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HomeMy WebLinkAbout2016-130 RESOLUTION NO. 2016-130 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 3 SERVICES AGREEMENT BETWEEN PROSTAFF, LLC AND THE CITY OF SAN BERNARDINO. 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The City Manager is hereby authorized and directed to execute the 8 Professional Services Agreement between the City of San Bernardino and ProStaff LLC, 9 attached hereto as Exhibit 1. 10 11 SECTION 2. The Director of Finance is hereby authorized to issue a Purchase Order to 12 ProStaff LLC, for consultant services for a total annual amount not to exceed $100,000.00. 13 SECTION 3. The authorization granted hereunder shall expire and be void and of no 14 further effect if the Agreement is not executed by both parties and returned to the Office of the 15 City Clerk within sixty (60) days following the effective date of this Resolution. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN PROSTAFF, LLC AND THE CITY OF SAN BERNARDINO. 3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 4 5 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on 6 the 5'' day of July, 2016, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ X 9 10 BARRIOS X 11 VALDIVIA X 12 SHORETT X 13 NICKEL X 14 RICHARD X 15 �. MULVIHILL X 16 17 °°- 18 19 , George n Hanna, MC, City Clerk 20 The foregoing Resolution is hereby approved this l^ day of July, 2016. 21 22 R. Carey Davis, Mayor 23 City of San ernardino Approved as to form: 24 Gary D. Saenz, City Attorney 25 By: L 26 27 28 2 2016-130 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROSTAFF, LLC This Professional Service Agreement (this "Agreement") is made and entered into this 5th day of July, 2016 ("Effective Date") by and between the City of San Bernardino, a Charter City, (hereinafter referred to as the "City") and ProStaff LLC., (hereinafter referred to as the "Consultant") (sometimes jointly and severally referred to herein as the "Party" or"Parties"). WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide Human Resources and Risk Management Services, and B. WHEREAS, it has been determined by the Interim Director of Human Resources that Consultant possesses that degree of specialized expertise in administrative matters as contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CONSULTANT is competent, experienced and able to perform said services; and D. WHEREAS, CONSULTANT will provide the most advantageous and responsible services; NOW THEREFORE, in consideration of mutual covenants contained in this Agreement and the mutual benefits to be derived there from, the parties agree as follows: 1. TERM. The term of this Agreement shall begin on the date first noted above and shall end on July 5, 2017, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 2. CONSULTANT RESPONSIBILITIES /STANDARD OF PERFORMANCE: Consultant is responsible for performing the work as identified in Exhibit A, contained herein. Consultant shall commit the necessary principal personnel to the performance of such services for the duration of this Agreement. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion. At any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1 2016-130 3. CITY RESPONSIBILITIES The City shall provide, in a reasonably timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City shall designate an appropriate contact person to assist Consultant in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS / RECORD KEEPING The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance of its responsibilities hereunder. Such information shall NOT be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 4.1 KEEPING AND STATUS OF RECORDS. Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and, are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 4.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices. vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 4.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any 1 audit of the City, for a period of three (3) years after final payment under the Agreement. 5. COMPENSATION City hereby agrees to pay Consultant a sum not to exceed One Hundred Thousand Dollars ($100,000.00) for all work associated with Exhibit A. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein as stated in Exhibit A (invoices will be paid upon completion of 2 2016-130 services and delivery of invoice to the City). Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 5.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. 5.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 5.3 Final Payment. City shall pay the total sum due pursuant to this Agreement within thirty (30) Days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 5.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 5.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed $100.00 per hour. 5.6 Reimbursable Expenses. Expenses not listed in Exhibit A are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 5.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 5.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 15, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 3 2016-130 6. NONDISCRIMINATION; MONITORING AND REPORTING WORK PERFORMANCE. In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. CONFLICT OF INTEREST Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et. seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the\Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 8. INDEPENDENT CONTRACTOR/ FACILITIES AND EQUIPMENT. 8.1The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an employee of the City. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to section 2; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Consultant shall not allow any employee to become eligible for a claim for PERS benefits. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture 4 2016-130 or association, between the City and the Consultant. The City is interested only in the results obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, and worker's compensation or other insurance as provided in section 13 of this Agreement. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees further to provide the City with proof of payment upon reasonable demand. The Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 8.2 Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. 8.2.1 City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. 9. BUSINESS LICENSE/TAX IDENTIFICATION NUMBER Consultant shall obtain a San Bernardino business license and provide the City with evidence that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. Consultant shall obtain state and federal taxpayer identification numbers and shall provide evidence to the City that this number has been obtained. 10. NONDISCRIMINATION AND EQUAL OPPORTUNITY. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive 5 2016-130 obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. The Consultant at any time has the right to: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those of the City, limited only by the restrictions concerning confidential information and conflicts of interest described in Sections 4 and 7 of this Agreement, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. The City acknowledges that the provisions of this Section 11 are reasonable in light of the legitimate business needs of the City. 12. SUCCESSOR AND ASSIGNMENT. The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in this Agreement without the prior written consent of the City. 13. INSURANCE AND INDEMNIFICATION. 13.1 Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 13.1.1 Workers' Compensation on. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 6 2016-130 An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 13.1.2 Commercial General and Automobile Liability Insurance. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefore, and damage to property resulting from activities .contemplated under this Agreement, including the use of owned and non-owned automobiles. 13.1.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insured's with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 7 2016-130 13.2 The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or employment liability arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for • damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 14. CLAIMS Any claim by the City against Consultant relating to this Agreement must be made in writing and presented to Consultant within one (1) year after the date on which Contractor completes performance of the services specified in this Agreement. 15. TERMINATION AND MODIFICATION. 15.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 15.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 15.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. s 2016-130 15.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 15.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 15.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but are not limited to, the following: 15.6.1 Immediately terminate the Agreement; 15.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 15.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 15.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 5 if Consultant had completed the work. 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWSNENUE The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 18. SEVERABILILTY In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other provision contained 9 2016-130 herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. 19. INTERPRETATION No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be construed as if it were drafted by both parties hereto. 20. CONTRACT ADMINISTRATION. This Agreement shall be administered by the City Manager or his or her designee ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 21. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 22. NOTICE Notices herein shall be presented in person or by certified or registered United States mail, as follows: To the Consultant: ProStaff LLC Attention: Gus Papagolos 37635 Via Majorca Murrieta CA, 92562 Phone # (951) 764-2417 To the City: City of San Bernardino Human Resources Department 300 North D Street San Bernardino, CA 92418 Attn: Helen Tran, Interim Director of Human Resources Phone: (909) 384-5161 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 23. ENTIRE AGREEMENT This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been 10 2016-130 induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO Dated: By: Mark Scott, City Manager CONSULTANT ProStaff LLC Dated: By: Gus Papagolos, President Approved as to Form: Gary D. Saenz, City Attorney By oa 2016-130 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROSTAFF, LLC This Professional Service Agreement (this "Agreement") is made and entered into this 5th day of July, 2016 ("Effective Date") by and between the City of San Bernardino, a Charter City, (hereinafter referred to as the "City") and ProStaff LLC., (hereinafter referred to as the "Consultant") (sometimes jointly and severally referred to herein as the "Party" or"Parties"). WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide Human Resources and Risk Management Services, and B. WHEREAS, it has been determined by the Interim Director of Human Resources that Consultant possesses that degree of specialized expertise in administrative matters as contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CONSULTANT is competent, experienced and able to perform said services; and D. WHEREAS, CONSULTANT will provide the most advantageous and responsible services; NOW THEREFORE, in consideration of mutual covenants contained in this Agreement and the mutual benefits to be derived there from, the parties agree as follows: 1. TERM. The term of this Agreement shall begin on the date first noted above and shall end on July 5, 2017, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 2. CONSULTANT RESPONSIBILITIES /STANDARD OF PERFORMANCE: Consultant is responsible for performing the work as identified in Exhibit A, contained herein. Consultant shall commit the necessary principal personnel to the performance of such services for the duration of this Agreement. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion. At any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1 2016-130 3. CITY RESPONSIBILITIES The City shall provide, in a reasonably timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City shall designate an appropriate contact person to assist Consultant in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS / RECORD KEEPING The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance of its responsibilities hereunder. Such information shall NOT be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 4.1 KEEPING AND STATUS OF RECORDS. Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and, are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 4.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices. vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 4.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any 1 audit of the City, for a period of three (3) years after final payment under the Agreement. 5. COMPENSATION City hereby agrees to pay Consultant a sum not to exceed One Hundred Thousand Dollars ($100,000.00) for all work associated with Exhibit A. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein as stated in Exhibit A (invoices will be paid upon completion of 2 r 2016-130 services and delivery of invoice to the City). Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 5.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. 5.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 5.3 Final Payment. City shall pay the total sum due pursuant to this Agreement within thirty (30) Days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 5.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 5.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed $100.00 per hour. 5.6 Reimbursable Expenses. Expenses not listed in Exhibit A are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 5.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 5.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 15, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 3 2016-130 6. NONDISCRIMINATION: MONITORING AND REPORTING WORK PERFORMANCE. In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. CONFLICT OF INTEREST Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et. seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the\Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 8. INDEPENDENT CONTRACTOR/ FACILITIES AND EQUIPMENT. 8.1The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an employee of the City. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to section 2; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Consultant shall not allow any employee to become eligible for a claim for PERS benefits. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture 4 2016-130 or association, between the City and the Consultant. The City is interested only in the results obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, and worker's compensation or other insurance as provided in section 13 of this Agreement. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees further to provide the City with proof of payment upon reasonable demand. The Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 8.2 Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. 8.2.1 City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. 9. BUSINESS LICENSE/TAX IDENTIFICATION NUMBER Consultant shall obtain a San Bernardino business license and provide the City with evidence that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. Consultant shall obtain state and federal taxpayer identification numbers and shall provide evidence to the City that this number has been obtained. 10. NONDISCRIMINATION AND EQUAL OPPORTUNITY. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive 5 2016-130 obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. The Consultant at any time has the right to: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those of the City, limited only by the restrictions concerning confidential information and conflicts of interest described in Sections 4 and 7 of this Agreement, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. The City acknowledges that the provisions of this Section 11 are reasonable in light of the legitimate business needs of the City. 12. SUCCESSOR AND ASSIGNMENT. The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in this Agreement without the prior written consent of the City. 13. INSURANCE AND INDEMNIFICATION. 13.1 Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 13.1.1 Workers' Compensation on. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 6 2016-130 An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 13.1.2 Commercial General and Automobile Liability Insurance. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefore, and damage to property resulting from activities .contemplated under this Agreement, including the use of owned and non-owned automobiles. 13.1.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insured's with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 7 2016-130 13.2 The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or employment liability arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for • damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 14. CLAIMS Any claim by the City against Consultant relating to this Agreement must be made in writing and presented to Consultant within one (1) year after the date on which Contractor completes performance of the services specified in this Agreement. 15. TERMINATION AND MODIFICATION. 15.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 15.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 15.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8 • 2016-130 15.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of tile Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 15.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 15.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but are not limited to, the following: 15.6.1 Immediately terminate the Agreement; 15.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 15.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 15.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 5 if Consultant had completed the work. 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWSNENUE The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 18. SEVERABILILTY In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other provision contained 9 • 2016-130 herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. 19. INTERPRETATION No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be construed as if it were drafted by both parties hereto. 20. CONTRACT ADMINISTRATION. This Agreement shall be administered by the City Manager or his or her designee ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 21. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 22. NOTICE Notices herein shall be presented in person or by certified or registered United States mail, as follows: To the Consultant: ProStaff LLC Attention: Gus Papagolos 37635 Via Majorca Murrieta CA, 92562 Phone # (951) 764-2417 To the City: City of San Bernardino Human Resources Department 300 North D Street San Bernardino, CA 92418 Attn: Helen Tran, Interim Director of Human Resources Phone: (909) 384-5161 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 23. ENTIRE AGREEMENT This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been 10 ` 2016-130 induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO Dated: 'V' Z4 By: -16 ej' 2�� Mark Scott, City Manager CONSULTANT ProStaff LLC Dated: B Gus Papagolos, President Approved as to Form: Gary D. Saenz, City Attorney By 2016-130 Exhibit A Scope of Work In this professional services agreement ProStaff will work to develop and implement essential City-wide cost containment initiatives to include: • Continue development of Worker's Compensation Third Party Administrator (TPA) monitoring tools, and procedures and review of past excess insurance payments • Payment validation • Develop performance measurements for claims processing • Develop ancillary cost reviews • General Liability Third Party Claims Administration subrogation development for initiated City claims and full cost allocation reimbursement • Continued documentation of the City's Internship Program with Cal State University San Bernardino and other institutions of higher learning in the area • City-wide Risk Management Program Policy and Procedures • Provide Surety bond review/valuation on all performance, material and labor bonds. • Risk Management Program Reporting • Risk Management Documentation Guidelines and Training 12