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HomeMy WebLinkAbout2010-118 , . RESOLUTION NO. 2010-118 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN ATKINSON, ANDELSON, LOYA, RUUD AND ROMO AND THE CITY OF SAN BERNARDINO FOR LABOR NEGOTIATOR SERVICES IN THE HUMAN RESOURCES DEPARTMENT. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 3 4 5 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and 8 directed to execute on behalf of said City a Consultant Services Agreement between Atkinson, 9 Andelson, Loya, Ruud, and Romo (AALR&R) and the City of San Bernardino for labor 10 negotiator services, a copy of which is attached hereto marked Exhibit "A" and incorporated 11 herein by reference as fully as though set forth at length. 12 SECTION 2. The authorization granted hereunder shall expire and be void and of no 13 further effect if the agreement is not executed by both parties and returned to the Office of the 14 15 City Clerk within sixty (60) days following the effective date of the Resolution. 16 1/1 17 11/ 18 1/1 19 1/1 20 11/ 21 11/ 22 1/1 23 1/1 24 1/1 25 2010-118 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN ATKINSON, ANDELSON, LOY A, RUUD AND ROMO AND THE CITY OF SAN BERNARDINO FOR LABOR NEGOTIATOR SERVICES IN THE HUMAN RESOURCES DEPARTMENT. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a joint regular meeting thereof, 6 held on the 17th day of 7 COUNCILMEMBERS: May ,2010, by the following vote, to wit: AYES NA YES ABSTAIN ABSENT x x x x x x x 8 MARQUEZ DESJARDINS BRINKER SHORRETT KELLEY 12 JOHNSON MC CAMMACK 9 10 11 13 14 &re~ /J. C&..k Rac I G. Clark, City Clerk 15 16 The foregoing Resolution is hereby approved this /q 77<1 ,2010. of May 17 18 19 Approved as to form: J. Morris, f San Bernardino 20 JAMES F. PENMAN City Attorney , 21 22 23 24 25 2 2010-118 EXHffiIT "A" CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 17th day of May ,2010 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and Atkinson, Andelson, Laya, Ruud & Romo ("CONSULTANT"). WITNESSETH: A. WHEREAS, CITY proposes to have CONSULT ANT perform the services described herein below; and B. WHEREAS, CONSULT ANT represents that it has that degree of specialized expertise contemplated within California Government Code Section 37103 and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONSULTANT desire to contract for chief labor negotiator services as described in the Scope of Services; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code Sections 1090-1092 in the subject matter ofthis Agreement. NOW, THEREFORE, for and in consideration ofthe mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. For the remuneration stipulated, CONSULT ANT shall provide the professional services described below: CONSULTANT shall act as CITY's principal representative and chief negotiator at all meet and confer sessions held with the representatives of the City's police and fire bargaining units. All such representations and negotiations shall abide by the guidelines established by CITY, and CONSULTANT shall meet and confer as often as is reasonably necessary until agreement with such bargaining units is reached in conformance with such guidelines, or until the City Council has determined, after consulting with CONSULTANT, that agreement is not reasonably possible. CONSULTANT shall also act as CITY's representative, upon request, during impasse proceedings including mediation. CONSULTANT shall meet with the City Council as often as if reasonably necessary during each meet and confer process to review CITY's position and obtain further instructions. CONSULTANT is not being hired to give legal advice or any other legal services, and CONSULTANT shall refer any legal questions or issues to the Office of the City Attorney. I 2010-118 1.2. Cost for Services. CONSULTANT will be compensated at the rate of$250.00 per hour for all services rendered to the CITY. The amounts expended under this agreement for consultant fees shall not exceed $30,000 without further approval of the Mayor and Common Council. Travel fees shall be charged "portal to portal" (e.g., from office to City Hall and return) at the rate of $125.00 per hour and consultant shall not be entitled to reimbursement for mileage and parking fees. 1.3. Professional Practices. All professional services to be provided by CONSULT ANT pursuant to this Agreement shall be provided by personnel identified in this Agreement and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. CONSULT ANT also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONSULT ANT's performance of this Agreement. CONSULT ANT further represents that no CITY employee will provide any services under this Agreement. 104. Warranty. CONSULTANT warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONSULT ANT shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of, any liability under any of the above-mentioned laws, arising from or related to CONSULTANT's performance under this Agreement. 1.5. Non-discrimination. In performing this Agreement, CONSULTANT shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735. 1.6. Non-exclusive Agreement. CONSULT ANT acknowledges that CITY may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 2 2010-118 1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONSULTANT may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONSULTANT's sole cost and expense. Only Irma Rodriguez Moisa of CONSULTANT's firm shall act as chief labor negotiator on behalf of the CITY in its negotiations with Police and Fire bargaining units. 1.8. Conflicts of Interest. During the term of this Agreement, CONSULT ANT shall, at all times, maintain a duty ofloyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the services performed for CITY. 1.9. CITY Business Certificate. CONSULTANT shall obtain and maintain during the t= of this Agreement a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONSULTANT to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, CONSULTANT shall be paid a maximum of$30,OOO in accordance with that paragraph entitled "Cost for Services." 2.2. Additional Services. CONSULT ANT shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the CITY, prior to CONSULTANT performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONSULTANT shall submit invoices to CITY for approval. Said invoice shall be based on the total of all CONSULTANT's services which have been completed to CITY's sole satisfaction. CITY shall pay CONSULTANT's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe, in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identifY the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONSULT ANT's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period ofthree (3) years from the Effective Date. 3 2010-118 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of services, unless the Agreement is previously terminated as provided for herein. 3.2. Termination. CITY or CONSULTANT may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) days' written notice to the other party. In the event of termination, CONSULT ANT shall be paid the reasonable value of services rendered to the date oftermination. 3.3. Documents. In the event oftermination of this Agreement, all documents prepared by CONSULTANT in its performance of this Agreement including, but not limited to, finished or unfinished background investigations shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONSULTANT, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANT shall be at CITY's sole risk and without liability or legal expense to CONSULTANT. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONSULTANT shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, productslcompleted operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. (d) Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal defense services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions ofthis policy are to remain unchanged." 4 2010-118 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONSULTANT shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way the indemnification provision contained in this Agreement or the extent to which CONSULT ANT may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONSULTANT: Atkinson, Andelson, Loya, Ruud & Romo Irma Rodriguez Moisa 12800 Center Court Drive, Suite 300 Cerritos, CA 90703 Telephone: (562) 653-3200 Fax: (562) 653-3333 IF TO CITY: Human Resources Director City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5161 Fax: (909) 384-5397 5 2010-118 5.3. Attornevs' Fees: In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment: CONSULTANT shall not voluntarily or by operation oflaw assign, transfer, sublet or encumber all or any part of CONSULT ANT's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONSULTANT of CONSULT ANT's obligation to perform all other obligations to be performed by CONSULTANT hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONSULTANT shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONSULT ANT's performance under this Agreement, except when caused by the CITY's negligence. 5.7. Indeoendent Contractor. CONSULT ANT, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONSULTANT shall secure, at his expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONSULT ANT and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONSULTANT nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONSULTANT and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONSULTANT. 6 2010-118 5.8. Conflict of Interest Disclosure: CONSULT ANT or its employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (I) requires such persons to disclose financial interests that may be rnaterially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial affect on such interest. CONSULTANT shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONSULTANT shall be responsible for its work and results under this Agreement. CONSULTANT, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONSULTANT occurs, then CONSULTANT shall, at no cost to CITY, provide all other CONSULTANT professional services necessary to rectifY and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Emplovrnent. CONSULTANT shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONSULT ANT and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 7 2010-118 5.16. Severabilitv. If any provision of this Agreernent is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counteroarts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Coroorate Authoritv. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A municipal corporation CONSULTANT ~1%~ Signature I"M" !l.u"~r;><n-J1w~ ,furfre v Name and TItle ATTEST: a-..Ju.L /:1. ~ RacherG. Clark, City Clerk APPROVED AS TO FORM: JAMES F. PENMAN, City Attorney ~ BY~ J J t~ 8