HomeMy WebLinkAbout2013-272 RESOLUTION NO. 2013-272
1
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
3 AGREEMENT WITH MANPOWER, INC. TO PROVIDE TEMPORARY STAFFING
4 SERVICES FOR THE CITY ATTORNEY'S OFFICE.
5 WHEREAS, the City Attorney's Office is need of additional support staff that is
6 highly-skilled with a strong understanding of legal practices and procedures; and
7 WHEREAS, the City desires to enter into a contract to provide temporary staffing
8
services for the City Attorney's Office; and
9
WHEREAS, Manpower, Inc. represents that it has the ability to provide the necessary
10
11 staff on a temporary basis and that it has the degree of specialized expertise contemplated
12 within Government Code Section 37103;
13 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
14
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
15
16 SECTION 1: The City Manager is hereby authorized and directed to execute an
17 Agreement between the City of San Bernardino and Manpower, Inc., attached hereto as
18 Exhibit "A," and incorporated by reference as though fully set forth at length.
19
SECTION 2: The authority granted by this Resolution shall expire and be void and
20
21 of no further effect if the Memorandum of Understanding is not executed by both parties
22 within ninety (90) days of passage of this Resolution.
23 11/
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2013-272
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
2 AGREEMENT WITH MANPOWER, INC. TO PROVIDE TEMPORARY STAFFING
SERVICES FOR THE CITY ATTORNEY'S OFFICE.
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a joint regular meeting
6 thereof, held on the 7th day of October , 2013, by the following vote,to wit:
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
MARQUEZ x
9
10 JENKINS x
11 VALDIVIA x
12 SHORETT x
13
KELLEY x
14
JOHNSON
15
16 MCCAMMACK x
17
18 Georgea anna, CI Jerk
19 The foregoing resolution is hereby approved this -7,f day of October , 2013.
20
21 `�►
22 Patri t k J. Morris, . or• s f San Bernardino
23 Approved as to form:
JAMES F. PENMAN,
24 City Attorney
25
'•
B
26 y•
Thomas P. Clark dip
27 Stradling Yocca Carlson & Rauth
28 Special Conflicts Counsel
to the City of San Bernardino
DOC SOC/1642475v2/200430-0000
2013-272
PROFESSIONAL SERVICES AGREEMENT
1
BETWEEN
2 CITY OF SAN BERNARDINO
AND
3 MANPOWER INC. OF SAN BERNARDINO
4 THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
5 entered into this 16th day of September 2013 ("Effective Date"), by and between the CITY
6 OF SAN BERNARDINO, a charter city ("CITY"), and MANPOWER INC. OF SAN
7
BERNARDINO ("CONTRACTOR").
8
9 WITNESSETH:
10 A. WHEREAS, CITY proposes to have CONTRACTOR perform temporary
11 staffing services for the City Attorney's Office, as described hereinbelow; and
12 B. WHEREAS, CONTRACTOR represents that it has staff available with the
13 necessary qualifications to perform the services herein contemplated; and
14 C. WHEREAS, CITY and CONTRACTOR desire to contract for services as
15 described in the Scope of Services; and
16 D. WHEREAS, no official or employee of CITY has a financial interest, within
17
the provisions of California Government Code, Sections 1090-1092, in the subject matter of
18
this Agreement.
19
NOW, THEREFORE, for and in consideration of the mutual covenants and
20
21 conditions contained herein, the parties hereby agree as follows:
22 1.0 SERVICES PROVIDED BY CONTRACTOR
23 1.1 Scope of Services. CONTRACTOR shall provide the professional services to
24 the City Attorney's Office described in the Scope of Services attached hereto as Exhibit"1"
25 and incorporated herein by this reference ("Services") on an as-needed basis as determined by
26 the City Attorney. If a conflict arises between the Scope of Services document and this
27 Professional Services Agreement, the terms of the Agreement shall govern.
28 1
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1 1.2 Professional Practices. All services to be provided by CONTRACTOR
2 pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent
3 with the standards of care, diligence and skill ordinarily exercised by professional contractors
4 in similar fields and circumstances in accordance with sound professional practices.
5 Contractor also warrants that it is familiar with all laws that may affect its performance of this
6 Agreement and shall advise CITY of any changes in any laws that may affect
7 CONTRACTORS's performance of this Agreement if the CONTRACTOR has actual
8 knowledge of such changes. CONTRACTOR and the CITY each represent that no CITY
9 employee will provide any Services under this Agreement.
10
1.3 CONTRACTOR warrants that it shall perform the Services required by this
11
12 Agreement in compliance with all applicable Federal and California employment laws
13 including, but not limited to, those laws related to minimum hours and wages; occupational
14 health and safety; fair employment and employment practices; workers' compensation
15 insurance and safety in employment; and all other Federal, State and local laws and
16 ordinances applicable to the services required under this Agreement. CONTRACTOR shall
17 defend, indemnify, and hold harmless CITY from and against all claims, demands, payments,
18 suits, actions, proceedings, and judgments of every nature and description including
19 reasonable attorneys' fees and costs, or recovered against CITY to the extent arising from
20 CONTRACTOR's violation of any such applicable law.
21 1.4 Non-discrimination. In performing this Agreement, CONTRACTOR shall not
22
engage in, nor permit its officers, employees or agents to engage in, discrimination in
23 employment of persons because of their race, religion, color, national origin, ancestry, age,
24
mental or physical disability, medical condition, marital status, sexual gender or sexual
25
orientation, except as permitted pursuant to Section 12940 of the Government Code.
26
Violation of this provision may result in the imposition of penalties referred to in Labor Code
27
28 Section 1735.
2
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1 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may
2 enter into agreements with other contractors for services similar to the Services that are
3 subject to this Agreement or may have its own employees perform services similar to those
4 services contemplated by this Agreement.
5 1.6 Delegation and Assignment. This is a personal service contract; accordingly,
6 the duties set forth herein shall not be delegated or assigned to any person or entity without
7
the prior written consent of CITY, which consent shall not be unreasonably withheld or
8
delayed.
9
10 1.7 Duty of Loyalty/Conflict of Interest. The CONTRACTOR understands and
11 agrees that as the CITY's contractor, CONTRACTOR shall maintain a fiduciary duty and a
12 duty of loyalty to the CITY in performing CONTRACTOR's obligations under this
13 Agreement. CONTRACTOR, in performing its obligations under this Agreement, is governed
14 by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2,
15 California Code of Regulations, Section 18700 et seq.
16
17 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during
18 the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5
19 of the City of San Bernardino Municipal Code and any and all other licenses, permits,
20 qualifications, insurance and approvals of whatever nature that are legally required of
21 CONTRACTORS to practice its profession, skill or business.
22 2.0 COMPENSATION AND BILLING
23
2.1 Compensation. CONTRACTOR compensation shall be in accordance with the
24
rates set forth in Exhibit 1. The total compensation shall not exceed $76,800 during the term
25
26 of this Agreement.
27
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1 2.2 Additional Services. CONTRACTOR shall not receive compensation for any
2 services provided outside the scope of services specified in Exhibit "1" or for total amounts in
3 excess of $76,800 unless the CITY, prior to CONTRACTOR performing the additional
4 services, approves such additional services in writing. It is specifically understood that oral
5 requests and/or approvals of such additional services or additional compensation shall be
6 barred and are unenforceable.
7
2.3 Method of Billing. CONTRACTOR shall submit invoices to CITY for
8
approval. Said invoice shall be based on the total of all CONTRACTOR's services which
9
have been performed in accordance with the terms of this Agreement during the period
10
covered by such invoice. CITY shall pay CONTRACTOR's invoice within thirty (30) days
11
from the date CITY receives said invoice. The invoice shall describe in detail the services
12
13 performed and the associated time for completion. Any additional services approved and
14 performed pursuant to this Agreement shall be designated as "Additional Services" and shall
15 identify the number of the authorized change order, where applicable, on all invoices.
16 2.4 Records and Audits. Records of CONTRACTOR's Services directly relating to
17 this Agreement shall be maintained in accordance with generally recognized accounting
18 principles and shall be made available to CITY for inspection and/or audit at mutually
19 convenient times for a period of seven (7) years from the Effective Date. Any such inspection
20 shall be conducted at the CITY's expense, during normal business hours and upon reasonable
21 prior written notice to CONTRACTOR. Such audit shall also be subject to the execution of a
22
confidentiality agreement regarding inadvertent access to confidential information not related
23
to the CITY.
24
25
26
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3.0 TERM AND NOTIFICATION.
2 3.1 Term. This Agreement shall commence on the Effective Date and shall
3 terminate on March 15, 2014, unless this Agreement is previously terminated as provided for
4 herein.
5 3.2 Termination. The CITY reserves and has the right and privilege of canceling,
6
suspending or abandoning the execution of all or any part of the work contemplated by this
7
AGREEMENT, with or without cause at any time, by providing written notice to
8
CONTRACTOR. The termination of this AGREEMENT shall be deemed effective upon
9
10 receipt of the notice of termination. In the event of such termination, CONTRACTOR shall
11 immediately stop rendering services under this agreement unless directed otherwise by the
12 CITY.
13 3.3 Compensation. In the event of an early termination, CITY shall pay
14 CONTRACTOR for professional services satisfactorily performed up to and including the
15 date of the CITY's written notice of termination.
16
17 4.0 INSURANCE
18 4.1. Scope and Limits of Insurance. COTRACTOR shall obtain and maintain
19 during the term of this Agreement all of the following insurance coverages:
20
(a) Comprehensive general liability, including premises-operations,
21
products/completed operations, broad form property damage,
22
blanket contractual liability, independent contractors, personal
23
injury with a policy limit of One Million Dollars ($1,000,000.00),
24
25 combined single limits, per occurrence and aggregate.
26 (b) Automobile liability for owned vehicles, hired, and non-owned
27 vehicles, with a policy limit of One Million Dollars
28 5
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1 ($1,000,000.00), combined single limits, per occurrence and
2 aggregate.
3
4 (c) Workers' compensation insurance as required by the State of
5 California.
6 4.2 Endorsements. The commercial general liability insurance policy shall contain
7 or be endorsed, using general policy endorsements, to contain the following provisions:
8
9 (a) Additional insureds: "The City of San Bernardino and its elected
10 and appointed boards, officers, and employees are additional
11 insureds with respect to this subject project and contract with the
12 CITY."
13
(b) Notice: "Said policy shall not terminate, nor shall it be cancelled.
14 Nor the coverage reduced, until thirty (30) days after written notice
15
is given to City."
16
17 (c) Other insurance: "Any other insurance maintained by the City of
18 San Bernardino shall be excess and not contributing with the
19 insurance provided by this policy with respect to claims arising
20 solely and directly from CONTRACTOR'S provision of the
21 Services."
22 4.3 Certificates of Insurance. CONTRACTOR shall provide to CITY certificates
23
of insurance showing the insurance coverages and required endorsements described above, in
24
a form and content approved by CITY, prior to performing any services under this
25
Agreement.
26
27
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1 4.4 Non-limiting. Nothing in this Section shall be construed as limiting in any
2 way, the indemnification provision contained in this Agreement, or the extent to which
3 CONTRACTOR may be held responsible for payments of damages to persons or property.
4 5.0 GENERAL PROVISIONS
5
5.1 Entire Agreement: This Agreement, together with Exhibit "1" attached hereto
6 constitutes the entire Agreement between the parties with respect to any matter referenced
7
herein and supersedes any and all other prior writings and oral negotiations. This Agreement
8
9 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
10
any other contract document appurtenant hereto, including the exhibit to this Agreement.
11
12 5.2 Notices. Any notices, documents, correspondence or other communications
13 concerning this Agreement or the work hereunder may be provided by personal delivery,
14 deemed served or delivered: a) at the time of delivery if such communication is sent by
15 personal delivery; b) at the time of transmission if such communication is sent by facsimile;
16 and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such
17 communication is sent through regular United States mail.
18
19 CONTRACTOR: CITY:
20 Evlyn E. Wilcox James F. Penman,
President City Attorney
21 Manpower Inc. of San Bernardino City of San Bernardino
22 998 N. D Street 300 North"D" Street
San Bernardino, CA 92410 San Bernardino, CA 92418
23 Telephone: (909) 885-3461 Telephone: (909) 384-5355
Fax: (909) 885-9969 Fax: (909) 384-238
24
25 5.3. Attorneys' Fees: In the event that litigation is brought by any party in
26 connection with this Agreement, the prevailing party shall be entitled to recover from the
27 opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
28
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1 prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement
2 of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the
3 City Attorney and members of his office in enforcing this contract on behalf of the CITY
4 shall be considered as "attorneys' fees" for the purposes of this Agreement.
5 5.4. Governing Law. This Agreement shall be governed by and construed under
6 the laws of the State of California without giving effect to that body of laws pertaining to
7 conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the
8 parties hereto agree that the sole and exclusive venue shall be a court of competent
9
jurisdiction located in San Bernardino County, California.
10
5.5. Assignment: CONTRACTOR shall not voluntarily or by operation of law
11
12 assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this
13 Agreement to an unrelated third party without CITY's prior written consent, which consent
14 shall not be unreasonably withheld or delayed. Any attempted assignment, transfer,
15 subletting or encumbrance shall be void and shall constitute a breach of this Agreement and
16 cause for termination of this Agreement. Regardless of CITY's consent, no subletting or
17 assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all
18 other obligations to be performed by CONTRACTOR hereunder for the term of this
19 Agreement.
20 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend,
21
indemnify and hold harmless CITY and its elected and appointed officials, boards,
22
23 commissions, officers and employees from any and all claims, losses, demands, suits,
24 administrative actions, penalties, liabilities and expenses, including reasonable attorneys'
25 fees, damage to property or injuries to or death of any person or persons or damages of any
26 nature including, but not limited to, all civil claims or workers' compensation claims to the
27
28
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1 extent directly arising from or in CONTRACTOR's negligent or wrongful acts or omissions
2 in connection with the performance under this Agreement.
3 5.7. Independent Contractor. CONTRACTOR, at all times while performing
4 under this Agreement, is and shall be acting as an independent contractor and not as an agent
5 or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for
6 any and all payment of wages, benefits and taxes including, but not limited to, Income Tax,
7 Social Security, State Disability Insurance Compensation, Unemployment Compensation,
8 and other payroll deductions for CONTRACTOR and its officers, agents, and employees,
9
and all business licenses, if any are required, in connection with the Services to be performed
10
hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to
11
12 receive any benefits which employees of CITY are entitled to receive and shall not be
13 entitled to Workers' Compensation insurance, unemployment compensation, medical
14 insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or Social
15 Security on account of CONTRACTOR and its officers', agents' and employees' work for the
16 CITY. This Agreement does not create the relationship of agent, servant, employee
17 partnership or joint venture between the CITY and CONTRACTOR.
18 5.8. Conflict of Interest Disclosure: CONTRACTOR or its employees may be
19 subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which
20 (1) requires such persons to disclose financial interests that may be materially affected by the
21
work performed under this Agreement, and (2) prohibits such persons from making or
22
23 participating in making decisions that will have a foreseeable financial affect on such
24 interest.
25 CONTRACTOR shall conform to all requirements of the Act. Failure to do
26 so constitutes a material breach and is grounds for termination of the Agreement by CITY.
27
28
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1 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work
2 and results under this Agreement. CONTRACTOR, when requested, shall furnish
3 clarification and/or explanation as may be required by the CITY's representative, regarding
4 any services rendered under this Agreement at no additional cost to CITY. In the event that
5 an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at
6 no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify
7 and correct the matter to the sole satisfaction of CITY and to participate in any meetings
8 required with regard to the correction. CONTRACTOR will assume the information supplied
9
by the CITY, (or on its behalf by third parties) is accurate and complete. CONTRACTOR's
10
responsibilities (and associated compensation) do not include independent verification of
11
12 required information.
13 Problems with information quality and/or delays in providing such information may result in
14 a delay in the performance of the Services or an increase in fees.
15 5.10. Prohibited Employment. CONTRACTOR shall not employ any current
16 employee of CITY to perform the work under this Agreement while this Agreement is in
17 effect.
18 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation
19 and negotiation of this Agreement and in the performance of its obligations hereunder except
20
as expressly provided herein.
21
5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the
22
sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or
23
24 incidental beneficiaries of this Agreement and no third party shall have any right in, under or
25 to this Agreement.
26 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement
27 are included solely for convenience and are not intended to modify, explain or to be a full or
28
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1 accurate description of the content thereof and shall not in any way affect the meaning or
2 interpretation of this Agreement.
3 5.14. Amendments. Only a writing executed by all of the parties hereto or their
4 respective successors and assigns may amend this Agreement.
5 5.15. Waiver. The delay or failure of either party at any time to require
6 performance or compliance by the other of any of its obligations or agreements shall in no
7 way be deemed a waiver of those rights to require such performance or compliance. No
8 waiver of any provision of this Agreement shall be effective unless in writing and signed by a
9
duly authorized representative of the party against whom enforcement of a waiver is sought.
10
The waiver of any right or remedy with respect to any occurrence or event shall not be
11
12 deemed a waiver of any right or remedy with respect to any other occurrence or event, nor
13 shall any waiver constitute a continuing waiver.
14 5.16. Severability. If any provision of this Agreement is determined by a court of
15 competent jurisdiction to be invalid or unenforceable for any reason, such determination shall
16 not affect the validity or enforceability of the remaining terms and provisions hereof or of the
17 offending provision in any other circumstance, and the remaining provisions of this
18 Agreement shall remain in full force and effect.
19 5.17. Counterparts: This Agreement may be executed in one or more counterparts,
20
each of which shall be deemed an original. All counterparts shall be construed together and
21
shall constitute one agreement.
22
5.18. Corporate Authority. The persons executing this Agreement on behalf of the
23
24 parties hereto warrant that they are duly authorized to execute this Agreement on behalf of
25 said parties and that by doing so, the parties hereto are formally bound to the provisions of
26 this Agreement.
27
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DOCSOC/1634755v3/200430-0000
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1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN
2 CITY OF SAN BERNARDINO
3 AND
MANPOWER INC. OF SAN BERNARDINO
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
5
6 day and date first above shown.
7
8 ATTEST: CITY OF SAN BERNARDINO
Municipal Corporation and
9 Charter City
10
11 Georgeann Hanna, City Clerk Allen J. Parker, City Manager
12
13 MANPOWER, INC.
14
15 Evlyn E. Wilcox, President
16
17
Approved as to form:
18
JAMES F. PENMAN
19 City Attorney
/IP
20
By:
21 y
Ths• as P. Clark, 1r.
22 Stradling Yocca .rlson& 'auth
Special Counsel to the
23
24
25
26
27
28
DOCSOC/l 634755v5/200430-0000
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EXHIBIT 1
1
SCOPE OF SERVICES
2
Associates Contractor recognizes the need of the Office of the City Attorney of the
3 City of San Bernardino for an experienced and qualified temporary employment firm to
4 provide timely and quality staffing services as described in the last paragraph of this Exhibit
5 1. The persons provided by Contractor to the City Attorney's office are referred to herein as
6 ("Associates").
7
Screeners Candidates for placement as Associates shall be screened by Contractor for
8 their knowledge, skills, abilities, and other characteristics related to functions to be provided
9 to the Office of the City Attorney.
10
11 E-Verify Contractor participates in the E-Verify Program and will verify the identity
and employment eligibility of every Associate.
12
13 Response Time Contractor will respond immediately to requests for Associates with
14 a confirmation call within one hour of receipt of the assignment request, providing a status
15 report of the order and a verification of skills that match needs. Fill time can range from one
16 day for common demand skills upwards to several days for technical/professional skills.
17 Hours of Operation Contractor staff is available twenty-four hours a day and seven
18 days a week. Contractor's San Bernardino office is open Monday through Friday from 8:30
19 a.m. to 5:00 p.m.
20 Minimum Hours Minimum hours to be paid for less than eight (8) hours worked.
21 Minimum hours paid depends on how many hours in the assigned shift; i.e., if the assigned
22 shift is for (4) four hours, they will be paid for four hours. If the assigned shift is for (8)
23 hours and if work circumstances prevent the Associate from completing the entire shift, they
24 will be paid one half of the shift. (4 hour minimum). If Associate shows up for work and is
25 turned away without prior request to cancel assignment, there is a 2 hour show up pay.
26 Hiring Fees Contractor requires that the Associate work 520 hours in a 90 day period
27 on an assignment before they can transition with no fee to the City payroll. If the City
28
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1 chooses to hire an Associate prior to the completion of 90 days, the temp-to-hire fee is a
2 percentage of the Associate's total estimated first-year annual gross compensation. The
following prorated fee schedule represents a percentage of the direct sourcing fee: 0 to 30
3 days, 20% of annual gross, 31 to 60 days, 15% of annual gross, 61 to 90 days, 10% of annual
4 gross compensation.
5
6 Background Investigation Contractor has a national agreement with LexisNexis,
7 pursuant to which LexisNexis verifies against a local database and others as required.
Contractor also checks on-line court databases for the County of San Bernardino residents
8 when screening Associates. Background investigations can be performed if required by City
9 of San Bernardino. The cost is included in Contractor's markup rates.
10
11 Drug Testing Contractor has a local agreement with Central Occupational Medicine
Providers for Drug screens. A 5 panel drug screen will be performed, if requested by City of
12
San Bernardino. The cost for a drug screen is included in Contractor's markup rates.
13
14 Hourly Rates Associates will be charged within the following range of rates:
15 Job Description Hourly Ratet
16
17 Office Clerk/Receptionist $18.75 to $21.75
18 Legal Secretary $26.03 to $28.03
19
20
21
22
23
24
25
26
27 Actual hourly rate for each specific Associate will be approved by the City Attorney prior to the
28 commencement of work hereunder.
14
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PROFESSIONAL SERVICES AGREEMENT
1
BETWEEN
2 CITY OF SAN BERNARDINO
AND
3 MANPOWER INC. OF SAN BERNARDINO
4 THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
5 entered into this 16th day of September 2013 ("Effective Date"), by and between the CITY
6
OF SAN BERNARDINO, a charter city ("CITY"), and MANPOWER INC. OF SAN
7
BERNARDINO ("CONTRACTOR").
8
9 WITNESSETH:
10 A. WHEREAS, CITY proposes to have CONTRACTOR perform temporary
11 staffing services for the City Attorney's Office, as described hereinbelow; and
12 B. WHEREAS, CONTRACTOR represents that it has staff available with the
13 necessary qualifications to perform the services herein contemplated; and
14 C. WHEREAS, CITY and CONTRACTOR desire to contract for services as
15 described in the Scope of Services; and
16 D. WHEREAS, no official or employee of CITY has a financial interest, within
17
the provisions of California Government Code, Sections 1090-1092, in the subject matter of
18
this Agreement.
19
NOW, THEREFORE, for and in consideration of the mutual covenants and
20
21 conditions contained herein, the parties hereby agree as follows:
22 1.0 SERVICES PROVIDED BY CONTRACTOR
23 1.1 Scope of Services. CONTRACTOR shall provide the professional services to
24 the City Attorney's Office described in the Scope of Services attached hereto as Exhibit"1"
25 and incorporated herein by this reference ("Services") on an as-needed basis as determined by
26 the City Attorney. If a conflict arises between the Scope of Services document and this
27 Professional Services Agreement, the terms of the Agreement shall govern.
28
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1 1.2 Professional Practices. All services to be provided by CONTRACTOR
2 pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent
3 with the standards of care, diligence and skill ordinarily exercised by professional contractors
4 in similar fields and circumstances in accordance with sound professional practices.
5 Contractor also warrants that it is familiar with all laws that may affect its performance of this
6 Agreement and shall advise CITY of any changes in any laws that may affect
7 CONTRACTORS's performance of this Agreement if the CONTRACTOR has actual
8 knowledge of such changes. CONTRACTOR and the CITY each represent that no CITY
9 employee will provide any Services under this Agreement.
10
1.3 CONTRACTOR warrants that it shall perform the Services required by this
11
12 Agreement in compliance with all applicable Federal and California employment laws
13 including, but not limited to, those laws related to minimum hours and wages; occupational
14 health and safety; fair employment and employment practices; workers' compensation
15 insurance and safety in employment; and all other Federal, State and local laws and
16 ordinances applicable to the services required under this Agreement. CONTRACTOR shall
17 defend, indemnify, and hold harmless CITY from and against all claims, demands, payments,
18 suits, actions, proceedings, and judgments of every nature and description including
19 reasonable attorneys' fees and costs, or recovered against CITY to the extent arising from
20 CONTRACTOR's violation of any such applicable law.
21 1.4 Non-discrimination. In performing this Agreement, CONTRACTOR shall not
22 engage in, nor permit its officers, employees or agents to engage in, discrimination in
23
employment of persons because of their race, religion, color, national origin, ancestry, age,
24
mental or physical disability, medical condition, marital status, sexual gender or sexual
25
orientation, except as permitted pursuant to Section 12940 of the Government Code.
26
27 Violation of this provision may result in the imposition of penalties referred to in Labor Code
28 Section 1735.
2
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1 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may
2 enter into agreements with other contractors for services similar to the Services that are
3 subject to this Agreement or may have its own employees perform services similar to those
4 services contemplated by this Agreement.
5 1.6 Delegation and Assignment. This is a personal service contract; accordingly,
6
the duties set forth herein shall not be delegated or assigned to any person or entity without
7
the prior written consent of CITY, which consent shall not be unreasonably withheld or
8
delayed.
9
10 1.7 Duty of Loyalty/Conflict of Interest. The CONTRACTOR understands and
11 agrees that as the CITY's contractor, CONTRACTOR shall maintain a fiduciary duty and a
12 duty of loyalty to the CITY in performing CONTRACTOR's obligations under this
13 Agreement. CONTRACTOR, in performing its obligations under this Agreement, is governed
14 by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2,
15 California Code of Regulations, Section 18700 et seq.
16
17 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during
18 the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5
19 of the City of San Bernardino Municipal Code and any and all other licenses, permits,
20 qualifications, insurance and approvals of whatever nature that are legally required of
21 CONTRACTORS to practice its profession, skill or business.
22 2.0 COMPENSATION AND BILLING
23
2.1 Compensation. CONTRACTOR compensation shall be in accordance with the
24
rates set forth in Exhibit 1. The total compensation shall not exceed $76,800 during the term
25
of this Agreement.
26
27
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1 2.2 Additional Services. CONTRACTOR shall not receive compensation for any
2 services provided outside the scope of services specified in Exhibit "1" or for total amounts in
3 excess of $76,800 unless the CITY, prior to CONTRACTOR performing the additional
4 services, approves such additional services in writing. It is specifically understood that oral
5 requests and/or approvals of such additional services or additional compensation shall be
6 barred and are unenforceable.
7
2.3 Method of Billing. CONTRACTOR shall submit invoices to CITY for
8
approval. Said invoice shall be based on the total of all CONTRACTOR's services which
9
have been performed in accordance with the terms of this Agreement during the period
10
covered by such invoice. CITY shall pay CONTRACTOR's invoice within thirty (30) days
11
from the date CITY receives said invoice. The invoice shall describe in detail the services
12
13 performed and the associated time for completion. Any additional services approved and
14 performed pursuant to this Agreement shall be designated as "Additional Services" and shall
15 identify the number of the authorized change order, where applicable, on all invoices.
16 2.4 Records and Audits. Records of CONTRACTOR's Services directly relating to
17 this Agreement shall be maintained in accordance with generally recognized accounting
18 principles and shall be made available to CITY for inspection and/or audit at mutually
19 convenient times for a period of seven (7) years from the Effective Date. Any such inspection
20 shall be conducted at the CITY's expense, during normal business hours and upon reasonable
21 prior written notice to CONTRACTOR. Such audit shall also be subject to the execution of a
22
confidentiality agreement regarding inadvertent access to confidential information not related
23
to the CITY.
24
25
26
27
28
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3.0 TERM AND NOTIFICATION.
2 3.1 Term. This Agreement shall commence on the Effective Date and shall
3 terminate on March 15, 2014, unless this Agreement is previously terminated as provided for
4 herein.
5
3.2 Termination. The CITY reserves and has the right and privilege of canceling,
6
suspending or abandoning the execution of all or any part of the work contemplated by this
7
AGREEMENT, with or without cause at any time, by providing written notice to
8
CONTRACTOR. The termination of this AGREEMENT shall be deemed effective upon
9
10 receipt of the notice of termination. In the event of such termination, CONTRACTOR shall
11 immediately stop rendering services under this agreement unless directed otherwise by the
12 CITY.
13 3.3 Compensation. In the event of an early termination, CITY shall pay
14 CONTRACTOR for professional services satisfactorily performed up to and including the
15 date of the CITY's written notice of termination.
16
17 4.0 INSURANCE
18 4.1. Scope and Limits of Insurance. COTRACTOR shall obtain and maintain
19 during the term of this Agreement all of the following insurance coverages:
20
(a) Comprehensive general liability, including premises-operations,
21
products/completed operations, broad form property damage,
22
blanket contractual liability, independent contractors, personal
23
injury with a policy limit of One Million Dollars ($1,000,000.00),
24
25 combined single limits, per occurrence and aggregate.
26 (b) Automobile liability for owned vehicles, hired, and non-owned
27 vehicles, with a policy limit of One Million Dollars
28
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1 ($1,000,000.00), combined single limits, per occurrence and
2 aggregate.
3
4 (c) Workers' compensation insurance as required by the State of
5 California.
6 4.2 Endorsements. The commercial general liability insurance policy shall contain
7 or be endorsed, using general policy endorsements, to contain the following provisions:
8
9 (a) Additional insureds: "The City of San Bernardino and its elected
10 and appointed boards, officers, and employees are additional
11 insureds with respect to this subject project and contract with the
12 CITY."
13
(b) Notice: "Said policy shall not terminate, nor shall it be cancelled.
14
Nor the coverage reduced, until thirty (30) days after written notice
15
is given to City."
16
17 (c) Other insurance: "Any other insurance maintained by the City of
18 San Bernardino shall be excess and not contributing with the
19 insurance provided by this policy with respect to claims arising
20 solely and directly from CONTRACTOR's provision of the
21 Services."
22 4.3 Certificates of Insurance. CONTRACTOR shall provide to CITY certificates
23
of insurance showing the insurance coverages and required endorsements described above, in
24
a form and content approved by CITY, prior to performing any services under this
25
Agreement.
26
27
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1 4.4 Non-limiting. Nothing in this Section shall be construed as limiting in any
2 way, the indemnification provision contained in this Agreement, or the extent to which
3 CONTRACTOR may be held responsible for payments of damages to persons or property.
4 5.0 GENERAL PROVISIONS
5
5.1 Entire Agreement: This Agreement, together with Exhibit "1" attached hereto
6 constitutes the entire Agreement between the parties with respect to any matter referenced
7
herein and supersedes any and all other prior writings and oral negotiations. This Agreement
8
9 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
10
any other contract document appurtenant hereto, including the exhibit to this Agreement.
11
12 5.2 Notices. Any notices, documents, correspondence or other communications
13 concerning this Agreement or the work hereunder may be provided by personal delivery,
14 deemed served or delivered: a) at the time of delivery if such communication is sent by
15 personal delivery; b) at the time of transmission if such communication is sent by facsimile;
16 and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such
17 communication is sent through regular United States mail.
18
19 CONTRACTOR: CITY:
20 Evlyn E. Wilcox James F. Penman,
President City Attorney
21 Manpower Inc. of San Bernardino City of San Bernardino
22 998 N. D Street 300 North"D" Street
San Bernardino, CA 92410 San Bernardino, CA 92418
23 Telephone: (909) 885-3461 Telephone: (909) 384-5355
Fax: (909) 885-9969 Fax: (909) 384-238
24
25 5.3. Attorneys' Fees: In the event that litigation is brought by any party in
26 connection with this Agreement, the prevailing party shall be entitled to recover from the
27 opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
28
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1 prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement
2 of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the
3 City Attorney and members of his office in enforcing this contract on behalf of the CITY
4 shall be considered as "attorneys' fees" for the purposes of this Agreement.
5 5.4. Governing Law. This Agreement shall be governed by and construed under
6 the laws of the State of California without giving effect to that body of laws pertaining to
7 conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the
8 parties hereto agree that the sole and exclusive venue shall be a court of competent
9
jurisdiction located in San Bernardino County, California.
10
5.5. Assignment: CONTRACTOR shall not voluntarily or by operation of law
11
12 assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this
13 Agreement to an unrelated third party without CITY's prior written consent, which consent
14 shall not be unreasonably withheld or delayed. Any attempted assignment, transfer,
15 subletting or encumbrance shall be void and shall constitute a breach of this Agreement and
16 cause for termination of this Agreement. Regardless of CITY's consent, no subletting or
17 assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all
18 other obligations to be performed by CONTRACTOR hereunder for the term of this
19 Agreement.
20 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend,
21
indemnify and hold harmless CITY and its elected and appointed officials, boards,
22
23 commissions, officers and employees from any and all claims, losses, demands, suits,
24 administrative actions, penalties, liabilities and expenses, including reasonable attorneys'
25 fees, damage to property or injuries to or death of any person or persons or damages of any
26 nature including, but not limited to, all civil claims or workers' compensation claims to the
27
28
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1 extent directly arising from or in CONTRACTOR's negligent or wrongful acts or omissions
2 in connection with the performance under this Agreement.
3 5.7. Independent Contractor. CONTRACTOR, at all times while performing
4 under this Agreement, is and shall be acting as an independent contractor and not as an agent
5 or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for
6 any and all payment of wages, benefits and taxes including, but not limited to, Income Tax,
7 Social Security, State Disability Insurance Compensation, Unemployment Compensation,
8 and other payroll deductions for CONTRACTOR and its officers, agents, and employees,
9
and all business licenses, if any are required, in connection with the Services to be performed
10
hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to
11
12 receive any benefits which employees of CITY are entitled to receive and shall not be
13 entitled to Workers' Compensation insurance, unemployment compensation, medical
14 insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or Social
15 Security on account of CONTRACTOR and its officers', agents' and employees' work for the
16 CITY. This Agreement does not create the relationship of agent, servant, employee
17 partnership or joint venture between the CITY and CONTRACTOR.
18 5.8. Conflict of Interest Disclosure: CONTRACTOR or its employees may be
19 subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which
20 (1) requires such persons to disclose financial interests that may be materially affected by the
21
work performed under this Agreement, and (2) prohibits such persons from making or
22
23 participating in making decisions that will have a foreseeable financial affect on such
24 interest.
25 CONTRACTOR shall conform to all requirements of the Act. Failure to do
26 so constitutes a material breach and is grounds for termination of the Agreement by CITY.
27
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1 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work
2 and results under this Agreement. CONTRACTOR, when requested, shall furnish
3 clarification and/or explanation as may be required by the CITY's representative, regarding
4 any services rendered under this Agreement at no additional cost to CITY. In the event that
5 an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at
6 no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify
7 and correct the matter to the sole satisfaction of CITY and to participate in any meetings
8 required with regard to the correction. CONTRACTOR will assume the information supplied
9 by the CITY, (or on its behalf by third parties) is accurate and complete. CONTRACTOR's
10
responsibilities (and associated compensation) do not include independent verification of
11
12 required information.
13 Problems with information quality and/or delays in providing such information may result in
14 a delay in the performance of the Services or an increase in fees.
15 5.10. Prohibited Employment. CONTRACTOR shall not employ any current
16 employee of CITY to perform the work under this Agreement while this Agreement is in
17 effect.
18 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation
19 and negotiation of this Agreement and in the performance of its obligations hereunder except
20
as expressly provided herein.
21
5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the
22
sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or
23
24 incidental beneficiaries of this Agreement and no third party shall have any right in, under or
25 to this Agreement.
26 5.13. Headings Paragraphs and subparagraph headings contained in this Agreement
27 are included solely for convenience and are not intended to modify, explain or to be a full or
28
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1 accurate description of the content thereof and shall not in any way affect the meaning or
2 interpretation of this Agreement.
3 5.14. Amendments. Only a writing executed by all of the parties hereto or their
4 respective successors and assigns may amend this Agreement.
5 5.15. Waiver. The delay or failure of either party at any time to require
6 performance or compliance by the other of any of its obligations or agreements shall in no
7 way be deemed a waiver of those rights to require such performance or compliance. No
8 waiver of any provision of this Agreement shall be effective unless in writing and signed by a
9
duly authorized representative of the party against whom enforcement of a waiver is sought.
10
The waiver of any right or remedy with respect to any occurrence or event shall not be
11
12 deemed a waiver of any right or remedy with respect to any other occurrence or event, nor
13 shall any waiver constitute a continuing waiver.
14 5.16. Severability. If any provision of this Agreement is determined by a court of
15 competent jurisdiction to be invalid or unenforceable for any reason, such determination shall
16 not affect the validity or enforceability of the remaining terms and provisions hereof or of the
17 offending provision in any other circumstance, and the remaining provisions of this
18 Agreement shall remain in full force and effect.
19 5.17. Counterparts: This Agreement may be executed in one or more counterparts,
20 each of which shall be deemed an original. All counterparts shall be construed together and
21
shall constitute one agreement.
22
5.18. Corporate Authority. The persons executing this Agreement on behalf of the
23
24 parties hereto warrant that they are duly authorized to execute this Agreement on behalf of
25 said parties and that by doing so, the parties hereto are formally bound to the provisions of
26 this Agreement.
27
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1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN
2 CITY OF SAN BERNARDINO
3 AND
MANPOWER INC. OF SAN BERNARDINO
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
5
6 day and date first above shown.
7
8 ATTEST: CITY OF SAN BERNARDINO
Municipal Corporation and
9 Charter City
o ; AAA_
11 Georgeann 'arena, Cit Jerk Allen arker, City Manager
12
13 MANPOWER, INC.
14
15
Evl y n E. W lcox President
16
17
Approved as to form:
18
JAMES F. PENMAN
19 City Attorney
20
By:B � *
21 y
The as P. Clark, I r.
22 Stradling Yocca .rlson& 'auth
Special Counsel to the.C1
23
24
25
26
27
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EXHIBIT 1
1
SCOPE OF SERVICES
2
Associates Contractor recognizes the need of the Office of the City Attorney of the
3 City of San Bernardino for an experienced and qualified temporary employment firm to
4 provide timely and quality staffing services as described in the last paragraph of this Exhibit
5 1. The persons provided by Contractor to the City Attorney's office are referred to herein as
6 ("Associates").
7
Screeners Candidates for placement as Associates shall be screened by Contractor for
8 their knowledge, skills, abilities, and other characteristics related to functions to be provided
9 to the Office of the City Attorney.
10
11 E-Verify Contractor participates in the E-Verify Program and will verify the identity
and employment eligibility of every Associate.
12
13 Response Time Contractor will respond immediately to requests for Associates with
14 a confirmation call within one hour of receipt of the assignment request, providing a status
15 report of the order and a verification of skills that match needs. Fill time can range from one
16 day for common demand skills upwards to several days for technical/professional skills.
17 Hours of Operation Contractor staff is available twenty-four hours a day and seven
18 days a week. Contractor's San Bernardino office is open Monday through Friday from 8:30
19 a.m. to 5:00 p.m.
20 Minimum Hours Minimum hours to be paid for less than eight (8) hours worked.
21 Minimum hours paid depends on how many hours in the assigned shift; i.e., if the assigned
22 shift is for (4) four hours, they will be paid for four hours. If the assigned shift is for (8)
23 hours and if work circumstances prevent the Associate from completing the entire shift, they
24 will be paid one half of the shift. (4 hour minimum). If Associate shows up for work and is
25 turned away without prior request to cancel assignment, there is a 2 hour show up pay.
26 Hiring Fees Contractor requires that the Associate work 520 hours in a 90 day period
27 on an assignment before they can transition with no fee to the City payroll. If the City
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1 chooses to hire an Associate prior to the completion of 90 days, the temp-to-hire fee is a
2 percentage of the Associate's total estimated first-year annual gross compensation. The
following prorated fee schedule represents a percentage of the direct sourcing fee: 0 to 30
3 days, 20% of annual gross, 31 to 60 days, 15% of annual gross, 61 to 90 days, 10% of annual
4 gross compensation.
5
6 Background Investigation Contractor has a national agreement with LexisNexis,
7 pursuant to which LexisNexis verifies against a local database and others as required.
Contractor also checks on-line court databases for the County of San Bernardino residents
8 when screening Associates. Background investigations can be performed if required by City
9 of San Bernardino. The cost is included in Contractor's markup rates.
10
11 Drug Testing Contractor has a local agreement with Central Occupational Medicine
Providers for Drug screens. A 5 panel drug screen will be performed, if requested by City of
12
San Bernardino. The cost for a drug screen is included in Contractor's markup rates.
13
14 Hourly Rates Associates will be charged within the following range of rates:
15 Job Description Hourly Ratet
16
17 Office Clerk/Receptionist $18.75 to $21.75
18 Legal Secretary $26.03 to $28.03
19
20
21
22
23
24
25
26
27 Actual hourly rate for each specific Associate will be approved by the City Attorney prior to the
28 commencement of work hereunder.
14
DOCSOC/1634755v31200430-0000