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HomeMy WebLinkAboutC-2150CITY OF ARCADIA PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 1,5t day of Mai 2005 by and between the City of Arcadia, a municipal corporation organized undei the laws of the State of California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91066 -6021 ( "City ") and David H. Hinig, a sole proprietorship with its principal place of business at 639 N. Willowgrove Avenue, Glendora, CA 91741 ( "Consultant "). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECrrALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing consulting services for police personnel and management of police operations, and is familiar with the policies, procedures and rules of City pertaining to those issues. 2.2 Project. City desires to engage Consultant to render such services for police personnel and management operations as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, services, and incidental and customary work necessary to fully and adequately assist with police personnel and management issues that are pending as a result of Consultant's former duties as Chief of Police ( "Services "). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from the date of execution of this Agreement through June 30, 2006 or until completion of all legal actions, matters, or issues pertaining to Consultant's former position as Chief of Police for the City of Arcadia, unless earlier terminated as provided herein or renewed by Parties. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 0 0 3.1.3 Renewal. This Agreement may be renewed with the mutual consent of City and Consultant on an annual basis or for whatever period of time Parties deem appropriate for the proper execution and completion of Services defined in the Agreement. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates, Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical expertise required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals and/or requests for information in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that no additional personnel will perform and coordinate the Services under this Agreement, unless approved in advance by the City. 3.2.5 City's Representative. The City hereby designates William R. Kelly, City Manager, or his designee, to act as its representative for the performance of this Agreement ( "City's Representative "). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his designee. 3.2.6 Consultant's Representative. Consultant does not require a representative to fulfill the terms of this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff' at all reasonable times. 3.2.8 Standard of Care: Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that he is skilled in the professional calling necessary to perform the Services. Finally, Consultant represents that he has all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. If applicable, any employee of the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re- employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.10 Insurance. (Intentionally Omitted) 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation including all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Five Thousand Dollars ($5,000.00) without written approval of City's representative. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. Consultant shall provide his own transportation with reimbursement as set forth in Exhibit "C." 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly - itemized statement, which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the 0 0 initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Ex en nses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the duties necessary under this Agreement, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may terminate this Agreement with (30) days written notice to City. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: 0 0 David H. Hinig 639 N. Willowgrove Avenue Glendora, CA 91741 City: City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 -6021 Attn: William R. Kelly City Manager Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data: Licensing of Intellectual Property. This Agreement creates a non - exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ( "Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non - exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 0 0 3.5.4 Cooperation_ Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attomgy's Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorney's fees and all other costs of such action. 3.5.6 Indemnification. (Intentionally omitted) 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5. 10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with these Services. 3.5.11 Successors and.-Assign . This Agreement shall be binding on the successors and assigns of the Parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction: References. Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity, Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. • • 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF ARCADIA By: U"" A By: William R. Kelly City Manager Dated: Sly 2005 ATTEST: City Clerk APPROVED AS TO FORM: ��1: /�� Stephen P. Deitsch City Attorney CONSULTANT CONCUR: Department Head Date 9 EXHIBIT "A" SCOPE OF SERVICES 0 The following terms and conditions of the Agreement serve to outline the services the Consultant shall provide to the City: Meet with City officials, City legal counsel, and staff to review documents, court records, policies, procedures, training protocols, and other materials pertinent to oversight of police personnel and management of police operations. 2. Participate in meetings as necessary. Appear in court as necessary and/or as directed by order of the court. 4. Testify in hearings, depositions, or in court as required on all matters pertinent to Consultant's former position as Chief of Police. 5. Review testimony, depositions, tapes and/or transcriptions of any personnel matter, legal action, or training issue as requested by City. 6. Other duties related to personnel management, training, operational guidelines, history of policelcity operations as requested or assigned by City Manager. Consultant shall report to and provide services as directed to the City Manager or his designee. 0 0 ExIH rr "B" SCHEDULE OF SERVICES Consultant shall provide service on an, as need, hourly basis until completion of all personnel matters, legal actions, training, policy, or police management issues relating to Consultant's former duties as Chief of Police. ExtnBIT "C" COMPENSATION Following receipt of itemized statement, City shall pay Consultant on a monthly basis. An hourly fee has been established at the rate of seventy -five dollars ($75) per hour. The total amount during the term of this Agreement shall not exceed Five Thousand Dollars ($5,000) without written approval of City's representative as specified in section 3.3.1 of this Agreement. Consultant shall not be reimbursed for travel to the City of Arcadia to perform Services, however Consultant shall be reimbursed for travel to any other sites at the rate of 40.5 cents per mile or the prevailing City mileage rates, whichever is higher at the time travel is required. Consultant shall be reimbursed for actual costs of duplicating documents, materials, tapes, or any media related to Consultant's duties pursuant to this agreement. When required to travel from Consultant's place of business, for purposes of meetings, depositions, court appearances, conduct training, or attend to any duties pursuant to this Agreement, Consultant shall be reimbursed for a minimum of two hours or actual time spent if over two hours. Consultant shall be 'compensated for actual time worked for work done at Consultant's place of business when performing any Services pursuant to this Agreement. During the course of this Agreement, City shall waive fees for Consultant's business license for the City of Arcadia.