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HomeMy WebLinkAbout2010-369 1 Resolution No. 2010-369 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND BRUCE DUNAMS. 3 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CIT OF SAN BERNARDINO AS FOLLOWS: 6 SECTION 1: The City Manager of the City of San Bernardino is hereby authorized an 7 directed to execute on behalf of said City the Amendment to the Professional Service 8 9 Agreement between the City of San Bernardino and Bruce Dunams for Consulting Services i 10 the Code Enforcement Division, a copy of which is attached hereto and incorporated herei 11 marked as Exhibit "A." 12 SECTION 2: The authorization granted hereunder shall expire and be void and of n 13 further effect if the Amendment to the Professional Services Agreement between the City of S 14 Bernardino and Bruce Dunams is not executed by both parties and returned to the Office of th 15 City Clerk within sixty (60) days following the effective date of the Resolution. 16 III 17 III 18 III 19 III 20 III 21 22 III 23 III 24 III 25 III -1- 2010-369 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND BRUCE DUNAMS. 2 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor an 5 the Common Council of the City of San Bernardino at a joint regular meeting thereof, hel 6 on 15th day of November , 2010, by the following vote, to wit: 7 8 COUNCILMEMBERS: AYES NA YES ABSTAIN ABSENT MARQUEZ X 9 DESJARDINS X 10 BRINKER X 11 SHORETT X 12 KELLEY X JOHNSON X 13 MCCAMMACK X 14 15 ()~.h. ~ 16 RacRerG. Clark, City Clerk 17 The foregoing resolution IS hereby approved this 1'11".... day 0 18 November ,2010. 19 20 J. Morris, San Bernardino 21 Approved as to form: 22 23 JAMES F. PENMAN, City Attorney 24 nda ItemslReso Side Ltr BRUCE 11-15-10 25 -2- 2010-369 1 AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN BRUCE DUNAMS AND THE CITY OF SAN BERNARDINO 2 3 The AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT is mad 4 and entered into this 15th day of November, 2010, by and between the CITY OF S 5 BERNARDINO, a charter city ("CITY"), and BRUCE DUNAMS, 6 referred to as "CONSULTANT"): 7 WITNESSETH: 8 9 WHEREAS, parties hereto entered into a Professional Services Agreement dated Augus 10 9,2010 for the services of Code Enforcement Consultant; and 11 WHEREAS, CONSULTANT asserts that he remains competent, trained and qualifie 12 for the position; and 13 WHEREAS, Section 17 of the aforesaid Professional Services Agreement allows suc 14 Agreement to be amended by a written agreement executed by the parties; and 15 WHEREAS, the parties desire to enter into the Amendment to Professional Service 16 Agreement; 17 NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 18 1. AMENDMENT TO EMPLOYMENT AGREEMENT. The Amendment to th 19 Professional Services Agreement amends only those terms contained herein; such terms no 20 21 covered by this ~_endment shall remain in fuV force and effect as set forth in said Professio!1a 22 Services Agreement dated August 9, 2010. 23 2. COMPENSATION AND EXPENSES. 24 A. For the services delineated in the Professional Services Agreement, the CIT 25 shall pay CONSULTANT an hourly rate of$58.00, not to exceed $40,700. EXHIB IT "A" -1- 2010-369 1 In no case shall the total cost of the services delineated above exceed $40,700. N B. 2 other expenditures made by CONSULTANT shall be reimbursed by CITY. 3 3. TERM. The term of this Professional Services Agreement is extended to January 10 4 2011, or until total compensation in the amount of $40,700 has been made, whichever come 5 first, unless previously modified, amended or cancelled. This is approximately $15,700 above th 6 approved compensation amount set forth in the Professional Services Agreement. 7 The CITY shall have the right to terminate this Agreement at any time by giving a writte 8 notice of termination to CONSULTANT. 9 10 IN WITNESS WHEREOF, the parties hereto have executed this Amendment t 11 Professional Services Agreement on the 15th date of November, 2010. 12 13 Date:~, 2010 14 15 i / [ 16 Date: ,2010 17 18 ATTEST: {2~ )J. C0u~ Rachel Clark, City Clerk 19 20 21 APPROVED AS TO FORM: 22 23 24 25 HR:Agenda ItemslReso First Amend Ltr BRUCE 11-15-10 -2- ,; . 2010-369 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this 9th day of August, 2010, by and between Bruce Dunams ("CONSULTANT"), and the City of San Bernardino ("CITY"). WITNESSETH: WHEREAS, the City Manager has determined that it is advantageous and in the best interest of the CITY to engage a consultant to assist in transferring CITY's Code Enforcement Department functions into the Community Development Department; and WHEREAS, the Deputy Director of Code Enforcement position was vacated in June 2010 and during the recruitment process for a Code Enforcement Division Manager position the Director of Community Development determined that a consultant's assistance is necessary to produce a comprehensive transition of functions; and WHE~AS, it has been determined that CON~UL T ANT is the most qualified to perform said services; and NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the compensation hereinafter provided, CITY hereby engages the servIces of 18 CONSULTANT to provide transitional assistance of code enforcement functions into the 19 Community Development Department. 20 2. COMPENSATION AND EXPENSES. A. For the services delineated above, the CITY shall pay CONSULTANT an hourly rate of$58.00, not to exceed $24,995. B. In no case shall the total cost of the services delineated above exceed $24,995. No other expenditures made by CONSULTANT shall be reimbursed by CITY. 21 22 23 24 25 1 " , . 'r. 2010-369 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3, TERM. The services set forth herein shall commence on August 9, 2010, and shall remain in full force and effect until the position of Code Enforcement Division Manager is filled or until compensation in the amount of $24,995 has been made, whichever comes first, unless previously modified, amended or cancelled by the written mutual consent of both parties. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. 4. INDEMNITY. CITY agrees to indemnify and hold harmless CONSULTANT, its officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY's negligent acts or omissions arising from the CITY's performance of its obligations under this Agreement. CONSULTANT agrees to indemnify and hold harmless the CITY, its officers, agents, and volunteers from any and all claims, actions, or losses, damages, and/or liability resulting from CONSULTANT's negligent acts or omissions arising from the CONSULTANT's performance of its obligations under this Agreement. In the event the CITY and/or the CONSULTANT is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under this Agreement, the CITY and/or CONSULTANT shall indemnify the other to the extent of its comparative fault. 5. INSURANCE. 24 While not restricting nor limiting the foregoing, during the term of this Agreement, the 25 provision for comprehensive public, general and automobile liability insurance shall be waived 2 .' . r. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 2010-369 as CONSULTANT is a sole-proprietor. If the status of sole-proprietorship should change during the Term of this Agreement, CONSULTANT shall maintain in effect policies of comprehensive public, general and automobile liability insurance in the amount of $1,000,000.00 combined single limit, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any change or termination in the policy. The provision for statutory workers' compensation coverage will be waived as CONSULTANT is a sole-proprietor. If the status of sole-proprietorship should change during the Term of this Agreement, CONSULTANT shall file copies of statutory worker's compensation coverage with the CITY's Risk Manager immediately and the CITY shall be set forth as an additional named insured for the policy. The Certificate of Insurance furnished to the CITY shall require the insurer to notify City of any change or termination in the policy. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, CONSULTANT shall not engage in, nor permit its officers, employees or agents to engage in, 18 discrimination in employment of persons because oftheir race, religion, color, national origin, 19 ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or 20 21 22 23 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 ofthe California Government Code. 7. INDEPENDENT CONTRACTOR. 24 CONSULTANT shall perform work tasks provided by this Agreement but for all intents 25 and pwposes, CONSULTANT shall be an independent contractor and not an agent or employee 3 ; . 2010-369 1 of the CITY. CONSULTANT shall secure, at its expense, and be responsible for any and all 2 payment of Income Tax, Social Security, State Disability Insurance Compensation, 3 Unemployment Compensation, and other payroll deductions for CONSULTANT and its 4 officers, agents, and employees, and all" business licenses, if any are required, in connection 5 with the services to be performed hereunder. 6 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 7 CONSULTANT warrants that it possesses or shall obtain and maintain a business 8 9 registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license, 10 permits, qualifications, insurance and approval of whatever nature that are legally required of 11 CONSULTANT to practice its profession. 12 9. NOTICES. 13 Any notice to be given pursuant to this Agreement shall be deposited with the United 14 States Postal Service, postage prepaid and addressed as follows: 15 TO THE CITY: 16 City Manager's Office 300 North "D" Street San Bernardino, CA 92418 17 TO THE CONSULTANT: 18 Bruce Dunams 1556 Kyle Court Riverside, CA 92507 ATTORNEYS' FEES 19 10. 20 In the event that litigation is brought by any party in connection with this Agreement, 21 22 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 23 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its 24 rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions 25 hereof. The costs, salary and expenses of the City Attorney and members ofms office in 4 .. . oj , . .'. .. 2010-369 1 enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the 2 purposes of this paragraph. 3 11. ASSIGNMENT. 4 CONSULTANT shall not voluntarily or by operation oflaw, assign, transfer, sublet or 5 encumber all or any part of CONSULTANT's interest in this Agreement without CITY's prior 6 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 7 and shall constitute a breach of this Agreement and cause for the termination of this Agreement. 8 9 Regardless of CITY's consent, no subletting or assignment shall release CONSULT ANT of 10 CONSULTANT's obligation to perform all other obligations to be performed by 11 CONSULTANT hereunder for the term of this Agreement. 12 12. VENUE. 13 The parties hereto agree that all actions or proceedings arising in connection with this 14 Agreement shall be tried and litigated either in the State courts located in the County of San 15 Bernardino, State of California or the U.S. District Court for the Central District of California, 16 Riverside Division. The aforementioned choice of venue is intended by the parties to be 17 mandatory and not permissive in nature. 18 13. GOVERNING LAW. 19 This Agreement shall be governed by the laws of the State of California. 20 14. SUCCESSORS AND ASSIGNS. 21 22 This Agreement shall be binding on and inure to the benefit of the parties to this 23 Agreement and their respective heirs, representatives, successors, and assigns. 24 15. HEADINGS. 25 The subject headings of the sections ofthis Agreement are included for the purposes of 5 , ..... ~ I " .' .. fl., .' 2010-369 convenience only and shall not affect the construction or the interpretation of any of its 2 proVISIons. 3 16. SEVERABILITY. 4 If any provision of this Agreement is determined by a court of competent jurisdiction to 5 be invalid or unenforceable for any reason, such determination shall not affect the validity or 6 enforceability ofthe remaining terms and provisions hereof or of the offending provision in any 7 other circumstance, and the remaining provisions ofthis Agreement shall remain in full force 8 and effect. 9 10 17. ENTIRE AGREEMENT; MODIFICATION. 11 This Agreement constitutes the entire agreement and the understanding between the 12 parties, and supersedes any prior agreements and understandings relating to the subject matter 13 of this Agreement. This Agreement may be modified or amended only by a written instrument 14 executed by all parties to this Agreement. 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day 16 and date first above shown. 17 18 19 20 21 22 /-'/ .../"" /1 / / BRUCE~S , / i 23 1~ ./ / / i I / / 24 C/....C ..../ ,-.,. -- : l _.... J August 9.2010 Date 25 Bruce punams, Professioniil Con i i ... .--.-..... August 9. 2010 Date 6