HomeMy WebLinkAbout2012-215 2012-215
1 PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF
2 SAN BERNARDINO AND RUST CONSULTING/OMNI BANKRUPTCY TO
PROVIDE CLAIMS AND NOTICING AGENT SERVICES.
3
This Agreement, is entered into this 6th day of August , by and between
4
5 Rust Consulting/Omni Bankruptcy ("CONSULTANT") and the City of San Bernardino
6 ("CITY" or San Bernardino.)
7 WITNESSETH:
8 WHEREAS, the Mayor and Common Council have determined that it is
9 advantageous, in the best interest of the City of San Bernardino and necessary as part of the
10
bankruptcy proceedings to engage in a professional services agreement with CONSULTANT
11
12 to provide claims and noticing agent services; and
13 WHEREAS, CONSULTANT possesses the professional skills and ability to provide
14 said services for the CITY; and
15 NOW,THEREFORE,the parties hereto agree as follows:
16
1. SCOPE OF SERVICES.
17
18 CONSULTANT shall perform the scope of services described and set forth in Exhibit
19 `B", attached hereto and incorporated herein as though set forth in full.
20 2. COMPENSATION AND EXPENSES.
21
a. For the service referenced above, CITY shall pay the CONSULTANT a rate of$175
22
23 per hour not to exceed $250,000 unless authorized by the CITY.
24 b. No other expenditures made by CONSULTANT shall be reimbursed by CITY.
25 c. Bills shall be submitted monthly, to the City Manager's Office, 300 N D Street, San
26 Bernardino, CA 92418.
27 ///
28
2012-215
3. TERM; TERMINATION.
1
2 a. The services set forth in Exhibit `B", shall be for a period of 3 years, commencing on
3 August 6, 2012, and terminating on July 31, 2015, unless previously modified, amended or
4 cancelled.
5 b. CITY may terminate this AGREEMENT, with or without cause, at any time by giving
6
thirty (30) days written notice of termination to CONSULTANT. In the event such notice is
7
given, CONSULTANT shall cease immediately all work in progress.
8
9 c. CONSULTANT may terminate this AGREEMENT at any time upon thirty (30) days
10 written notice of termination to CITY.
11 4. INDEMNITY.
12 CONSULTANT agrees to and shall indemnify and hold the City, its elected officials,
13
employees, agents or representatives, free and harmless from all claims, actions, damages and
14
15 liabilities of any kind and nature arising from bodily injury, including death, or property
16 damage, based or asserted upon any actual or alleged act or omission of CONSULTANT , its
17 employees, agents, or subcontractors, relating to or in any way connected with the
18 accomplishment of the work or performance of services under this Agreement, unless the
19
bodily injury or property damage was actually caused by the sole negligence of the City, its
20
21 elected officials, employees, agents or representatives. As part of the foregoing indemnity,
22 CONSULTANT agrees to protect and defend at its own expense, including attorney's fees,
23 the City, its elected officials, employees, agents or representatives from any and all legal
24 actions based upon such actual or alleged acts or omissions. CONSULTANT hereby waives
25
any and all rights to any types of express or implied indemnity against the City, its elected
26
officials, employees, agents or representatives, with respect to third party claims against the
27
28
2012-215
CONSULTANT relating to or in any way connected with the accomplishment of the work or
1
2 performance of services under this Agreement.
3 5. INSURANCE.
4 While not restricting or limiting the foregoing, during the term of this Agreement,
5 CONSULTANT shall maintain in effect policies of comprehensive public, general and
6 automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and
7
statutory worker's compensation coverage, and shall file copies of said policies with the
8
9 CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be
10 set forth as an additional named insured in each policy of insurance provided hereunder. The
11 Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY at least
12 30 days prior to any change in or termination of the policy
13
6. NON-DISCRIMINATION.
14
15 In the performance of this Agreement and in the hiring and recruitment of employees,
16 CONSULTANT shall not engage in, nor permit its officers, employees or agents to engage in,
17 discrimination in employment of persons because of their race, religion, color,national origin,
18 ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or
19
sexual orientation, or any other status protected by law.
20
INDEPENDENT CONTRACTOR.
21 7.
22 The Parties intend that the relationship between them created under the Agreement is
23 that of an independent contractor only. The Consultant shall perform each element of the
24 work set forth in the Scope of Services as an independent contractor and shall not be
25 considered an employee of the Agency. This Agreement is by and between the Consultant
26
and the Agency, and is not intended, and shall not be construed, to create the relationship of
27
28 agent, servant, employee, partnership,joint venture, or association, between the Agency and
2012-215
the Consultant. The Agency is interested only in the results obtained under the Agreement;
1
2 unless otherwise indicated and under unusual circumstances, the manner and means of
3 performing the services are subject to the Consultant's sole control. The Consultant shall have
4 no right or authority to find or commit the Agency, unless specifically authorized in writing
5 by the Interim Executive Director in each specific instance. The Consultant shall not be
6
entitled to any benefits, including, without limitation, worker's compensation, disability
7
8 insurance, vacation or sick pay. The Consultant shall be responsible for providing at its
9 expense, and in its name, disability,worker's compensation or other insurance.
10 The Consultant assumes full and sole responsibility for, and shall therefore pay, any
11 and all federal and state income taxes, Social Security, estimated taxes, unemployment taxes,
12 and any other taxes incurred as result of the compensation set forth herein. The Consultant
13
agrees further to provide the Agency with provide the Agency with proof of payment upon
14
15 reasonable demand. The Consultant holds the Agency harmless from and against any and all
16 claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered
17 by the Agency (including, but not limited to, attorney fees and court costs, whether or not
18 litigation is commenced) arising out of the failure of the Consultant to comply with this
19
provision. Further, this right indemnification shall apply to any and all claims, demands,
20
21 losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the Agency as
22 a result of the classification of the Consultant as independent contractor under this Agreement.
23 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
24 CONSULTANT warrants that it possess or shall obtain, and maintain a business
25
registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license,
26
27 permits, qualifications, insurance and approval of whatever nature that are legally required of
28 consultant to practice it's profession.
2012-215
9. NOTICES.
1
2 Any notice to be given pursuant to this Agreement shall be deposited with the United
3 States Postal Service, postage prepaid and addressed as follows:
4 TO THE CITY: City of San Bernardino
5 300 North"D" Street, 6th Floor
San Bernardino, CA 92418
6 Telephone: (909) 384-5140
Attention: City Manager's Office
7
8 TO THE CONSULTANT: Brian Osborne
9 Rust Consulting/Omni Bankruptcy
5955 De Soto Ave.
10 Suite 100
Woodland Hills, CA 91367
11 Telephone: (818) 906-8300
12
13
14 10. ATTORNEYS' FEES.
15 In the event that litigation is brought by any party in connection with this agreement,
16
the prevailing party shall be entitled to recover from the opposing party all costs and
17
18 expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise
19 of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions
20 or provisions hereof. The costs, salary and expenses of the City Attorney and members of his
21 office in enforcing this Agreement on behalf of the City shall be considered as "attorneys'
22
fees" for the purposes of this paragraph.
23
24 11. ASSIGNMENT.
25 CONSULTANT shall not voluntarily or by operation of law assign, transfer, sublet or
26 encumber all or any part of the CONSULTANT's interest in this Agreement without CITY's
27 prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be
28
2012-215
void and shall constitute a breach of this Agreement and cause for the termination of this
1
2 Agreement. Regardless of CITY's consent, no subletting or assignment shall release
3 CONSULTANT of CONSULTANT's obligation to perform all other obligations to be
4 performed by CONSULTANT hereunder for the term of this agreement.
5 12. VENUE.
6 The parties hereto agree that all actions or proceedings arising in connection with this
7
Agreement shall be tried and litigated either in the State courts located in the County of San
8
9 Bernardino, State of California or the U.S. District Court for the Central District of California,
10 Riverside Division. The aforementioned choice of venue is intended by the parties to be the
11 mandatory and not permissive in nature.
12 13. GOVERNING LAW.
13
This Agreement shall be governed by the laws of the State of California.
14
15 14. SUCCESSORS AND ASSIGNS.
16 This Agreement shall be binding on and inure to the benefit of the parties to this
17 Agreement and their respective heirs, representatives, successors, and assigns.
18 15. HEADINGS.
19
The subject headings of the sections of this Agreement are included for the purposes
20
21 of convenience only and shall not affect the construction or the interpretation of any of its
22 provisions.
23 16. SEVERABILITY.
24 If any provision of this Agreement is determined by a court of competent jurisdiction to
25
be invalid or unenforceable for any reason, such determination shall not affect the validity or
26
enforceability of the remaining terms and provisions hereof or of the offending provision in
27
28
2012-215
any other circumstance, and the remaining provisions of this Agreement shall remain in full
1
2 force and effect.
3 17. REMEDIES; WAIVER.
4 All remedies available to either party for one or more breaches by the other party are
5 and shall be deemed cumulative and may be exercised separately or concurrently without
6 waiver of any other remedies. The failure of either party to act in the event of a breach of this
7
Agreement by the other shall not be deemed a waiver of such breach or a waiver of future
8
9 breaches, unless such waiver shall be in writing and signed by the party against whom
10 enforcement is sought.
11 18. ENTIRE AGREEMENT; MODIFICATION.
12 This Agreement constitutes the entire agreement and the understanding between the
13
parties, and supercedes any prior agreements and understandings relating to the subject
14
15 manner of this Agreement. This Agreement may be modified or amended only by a written
16 instrument executed by all parties to this Agreement.
17 ///
18
19
I/I
20
21 ///
22
23 III
24
25 ///
26
///
27
28 ///
• 2012-215
1 PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF
2 SAN BERNARDINO AND RUST CONSULTING/OMNI BANKRUPTCY TO
PROVIDE CLAIMS AND NOTICING AGENT SERVICES.
3
4 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and
5 date set forth below.
6
7
8 ' 2012 CON 4/ ANT
9
Dated. �„ liaTdi 10 BY:
Brian 1•orne
11 Rust Consulting/Omni Bankruptcy
12
13
14
15 Dated -'24 , 2012 CITY • SAN BERNARDINO
16
By: Y4 f/` JitC+JI/?/J
Y,IGr�W�
Andrea Travis-Miller, Acting City Manager
17
18
19 Approved as to Form:
JAMES F. PENMAN,
20 City Attorney
21 By: .
22
23
24
25
26
27
28