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HomeMy WebLinkAboutNorman A. Traub Associates - 2012-05-22PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND NORMAN A. TRAUB ASSOCIATES FOR CONFIDENTIAL PERSONNEL INVESTIGATION 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 Norman A. Traub Associates Investigation Services, an individual, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to conduct confidential personnel investigations; 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: I. 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." 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 12-3355/79820 1 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence as soon as practicable after the execution of this Agreement by CITY (the "Commencement Date"). This Agreement shall expire on May 151h 2014 unnl&�s sooner V terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than three years from the Commencement Date of this Agreement. These times may be extended with the written permission of CITY. 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. 4. CONFIDENTIALITY. A. Privileged and Confidential Information. Any and all documents, communications and information (including, without limitation, any oral or written communications, test results, data, drawings, charts, diagrams, maps, analyses, draft or final reports, memoranda, summaries, mental impressions, transcripts, digests, and any other written material or oral information of any kind) relating to this Agreement shall constitute "Privileged and Confidential Information." All reports, drafts of reports, memoranda, charts, maps, drawings, correspondence and documents of any kind from CONSULTANT to CITY shall be clearly marked: "CONFIDENTIAL: H.R. WORK PRODUCT" B. Use of Privileged and Confidential Information. CONSULTANT agrees not to make any use whatsoever of Privileged and Confidential Information except for the purpose of performing the SERVICES under this AGREEMENT. 12-3355/79820 2 As provided in section 3 Consultant shall designate an individual(s) that will responsible for performing the scope of work "Investigator(s)". C. Treatment of Privileged and Confidential Information. CONSULTANT/Investigator(s) shall treat any Privileged and Confidential Information as subject to the attorney work product doctrine, and CONSULTANT/Investigator(s) shall maintain such Privileged and Confidential Information in confidence and shall not reveal such information to third parties, including other members of Consultant's Firm except if: (i) CITY provides prior written consent of such disclosure; or (ii) disclosure of such Privileged and Confidential Information is required by a judicial order, administrative order or subpoena. In the event disclosure is required by a judicial order, administrative order or subpoena, however, CONSULTANT shall immediately notify CITY and shall exercise its utmost diligence to object to disclosure. 5. 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. 6. 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. 12-3355/79820 3 7. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 8. 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. 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, "deductible" or any other similar form of limitation on the required coverage except with the express written consent of CITY. 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. 12-3355/79820 4 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. 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. 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. 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. 12-3355/79820 5 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 written 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. 12-3355/79820 6 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 this 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 and 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 Norman A. Traub Associates ATTN: Michele Warren, Director of Investigation Services Human Resources 5409 Via Fonte 2000 Main Street Yorba Linda, CA 92886-5006 Huntington Beach, CA 92648 12-3355/79820 7 17. 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. 18. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 19. 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. 20. 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. 12-3355/79820 8 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. 21. 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. 22. 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. 23. 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. 12-3355/79820 9 24. 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 non -prevailing party. 25. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 26. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 27. 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 12-3355/79820 10 understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have ca ed this -Agreement to be executed by and through their authorized officers NORMAN A. TRAUB ASSOCIATES CITY OF HUNT ON BEACH, INVESTIGATION SERVICES, a municipal co ration of tbe State of alifomia By: I X 0 e 4VAAt� 4v�2M1ti �l •��ifW print name ITS: (circle one) Chairman/President/Vice President AND print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer REVIEWED AND APPROVED: �AX City Manager 12-3355/79820 11 S.Warren, Director of Human Resources 'ED AS TO FORM: I1 ` Jenn Ifer N cGrath,`C ty Attorney .Ib, 19-- b-1�5-(�- EXHIBIT "A" STATEMENT OF WORK: (Narrative of work to be performed) CONSULTANT will conduct confidential personnel investigations at the direction of the Director of Human Resources. 12-3355/79820 12 Payment Schedule (Hourly Payment) A. Hourly Rate CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule: ® $130.00 per hour plus expenses; • $250.per hour (4-hour minimum) plus expenses for post investigation appearances at hearings, trials, depositions, arbitrations, legislative hearings, or personnel appeal boards. This provision shall apply if appearances are required by City or other parties to the action; • Reimbursement for transcription of interviews; • Reimbursement for City Business License (in the event a business license is required). B. Travel 1. Charges for time during travel are not reimbursable 2. Automobile expenses are limited to the IRS standard business mileage rate of $0.50.5. C. Billing All billing shall be done monthly in one -tenth -hour (0.10) increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it. Minimum billing charges are unacceptable. CONSULTANT shall only charge for actual time spent. For example, minimum of 0.2 hours for phone calls or 0.4 hours for letters is unreasonable unless that is an accurate measure of time spent. 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 case or matter. 3. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service bills/costs should accompany the billing for each single item that exceeds Seventy -Five Dollars ($75.00). The fee for the sending or receiving of facsimiles shall not exceed Twenty-five Cents. ($0.25) per page. CITY will not pay a fee or charge for telephone calls or facsimiles to CITY. Photocopier costs should be no more than the actual cost of duplication, or Ten Cents ($0.10) per page, whichever is less. 4. CITY will not pay for secretarial time or secretarial overtime. CITY will not pay for secretarial tasks or tasks that should be subsumed into 12-3355n9820 13 CONSULTANT's overhead. For example, time spent for faxing, mailing, arranging for messengers and calendaring are not acceptable charges. 5. CITY will not pay for word processing charges. This includes per page or hourly charges. 6. The CITY expects that all attorneys will have a library, be it in book or electronic form. Consequently, the CITY will not pay for electronic legal research, such as LexisNexis or Westlaw. 7. CITY will not pay for billing or discussion of bills. If CITY has questions about billing or needs additional information on bills, that is not a chargeable event; CONSULTANT should respond without charging CITY for the time required. 8. CITY appreciates when CONSULTANT has researched an issue previously and uses that research on the present case. CITY has retained CONSULTANT because of its past experience. CONSULTANT shall not charge CITY for work it has done and billed another client for in the past. 9. Delivery of work product: A copy of every memorandum, letter, report, calculation and other documentation prepared by CONSULTANT shall 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. 10. 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 into compliance, or until this Agreement has expired or is terminated as provided herein. 12-3355/79820 14 11. 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. 12-3355/79820 15 ACbRD 26,(2000) The,�APORpi*Mqand logqlareregj4 redmairki-ofA POLICY NUMBER: SE-CGL-0000007320-01 This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Section 11 — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf. A In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 CG 20 26 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 � CITY OF HUNTINGTON BEACH v Professional Service Approval ;1ipro Form s�E7UM7Y��A PAR T I Date: 3/7/2012 Project Manager Name: Requested by Name if different from Project Manager: Department: Human Resources PARTS I OF THE PROFESSIONAL 'SERVICES CONTRACTS APPROVAL FORM MUST BE COMPLETED BY THE REQUESTING DEPARTMENT AND SIGNED BY THE CITY MANAGER, FOR APPROVAL, BEFORE PROCEEDING WITH THE SOLICITATION OR CONTRACT PROCESS. PART I MUST BE FILED WITH ALL APPROVED CONTRACTS, 1) Briefly provide the purpose for the agreement: Confidential personnel investiagion services 2) Estimated cost of the services being sought: .-$ 15000 i 3) Are sufficient funds available to fund this contract? ® Yes ❑ No If no, please explain: 4} .Check below how the services will be obtained: -❑ A -Bid solicitation process in,accordance.to the MC 3.03:060 procedures will be conducted. MC 3:03.08(b)--.Other Interagency;Agreement procedure will;be utilized. ® MC 3.03 08:- Contract Limits of.l$30 000"or less exempt procedure will, be utilized. 5) Is this contract generally described on the. list of professional service contracts approved by the City Council? If the answer to -this question. is "No," the contract will require approval from the City Council.) Yes ®❑ No 6) Fis ices Ma6 ger Signature 7 - 2�l� Date Amount, Business Unit (8 digits) and Object Code (5 digits) where funds are budgeted (Please note that a budget check will occur at the object code level): Uq 3lnS `� O 0 0 10030502.7-�5 $ $ $ $ APPROVED /Y�9IED ❑ 3nager's Signature 3 � � Date Date Date V) V \�- Date 3-1Z-0 Date CITY OF HUNTINGTON BEAC k;Professional Service Approval For Date: 3/16/2012 Project Manager: Michele Warren Requested by Name if different from Project Manager: Sandra Henderson Department: Human Resources PARTS I & II OF THE PROFESSIONAL SERVICES CONTRACTS APPROVAL FORM MUST BE COMPLETED BY THE REQUESTING DEPARTMENT AND SIGNED FOR APPROVAL. PART I & H MUST BE FILED WITH ALL APPROVED CONTRACTS. 1) Name of consultant: Norm Traub and Associates 2) Contract Number: HR . (Contract numbersare obtained through Finance Administration x 5630) 3) Amount of this contract: $ 15,000 4) Is this contract less than $50,000? ® Yes ❑ No 5) Does this contract fall within $50,000 and $100,000? ❑ Yes ® No 6) Is this contract -over $100,000? ❑ Yes ® No (Note: Contracts requiring City Council Approval need to be signed by the Mayor and City Clerk. Make sure the appropriate signature page is attached to the contract.) 7) Were formal written proposals requested from at least three available qualified consultants? ❑ Yes ® No 8) Attach a list of consultants from whom proposals were requested (including a contact telephone number.) 9). Attach Exhibit A, which describes the proposed scope of work. 10) Attach Exhipjt-6, which describes the payment terms of the contract. re Director of Finance (or des ) Signature City of Huntington Beach FY 2011/12 Budget Department General Fund Budget Summary - Level 5 Report General Fund Object Adopted Revised Actual PO Actual + PO Budg-Actual-PO Account FY 2011/12 FY 2011/12 FY 2011/12 FY 11/12 FY 11/12 FY 11/12 51110 - Base Salaries 89,939 89,939 34,592 34,592 55,347 51100 - Salaries - Permanent 89,939 89,939 34,592 34,592 55,347 55100 - CaIPERS Payable 19,187 19,187 6,740 6,740 12,447 55150 - Retirement Supplement 4,121 4,121 1,717 1,717 2,404 55175 - Workers' Compensation 2,932 2,932 1,128 1,128 1,804 55200 - Health Insurance 9,506 9,506 3,656 3,656 5,850 55300 - Other Insurances 3,462 3,462 1,341 1,341 2,121 56020 - FICA Medicare 1,304 1,304 454 454 850 55000 - Benefits 40,512 40,512 15,036 15,036 25,476 51000 - PERSONAL SERVICES 130,451 130,451 49,628 49,628 80,823 63050 - Communication Supplies 20 20 (20) 63125-Office Supplies 1,000 1,000 1,180 1,000 2,180 (1,180) 63295 - Postage Deliveries 1,000 1,000 1,000 64405 - Books/ Subscriptions 0 0 0 64485 - Dues and Memberships 1,000 1,660 882 805 1,687 (27) 63000 - Equipment and Supplies 3,000 3,660 2,082 1,805 3,886 (226) 68550 - Training 4,000 4,000 2 459 461 3,539 68610 - Conferences 1,000 1,000 150 150 850 68500 - Conferences and Training 5,000 5,000 152 459 611 4,389 69360 - Prof Svcs - Medical 50,000 50,000 50,000 C-----� 69365- Other Professional Services 150,000 197,163 23,995 120,292 144,287 52,876 69300 - Professional Services 200,000 247,163 23,995 120,292 144,287 102,876 72525 - Liability 750,000 750,000 78,412 1,706 80,118 669,882 72000 - Claims Expense 750,000 750,000 78,412 1,706 80,118 669,882 73010 - General Liability Insurance 315,000 315,000 (38,296) 0 (38,296) 353,296 73020 - Excess Workers' Comp Insurance 315,000 315,000 0 0 315,000 73030 - Aircraft/ Watercraft Insurance 105,000 105,000 10,893 0 10,893 94,107 73040- Property Insurance 1,450,000 1,450,000 0 0 0 1,450,000 73000 -Insurance 2,185,000 2,185,000 (27,403) 0 (27,403) 2,212,403 60000 - OPERATING EXPENSES 3,143,000 3,190,823 77,237 124,262 201,499 2,989,324 50000 - EXPENDITURES . . 3,273,451 3,321,274 126,865 124,262 251,127 3,070,147 3/8/2012 8:17:08 AM Page 1 of 1