLE STUDENT MATURE DEFENSIVE
FAULT ACCIDENTS MINOR SERIOUS MAJOR SEVERE DRIVER NO. DRIVER DRIVING COURSE
1 , YES PRIMARY 3
2 YES .PRIMARY 1
ITEM 5.ENDORSEMENTS AND CERTIFICATES IN EFFECT AT ISSUANCE
NUMBER I TITLE NUMBER I TITLE
2151 ADDL INSURED NOTICE - DRIVER
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ANY LOSS UNDER PART III—PHYSICAL DAMAGE—IS PAYABLE AS INTEREST MAY APPEAR TO YOU AND
FOR QUESTIONS OR CHANGES
CALL 1-800-924-6141 TOLL FREE ,
ITS00208
E0499