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HomeMy WebLinkAboutDickerson Disability Consulting Services, Inc. - 2016-10-19PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND DICKERSON DISABILITY CONSULTING SERVICES, INC. FOR DISABILITY CONSULTING 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 Dickerson Disability Consulting Services, Inc., a California corporation, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to provide disability consulting services to CITY for interactive process meetings and job analysis to comply with ADA and FEHA requirements; 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." CONSULTANT hereby designates , who shall represent it and be its sole contact and agent in.all consultations with CITY during the perfonnance of this Agreement. 16-5377/145737/DO I of 11 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 cornmence on 20/(v (the "Commencement Date"). This Agreement shall automatically terminate three (3) years from the Commencement Date, unless extended or sooner termiinated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than three (3) years from the Commencement Date. 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 Thirty Thousand Dollars ($30,000.00). 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 16-5377/145737/DO 2 of 11 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." 7. DISPOSITION OF PLANS ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that all 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 costs and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and Iiability regardless of whether any insurance policies are 16-5377/145737/DO 3 of 11 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 ($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 16-5377/145737/DO 4 of 11 forthwith terminate this Agreement. Such termination shall not affect CONSULTANT's right to be paid for its time and materials expended 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. 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. 16-5377/145737/DO 5 of 11 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. CONSULTANT shall secure at its 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 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 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, reports, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. 13, ASSIGNMENT AND SUBCONTRACTING 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. 16-5377/145737/DO 6 of I 1 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 Governnient 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. I 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: City of Huntington Beach AT -IN: Patti Williams 2000 Main Street Huntington Beach, CA 92648 TO CONSULTANT: Dickerson Disability Consulting Services, Inc. 879 W. 1900' Street, Suite 400 Gardena, CA 90248 16-5377/145737/DO 7 of 11 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 modifications 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. Nothing contained herein shalt be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision contained herein and any present or future statute, taw, ordinance or regulation contrary to which the parties have no right to contract, then the latter shalt prevail, and the 16-5377/145737/DO 8 of 11 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, to 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. 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 nonprevailing party. 16-5377/145737/DO 9 of 11 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. 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 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. 28. 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. 29. 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. 16-5377/145737/DO 10 of 11 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT: DICKERSON DISABILITY CONS TING S VICES, INC. By: �c �y -1- print name ITS: (circle one) Chairman/President/Vice President AND print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California (ivy C! ' � 1 Chief Financial Officer APPROVED Date: IN City Attorney D�--o 1v11a My VE AND FILE: City Clerk Director of Human Resources 16-5377/145737/DO 11 of I I IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT: DICKERSON DISABILITY CONS TING S VICES, INC. By: print name ITS: (circle one) Chairman/PresidentiVice President ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Chief Financial Officer APPROVED City A orney tO1\q VE AND FILE: Date: /� — / % —10/ 6 AND Director of Human Resources 16-5377/145737/DO I I of I I EXHIBIT A Scone of Services — Dickerson Disability Consulting Services: A. Subject to the express limitations of authority set forlh herein and in accordance with the provisions of the Professional Services Contract (the "Agreement"), the City retains the Consultant to provide Disability Consultant services to the City for Interactive Process meetings and Job Analyses in order to comply with ADA and The California Fair Employment and Housing Act (FEHA) requirements, B. In executing the disability consulting services contemplated tinder the Agreement, the Consultant agrees and is hereby authorized otUt with the prior approval of the City: 1. To conduct interactive Process Meetings as requested by the City and to act as Disability Consultant for such meetings as required by FEHA. 2. To conduct Job Analyses as requested by the City. Each Job Analysis will have specific information based on information provided to Consultant via existing job descriptions, interviews with employees and supervisors, Consultant's observations and any other materials and/or methods deemed necessary by the City and Consultant. 3, To consult and advise the City on ADA and FEHA matters as requested by the City. FEHA requires that "an employer who knows the disability of an employee has an affirmative duty" to explore possible accommodation, even in the absence of all employee's request, Under California law, every injured employee with permanent restrictions is a person with a disability. ConsUltarrt will also assist with review of temporary work restrictions and the possibility of a transitional duty assignment. Consultant will meet with the employee and the City to discuss the employee's return to Work through possible job modification or other available openings. 4, Interactive Process Meeting Reports: For each Interactive Process inceting conducted, Consultant will draft a report with complete documentation of the meeting and arty recommendations made by the Consultant and oily other attendees as well as precise work restrictions and limitations. Each report will also document the development of return -to -work agreements and/or assignments if applicable, Each report will be reviewed by the City before distribution, S. Job Analysis Reports: Each Job Analysis Report will contain tine following: Job Purpose; Work Schedule; Required Qualifications; Identification of Essential and Non -Essential Work Functions; Physical Demands and Frequencies; Hand Activities and Frequencies; Lifting and Carrying Requirements; Equipinerrt and Machinery Operated; Mental and Psychological Demands; Environmental Exposures; Communications and Sensory Dernands; and any other information deemed necessary by the City and Consultant to complete a thorough report. Page 1 of 2 6. To provide Expert Testimony as requested by the City. 7. To maintain any licenses and/or certifications or ally other authorization necessary or required by law to carry out the Consultant's obligations and duties under the Agreement, C. The Consultant warrants that it and its employees have all licenses/certifications necessary to conduct the business described herein, if applicable, and agree to maintain all licenses/certifications during the term of the Agreement. In the event that any such license/certification expires or terminates, for ally reason, the COnSflltallt shall immediately notify the City and Consultant will be considered in material breach of the Agreement, unless within one week from the date the City receives notice of the license/certification expiration or termination from the Consultant, the City agrees, in writing, at its sole discretion, to modify the provisions set forth in this Paragraph. D. The Consultant agrees to provide, where permitted by law, written notice to the City of any known potential sale, transfer, merger, or consolidation involving the Consultant or a majority of its assets, within one month prior to the transaction's effective date, E, The Consultant shall keep accurate, complete and separate records of all interactive process meetings, job analyses, and any other services provided to the City pursuant to the Agreement on a timely basis and for the duration set forth herein or as required by law and/or regulation, F; Prior to connnencing any additional work requested by the City, the City and the Consultant shall agree, in a -written docrnnent signed by both parties, on the scope of the work to be performed and the estimated number of hours required for completion, Page 2 of 2 EXHIBIT B Sei,vice Fees and Expenses — Dickerson Disability Consulting Services,_Inc. A. Subject to compliance by the Disability Consultant with the terms and conditions of this Agreement, the City will pay and the Disability Consultant will accept as Rill compensation for consultant services provided snider this Agreement, the consultant fees set otrt in the Consulting Fee Schedule attached to this Agreement. B. The City shall also be responsible for and shall pay all "Allocated Expenses," as defined herein, in additioit to the consultant service fees as provided for in this Agreement. For the purposes of this contract, "Allocated Expenses" include but are not limited to the following: 1. Fees relating to consultation regarding Transitional/Return to `York Program. 2. Fees relating to Reasonable accommodation Assessments and corresponding reports. 3. Fees relating to Functional Job analyses and corresponding reports. d. Fees relating to ADAMEHA Consulting. 5. Fees relating to Expen Testimony. G. Fees relating to Travel including mileage. Such Allocated Expenses are limited to reasonable, customary and necessary expenses incurred by the Disability Consultant in the course of the performance of its duties under this Agreement. Unless the Agreement is terminated, payment for services defined Herein will be made by the City to the Consultant once an invoice is received from the Consultant. The fees are calculated and an invoice submitted to the City each time the Consultant services are utilized, Please see attached Consulting Fee Schedule provided by Consultant. Dickerson Disability Consulting Services, Inc. Consulting Fee Schedule Disability Management Services Consulting Services Consulting Fees Transltlonal/Return to. Work Program $100 Per Hour or negotiated Flat Rate Reasonable Accommodation Assessments $100 Per Hour or negotiated Flat Rate Ergonomic Assessments $100 Per Hour or negotiated Flat Rate Essential Function Job Analysis (EFJA) $125 Per Hour ADA/FEHA Consulting $1.00 Per• Hour Expert Testimony . $175,00 Per Hour Feasiblilty Determination $1.75.00 Per Hour Job Analysis Services Fee Schedule Job Descriptlon/RU-91's $100 per Hour (May vary depending on date of injury) Job Analysis $100 Per Hour (May vary depending on date of injury) Video Job Analysis $170 Per Hour or Negotiated- Flat Rate