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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.
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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
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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:
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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.
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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.
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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
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EXHIBIT "A"
SCOPE OF SERVICES
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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.
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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.