Loading...
HomeMy WebLinkAbout2012-104 RESOLUTION NO. 2012-104 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT AGREEMENT BETWEEN POLICE EXECUTIVE RESEARCH FORUM (PERF) AND 3 THE CITY OF SAN BERNARDINO FOR CONSULTANT SERVICES REGARDING 4 EXISTING LITIGATION. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 5 CITY OF SAN BERNARDINO AS FOLLOWS: 6 WHEREAS, the San Bernardino Police Department and the City Attorney's Office are 7 working together to have an outside review of police department issues; and 8 WHEREAS, The City Attorney's Office is in need of consulting services in connection 9 with pending litigation on police department issues; 10 NOW,THEREFORE,: 11 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and 12 directed to execute on behalf of said City a Consultant Services Agreements between Police 13 Executive Research Forum (PERF) and the City of San Bernardino for consultant services 14 regarding the existing police department litigation, a copy of which is attached hereto and 15 incorporated herein as Exhibit "A." 16 SECTION 2. The authorization granted by this Resolution shall expire and be void and 17 of no further effect if the agreement is not executed by both parties and returned to the Office of the 18 City Clerk within sixty(60)days following the effective date of this Resolution. 19 20 21 22 23 24 25 26 27 i 28 i 2012-104 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF TWO CONSULTANT 2 AGREEMENTS BETWEEN PERF AND THE CITY OF SAN BERNARDINO FOR CONSULTANT SERVICES REGARDING THE SAN BERNARDINO POLICE 3 DEPARTMENT AND EXISTING LITIGATION. 4 5 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a 7 meeting thereof, held on the 18tH day of June 8 2012, by the following vote, to wit: 9 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ x 11 JENKINS x 12 VALDIVIA x 13 SHORETT x 14 KELLEY x 15 JOHNSON x 16 MCCAMMACK x 17 18 uVrgeann Htinaa, City Clerk 19 The foregoing Resolution is hereby a t' 20 2012 g g Y pproved this o�0 day Of Tune 21 22 no . Morris, City an Bernardino 23 Approved as to form: 24 JAMES F. PENMAN, 25 City Attorney 26 By. 27 28 2012-104 f, ( � nM CONSULTANT SERVICES AGREEMENT BETWEEN THE POLICE EXECUTIVE ILIf—' ,(J( RESEARCH FORUM(PERF) AND CITY OF SAN BERNARDINO This Consultant Services Agreement is entered into this 18thday of June,2012,by and between the Police Executive Research Forum(PERF) ("CONSULTANT") and the City of San Bernardino ("CITY" or"San Bernardino"). WITNESSETH: WHEREAS, the San Bernardino Police Department and the City Attorney's Office are working together to have an outside review of police department issues; and WHEREAS, The City Attorney's Office is in need of consulting services in connection with pending litigation on police department issues; NOW,THEREFORE,the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANTS 1.1. Scone of Services. For the remuneration stipulated, CONSULTANTS shall provide the professional services described in the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference to the City Attorney's Office. If a conflict arises between the Proposal and this Consultant Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONSULTANTS pursuant to this Agreement shall be provided by personnel identified in the Proposal 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. CONSULTANTS also wan-ant that they are 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 CONSULTANTS' performance of this Agreement. CONSULTANTS further represent that no CITY employee will provide any services under this Agreement. 1.3. Warranty. CONSULTANTS warrant that they 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. CONSULTANTS 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 t PERF Consultant Agreement Tasks 3-10(revised) 2012-104 above-mentioned laws, arising from or related to CONSULTANTS'performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONSULTANTS shall not engage in,nor permit their 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. 1.5 Non-Exclusive Agreement. CONSULTANTS acknowledge 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. 1.6. 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. CONSULTANTS may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONSULTANTS' sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONSULTANTS shall at all times maintain a duty of loyalty 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 CITY. 1.8 CITY Business Certificate. CONSULTANTS shall obtain and maintain during the term 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 CONSULTANTS to practice their profession, skill or business. 1.9 Confidentiality and Privilege. The services to be provided by CONSULTANTS under this Agreement are provided for the express purpose of assisting the City Attorney in rendering legal advice to the CITY and the police department in connection with litigation matters involving either or both of them. Accordingly, all communications between CONSULTANTS and the CITY and/or police department, and all reports or other documents generated by CONSULTANTS, in connection with the services to be provided under this Agreement shall be kept strictly confidential. It is the intent of the parties to this Agreement that all such communications and reports or other documents be and remain protected by the attomey-client privilege, attorney work product doctrine, and any other applicable protection from discovery or other disclosure or dissemination,to the fullest extent consistent with the prevailing law. PERF Consultant Ageement Tasks 3-10(revised) 2012-104 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, CONSULTANTS shall be paid an amount not to exceed $29,200 as set forth in Exhibit "1." 2.2. Additional Services. CONSULTANTS shall not receive compensation for any services provided outside the scope of services specified in the Proposal unless the CITY,prior to CONSULTANTS 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. CONSULTANTS may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONSULTANTS' services which have been completed to CITY's sole satisfaction. CITY shall pay CONSULTANTS' 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 CONSULTANTS' 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 of three (3)years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONSULTANTS 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, CONSULTANTS shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONSULTANTS in their performance of this Agreement shall be delivered to the CITY within ten(10) days of delivery of termination notice to CONSULTANTS, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANTS shall be at CITY's sole risk and without liability or legal expense to CONSULTANTS. 4.0. INSURANCE 3 PERF Consultant Agmment Tasks 3-10(mvind) 2012-104 4.1. Minimum Scope and Limits of Insurance. CONSULTANTS shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed 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. 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 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. CONSULTANTS 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 CONSULTANTS 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 A PERF Consultant Agreement Tasks 3-10(mvised) 2012-104 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 CONSULTANTS: IF TO CITY: Craig Fraser James F. Penman, City Attorney Police Executive Research Forum City of San Bernardino 1120 Connecticut Ave.,NW, Suite 930 300 North D Street Washington, DC 20036 San Bernardino, CA 92418 5.3. Attomevs' 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: CONSULTANTS shall not voluntarily or by operation of law assign,transfer, sublet or encumber all or any part of CONSULTANTS'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 CONSULTANTS of CONSULTANTS'obligation to perform all other obligations to be performed by CONSULTANTS hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONSULTANTS 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, 5 PERF Consultant Agreement Tasks 3-10(revised) 2012-104 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 CONSULTANTS'performance under this Agreement, except when caused solely by the CITY's negligence. 5.7. Independent Contractor. CONSULTANTS,at all times while performing under this Agreement,are and shall be acting at all times as independent contractors and not as agents or employees of CITY. CONSULTANTS shall secure, at their 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 CONSULTANTS and their officers,agents, and employees,and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONSULTANTS nor their 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 CONSULTANTS and their 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 CONSULTANTS. 5.8 Conflict of Interest Disclosure: CONSULTANTS or their employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which(1) requires such persons to disclose financial interests that may he materially 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. CONSULTANTS 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. CONSULTANTS shall be responsible for their work and results under this Agreement. CONSULTANTS, 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 CONSULTANTS occurs,then CONSULTANTS shall, at no cost to CITY, provide all other CONSULTANTS 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 Employment. CONSULTANTS shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 6 PERF ConWIMI Agreement Tasks 3-10(mvised) 2012-104 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 CONSULTANTS 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. 5.16. Severability. If any provision of this Agreement 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. Countervarts: 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. Corporate Authority. 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. PERF Consultant Agreement Tasks 3-10(raised) I 2012-104 CONSULTANT SERVICES AGREEMENT BETWEEN THE POLICE EXECUTIVE RESEARCH FORUM(PERF) AND CITY OF SAN BERNARDINO 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. Dated: 12012 CONSULTANT By: Dated ,2012 CITY OF SAN BERNARDINO By: Patrick J. Moms,Mayor Approved as to Form: James F. Penman, City Attorney By: ' 8 PERF Consultant Agreement Tanks 3.10(mised)