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HomeMy WebLinkAbout2018-2061 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2018-206 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN PROSTAFF LLC AND THE CITY OF SAN BERNARDINO FOR MUNICIPAL CONSULTING SERVICES NOT TO EXCEED $24,000 WHEREAS, the Mayor and City Council previously authorized the execution of a consultant services agreement between ProStaff LLC, and the City of San Bernardino ("Agreement") by Resolution No. 2016-130; and WHEREAS, the current term of the Agreement will expire on June 30, 2018; and WHEREAS, staff has determined that a renewal to the Agreement with certain modifications to the term and annual amount will result in a savings and improvement to the City. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute the Consultant Services Agreement between the City of San Bernardino and ProStaff LLC for consulting services, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The Director of Finance or designee is hereby authorized to issue a purchase order to ProStaff LLC for an amount not to exceed $24,000. SECTION 3. The authorization granted hereunder shall expire and be void and of no further effect if the Agreement is not executed by both parties and returned to the Office of the City Clerk within sixty (60) days following the effective date of this Resolution. /// I/% 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN PROSTAFF LLC AND THE CITY OF SAN BERNARDINO FOR MUNICIPAL CONSULTING SERVICES NOT TO EXCEED $24,000 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 18`h day of July 2018, by the following vote, to wit: Council Members: AYES NAYS MARQUEZ y BARRIOS x VALDIVIA SHORETT NICKEL X RICHARD MULVIHILL x��) ABSTAIN ABSENT Georgeanrvfianna, CMt, City Clerk The foregoing Resolution is hereby approved this 18th day of July 2018. R. Carey Davi ayor City of San Bernardino Approved as to form: Gary D. Saenz, City Attorney By L=t ---L .2 EXHIBIT A CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PRO STAFF LLC This Professional Services Agreement (the "Agreement") is entered into this 1St day of July 2018, (Effective Date) by and between Pro Staff LLC ("Consultant") and the City of San Bernardino ("City") (Consultant and the City may be collectively referred to as the "Parties.") WITNESSETH: A. WHEREAS, The City of San Bernardino is in need of a Consultant to provide Risk Management Services; and B. WHEREAS, it has been determined by the Human Resources Department that the Consultant represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and 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, the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. For the remuneration stipulated, Consultant shall provide the professional services described in the Scope of Services attached hereto as Exhibit "A-1" and incorporated herein by this reference. 1.2. Professional Practices. Consultant is responsible for performing the work as identified in Exhibit "A-11", contained herein. The Consultant shall commit the necessary principal personnel to the performance of such services for the duration of this Agreement. 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 will provide a contact person to assist in the timely resolution of any issues that may arise. 1.3. Warranty. The Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, 1 State and local laws and ordinances applicable to the services required under this agreement. Consultant shall indemnify and hold harmless the City from and against all claims, demands, payments, suits, actions, proceedings, and judgements of every nature and description including reasonable attorney's fees and costs, presented, brought, or recovered against the City for, or on account of any liability under any of the above-mentioned laws, arising from or related to the Consultant's performance under this Agreement. 1.4. Non-discrimination. In the performance of this Agreement and in the hiring and recruitment of employees, the 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, genetic information, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 1.5. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. The Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at the Consultant's sole cost and expense. 1.6. Conflicts of Interest. During the term of this Agreement, the Consultant shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.7 City Business Certificate. The 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. The Consultant shall obtain a state and federal taxpayer identification number and shall provide evidence to the City that this number has been obtained. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, the Consultant shall be paid an amount not to exceed $24,000.00 through June 30, 2019. This amount is inclusive of all professional fees and expenses. Costs will not incur unless services are provided. 2.2. Method of Billing. Consultant shall submit an invoice for services rendered, which coincides with the monthly service reports. Said invoice shall be based on the total of all Consultant services which have been completed to City's sole satisfaction. 2.3. Confidentiality of Reports. The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance hereunder. Such information shall not be made available to any person, news release, o: firm, corporation, or entity without prior written consent of the City or as otherwise required by law. The Consultant shall keep full and accurate records of all consulting work performed under this Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed hereunder, or in anticipation of the consulting work to be performed in regard to this Agreement, shall at all times be and remain the sole property of the City and the Consultant shall turn over to the City all copies of the Work Records within seven (7) calendar days after a written request by City. 3.0. TERM AND NOTIFICATION 3.1. Term. This Agreement shall commence on the July 1, 2018 and continue through June 30, 2019. 3.2. Termination. City or Consultant may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) days' written notice to the other party. In the event of termination, the Consultant shall be paid the reasonable value of services rendered to the date of termination. 3.3. Documents. In the event of termination of this Agreement, all documents prepared by the Consultant in their performance of this Agreement shall be delivered to the City within ten (10) days of delivery of termination notice to the Consultant, at no cost to the City. Any use of uncompleted documents without specific written authorization from the Consultant shall be at City's sole risk and without liability or legal expense to the Consultant. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. The Consultant shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. (d) Professional Liability coverage with limits of at least One Million Dollars ($1,000,000.00) per occurrence and two million dollars 3 ($2,000,000.00) aggregate, covering the risk of errors and omissions, negligent acts and costs of claims/litigation, including investigation and court costs. If the coverage is written on a "claims -made" form, Consultant must ensure that the policy retroactive date is before the date of the Agreement is awarded, that coverage is maintained during the duration of performance of the Agreement or the Agreement period (whichever is longer) and the policy has a reporting period or run-off provision of at least three (3) years following completion or termination of the performance of professional services under this Agreement. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificate of Insurance. Consultant shall provide to the City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by the City, prior to performing any services under this Agreement. 4.4. Non -limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which the Consultant may be held responsible for payments of damages to persons or property. 5.1. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement, with Exhibit "A-1 ", 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 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. 5.2. Notice. Notices herein shall be presented in person or by certified or registered United States mail, as follows: 4 IF TO CONSULTANT: Pro Staff LLC Gus Papagolos, President 37635 Via Majorca Murrieta, CA 92562 Phone: (909) 884-0133 x 225 IF TO CITY: City of San Bernardino Helen Tran, Director of Human Resources 290 North D Street San Bernardino, CA 92401 Phone: (909) 384-5161 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement, 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. 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. 5.5. 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. 5.6. Indemnification and Hold Harmless. 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 or property damage 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. In no event shall Consultant be liable for indirect, special, incidental, economic, consequential or punitive damages, including but not limited to lost revenue, lost profits, replacement goods, loss of technology rights or services, loss of data, or interruption or loss of use of software or any portion thereof regardless of the legal theory under which such damages are sought even if Consultant has been advised of the likelihood of such damages, and notwithstanding any failure of essential purpose of any limited remedy. Any claim by the City against Consultant relating to this Agreement must be made in writing and presented to the Consultant within one (1) year after the date on which the Consultant completes performance of the services specified in this Agreement or (1) year from the date the City discovers or reasonably should discover the existence of the claim. 5.7. Independent Contractor. The 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. 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 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, worker's compensation or other insurance. 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. 5.8. Conflict of Interest Disclosure. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interest that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participation in making decisions that will have a foreseeable financial effect on such interest. The Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by City. 5.9. Responsibility for Errors. The Consultant shall be responsible for its work and results under this Agreement. The Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to the City. In the event that an error or omission attributable to the Consultant occurs, then Consultant shall, at no cost to the City, provide all other Consultant's professional services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. The Consultant shall not employ any current employee of the City to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of the City and the Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and not third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both parties. 5.15. 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. 5.16. Severability. 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 7 invalidate any other provision contained 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. 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. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so; the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. ATTEST: Georgeann H nna, City Clerk Dated:awate/ Approved as to Form: Bee: LA cam- � D. aenz, City Attorney D �-j CITY OF SAN BERNARDINO • r By: Andrea M. Miller, City Manager Dated: ZO CONSULTANT ProStaff LLC Gus Papagolos, President Dated: ProStaff LLC Scope of Services In this consultant services agreement, ProStaff LLC will provide recommendations to develop and implement City-wide cost containment initiatives to include: • Assist in developing ancillary cost reviews and containment support and training • Assist with identifying, tracking and assessing risk levels by loss category • Calculate loss frequency to identify areas of improvement and resource impacted • Provide property insurance claim review and damage valuation on claimable losses • Review and reevaluate the City's Risk Management program reporting • Evaluate operations/programs in Human Resources/Risk Management and provide recommendations to improve productivity • Assist in analyzing excess insurance coverage options to include the current self- insured retention (SIR) levels (primary insurance) on the City's excess insurance and negotiate coverages/premiums with lesser SIR levels