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HomeMy WebLinkAboutEMPLOYMENT SYSTEMS, INC. (ESI) - 1998-01-05Council/Agency Meeting Held: ti �s s2 Deferred/Continued to: FiApproved. ❑ Con diti Hall Approv d ❑ Denied City CI k's Signature 1 Council Meeting Date: January 5, 1998 Department ID Number: FD 98-003 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, Acting City Administrator--7io PREPARED BY: MICHAEL P. DOLDER, Acting Assistant City Administrator/Fire Chief SUBJECT: APPROVE AGREEMENT WITH EMPLOYMENT SYSTEMS, INC. (ESI) TO LEASE TEMPORARY PERSONNEL FOR THE POSITION OF HAZARDOUS MATERIAL SPECIALIST Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Statement of Issue: Should the City of Huntington Beach approve the agreement with Employment Systems, Inc. (ESI) to lease personnel for the position of Hazardous Material Specialist to manage the City's Hazardous Materials Disclosure Program? Fundina Source: The leased position is funded directly from revenues generated by the Hazardous Materials Disclosure Program (Enterprise Fund Program 309 in the Fire Department budget). There is no fiscal impact to the General Fund. /--� � ¢ Recommended Action: Motion to approve and authorize execution! of the Agreement to Provide Staffing Services Between the City of Huntington Beach and Employment Systems Inc. for one Hazardous Materials Specialist. Alternative Action(s): Deny the execution of the contract to lease personnel from ESI and authorize the transfer of the Hazardous Materials Disclosure Program to the County Health Care Agency/Certified Unified Program Agency (CUPA). Analysis: In March 1995, the full-time Hazardous Materials Specialist position in the Fire Department became vacant due to an internal promotion. In anticipation of approval for a Joint Powers Authority (JPA)ICUPA with the cities of Costa Mesa, Fountain Valley, and Newport Beach, the position was not filled. In December 1996, the JPA/CUPA application was denied. That decision was appealed; and on March 27, 1997, the City was advised of the final decision that our application was denied by the Secretary of the California Environmental Protection Agency. Denial of the JPA/CUPA application by the State and approval of the County as the unified agency resulted in each City individually applying as a participating agency to the County. On July 7, 1997, the City Council approved the application to become a Participating Agency with the Orange County Health Care Agency as part of a Certified Unified Program Agency (CUPA) and authorized the Hazardous Material Specialist position. Approval as a participating agency is required by the County and permits each City to continue with their current Hazardous Materials Disclosure Program. REQUEST FOR COUNCIL ACT�N MEETING DATE: January 5, 1998 DEPARTMENT ID NUMBER: FD 98-003 Analysis (continued): Over 400 businesses in the City are involved in the Hazardous Materials Disclosure program that generates $168,000 in revenues annually. In order to continue with the locally controlled disclosure program, the Hazardous Materials Specialist position is a necessity. Without this position, the program faces serious deficiencies in management and fiscal controls. Responsibilities of this position include inspecting medium and high hazard occupancies, providing expertise for plan checking hazardous occupancies, supervising HazMat licenses and renewals, overseeing the Risk Management and Prevention Program, and ensuring compliance with County, State, and Federal regulations. Contracting for a leased Hazardous Material Specialist is the most cost-effective and efficient way of providing a trained and experienced manager for the disclosure program. The position is highly technical, requiring extensive training. By leasing an employee for this position, City -provided training is minimal. The leased employee should be available to the program for as long as the City decides to manage its own disclosure program. Staff does not recommend using Fire personnel in this position for two reasons. Fire personnel generally do not have the technical expertise required and would need extensive training, at City expense. Secondly, Fire personnel generally promote out of staff positions within two to three years, so that keeping the position staffed would require constant recruiting and training. If the City chooses not to fill the Hazardous Material Specialist position, then staff recommends turning the program over to the County Health Care Agency. Should that occur, the City would be at risk of losing regulatory control and management of hazardous materials. Local business would not have to directly disclose types and quantities of hazardous materials on their premises. Basic information on the location, type, and health risks involved with hazardous materials used or stored in the City would not be available to firefighters, police officers, public works, or other personnel responding to the emergency. Additionally, the County, as an approved State regulatory agency, could increase disclosure fees based upon their overhead and staffing requirements. These fee increases could have negative impacts on our local businesses. As a participating agency to the County, the City of Huntington Beach is in a better position to control and regulate anticipated fee increases. Staff recommends that Council authorize the contract with ESI for a Hazardous Material Specialist (Attachment 1) and continue to provide disclosure services locally, as a participating agency under the Orange County Health Care Agency/CUPA. Environmental Status: None Attachment{s): RCA Author: Olson, ext. 5564 FD98003 -2. 12/24/97 9:11 AM ATTACHMENT 1 • 0 ;j & CITY OF HUNTINGTON BEACH Irl 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK DATE: 8 i TO: Name 59a �r Stree City, State, Zip See Attached Action Agenda Item �:-- ATTENTION: DEPARTMENT: REGARDING: P Date of Approval 1.1 1�_ Enclosed For Your Records Is An Executed Copy Of The Above Referenced Item For Your Records. Connie Brockway City Clerk Attachments: Action Agenda Page ✓ Agreement ti Bonds Insurance RCA Deed Other Remarks: CC:.-_�AQ�Qn._ Name Department RCA Agreement Insurance Name Department RCA Agreement Insurance Name Department RCA Agreement Insurance Risk Management Department Insurance Copy_ Other Other Other G: Follow•up?agrmu/transhr I Telephone: 714.536.5227 j AGREEMENT TO PROVIDE STAFFING SERVICES BETWEEN THE CITY OF HUNTINGTON BEACH AND EMPLOYMENT SYSTEMS, INC. THIS AGREEMENT is made and entered into this gj day of 199 Q , by and between the CITY OF HUNTINGTON BEACH, hereinafter referred to as "CITY," and EMPLOYMENT SYSTEMS, INC., hereinafter referred to as "ESI." WHEREAS, ESI is a California corporation which provides the services of its employees to government agencies for the purpose of discharging the responsibilities of government agencies; and CITY has engaged the personal services of certain persons as its employees; and Economic reasons exist which make it in the best interests of CITY to discharge certain of its responsibilities through the use of ESI employees; NOW, THEREFORE, in consideration of the promises, covenants, and warranties hereinafter set forth, the parties hereto mutually agree as follows: I. DEFINITIONS All terms used in this Agreement shall have the customary meaning afforded such terms, unless the same are used in a technical or business context, in which event, such terms shall have the technical and/or special meaning normally afforded such terms within the particular trade, industry, or business to which they relate. The following are the definitions of special terms used herein: 1.1 "Current Payroll' means the payroll set forth on attached Exhibit A and incorporated by this reference. • 1.2 "Employees" means those individual persons who are subject to the terms of this Agreement and whose services are identified on attached Exhibit A, incorporated by this reference. 1.3 "Employee Tax Forms" means all forms applicable to the payroll which are required by United States, state, and local governments to be provided by an employer to an employee, including U.S. Department of the Treasury, Internal Revenue Service Form W-2 (Wage and Tax Statement) and Form W-4 (Employee's Withholding Allowable Certificate) and Form 1099 (as and if applicable), as well as comparable and/or counterpart forms prescribed by the state and/or local government in which employees are performing services pursuant to this Agreement. 1.4 "Employer Tax Forms" means all forms required to fully and properly report the payroll to the United States, state, and/or local governments, including United States Department of the Treasury; Internal Revenue Service Form 941 (Employer's Quarterly Federal Tax Return for Federal Income Tax Withheld from Wages and for Federal Insurance Contributions Act Taxes), Form 940 (Employer's Annual Federal Unemployment Tax Return), and comparable and/or counterpart forms prescribed by the state and/or local government in which employees are performing services pursuant to this Agreement. payroll period. 1.5 "Payment Due Date" means any date on or before the last day of each 1.6 "Pay Period" means the interval between payments to employees. 1.7 "Payroll" means the total payroll applicable to all employees and includes the aggregate of net compensation to employees, federal withholding taxes, state, 2 and local (if any) withholding taxes, employer and employee costs pursuant to the Federal Insurance Contributions Act, employer costs pursuant to the Federal Unemployment Tax Act, employer costs for state unemployment taxes (if any), employer costs pursuant to the Voluntary Compensation Plan (if any), and employer listed service fees (as applicable). 2. IMPLEMENTATION 2.1 Relationship of Parties. Effective at the commencement of business on the day of % Q 4 ESI will provided to CITY those of its employees who are qualified to perform the services identified on attached Exhibit A, and CITY hereby accepts such employees on the terms and conditions provided in this Agreement. 2.2 Term of Agreement. This Agreement and the rights and obligations of CITY and ESI shall commence on the effective time and date specified in paragraph 2.1 and shall continue until terminated. Either party may terminate this Agreement upon thirty (30) days' written notice to the other party. 2.3 Specification of Services and Approval of Compensation. CITY shall specify, and by notice to ESI, may accept, modify, or reject the services and/or rate of compensation of any and all employees leased to CITY in accordance with this Agreement. In the event of rejection of services and/or rejection of the rate of compensation of any employee leased to CITY, the lease made by this Agreement shall terminate as to such employee, effective upon receipt by ESI of written notice thereof. For purposes of business and financial accounting between the parties, this Agreement shall be deemed several as to 3 each employee and shall be deemed prorated on a daily or other periodic basis necessary to give effect to the manifest intentions of the contracting parties. 2.4 Changes and Adjustment in Payroll. CITY and ESI acknowledge the payroll will vary from pay period to pay period by reason of additions, terminations, and changes in compensation rates of employees. It is further acknowledged that the payroll also may vary from pay period to pay period by reason of changes in the rate and/or amount of employee withholding and/or employer payroll contributions and/or costs of employee benefit plans and programs. It is specifically agreed that the amount of all payments coming due and owing from CITY to ESI shall be adjusted (by increase or decrease, as applicable) to the extent necessary to directly reflect such changes on a current basis. All such changes and adjustments in payroll shall be mutually agreed to by CITY and ESI before revised hourly rates are applied. 2.5 Employer Duties of ESI. ESI shall: (1) pay all wages and other remuneration to its employees who are subject to this Agreement; (2) notify CITY of the current payroll prior to each pay period; (3) prepare and file all payroll tax returns and reports; (4) pay all amounts due and owing pursuant to the payroll tax returns and reports which are prepared and filed; (5) prepare, file, and furnish to employees, applicable employee tax forms; and (6) prepare and file, with a copy to CITY, applicable employer tax forms. In the event of termination of any employee, as provided by Paragraphs 2.3 and 2.4, ESI shall provide placement assistance to that employee by listing that employee at no charge to the employee in ESI's job listing service. 4 r i 2.6 Duties of CITY. CITY shall: (1) provide the workplace for all employees subject to this Agreement; (2) maintain the workplace in strict accordance with applicable health and working standards and specifications; (3) comply with all safety engineering and governmental health and safety rules, regulations, directives, orders, or similar requirements; (4) provide all required safety equipment; (5) for employees located in California, take all actions necessary to establish and implement an injury and illness prevention program, as required by the Occupational Injury Program Act, also known as Senate Bill 198, and codified at California Labor Code § 6401.7; (6) post or provide employee notices required by law; and (7) notify ESI immediately of all employee illnesses, accidents, injuries, and absences. 2.7 Workers' Compensation, Health, and Other Benefits. ESI maintains Workers' Compensation and Employers' Liability Insurance of a form and in an amount as required by state law. Various health and other benefits are available to employees under a cafeteria plan which permits each employee to choose the type of benefits he or she will receive. 3. COMPENSATION 3.1 Fee. CITY agrees to pay within the hourly range rate established in Exhibit A on or before each payment due date. The range rates are based on current ESI costs and are subject to change when costs change due to factors which are beyond the control of ESI (such as insurance, payroll tax, etc.). Any adjustments made will be commensurate with increased costs to ESI, as mutually agreed by CITY and ESI. 4� • 3.2 Payment Address. All payments due ESI shall be paid to: EMPLOYMENT SYSTEMS, INC. 11590 W. Bernardo Court, Suite 211 San Diego, California 92127 3.3 Terms of Compensation. Invoices are due within fifteen (15) days of receipt. Delinquent payments will be subject to a late payment carrying charge computed_at a periodic rate of one percent (1%) per month, which is an annual percentage rate of twelve percent (12%), which will be applied to any unpaid balance owed, commencing seven (7) days after the payment due date. Additionally, in the event CITY fails to pay any undisputed amounts due ESI within forty-five (45) days after payment due date, then CITY agrees that ESI shall have the right to consider said default a total breach of this Agreement, and the duties of ESI under this Agreement may be terminated by ESI, without liability to ESI, upon ten (10) working days' advance, written notice. 4. SUPERVISION OF EMPLOYEES CITY shall supervise the daily activities of employees. Employees shall discharge government responsibilities and perform in accordance with the ordinances, resolutions, rules, regulations, and procedures adopted by CITY. ESI shall have no control over such government responsibilities and such ordinances, resolutions, rules, regulations, and procedures. 0 5. INDEMNIFICATION ESI shall indemnify, defend, and hold harmless CITY for the purposes of all required payroll deductions and withholdings, legally require workers' compensation insurance, and health benefits of the employees. ESI shall also indemnify, defend, and hold harmless CITY for any liability arising under the Public Employees Retirement Law, as set forth in California Government Code § 20000, et seq. However, inasmuch as the CITY shall supervise the daily activities of employees, and inasmuch as the employees will discharge government responsibilities and perform in accordance with the ordinances, resolutions rules, regulations, and procedures adopted by CITY: (1) ESI and its employees shall be entitled to all protection and immunities of government employees, including, without limitation, those provided in California Government Code Title 1, Division 3.6, Claims and Actions against Public Entities and Public Employees; and (2) CITY does release and agree to indemnify, defend, and hold harmless the employees, E'SI, and ESI's agents, personnel, directors, and officers from any and all actions, claims, damages or injuries to persons or property, penalties, obligations or liabilities arising out of or related to the services performed under this Agreement. In addition, the employees, ESI, and ESI's agent, personnel, directors, and officers shall be additional named insureds on CITY's insurance policies or on any self-insurance agreement. If CITY is a member of a Risk Management Agreement (RMA) or similar agreement, CITY will notify the organization responsible for RMA or similar agreement, in writing, that the employees, ESI, and ESI's agents, personnel, directors, and officers to not have any applicable insurance coverage. 7 6. GENERAL PROVISIONS 6.1 Representation. A CITY representative shall be designated by the CITY, and an ESI representative shall be designated by ESI as the primary contact person for each party regarding performance of this Agreement. The following are the designated representatives: Michelle Friery, ESI Duane Olson for the City of Huntington Beach 6.2 Legal Action. Should either party to this Agreement bring legal action against the other, the case shall be handled within the County where CITY is located. 6.3 Assignment. This Agreement shall not be assignable by either party, without the prior written consent of the other party. 6.4 Audit. CITY shall have the right to audit and inspect ESI records and accounts covering costs under this Agreement for a period of two (2) years after termination of the Agreement. 6.5 Title. The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.6 Severability. Should any provision of this Agreement be determined to be unenforceable, such determination shall not affect the remaining provisions. 6.7 Legal Services Subcontracting Prohibited. ESI 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. ESI 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 ESI. 6.8 Extent of Agreement. This Agreement represents the entire and integrated Agreement between CITY and ESI and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. EMPLOYMENT SYSTEMS, INC. a California corporation VBy: ` (print name Its: (circle one) Chairperson residentN a President By: o (print name Its (circle one) Secret Chief Financial Officer/ Assistant Secretary -Treasurer RE D AND APPROVED: City Administrator F CITY OF HUNTINGTON BEACH, a municipal corporation of the I State of California 4 or'� ATTEST: City Clerk APPROVED AS TO FORM: City Attorney [ 2 -L 3 -r7.7 �1 ��`-rrq� INifIATED7 AND APPROVED: Fire Chief EXHIBIT A SERVICES Services included in this Agreement by and between the CITY OF HUNTINGTON BEACH and EMPLOYMENT SYSTEMS, INC., are listed below: Hourly Billing Rate Range: $28.61 to $37.95 per hour* *It is understood that employees providing services will Abe driving city vehicles for any field assignments. If the employees use a personal car on such assignments, billing to the City of Huntington Beach will be at the rate of $0.361mile. 10 RCA ROUTING SHEET INITIATING DEPARTMENT: Fire SUBJECT: APPROVE AGREEMENT WITH EMPLOYMENT SYSTEMS TO LEASE TEMPORARY PERSONNEL COUNCIL MEETING DATE: January 5, 1998 RCA ATTACHMENTS : STATUS. Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (wlexhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the CityAttomey) Attached Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR°MISSING.ATTACHMENTS REVIEWED :. : ° ::::RETURNED _ ; FORW D= Administrative Staff { ) Assistant City Administrator (Initial) { ) ( ) City Administrator (Initial) { ) ( ) City Clerk ( ) EXPLANATION; FOR RETURWOF.ITEM: