Loading...
HomeMy WebLinkAboutBickmore - 2017-04-13PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND BICKMORE FOR AUDITING SERVICES THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and Bickmore, a California corporation, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to prepare an audit of CITY's workers' compensation claims bank account for October 1, 2016 through January 31, 2017 to determine the accuracy of the reconciled balances of the account to bank statements and other supporting documents; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: 1. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CITY acknowledges that in performing the Services, CONSULTANT shall rely on all information furnished by CITY and on any decisions made or approvals given by CITY in connection with the Services. CONSULTANT shall be under no obligation to verify or investigate the accuracy or completeness of the data and information provided by CITY, and CONSULTANT shall have no liability or responsibility for any inaccuracies in the data or information and/or for any reports, services, materials, or documents prepared or provided to CITY based on such inaccurate or incomplete data or information. 17-5699/155564/RLS 3/21/17/MV 1 I.. CONSULTANT hereby designateswho shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence on April 13, 2017 (the "Commencement Date"). This Agreement shall automatically terminate on July 15, 2017, unless extended or sooner terminated as provided herein. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT. In the event the Commencement Date precedes the Effective Date, CONSULTANT shall be bound by all terms and conditions as provided herein. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Five Thousand Dollars ($5,000.00). 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," CONSULTANT will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 17-5699/155564/RLS 3/21/17/MV 2 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT. 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above - mentioned insurance shall not contain a self -insured retention without the express written consent of CITY; however, an insurance policy "deductible" of Ten Thousand Dollars 17-5699/155564/RLS 3/21/17/MV 3 ($10,000.00) or less is permitted. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not affect CONSULTANT's right to paid for its time and materials prior to notification of termination. CONSULTANT waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 10. CERTIFICATE OF INSURANCE Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement, the certificate shall: A. provide the name and policy number of each carrier and policy; B. state that the policy is currently in force; and C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. 17-5699/155564/RLS 3/21/17/MV 4 CONSULTANT shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 12. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property, and shall be promptly delivered to it by CONSULTANT. 13. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 17-5699/155564/RLS 3/21/17/MV 5 14. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 15. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to his Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 16. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY ad CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U.S. certified mail -return receipt requested: TO CITY: TO CONSULTANT: City of Huntington Beach Bickmore ATTN: Michelle Warren, ATTN: W(&nW �rpGd hurS+ Director of Human Resources 1750 Creekside Oaks Drive 2000 Main Street Sacramento, CA 95833 Huntington Beach, CA 92648 17. INTELLECTUAL PROPERTY RIGHTS CITY acknowledges that CONSULTANT's computer systems are proprietary. Neither CITY nor anyone acting on its behalf will acquire any rights of any kind whatsoever in CONSULTANT's systems or any part thereof. To the extent or anyone acting on its behalf provides services, whether related to CONSULTANT's systems or otherwise, all such services and anything CONSULTANT or anyone acting on its behalf develops in connection with this Agreement shall be considered a work for hire and shall be the sole and exclusive property of CONSULTANT. 17-5699/155564/RLS 3/21/17/MV 6 To the extent CITY has any rights in anything developed under this Agreement, notwithstanding the foregoing, this Agreement constitutes an assignment to CONSULTANT of all patent, copyright, and all other intellectual property developed during the assignment, including without limitation, all rights in flow charts, code, descriptive materials, data structures, screen layouts and business processes and CITY hereby grants and shall grant a perpetual, exclusive, fully -paid, transferable, worldwide license in and to such intellectual property. 18. WARRANTIES In addition to all warranties, expressed or implied, established by statutes or common law, or elsewhere set forth, CONSULTANT warrants that all goods provided and/or services rendered will conform to all specifications, drawings, samples and any other description, furnished or adopted by CITY, and will be of best quality and fit and sufficient for the purposes intended. CONSULTANT warrants that it possesses proper rights to provide services and that said services are free from any lien or encumbrance of any kind. CONSULTANT warrants that it and its employees have secured and possess all required licenses necessary to provide the agreed upon goods and/or services. CONSULTANT warrants that all goods provided and services rendered comply with all applicable laws, regulations and codes. 19. ASSIGNABILITY This Agreement, in its entirety and each and every provision hereto, shall inure to the benefit of CONSULTANT and its clients. CITY may not assign this Agreement with CONSULTANT's written consent and any such assignment shall be null and void. 20. NAME USAGE Except as necessary for CITY to perform its duties as set forth in this Agreement, CITY shall not utilize CONSULTANT's trade names, logos, trademarks, service marks or other identification in any press release, advertisement, marketing material, promotional literature, article, presentation or other type of communication, without the prior written consent of CONSULTANT, which consent may be withheld or denied in CONSULTANT's sole discretion. 17-5699/155564/RLS 3/21/17/MV 7 21. CONSENT When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 22. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 23. SECTION HEADINGS The titles, captions, section, paragraph and subject headings and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 24. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 17-5699/155564/RLS 3/21/17/MV 8 25. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 26. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 27. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 28. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party. 29. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 30. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 31. SIGNATORIES Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of 17-5699/155564/RLS 3/21/17/MV 9 this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 32. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. 33. EFFECTIVE DATE This Agreement shall be effective on the date of its approval by the City Attorney. This Agreement shall expire when terminated as provided herein. 17-5699/155564/RLS 3/21/17/MV 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. CONSULTANT, CITY OF HUNTINGTON BEACH, BICKMORE, a California corporation a municipal co ation of the ate of California By: 141--A�-- - C print name Director of Human Resources ITS: (circle one) Chairman/President//Vice President)) (Pursuant to HBMC §3.03.100) AND By: - rint name -- ITS: (circle one) Secretary/Chief Financial Office Asst. Secretary - Treasurer APPROVED AS TO FORM: City Attorney MA/ �, - 3 - (77' RECEIVE AND FILE: Aioru 1&hw4jw4d City Clerk Date: 4 17-5699/155564/RLS 3/21/17/MV I I 'L EXHIBIT A Exhibit A Scope of Services Bickmore will provide an audit of the City of Huntington Beach's workers' compensation claims bank account for the last four months (October 1, 2016 through January 31, 2017) to determine the accuracy of the reconciled balances of the account to bank statements and other supporting documents. The supporting documents should include but not be limited to (if others are pertinent) statement reconciliations, check registers and other documents provided by the TPA, and a narrative of the current bank reconciliation process including who performs the reconciliations and who reviews and approves. Upon completion of the audit, Bickmore shall provide Client with a report that identifies findings, if any, and also provide recommendations of best practices on maintaining the bank account for the workers' compensation claims disbursement process. Fee Structure All services identified in this agreement will be provided on an hourly basis with a not -to -exceed of $5,000. Client will be invoiced upon completion of project. The hourly rates for staff on this project are indicated in the table below. Page 5 of 5 EXHIBIT B EXHIBIT "B" Payment Schedule (Hourly Payment) A. Hourly CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule: See Exhibit "A" B. Travel Charges for time during travel are not reimbursable. C. Billing 1. All billing shall be done monthly in fifteen (15) minute increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it. 2. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the project. 3. A copy of memoranda, letters, reports, calculations and other documentation prepared by CONSULTANT may be required to be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion. 4. CONSULTANT shall submit to CITY an invoice for each monthly payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the schedule of performance set forth in Exhibit "A" may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought Exhibit B brought into compliance, or until this Agreement has expired or is terminated as provided herein. 5. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 2 Exhibit B 14. PRIOR AGREEMENTS The terms and conditions of this Agreement, including those terms and conditions set forth in the Scope of Services, shall supersede any and all prior agreements between CLIENT and BICKMORE and render those prior agreements null and void. 15. GOVERNING LAW This Agreement shall be governed by the laws of the State of California, without giving effect to any Conflict of Laws principles. 16. DISPUTES In the event of a dispute between the parties leading to litigation, the parties agree and stipulate that such litigation shall be resolved in the Superior Court of the State of California. In the event of a dispute between the parties resulting in litigation, the prevailing party may, in addition to any other relief obtained, recover its court costs and reasonable attorney's fees. 17. NAME USAGE Except as necessary for CLIENT to perform its duties as set forth in this Agreement, CLIENT shall not utilize BICKMORE's trade names, logos, trademarks, service marks or other identification in any press release, advertisement, marketing material, promotional literature, article, presentation or other type of communication, without the prior written consent of BICKMORE, which consent may be withheld or denied in BICKMORE's sole discretion. 18. NON -SOLICITATION CLIENT shall not hire any employee of BICKMORE or induce any employee of BICKMORE to terminate his or her employment (or encourage, and aid or abet any third party to do the same) at any time during which this Agreement or any extension or renewal thereof is in effect and for a period of twelve (12) months thereafter. CLIENT agrees and acknowledges that BICKMORE has invested time and resources in training its personnel and that BICKMORE will suffer harm, the extent of which is difficult to quantify, should CLIENT directly or indirectly cause BICKMORE's employee to terminate their employment with BICKMORE. Therefore, in the event that CLIENT violates this provision, CLIENT shall be liable to BICKMORE for liquidated damages in a sum equal to the employee's salary for two (2) years based on the employee's salary over the two (2) months prior to the termination of that employee's employment with BICKMORE. CITY OF HUNTINGTfd'IQ BEACH /„ BICKMORE Sig to �1�,� Signature: ��/zm Ne: �� ' �.. �P_11 Name: �� ar �, R Ur 1,16am; Print Title. I� Q' - Title:"y p ? V ` I1. ( fl Execution Date: Execution Date: Page 4 of 5