HomeMy WebLinkAbout07.A- Human Resources RESOLUTION (ID# 1354) DOC ID: 1354 B
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract Amendment
From: Linn Livingston M/CC Meeting Date: 11/21/2011
Prepared by: Linda Wynn, (909) 384-5161
Dept: Human Resources Ward(s): All
Subject:
Resolution Authorizing the Execution of Amendment No. 2 to the 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.
Financial Impact:
Funds for this contract,which will not exceed$75,000, are available in the General Fund,
General Government,Professional/Contractual,Non-departmental, FY 2011-12 budget
(Account No. 001-090-5502-0000-00053). The Council approved the initial contract in the
amount of$30,000 on May 17, 2010. The agreement was amended on December 6, 2010,to
increase the not-to-exceed amount by$15,000 to $45,000. Amendment No. 2 is in the amount of
$30,000.
Account: 001-090-5502-0000-0053 Budgeted Amount: $1,387,700
Balance as of 10/18/11: $550,256 Balance after approval of this item: $520,256
Please note this balance does not indicate available funding. It does not include non-encumbered
reoccuring expenses or expenses incurred,but not yet processed.
Motion: That said resolution be adopted.
Synopsis of Previous Council Action:
November 7, 2011, Mayor and Common Council reviewed and continued this item requesting
further information.
On December 6, 2010, Mayor and Common Council approved Amendment No. 1 to the
Consultant Services Agreement between Atkinson, Andelson, Loya, Ruud and Romo
(Resolution No. 2010-382).
On May 17, 2010, Mayor and Common Council approved a Consultant Services Agreement
between Atkinson, Andelson, Loya, Ruud and Romo to provide labor negotiator services in the
Human Resources Department(Resolution No. 2010-118).
On April 22,2010, Mayor and Common Council approved the hiring of a consultant to represent
the City of San Bernardino as Chief Negotiator in labor negotiations with the Police and Fire
Safety bargaining units.
Updated: 11/17/2011 by Mayra Ochiqui B
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Backeround:
In April 2010 the Mayor and Common Council approved the hiring of a consultant, Irma
Rodriguez Moisa, an employee of Atkinson, Andelson, Loya, Ruud, and Romo (AALR&R), to
represent the City as chief negotiator in labor negotiations with the Police and Fire Safety
bargaining units.
Since that time, Ms. Rodriguez Moisa has completed Police Safety negotiations and assisted in
the unilateral implementation by Mayor and Council of the Fire Safety unit. Salary concessions
with the Fire Safety unit expired June 30, 2011, and we are, once again, in negotiations with this
unit with Ms. Rodriguez Moisa as chief negotiator for the City.
Due to extensive negotiations, the contract amount of $45,000 was exceeded and further
expenses are anticipated to support continued negotiations with the Fire Safety Unit.
City Attorney Review:
Approved as to Form.
Supportine Documents:
Reso.Negotiator Fire Amend 2.10-17-11 (PDF)
Exhibit A Amend 2 AALRR Lined (PDF)
Memo.Council.Revised AALRR (PDF)
AALRR Amend 1 and Orig Contract(PDF)
Updated: 11/17/2011 by Mayra Ochiqui B
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I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO.2 TO THE
3 CONSULTANT SERVICES AGREEMENT BETWEEN ATKINSON,ANDELSON,
LOYA,RUUD AND ROMO AND THE CITY OF SAN BERNARDINO FOR LABOR
4 NEGOTIATOR SERVICES IN THE HUMAN RESOURCES DEPARTMENT.
5 WHEREAS,the City of San Bernardino has an existing Consultant Services Agreemen
6 with Atkinson, Andelson, Loya, Ruud and Romo to provide labor negotiator services in the
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7 Human Resources Department; and Z
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8 WHEREAS,the City wishes to continue labor negotiator services; and E
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9 WHEREAS,the cost for the contract extension will be$30,000; E
10 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMONM
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COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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13 SECTION 1: The City Manager of the City of San Bernardino is hereby authorized an
14 directed to execute Amendment No. 2 to the Consultant Services Agreement with Atkinson
15 Andelson, Loya, Ruud and Romo to provide labor negotiator services at a cost of$30,000. A N
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16 copy of said Amendment is attached hereto as Exhibit"A"and incorporated herein by reference.
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SECTION 2: The Purchasing Manager is authorized and directed to issue a Change ;L
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Order to increase Purchase Order No. 303525 in an amount not to exceed$75,000.
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SECTION 3: The authorization to execute the above-referenced Amendment No. 2 and z
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Change Order to Purchase Order No. 303525 is rescinded if the parties to the Amendment do nc we
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22 execute it within sixty(60) days of the passage of this Resolution. E
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. 2 TO THE
2 CONSULTANT SERVICES AGREEMENT BETWEEN ATKINSON,ANDELSON,
LOYA,RUUD AND ROMO AND THE CITY OF SAN BERNARDINO FOR LABOR
3 NEGOTIATOR SERVICES IN THE HUMAN RESOURCES DEPARTMENT.
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 meeting thereof, 06
6 held on the day of 2011,by the following vote, to wit: a
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7 COUNCILMEMBERS: AYES NAYES ABSTAIN ABSENT z
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8 MARQUEZ E
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9 JENKINS
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10 BRINKER
SHORETT
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KELLEY
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12 JOHNSON y
13 MC CAMMACK
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15 Rachel G. Clark,City Clerk
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16 The foregoing Resolution is hereby approved this of 2011. d
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Patrick J. Morris, Mayor LL
18 City of San Bernardino R
19 Approved as to form: o
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JAMES F. PENMAN, c
City Attorney
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1 AMENDMENT NO 2 TO THE CONSULTANT SERVICES AGREEMENT
2 BETWEEN ATKINSON,ANDELSON,LOYA,RUUD & ROMO
AND THE CITY OF SAN BERNARDINO
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4 THIS AMENDMENT TO THE CONSULTANT SERVICES AGREEMENT is made and
5 entered into this day of , 2011 ("Effective Date"),by and between the City of
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6 San Bernardino, a charter city ("CITY"), and Atkinson, Andelson, Loya, Ruud & Romo
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7 ("CONSULTANT). a
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8 WITNESSETH:
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WHEREAS, parties hereto entered into a Consultant Services Agreement dated May
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17, 2010, for Chief Negotiator services in labor negotiations with the Police Safety and Fire a
12 Safety bargaining units; and
13 WHEREAS, parties hereto entered into Amendment No. 1 to the Consultant Services
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14 Agreement on December 6,2010; and
15 WHEREAS, CONSULTANT represents that it continues to hold all necessary licenses
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to practice and perform the services herein contemplated; and
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WHEREAS, Sections 5.1 and 5.14 of the aforesaid Consultant Services Agreement N
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19 allow such Agreement to be amended by a written agreement executed by the parties; and E
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20 WHEREAS, the parties desire to enter into Amendment No. 2 to the Consultant a
21 Services Agreement; and w
22 NOW,THEREFORE,THE PARTIES HERETO AGREE AS FOLLOWS:
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The amendment to the Consultant Services Agreement amends only those terms contained y
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herein; such terms not covered by this Amendment shall remain in full force and effect as set
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26 forth in said Consultant Services Agreement dated May 17,2010.
27 1.2 Costs for Services. CONSULTANT will be compensated at the rate of$250.00
28 per hour for all services rendered to the CITY. The amounts expended under this Agreement
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1 for consultant fees shall not exceed $75,000 without further approval of the Mayor and
2 Common Council. This is equal to $45,000 above the approved compensation amount in the
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consultant services Agreement. Travel fees shall be charged"portal to portal' (e.g., from office
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to City Hall and return) at the rate of $125.00 per hour and CONSULTANT shall not be
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6 entitled to reimbursement for mileage and parking fees. 06
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7 IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the ¢
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8 Consultant Services Agreement by and through their respective authorized officers on the_ Z
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9 day of 2011. EEo
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11 CITY OF SAN BERNARDINO, CONSULTANT
A municipal corporation
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13 Charles McNeely,City Manager Signature o
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15 ATTEST: Name and Title
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Rachel G. Clark, City Clerk
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18 APPROVED AS TO FORM:
James F. Penman, City Attorney
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By: ¢
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City of San Bernardino
INTEROFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Linn Livingston, Human Resources Director
SUBJECT: Additional Information for the 11/21/11 Council Meeting
DATE: November 17,2011
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'1 COPY: Andrea Travis-Miller,Assistant City Manager
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As requested by Council Member McCammack on November 7, 2011, the following information z°
is being provided to clarify the request to approve Amendment No. 2 of the Consultant Services
Agreement with Atkinson,Andelson, Loya, Ruud and Romo.
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On April 22, 2010, the Mayor and Common Council approved the hiring of a consultant, E
Irma Rodriguez Moisa, an employee of Atkinson, Andelson, Loya, Ruud and Romo, to a
represent the City of San Bernardino as Chief Negotiator in labor negotiations with the
Police and Fire Safety bargaining units. On May 17, 2010, the Consultant Services
Agreement for an amount not to exceed $30,000 was approved (Resolution No. 2010-
118).
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On December 6, 2010, Mayor and Common Council approved Amendment No. 1 to the
Consultant Services Agreement, increasing the contract by $15,000, for a combined total
not to exceed$45,000 (Resolution No. 2010-382).
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Ms. Rodriguez Moisa has completed Police Safety negotiations and also assisted in the
unilateral implementation of the City's Last, Best and Final offer to the Fire Safety Unit. v
Imposed salary concessions with the Fire Safety Unit expired on June 30, 2011, once °
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again prompting negotiations. °
It is now necessary to amend the contract a second time to increase it by an additional E
$30,000, for a combined total not to exceed$75,000,to support continued negotiations
with the Fire Safety Unit.
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2010-382 EXHIBIT"A"
AMENDMENT TO THE CONSULTANT SERVICES AGREEMENT
BETWEEN ATKINSON,ANDELSON,LOYA,RUUD&ROMO
AND THE CITY OF SAN BERNARDINO
THIS AMENDMENT TO THE CONSULTANT SERVICES AGREEMENT is made and
entered into this 6th day of December , 2010 ('Effective Date"), by and between the CITY OF
SAN BERNARDINO, a charter city ("CITY"), and Atkinson, Andelson, Loya, Ruud & Romo
("CONSULTANT").
WITNESSETH:
WHEREAS, parties hereto entered into a Consultant Services Agreement dated May 17, 2010,
for Chief Negotiator services in labor negotiations with the Police Safety and Fire Safety bargaining
units; and
WHEREAS, CONSULTANT represents that she continues to have a 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 N
WHEREAS, Sections 5.1 and 5.14 of the aforesaid Consultant Services Agreement allow such z6
Agreement to be amended by a written agreement executed by the parties; and
WHEREAS,the parties desire to enter into the Amendment to Consultant Services Agreement; E
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and
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NOW,THEREFORE,THE PARTIES HERETO AGREE AS FOLLOWS: E
The Amendment to the Consultant Services Agreement amends only those terms contained herein; a
such terms not covered by this Amendment shall remain in full force and effect as set forth in said M
Consultant Services Agreement dated May 17, 2010.
1.2 Costs for Services. CONSULTANT will be compensated at the rate of$250.00 per hour for v
all services rendered to the CITY. The amounts expended under this Agreement for consultant
fees shall not exceed $45,000 without further approval of the Mayor and Common Council.
This is equal to $15,000 above the approved compensation amount in the Consultant Services
Agreement. Travel fees shall be charged "portal to portal" (e.g., from office to City Hall and o
return) at the rate of $125.00 per hour and CONSULTANT shall not be entitled to r cc
reimbursement for mileage and parking fees.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Consultant Services Agreement by and through their respective authorized officers on the 6`h day of E
December,2010.
CIT OF SAN BERNARDINO, CONSULTANT
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Charles McNeely, Ci ager Signature
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AT ST: NameandTitle
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Rache'l G. Clark, City Clerk
APPROVED AS TO FORM:
Jame F.Penman, City Attorney
By r P/twv+�sr
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2010-118 2010-382
EXHIBIT "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, Loya,Ruud&Romo("CONSULTANT").
WITNESSETH :
A. WHEREAS,CITY proposes to have CONSULTANT perform the services _
described herein below; and
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B. WHEREAS, CONSULTANT represents that it has that degree of specialized
expertise contemplated within California Government Code Section 37103 and holds all N
necessary licenses to practice and perform the services herein contemplated; and z°
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C. WHEREAS,CITY and CONSULTANT desire to contract for chief labor E
negotiator services as described in the Scope of Services; and
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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 of this M
Agreement.
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NOW,THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein,the parties hereby agree as follows: 0
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1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scone of Services. For the remuneration stipulated,CONSULTANT shall v
provide the professional services described below: E
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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 a
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 E
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 a
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.
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2010-118 2010-382
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 EF
CONSULTANT 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 a
exercised by professional consultants in similar fields and circumstances in accordance with N
sound professional practices. CONSULTANT also warrants that it is familiar with all laws that z°
may affect its performance of this Agreement and shall advise CITY of any changes in any laws r
that may affect CONSULTANT's performance of this Agreement. CONSULTANT further E
represents that no CITY employee will provide any services under this Agreement.
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1.4. Warranty. CONSULTANT warrants that it shall perform the services required by
this Agreement in compliance with all applicable Federal and California employment laws M
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 R
and safety in employment;and all other Federal, State and local laws and ordinances applicable c
to the services required under this Agreement. CONSULTANT shall indemnify and hold U
harmless CITY from and against all claims,demands,payments, suits, actions,proceedings, and °1
judgments of every nature and description including reasonable attorneys'fees and costs, .°o
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.
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1.5. Non-discrimination. In performing this Agreement,CONSULTANT shall not X
engage in,nor permit its officers, employees or agents to engage in,discrimination in a
employment of persons because of their race, religion,color,national origin, ancestry, age, a
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 E
of this provision may result in the imposition of penalties referred to in Labor Code Section
1735.
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1.6. Non-exclusive Agreement. CONSULTANT 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.
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2010-118 2010-382
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,CONSULTANT 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 services performed for CITY.
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1.9. CITY Business Certificate. CONSULTANT shall obtain and maintain during the
term of this Agreement a valid CITY Business Registration Certificate pursuant to Title 5 of the N
City of San Bernardino Municipal Code and any and all other licenses,permits,qualifications, Z
insurance and approvals of whatever nature that are legally required of CONSULTANT to
practice its profession,skill or business. E
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2.0. COMPENSATION AND BILLING
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2.1. Compensation.Except as provided herein, CONSULTANT shall be paid a
maximum of$30,000 in accordance with that paragraph entitled"Cost for Services." m
2.2. Additional Services. CONSULTANT shall not receive compensation for any
s ervices provided outside the scope of se ces specified m this Agreement unless the CITY, °-
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prior to CONSULTANT performing the additional services, approves such additional services in O
writing. It is specifically understood that oral requests and/or approvals of such additional
services or additional compensation shall be barred and are unenforceable.
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2.3. Method of Billing. CONSULTANT shall submit invoices to CITY for approval. a
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- a
five(45)days from the date CITY receives said invoice. The invoice shall describe,in detail,the a
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 E
identify the number of the authorized change order,where applicable,on all invoices.
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2.4. Records and Audits. Records of CONSULTANT'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 of three(3)years from the Effective Date.
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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,CONSULTANT shall be paid the reasonable value of services rendered
to the date of termination.
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3.3. Documents. In the event of termination of this Agreement,all documents J
prepared by CONSULTANT in its performance of this Agreement including,but not limited to, a
finished or unfinished background investigations shall be delivered to the CITY within ten (10) N
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. E
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4.0. INSURANCE a
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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, U
products/completed operations,broad foram property damage,blanket .M
contractual liability,independent contractors,personal injury with a policy a
limit of not less than One Million Dollars($1,000,000.00), combined R
single limits,per occurrence and aggregate.
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(b) Automobile liability for owned vehicles,hired, and non-owned vehicles, a
with a policy limit of not less than One Million Dollars($1,000,000.00),
combined single limits,per occurrence and aggregate. a
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(c) Workers'compensation insurance as required by the State of California.
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(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 a
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 of this policy are
to remain unchanged."
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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 W
provided by this policy." a
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4.3. Certificates of Insurance. CONSULTANT shall provide to CITY certificates of z
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. E
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4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way E
the indemnification provision contained in this Agreement or the extent to which a
CONSULTANT may be held responsible for payments of damages to persons or property. M
5.0. GENERAL PROVISIONS
5.1. Entire Agreement:ement: 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 o
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. c
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5.2. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery, W
facsimile or mail and shall be addressed as set forth below. Such communication shall be a
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 E
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. a
IF TO CONSULTANT: IF TO CITY:
Atkinson,Andelson,Loya,Ruud&Romo Human Resources Director
Irma Rodriguez Moisa City of San Bernardino
12800 Center Court Drive, Suite 300 300 North "D" Street
Cerritos,CA 90703 San Bernardino,CA 92418
Telephone: (562)653-3200 Telephone: (909)384-5161
Fax: (562)653-3333 Fax: (909) 384-5397
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5.3. Attorneys'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 W
Bernardino County, California. a
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5.5. Assignment: CONSULTANT shall not voluntarily or by operation of law assign, z°
transfer,sublet or encumber all or any part of CONSULTANT s interest in this Agreement
without CITY's prior written consent. Any attempted assignment,transfer,subletting or EEa
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 E
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release CONSULTANT of CONSULTANT's obligation to perform all other obligations to be
performed by CONSULTANT hereunder for the term of this Agreement. M
5.6. Indemnification and Hold Harmless. CONSULTANT shall protect,defend, U
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, v
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 0
including,but not limited to, all civil claims or workers'compensation claims arising from or in
any way related to CONSULTANT's performance under this Agreement,except when caused by
the CITY's negligence.
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5.7. Independent Contractor. CONSULTANT, at all times while performing under W
this Agreement,is and shall be acting at all times as an independent contractor and not as an a
agent or employee of CITY. CONSULTANT shall secure, at his expense, and be responsible for a
any and all payment of wages,benefits and taxes including,but not limited to, Income Tax, c
Social Security,State Disability Insurance Compensation,Unemployment Compensation,and E
other payroll deductions for CONSULTANT and its officers,agents, and employees, and all R
business licenses,if any are required,in connection with the services to be performed hereunder. a
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.
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k-- 5.8. Conflict of Interest Disclosure: CONSULTANT or its employee 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 be 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.
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 06
results under this Agreement. CONSULTANT,when requested,shall furnish clarification and/or a
explanation as may be required by the CITY's representative,regarding any services rendered a
under this Agreement at no additional cost to CITY. In the event that an error or omission o
attributable to CONSULTANT occurs,then CONSULTANT shall,at no cost to CITY,provide z
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. E
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5.10. Prohibited Employment. CONSULTANT shall not employ any current employee
of CITY to perform the work under this Agreement while this Agreement is in effect. v
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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. o
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5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole o
benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental a
beneficiaries of this Agreement and no third party shall have any right in,under or to this
Agreement.
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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 a
interpretation of this Agreement. a
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5.14. Amendments. Only a writing executed by all of the parties hereto or their r
respective successors and assigns may amend this Agreement.
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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.
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5.16. Severabili ty. 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. Counterparts: 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.
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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 o
Agreement. z
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IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and E
through their respective authorized officers,as of the date first above written. d
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CITY OF SAN BERNARDINO, CONSULTANT
A municipal corporation M
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Charles cNeely, City Man er Signature L)
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Name and title
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ATTEST: E
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Rache Clark, City Clerk a
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APPROVED AS TO FORM: a
JAMES F. PENMAN,
City Attorney
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By:
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