HomeMy WebLinkAbout2006-125
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RESOLUTION NO. 2006-125
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH EWM PARTNERS TO PROVIDE EMIL
3 MARZULLO'S SERVICES FOR A TWO-YEAR PERIOD AS ECONOMIC AND
COMMUNITY DEVELOPMENT ADVISOR.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor is hereby authorized to execute on behalf of said City an
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Agreement with EWM Partners, a General Partnership, to provide the services of Emil Marzullo as
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the Mayor's Office's Economic and Community Development Advisor for a period of two years. Said
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Agreement is attached hereto, marked Exhibit "A", and incorporated herein by reference as though
set forth at length.
SECTION 2. The authorization to execute the above-referenced agreement is rescinded if
the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution.
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2006-125
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH EWM PARTNERS TO PROVIDE EMIL
2 MARZULLO'S SERVICES FOR A TWO-YEAR PERIOD AS ECONOMIC AND
COMMUNITY DEVELOPMENT ADVISOR.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a joint regular
meeting thereof, held
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on the ~ day of May
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COUNCIL MEMBERS:
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ESTRADA
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BAXTER
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McGINNIS
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DERRY
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KELLEY
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JOHNSON
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McCAMMACK
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, 2006, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
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CitK:lerk
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The foregoing Resolution is hereby approved thi~ay of May
,2006.
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--{'t"'.-
PAT ICKJ.MO S,Mayor
. of San Bernardino
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23 Approved as to
Form:
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25 JAMES F. PENMAN,
City Attorney
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By:
$~#MIaW
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2006-125
1 PROFESSIONAL SERVICES AGREEMENT
2 THIS AGREEMENT is entered into this 1st day of May, 2006, by and between
3 EWM Partners, a General Partnership ("EWM") and the CITY OF SAN BERNARDINO, a charter
4 city ("CITY.")
5 WHEREAS, the Mayor and Common Council have determined that it is advantageous
6 and in the best interest of the CITY to engage a professional economic and community
7 development advisor in the Mayor's Office;
8 WHEREAS, EWM is a California general partnership composed of Marzullo and Wendy
9 Marzullo and of which Marzullo is the sole active employee and representative. Marzullo has
10 extensive experience in economic and community development matters.
11 WHEREAS, the City desires to retain EWM Partners to provide Emil Marzullo's
12 ("MARZULLO") services as the Economic and Community Development Advisor to the Mayor;
13 WHEREAS, MARZULLO possesses the professional skills and abilities to provide those
14 services for the Mayor and the City.
15 WHEREAS, MARZULLO is a General Partner ofEWM;
16 NOW, THEREFORE, in consideration ofthe terms and conditions set forth herein, the
17 parties hereto agree as follows:
18 1. SCOPE OF SERVICES. City hereby retains EWM to provide the following
19 consulting services:
20 a. Acting as the Economic and Community Development Advisor for the
21 Mayor's Office, EWM shall advise the Mayor, and carry out and supervise such programs, policies,
22 tasks and assignments given to him by or on behalf of the Mayor regarding: (i) strategic plans and
23 initiatives for economic growth; (ii) business recruitment and retention; (iii) jobs and workforce
24 development; (iv) housing and home ownership opportunities; and (v) such other matters as
25 touched upon or are related to economic and community development and are assigned to
26 MARZULLO.
27 2. COMPENSATION AND EXPENSES.
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a.
CITY shall compensate EWM for services provided pursuant to this
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2006-125
1 Agreement at the rate of$7,500.00 per month over the total term of this Agreement.
2 b. During the term of this Agreement, EWM shall bill and the CITY shall
3 reimburse him for all reasonable and approved out-of-pocket expenses which are incurred in
4 connection with the aforesaid duties.
5 c. EWM shall submit monthly invoices to the Mayor or his designee for
6 consulting services and reimbursable expenses. The Mayor or his designee shall accept or reject
7 such invoices and shall forward to the CITY's Finance Department for payment those invoices
8 accepted for payment.
9 3. TERM. The term of this Agreement shall be for two (2) years, beginning on
10 May 1,2006, and terminating on April 30, 2008, unless previously modified or amended by the
11 written mutual consent of the parties, or terminated in accordance with Section II herein.
12 4. RIGHT TO AUDIT. The CITY or any of its duly authorized representatives shall
13 have access to the books and financial records ofEWM which are pertinent to the services rendered
14 herein for purposes of performing and audit. The books and financial records generated by EWM
15 pertaining to the professional consulting services rendered herein shall be retained by EWM for
16 three (3) years following expiration of this Agreement or for a longer period as required by law.
17 EWM shall maintain logs during the term of this Agreement documenting the time expended by
18 EWM to perform the services required hereunder, which shall be available for inspection upon
19 request of the CITY.
20 5. INDEPENDENT CONTRACTOR. EWM, at all times while performing under
21 this Agreement, is an independent contractor and neither EWM nor Marzullo shall be an agent or
22 employee of CITY. CITY is not responsible for withholding, and shall not withhold, FICA or taxes
23 of any kind from any payments which are owed to either to EWM or Marzullo. Neither EWM nor
24 Marzullo shall not be entitled to receive any benefits which employees of CITY are entitled to
25 receive and shall not be entitled to workers' compensation insurance, unemployment compensation,
26 medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing, or Social
27 Security on account of his work for CITY. This Agreement does not create the relationship of
28 agent, servant, employee, partnership, or joint venture between the parties.
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1 6. PROHIBITION AGAINST SUBCONTRACTING. It is expressly understood
2 that the experience, knowledge, capability, and reputation of MARZULLO was a substantial
3 inducement to enter into this Agreement. Therefore, EWM shall not contract with any other
4 individual or entity to perform, in whole or in part, the services required hereunder without the prior
5 written approval of CITY.
6 7. POLITICAL REFORM ACT. In performing the services set forth in Section
7 I of this Agreement in the capacity ofaconsultant, EWM and MARZULLO are acting as a public
8 officials as defined by the Political Reform Act of 1974, Government Code Section 87100 et seq.
9 ("Act") and both EWM and MARZULLO shall be subject to, and agree to abide by, the Act's
10 requirements, including, but not limited to, those: (i) banning certain gift and honoraria; (ii)
11 prohibiting participation in certain political activities and decisions; and (iii) requiring public
12 disclosure of personal economic interests through the filing of Fair Political Practice Commission
13 Form 700. EWM and MARZULLO specifically covenant to abide by all provisions of the Act
14 applicable to each of them and all similar orrelated provision of the CITY's Charter and Municipal
15 Code.
16 8. INDEMNIFICATION. EWM agrees and promises to indemnify, defend, and
17 hold harmless CITY, its elected and appointed boards, commissions, officers, attorneys, agents, and
18 employees from and against any claims, losses, demands, suits, administrative actions, penalties
19 and expenses incurred by CITY with respect to (i) any benefits which employees of CITY are
20 entitled to receive, including, but not limited to, workers' compensation insurance, unemployment
21 compensation, medical insurance, life insurance, pension, profit sharing, or Social Security which
22 were not supplied to EWM or MARZULLO in the performance of this Agreement, (ii) the failure
23 of CITY to withhold the cost of such benefits or for taxes, or (iii) any assertion that by reason
24 hereof or the services to be performed pursuant to this Agreement, EWM or MARZULLO is an
25 employee of the CITY. EWM and MARZULLO specifically waive any claim of rights or benefits,
26 whether present or future, under the CITY's pension plans, fringe benefit plans afforded employees
27 of the CITY, workers' compensation or unemployment insurance or other benefits normally
28 afforded employees of the CITY.
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NONDISCRIMINATION. In the performance of this Agreement and in the
2 hiring and recruitment of employees, EWM shall not discriminate on the basis of race, creed, color,
3 religion, sex, sexual orientation, physical or mental disability, medical condition, pregnancy, child
4 birth or related medical conditions of any female employee, marital status, age, ethnic background,
5 ancestry, or national origin.
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10.
NOTICE. Any notice to be given pursuant to this Agreement shall be deposited
7 with the United States Postal Service, postage prepaid and addressed as follows:
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TO CITY:
Office of the Mayor
300 North "D" Street
San Bernardino, CA 92418
Fax: (909) 384-5067
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TO MARZULLO:
EWM
28446 Carriage Drive
Highland, CA 92346
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13 Nothing in this paragraph shall be construed to prevent the giving of notice by personal
14 service or telephonically verified fax transmission which shall be deemed effective upon actual
15 receipt thereof. Either party may change their address for receipt of written notice by so notifYing
16 the other party in writing.
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11.
TERMINATION.
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a.
CITY or EWM may terminate the services provided under Section! of this
19 Agreement upon sixty (60) days written notice to the other party.
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b.
Notwithstanding Section II(a) above, this Agreement shall automatically
21 terminate upon notice given by the aggrieved party on or after the occurrence of any of the
22 following events:
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(a)
(b)
The death of MARZULLO;
The disability of MARZULLO which, for purposes hereof, shall
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25 mean the inability of MARZULLO, because of injury or illness, to perform services hereunder for
26 a period of sixty (60) days or longer;
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(c)
(d)
The end of the term of the Mayor, whatever the reason;
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The material breach, by EWM, of this Agreement;
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(e) The material breach, by CITY, of this Agreement;
(f) The conviction of MARZULLO of any felony or any cnme
involving moral turpitude;
(g) The material violation, by MARZULLO, of the Act or any law,
regulation or policy designed to assure ethics in government or public access to information
concerning government; or
(h) The mutual agreement of CITY and EWM.
c. Upon termination of this Agreement, EWM shall be entitled to receive only
compensation accrued pursuant to Section 2 above for services actually rendered but unpaid as of
the date of termination and shall not be entitled to additional compensation. 12.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties.
Any correspondence, letters, documents, or discussions leading up to this Agreement or in any
other way made between the parties or their agents are replaced and superseded by this Agreement.
13. GOVERNING LAW. This Agreement shall be interpreted and enforced under
the laws of the State of California.
14. ATTORNEY'S FEES. In any litigation relating to this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees. The cost, salary, and expenses of the City
Attorney and members ofhis/her office in enforcing this contract on behalf of the CITY shall be
considered "attorneys fees" for the purposes of this paragraph.
15. SEVERABILITY. If any part or provision of this Agreement is in conflict or
inconsistent with applicable provisions of federal, state, or city statutes, or it is otherwise held to
be invalid or unenforceable by any court of competent jurisdiction, such part or provision shall be
suspended and superseded by such applicable law or regulation, and the remainder of this
Agreement shall not be affected thereby.
16. WAIVER. Failure of either party to enforce any provision of this Agreement shall
not constitute a waiver of the right to compel enforcement of the remaining provisions of this
Agreement.
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AMENDMENT. This Agreement may only be amended by a written agreement
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1 executed by the parties, and may not be amended by oral agreement.
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ASSIGNMENT. This Agreement shall notbe assigned by EWM without the prior
3 written consent of the CITY.
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A UTH ORITY. The person( s) executing this Agreement on behalf of the parties
5 hereto warrant( s) that they are duly authorized to execute this Agreement on behalf of said parties.
6 IN WITNESS WHEREO F, the parties hereto have caused this Agreement to be executed
7 as of the date first written above.
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DATE: ~/~ /. /
'--' oJ. 0 (0
CITY OF SAN BERNARDINO
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~IS,MaYOr
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"EWM"
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DATE: 05/03/06
EWM Partners, a California general
Partnership
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By:G
EMIL MARZUU
General Partner
DATE:
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C. ~~~R7...ULLO"
By: <CC~ ~
EMIL MARZULLQ....~
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Approved as to
Form:
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JAMES F. PENMAN
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