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HomeMy WebLinkAbout2016-045 1 RESOLUTION NO. 2016-45 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT WITH THE CENTER FOR 3 EMPLOYMENT OPPORTUNITIES FOR CITYWIDE RIGHT OF WAY 4 MAINTENANCE. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION 1. The City Manager is hereby authorized and directed to execute, on 8 behalf of the City, an Agreement with the Center for Employment Opportunities for the 9 maintenance of the public rights of way within the City boundaries attached hereto as Exhibit 10 11 `A" and incorporated herein by this reference as though set forth in full. 12 SECTION 2. The authorization to execute the above referenced Agreement is 13 rescinded if it is not executed by both parties within sixty (60) days of the passage of this 14 resolution. 15 HI 16 iii 17 iii 18 1H 19 20 21 22 23 24 25 26 27 28 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING AN AGREEMENT WITH THE CENTER FOR 2 EMPLOYMENT OPPORTUNITIES FOR CITYWIDE RIGHT OF WAY MAINTENANCE. 3 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 joint regular meeting thereof, held on the 6 7 7th day of March, 2016, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ X 10 BARRIOS X 11 12 VALDIVIA X 13 SHORETT X 14 NICKEL X 15 RICHARD X 16 MULVIHILL X 17 18 19 Georg anna, C , City Clerk 20 The foregoing resolution is hereby approved this day of March, 2016. 21 22 1,E 23 R. CAREY Vernardino VIS, Mayor City of San 24 Approved as to form: 25 GARY D. SAENZ, City Attorney 26 , By: 27 28 2 2016-45 Agreement Between the City of San Bernardino and the Center for Employment Opportunities, Inc. for Right of Way Maintenance RECITALS WHEREAS, the City of San Bernardino (CITY) has been approached by Center for Employment Opportunities, Inc. to participate in a unique program proven to reduce rates of recidivism by providing a venue for individuals with criminal histories to learn job skills and perform regular work; and WHEREAS, studies have demonstrated that individuals with a criminal justice history who gain employment are less likely to re-offend; and WHEREAS, the Center for Employment Opportunities, Inc. ("CEO") has offered comprehensive employment services for people with criminal convictions, including immediate paid transitional work, job development and employment retention services, in New York City as an independent organization since 1996 and as part of the Vera Institute of Justice since 1978; and WHEREAS, CEO offers paid transitional work to its participants through supervised operating work crews of 5-7 people that provide indoor and outdoor maintenance, cleaning, beautification and grounds- keeping services to state and municipal agencies, and a variety of public and private corporations; WHEREAS, there are several related services for which the CITY has limited resources to perform; and WHEREAS, CEO and the CITY believe that the performance of some of these necessary services would provide the program participants meaningful work opportunities, create a real and visible impact on the community, and most importantly, help in reducing the rates of recidivism within the City of San Bernardino's borders; and WHEREAS, the CITY and CEO shall work together to identify the services that would best meet the goals of the program; and WHEREAS, CEO will provide the CITY at least one supervised work crew of 5 individuals to perform identified services; and WHEREAS, CEO will subsidize the program in the initial six months of this Agreement, and based on satisfactory service of CEO during that period, the CITY at its sole discretion, has the option to extend the program as set forth in this Agreement; and WHEREAS, the CITY recognizes that participation in this program will benefit all of the citizens of this community. 1 2016-45 NOW, THEREFORE, the City and CEO, based on mutual consideration, enter into this Agreement, effective March 7, 2016, and subject to the following terms and conditions: TERMS AND CONDITIONS A. TERM: The term of this Agreement shall be for six (6) months beginning March 21st, 2016 and ending September 21st, 2016 with two optional 6 month extensions as authorized by the Mayor and Common Council, or unless otherwise terminated by the City pursuant to Section H. B. PROGRAM PARTICIPANTS: The parties agree that participants in any CEO work crew providing services to the CITY will be comprised of individuals who live in San Bernardino County, have criminal conviction(s), and have been thoroughly screened by CEO to ensure that they will be suitable participants for a program of this nature. C. RESPONSIBILITIES OF CEO: CEO responsibilities shall include the following: 1. Perform all outreach,recruitment, screening and enrollment for program participants. 2. Enroll a minimum of 5 participants from the County of San Bernardino in CEO's paid transitional employment program over the term of this Agreement for work on projects designated by the City of San Bernardino. a. CEO has the exclusive right to terminate or suspend participants who fail to adhere to CEO's employment program policies. 3. Screen all program participants for their employment eligibility and fitness to work a. Individuals with convictions for sexual offenses shall be prohibited from enrolling in the program due to specific job duties and location of work. b. The eligibility of violent felony offenders shall be thoroughly reviewed by CEO on a case- by-case basis prior to any acceptance of such offenders into the program. 4. Provide a minimum of one supervised work crew of 5 persons for 6.5 to 8 hours a day, Monday through Friday, excluding holidays, to perform services and assignments as agreed to by CEO and the CITY. 5. Ensure the safety of all CEO work-crew members, including providing them with safety and 2 2016-45 other equipment for their person, including items such as steel-toed boots, CEO IDs and safety vests. 6. Receive work assignments from City Liaison and communicate with such personnel about the work to be performed prior to performance, about the progress of the work during performance, and about what was done after performance. 7. Supervise the work of any CEO work crew, including providing line of sight supervision of work-crew members during the daily work hours. 8. Provide compensation to program participants in accordance with all local, state and federal minimum wage laws. a. City shall have no obligation to pay any compensation or fringe benefits directly to program participants. 9. Make available to all program participants the following services/activities: • Pre-employment training classes including resume writing and interview skill building to be delivered by CEO's Participant Engagement Leader (PEL) during a one week Life Skills Education class at CEO's office that commences the program; • Job Coaching and Job Placement services to be delivered by the PEL and Employment Specialist (ES) respectively at CEO's offices one day per week while participants are actively enrolled in transitional work ; • Post-placement services to increase labor-force retention, for one year from the date of full-time job placement to be delivered by the PEL and ES at monthly intervals at minimum either at CEO's offices or another convenient meeting place of program participants who are working full time. D. RESPONSIBILITIES OF THE CITY: 1. Provide a City Liaison to identify and secure CEO appropriate work crew projects in areas controlled and maintained by the City and communicate daily with designated CEO staff members about the scope and progress of the work. 2. Ensure that the work projects identified by the City provide program participants with work experience that have a tangible community impact. a. City shall ensure that none of the work or tasks identified for performance by the CEO participants shall replace any City employees represented by City recognized bargaining units. 3. Ensure that CEO has legal access to the areas that it will be maintaining and beautifying. 4. Have the City Liaison meet with CEO's project leader on a monthly basis to discuss the project's progress. 3 2016-45 E. COMPENSATION 1. The cost of a CEO work crew, inclusive of wages for participants; supervision; personal safety equipment including steel toed boots, work goggles, reflective vests, among other items; transportation; payroll processing and other associated costs shall be paid solely by CEO. 2. For the first six months of this Agreement, CITY shall pay CEO Five Thousand Five Hundred Dollars($5,500). a. The fee schedule outlined below outlines the cost share responsibility of the CITY and CEO for the first six(6)months and the two optional six month extensions Implementation Stage Dates CEO Costs CITY Costs 1 3/21/2016-9/21/2016 $104,375 $5,500 2 9/22/2016-3/22/17 $52,375 $57,500 3 3/23/2017-9/23/2017 $0.00 $109,875 b. After the first six (6) months, provided that the CITY, in its sole discretion, has determined that it is satisfied with the work performed by CEO participants and the program, CITY shall make reasonable efforts to secure additional funding to subsidize a larger portion of the costs of the CEO program work within the CITY for the two optional six month extensions as outlined herein. F. INSURANCE: 1. General. CEO must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of liability insurance from insurance companies to protect against claims for injuries or death to persons or damages to property that arise from or are related to the performance of the work under this Agreement by the CEO, its agents, representatives, employees or subcontractors, and provide City with documentation of same,prior to commencement of work. 2. Minimum Limits of Insurance Required. CEO must maintain limits no less than those included in the tablebelow: 4 2016-45 a. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance (Including operations, with a general aggregate limit is used, either the general products and completed aggregate limit must apply separately to this project/location operations as or the general aggregate limit must be twice the required applicable). occurrence limit. b. Automobile $1,000,000 per accident for bodily injury and property damage. Liability c. Workers' Compensation Statutory Employer's Liability: $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee 3. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions shall be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the CEO shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 4. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies shall contain, or be endorsed to contain, the following provisions: a. Additional Insureds. T he City of San Bernardino, its officers, officials, employees, agents, and volunteers shall be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CEO, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the CEO, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage shall be provided in the form of an endorsement to the CEO's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The CEO's General Liability insurance coverage shall be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the CEO and in no way relieves the CEO from its responsibility to provide insurance. c. Cancellation. The insurance policies required by this Agreement shall not be reduced or canceled by either party, except after thirty days' prior written notice to the City by CEO in conformity with Section I below. 5 2016-45 d. Active Negligence. Coverage shall not extend to any indemnity coverage for the negligence or willful misconduct of the additional insureds or in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waiver of Subrogation. CEO's insurer shall provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 5. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M.Best's rating of no less than A. Verification of Coverage. CEO shall furnish the City with original certificates and amendment endorsements affecting coverage required by Section F of this Agreement. The endorsements shall be on insurance industry forms, provided those endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. G. INDEMNIFICATION 1. CEO shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner all arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of CEO, its officials, officers, employees, and contractors, arising out of or related to this Agreement or the performance of the services hereunder. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorney's fees) arising from the sole negligence or willful misconduct of the City,its officers,employees and agents. 2. Costs of Defense and Award. Included in the obligations in Sections G (1) above, is CEO's obligation to defend, at CEO's own cost, expense and risk, any and all suits, actions or other legal proceedings, that may be brought or instituted against the City, its officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections G (1). In such event, CEO shall have the right to choose counsel reasonably acceptable to the City and make all decisions regarding any such action. CEO shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, officers, employees, agents and/or volunteers, for any and all reasonable related legal expenses and costs incurred by each of them, subject to the limitations in Sections G (1). 3. Enforcement Costs. If the City is the prevailing party to an applicable indemnity enforcement action, CEO agrees to pay any and all reasonable costs that the City incurs enforcing the indemnity and defense provisions set forth in Section G, including but not limited to reasonable attorneys' fees. The costs, salaries, and expenses of the City Attorney and members of his office shall be considered attorneys' fees for the purposes of this 6 2016-45 Agreement. 4. Survival. CEO's obligations under Section G shall survive the termination of this Agreement. H. TERMINATION 1. Termination for Cause. If through any cause, CEO shall fail to fulfill in a timely and proper manner CEO's obligations under this Agreement, or if CEO shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving notice to CEO of such termination and specifying the effective date thereof. The notice may be either in writing or oral; however, if such notice is communicated orally, it shall be followed,within two (2)business days,by a written notice. 2. Termination of Agreement for Convenience. Either party shall have the right to terminate this Agreement at any time and for any reason,by giving specific written notice to the other party of such termination and specifying the effective date thereof. In the event that CEO terminates this Agreement prior to the end of the first six (6) months, CEO shall reimburse the City a pro rata share of the funds City committed and paid to CEO. I. NOTICE 1. Notices. All notices, demands, requests or other communications required or permitted hereunder (collectively, "Notices") shall be in writing, shall be addressed to the receiving party, and shall be personally delivered, sent by overnight mail (Federal Express or another carrier that provides receipts for all deliveries), or sent by certified mail, postage prepaid, return receipt requested, to the address listed below: If to CEO: Sarah Glenn-Leistikow, San Bernardino County Director Center for Employment Opportunities 1630 S. "E" Street, Suite A San Bernardino, California 92408 With copies to: Sam Schaeffer Chief Executive Officer Center for Employment Opportunities 50 Broadway New York,New York 10004 7 2016-45 If to City: City of San Bernardino 300 N. "D" Street San Bernardino CA 92418 Attention: City Manager All Notices shall be effective upon receipt at the appropriate address. Notice of change of address shall be given by written Notice in the manner detailed in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice in accordance with this Section was given, shall be deemed to constitute receipt of such Notice. The providing of copies of Notices to the parties' respective legal counsels is for information only, is not required for valid Notice and does not alone constitute Notice hereunder. K. GENERAL PROVISIONS 1. Headings. All article headings are for convenience only and shall not affect the interpretation of this Agreement. 2. Reference to Paragraphs. Each reference in this Agreement to a section refers, unless otherwise stated, to a section of this Agreement. 3. Incorporation of Recitals. All recitals herein are incorporated into this Agreement and are made a part hereof. 4. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of the City or CEO, shall be deemed to be both covenants and conditions. 5. Integration. This Agreement and any Exhibits and references incorporated into this Agreement fully express all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration, or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made in the form of a written amendment to this Agreement agreed to in writing by both Parties. 6. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid,or illegal. 7. Drafting Ambiguities. The Parties agree that they are aware that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of legal counsel with respect to this Agreement is a decision that is the sole responsibility of each Party. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement. 8 2016-45 8. Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this Agreement and any Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 9. Prompt Performance. Time is of the essence of each covenant and condition set forth in this Agreement. 10. Good Faith Performance. The parties shall cooperate with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 11. Further Assurances. City and CEO each agree to execute and deliver such additional documents as may be required to effectuate the purposes of this Agreement. 12. Controlling Law. The laws of the State of California shall govern and control the terms and conditions of this Agreement. 13. Jurisdiction, Venue, and Attorney Fees. To the extent permitted by law, the venue for any suit or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of San Bernardino, State of California. The prevailing Party in any such suit or proceeding shall be entitled to a reasonable award of attorneys' fees in addition to any other award made in such suit orproceeding. The costs, salaries, and expenses of the City Attorney and members of his office shall be considered as attorneys' fees for the purposes of this Agreement. 14. Municipal Powers. Nothing contained in this Agreement shall be construed as a limitation upon the powers of the City as a chartered city of the State of California. 15. Third Party Relationships. The execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties to this Agreement to, any person or entity other than the parties hereto. Nothing in this Agreement shall create a contractual relationship between City and any third party. 16. Non-Assignment. CEO shall not assign any of its obligations under this Agreement without the prior written authorization of the City. 17. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any Parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any Party's successor in interest. 9 2016-45 18. No Waiver. No failure of either the City to insist upon the strict performance of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 19. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against the City unless a claim has first been presented in writing and Bled with the City and acted upon by the City in accordance with the procedures set forth in the San Bernardino Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. 20. Counterparts; Facsimile Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. A facsimile signature shall be deemed an original signature. 21. Signing Authority. The representative for each Party signing on behalf of such Party hereby declares that authority has been obtained to sign on behalf of the City, as applicable and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist. 10 2016-45 IN WITNESS WHEREOF, City and CEO have executed this Agreement, indicating that they have read and understood same, and indicate their full and complete consent to its terms: CENTER FOR EMPLOYMENT OPPORTUNITIES,INC. CITY OF SAN BERNARDINO BY: BY: Mark Scott, City Manager NAME: TITLE: ATTEST: MAILING ADDRESS: Georgeann Hanna, City Clerk PHONE NO : �_) APPROVED AS TO FORM: Gary D. Saenz,City Attorney ATTEST: BY. Secretary NOTE: Secretary of the Owner should attest. If Contractor is a corporation, Secretary should attest. 11