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HomeMy WebLinkAboutLiebert Cassidy Whitmore - 2017-04-11AGREEMENT FOR SPECIAL SERVICES — LABOR NEGOTIATIONS SERVICES This Agreement is entered into between Liebert Cassidy Whitmore, a Professional Corporation ("Negotiator"), and the City of Huntington Beach, a Municipal Corporation ("CUY99) 1. Conditions This Agreement will not be effective and Negotiator will have no obligation to provide services, until City returns a properly signed and executed copy of this Agreement. 2. Labor Negotiatons Services Liebert Cassidy Whitmore agrees to provide the services of Peter Brown to the City to serve as the Chief Negotiator for assigned labor contract negotiations, labor relations consultation, negotiations representation, and other services pertaining to labor and employment relations matters, including representation in labor negotiations and in related administrative proceedings, as requested by City or otherwise required. The Scope of Services related to this agreement is hereby outlined in EXHIBIT "A". 3. Fees, Costs, Expense City agrees to pay Negotiator the sums billed monthly for time spent by Negotiator in providing the services, including travel time. The current hourly rate for Negotiator time is $350.00 per hour. The range of hourly rates for time of paraprofessional and support staff rages from One Hundred Twenty Five Dollars to Two Hundred Thirty Dollars ($125.00 - $230.00). The total amount of Negotiator services for the term of this Agreement is not to exceed Seventy Five Thousand Dollars ($75,000). The payment schedule related to this agreement is hereby outlined in EXHIBIT "B". A rate schedule for all Los Angeles and San Diego paraprofessional and support staff is attached hereto as Schedule A. Any assigned Negotiator will review his or her hourly rates on an annual basis and, if appropriate, adjust the rate effective October 1, 2017. The City Manager must pre -approve any adjusted rate for Negotiator while working on matters for the City. Negotiator will provide City with written notification of any adjustment in the range of rates for paraprofessional and support staff. Negotiator, paraprofessional and support staff bill time in minimum units of one -tenth of an hour. Negotiator work that may exceed (eight) 8 hours of total work in a single business day or memos that exceed two (2) hours of total work must not commence until the City Manager has granted prior written consent to Negotiator. City agrees to reimburse Negotiator for necessary costs and expenses incurred by Negotiator on behalf of the City. Negotiator bills photocopying charges at Fifteen Cents ($.15) per page and facsimile charges at Fifty Cents ($.50) per page. Payment by City against month billings is due upon receipt of statement delivered to the Office of the City Manager, and is considered delinquent if payment is not received within thirty (30) days of the date of the invoice. The California Business and Professions Code requires the City be informed as to whether LCW/Negotiator maintains errors and omission insurance coverage applicable to the services to be rendered to City. LCW/Negotiator confirms that such insurance coverage is maintained. 4. Arbitration of Professional Liability or Other Claims Disputes If a dispute between City and Negotiator arises over fees charged for services, the controversy will be submitted to binding arbitration in accordance with the rules of the California State Bar Fee Arbitration Program, set forth in California Business and Professions Code, Sections 6200 through 6206. The arbitrator or arbitration panel shall have the authority to award to the prevailing party attorney's fees, costs and interest incurred. Any arbitration award may be served by mail upon either side and personal service shall not be required. If a dispute arises between City and Negotiator over any other aspect of this agreement and/or the professional service -client relationship, including, without limitation, a claim for breach of professional duty, that dispute will also be resolved by arbitration. It is understood that any dispute as to any alleged breach of professional duty (that is, as to whether any services rendered under this agreement were allegedly unnecessary, unauthorized, omitted entirely, or were improperly, negligently or incompetently rendered) will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this Agreement, by entering into it, are giving up the constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Each party is to bear its own attorney's fees and costs. 5. File Retention After services conclude, Negotiator will, upon City's request, deliver the file(s) for the matter(s) to the City, along with any funds or property of City's in Negotiator's possession. If City requests the file(s) for the matter(s), Negotiator will retain a copy of the file at the City's expense. If City does not request the file(s) for this matter, Negotiator will retain it for a period of seven (7) years after the matter is closed. If City does not request delivery of the file for this matter before the end of the seven (7) year period, Negotiator will have no further obligation to retain the file and may, at LCW's discretion, destroy it without further notice to the City. At any point during the seven (7) year period, City may request deliver of the file(s). 6. Assignment This Agreement is not assignable. 7. Supplemental Agreement Provisions This Agreement is subject to the Supplemental Agreement Provisions specified in EXHIBIT "C". 8. Independent Contractor It is understood and agreed that Negotiator, while engaged in the performing terms of this Agreement is an independent contractor and not an employee of the City. 9. Authority The signators to the Agreement represent that they hold the positions set forth below the signatures, and that they are authorized to execute this Agreement on behalf of the respective parties and to bind the respective parties hereto. 10. Term This Agreement is effective upon being fully executed by the parties, and will continue for a fixed term not to exceed twelve (12) months. Otherwise, this agreement shall be terminable by either party upon thirty (30) days written notice. This Agreement may be extended by the City Manager, not to exceed a successive period of six (6) months. LIEBERT CASSIDY WHITMORE, CITY OF HUNTINGTON BEACH, a a Professional Corporation Municipal Corporation of the State of California COUNT ERPART klli--- By: By. Print Name City Manager ITS (circle one) Chairman/President/Vice President AND Approved As to Form COUNTE"ART By: Print Name - CIITy Attorney ITS (circle one) Secretary/Chief Financial Officer/Assistant Secretary -Treasurer 8. Independent Contractor It is understood and agreed that Negotiator, while engaged in the performing terms of this Agreement is an independent contractor and not an employee of the City. 9. Authority Hie signatory to the Agreement represent that they hold the positions set forth below the Signatures, and that they are authorized to execute this Agreement on behall'of the respective parties and to bind the respective parties hereto. 10. Terin This Agreement is effective upon being fully executed by the parties, and will continue for a fixed term not to exceed twelve (12) months. Otherwise, this agreement shall be terminable by either party upon thirty (30) days written notice. '].'his Agreement may be extended by the City Manager, not to exceed a successive period ol'six (6) months. IEBERT CASSIDY WHITMORE, CITY OF HUNTINGTON BEACH, a a Professional Corporation Municipal Corporation of the State of California F y t rint ame City Manager l ( ircle one) Chairman/President/Vice President AND Approved As to Form Print Name ity ltorucy ITS (circle one) cretary/Chief Financial Officer/Assistant Secretary -Treasurer Receive and File 7�?�et4d City Clerk EXHIBIT "A" A. STATEMENT OF WORK: Scope of Services Contractor shall serve as Chief Negotiator (as designated) to negotiate labor agreements/contract renewals with assigned City bargaining units through successful final agreement, and/or completion of post -impasse processes (including factfinding) if necessary. B.CONSULTANT'S DUTIES AND RESPONSIBILITIES: ti �_A • Contractor shall become knowledgeable about the City's labor agreements and related practices and policies, and the City's negotiations history, including any relevant files and documents necessary in preparation for contract negotiations. • Contractor shall participate with the City Council and City Manager or designee(s) to determine the City Council's negotiation parameters and in the development of City negotiation proposals to reach agreements within those parameters. • Contractor shall develop and recommend negotiation strategies to the City Council. Contractor shall prepare, or whenever practicable work with designated City staff to gather and prepare, relevant data and information needed to evaluate and determine the potential impact and anticipated cost/savings associated with bargaining unit proposals or possible City proposals. • Contractor shall advise the City Council and City associated with compliance of the City's Impasse Employer/Employee Relations Resolution designated City staff on the advance preparation or prudent to have ready should the City and negotiations process. Manager on the timing and requirements procedures as contained with its and AB646 requirements, and work with of any materials that would be required any bargaining unit reach impasse in the • As assigned by City Council and/or the City Manager, Contractor shall act as the City's Chief Negotiator in contract negotiations, and the impasse resolution process, if necessary, including the construction of language within negotiated agreements for review, consideration and/or adoption by the City Council. • Contractor shall be available to meet with all a s s i g n e d bargaining units on a schedule that makes possible completion of the negotiation process prior to expiration of the current contracts. • Contractor shall be available to meet with City Manager and/or his designee(s) as requested, and to attend City Council meetings and Closed Sessions as scheduled on the first and third Monday afternoon and evening of each month through the successful conclusion of the negotiations process. • Contractor shall be available as needed to meet or consult with the City Manager and/ or his designee(s) in order to ensure proper planning of and preparation for bargaining sessions and to provide advice and guidance needed related to the negotiations process. LCW Negotiations Services Agreement — Exhibit A EXHIBIT "A" • Contractor shall evaluate and analyze negotiations proposals received from labor organizations, advise and make recommendations to the City Council and the City Manager on how to proceed during negotiations, and perform services as requested by the City Council. • Contractor shall maintain communication with and provide updates regularly to the City Council and City Manager on the status of negotiation and throughout the process as developments occur which may impact the outcomes or direction of contract negotiations, or as additional direction from City Council is needed. • Contractor shall prepare or advise City designees in the preparation of documents, staff reports, exhibits, presentations, charts or spreadsheets necessary to convey information to the City Council, and City Manager and/or in preparation for final adoption of agreements by the City Council. Post Negotiation Activities • Contractor shall be present and available to speak at public meetings when labor contracts are agendized for review, consideration and/or adoption by the City Council. • Contractor will prepare and submit written reports with respect to labor negotiations when requested by the City Council or the City Manager. • Contractor will consider all negotiations and discussions with representatives of the City to be confidential and will not release any information concerning such negotiations. • Contractor agrees that information, documents and reports pertaining to City of Huntington Beach labor negotiations and related matters are the property of the City of Huntington Beach and may not be used for any purposes other than those explicitly agreed to in writing by the City. C. CITY'S DUTIES AND RESPONSIBILITIES: City agrees to provide Contractor with available data and information with respect to the City's assigned labor associations as related to the negotiations proceedings; including, but not limited to current and prior Memorandums of Understanding, salary and health and other benefit information, comparative market data, budget information, retirement program information and/or any other data and information relevant to the bargaining process. City agrees to allocate appropriate staff resources to assist Contractor in the performance of the work outlined herein. City agrees to process invoices submitted in accordance with City requirements pursuant to standard accounts payable procedures. D. WORK PROGRAM/PROJECT SCHEDULE Project will begin on or before March 15, 2017, and will continue until negotiations processes (including impasse and/or factfinding) for all assigned labor associations have concluded. LCW Negotiations Services Agreement — Exhibit A EXHIBIT "B" Payment Schedule (Hourly Payment) A. Hourly Rate CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule: $350.00 per hour — Contractor/Chief Negotiator $125.00 - $230.00 per hour — Paraprofessional and Support Staff B. Travel. Charges for time during travel are reimbursable. C. Billing All billing shall be done monthly in six (6) minute (1/10 of one hour) 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 E?xhibit B — Negotiations Services Agreement — LCW - 2017 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. Exhibit B — Negotiations Services Agreement— LCW - 2017 13, c�) �-- j LLi e� Liebert Cassidy Whitmore Hourly Billing Rates Billine Rate Bllline Rate Partners Associates Elizabeth Arce 350 Che Johnson 270 Bruce Barsook 350 Alison Kalinski 270 Shelline Bennett 350 Paul Knothe 270 Steve Berliner 350 Kristin Lindgren 270 Michael Blacher 350 Diba Mord 270 Richard Bolanos 350 James Oldendorph 270 Peter Brown 350 Lee Patajo 270 Dan Cassidy 350 Jennifer Rosner 270 Melanie Chaney 350 Julie Strom 270 Heather DeBlanc 350 Mary Dowell 350 Grace Chan 260 Gage Dungy 350 Lisa Charbonneau 260 Jeffrey Freedman 350 IIeather Coffman 260 Jack Hughes 350 Megan Lewis 260 Judith Islas 350 Hengameh Safaei 260 Morin Jacob 350 Kelly Tuffo 260 Laura Kalty 350 Stacy Velloff 260 Richard Kreisler 350 Jesse Maddox 350 Juliana Kresse 250 Mark Meyerhoff 350 Sarah Lustig 250 Pilar Morin 350 Matthew Nakano 250 Eileen O'Hare -Anderson 350 Danny Yoo 250 Cynthia O'Neill 350 Michael Youril 250 Melanie Poturica 350 Frances Rogers 350 Joy Chen 240 Laura Schulkind 350 Abigail Clark 240 Geoff Sheldon 350 Jenny Flores 240 Suzanne Solomon 350 Erin Kunze 240 Scott Ticdcmann 350 Dalisai Nisperos 240 Brian Walter 350 Richard Whitmore 350 Kevin Chicas 230 Donna Williamson 350 Erik Cuadros 230 Oliver Yee 350 Leighton Henderson 230 Liara Silva 230 Of Counsel Shard6 Thomas 230 Linda Adler 305 Jenny Yu 230 Adrianna Guzman 305 David Urban 305 Joshua Goodman 220 Stefanie Vaudreuil 305 Stephanie Lowe 220 Associates Amir Katzir 210 JoIina Abrena 285 Kim Overdyck 210 Sue Cercone 285 Alysha Stein -Manes 210 Chris Fallon 285 Arlin Kachalia 285 Ashley Bobo 200 Carla McCormack 285 James Van 200 Max Sank 285 Jeff Stockley 285 Labor Relations/IIR Consultant Kristi Recchia 195/230 Kim Horiuchi 280 Jennifer Palagi 280 ParaUrolesslona/s Alex Wong 280 Misty Jones 125 Joung Yim 280 Robert Koehler 125 Jean Springer 125 Ryan Church 270 Christopher Frederick 270 E-Discovery & Lilieatlon Technology Specialist Jay Dover 125 EXHIBIT "C" SUPPLEMENTAL AGREEMENT PROVISIONS SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide the services shown Exhibit A ("Scope of Services"), which may be referred to herein as the "services" or the "work.". 1.2 Standard of Performance. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 1.3 Performance to Satisfaction of Citv. Notwithstanding any other provision herein, Contractor agrees to perform all work to the satisfaction of City within the time specified. If City reasonably determines that the work is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (i) meeting with Contractor to review the quality of the work and resolve matters of concern; (ii) requiring Contractor to repeat unsatisfactory work at no additional charge until it is satisfactory; (iii) suspending the delivery of work to Contractor for an indefinite time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. 1.4 Instructions from Citv. Tasks or services other than those specifically described in the Scope of Services shall not be performed without the prior written approval of the City Manager. 1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under the Agreement. Should the Contractor discover any conditions, including any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact in writing and shall not proceed except at Contractor's risk until written instructions are received from the City's Representative. 1.6 Identity of Persons Performing Work. (A) Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services required hereunder. Any personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. (B) Contractor represents that the tasks and services required hereunder will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services. Contractor will exclusively determine the means, methods and details of performing the services subject to the requirements of this Agreement. (C) This Agreement contemplates the personal services of Contractor and Contractor's employees, and it is recognized by the parties hereto that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of Contractor. Neither this Agreement nor any interest therein may be assigned by Contractor, except upon written consent of City. 1.7 Prohibition Aaainst Subcontracting or Assignment. Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express written consent of City. INSURANCE AND INDEMNIFICATION 2.1 Insurance. Without limiting Contractor's indemnification obligations, Contractor shall procure and maintain, at its sole cost and for the duration of this Agreement, insurance coverage as provided below, against all claims for injuries against persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees, and/or subcontractors. In the event that Contractor subcontracts any portion of the work in compliance with Section 1.8 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the contractor is required to maintain pursuant to this Section 2.1. 2.1.1 Insurance Coverage Required. The policies and amounts of insurance required hereunder shall be as follows: A. Comprehensive General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01 including completed operations and contractual liability, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of Huntington Beach and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. B. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $1,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned," "hired" and "non - owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (1) Name the City of Huntington Beach and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. C. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to: (1) Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement unless your insurance carrier is the State of California Insurance Fund (SCIF) and the endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. Contractor's completion of the form attached hereto as shall be a condition precedent to Contractor's rights under this Agreement. Should Contractor certify, that, in the performance of the work under this Agreement, it shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, Contractor shall nonetheless maintain responsibility for requiring that any subcontractors performing work under this Agreement have and maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the work performed under this Agreement. D. Professional Liability Insurance with minimum limits of $1,000,000 each claim. Covered professional services shall include all work performed under this Agreement and delete any exclusion that may potentially affect the work to be performed. E. Evidence of Insurance: Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. The City project title or description MUST be included in the "Description of Operations" box on the certificate. Certificate Holder: City of Huntington Beach 2000 Main Street P.O. Box 190 Huntington Beach CA 92648 F. Endorsements: A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. G. Any Deductible in Excess of $10,000 and/or Self -Insured Retentions must be approved in writing by the City. H. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A- VII or higher and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus lines brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing by the City. 2.2 Defense and Indemnification. Contractor agrees to defend and indemnify City and its officers, agents and employees against, and to hold and save them harmless from, any and all actions, claims, damages to persons or property, penalties, obligations, or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of the willful or negligent act, errors or omissions of Contractor, its agents, employees, or subcontractors, in performance of the professional services under this Agreement, as well as for all acts, errors or omissions of Contractor, its agents, employees, or subcontractors which are in any way related to the services for which Contractor has been contracted, yet do not arise or occur from the performance of professional services. 1) Contractor shall consider all negotiations and discussions with representatives of the City to be confidential and shall not release any information concerning such negotiations. 2) Contractor agrees that information, documents and reports pertaining to City of Huntington Beach labor negotiations and related matters are the property of the City of Huntington Beach and may not be used for any purposes other than those explicitly agreed to in writing by the City. 2.2.1 Contractor shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay all costs and expenses, including attorney's fees incurred in connection therewith. 2.2.2 Contractor shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities. 2.2.3 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the work being performed or services being provided under this Agreement, Contractor shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees. LEGAL RELATIONS AND RESPONSIBILITIES 3.1 Compliance with Laws. Contractor shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. 3.2 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole cost and expense all licenses, permits, and approvals that may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor's performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City thereunder. 3.3 Covenant aaainst Discrimination. Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) as the same may be amended from time to time. 3.4 Independent Contractor. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from the City; and neither Contractor nor any of its employees shall be paid by City time and one-half for working in excess of forty (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement. 3.5 Covenant aaainst Contingent Fees. Contractor warrants that it has not employed or retained any company or person other than a bona fide employee working for Contractor, to solicit or secure this Agreement and that it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 3.6 Use of Patented Materials. Contractor shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used or incorporated in the services or work performed by Contractor under this Agreement. Contractor shall indemnify, defend, and save the City harmless from any and all suits, actions or proceedings of every nature for or on account of the use of any patented or copyrighted materials consistent with Section 2.2 herein. 3.7 Proprietary Information. All proprietary information developed specifically for City by Contractor in connection with, or resulting from, this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Contractor's underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Contractor agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Contractor's services under this Agreement. Contractor further understands and agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of services by Contractor under this Agreement shall be made to City, and that Contractor shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City. 3.8 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether arising out of this Agreement or otherwise) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and all amounts for which City may be liable to third parties, by reason of Contractor's negligent acts, errors, or omissions, or willful misconduct, in performing or failing to perform Contractor's obligations under this Agreement. City in its sole and absolute discretion, may withhold from any payment due Contractor, without liability for interest, an amount sufficient to cover such claim or any resulting lien. The failure of City to exercise such right to deduct or withhold shall not act as a waiver of Contractor's obligation to pay City any sums Contractor owes City. 3.9 Termination by City. City reserves the right to terminate this Agreement at any time, with or without cause, upon 3 0 d a y s a d v a n c e written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to receipt of City's notice of termination and for any services authorized in writing by City thereafter. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and Contractor shall be liable to the extent that the total cost for completion of the services required hereunder, including costs incurred by City in retaining a replacement contractor and similar expenses, exceeds the Budget. 3.10 Waiver. No delay or omission in the exercise of any right or remedy by a non - defaulting party with respect to any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent act. A waiver by either party of any default must be in writing. 3.11 Legal Actions. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and maintained in the Superior Courts of the State of California in the County of Orange, or in any other appropriate court with jurisdiction in such County, and Contractor agrees to submit to the personal jurisdiction of such court. 3.12 Rights and Remedies are Cumulative. Except as may be expressly set forth in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies or other rights or remedies as may be permitted by law or in equity shall not preclude the exercise by such party, at the same or different times, of any other rights or remedies to which such party may be entitled. 3.13 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any of the terms or provisions of this Agreement or in connection with the performance of the work hereunder, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to have and recover from the other party its reasonable costs and expenses, including, but not limited to, reasonable attorney's fees, expert witness fees, and courts costs. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall be entitled to its reasonable attorney's fees and costs from the other party to this Agreement. 3.14 Force Majeure. The time period specified in this Agreement for performance of services shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of City or Contractor, including, but not restricted to, acts of nature or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if the delaying party shall within ten (10) days of the commencement of such delay notify the other party in writing of the causes of the delay. If Contractor is the delaying party, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Contractor's sole remedy shall be extension of this Agreement pursuant to this Section 3.15. 3.15 Non -liability of City Officers and Emnlovees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Contractor or its successor, or for breach of any obligation of the terms of this Agreement. 3.16 Conflicts of Interest. A. No officer, official, employee, agent, representative or volunteer of City shall have any financial interest, direct or indirect, in this Agreement, or participate in any decision relating to this Agreement that affects his or her financial interest or the financial interest of any corporation, partnership, association or other entity in which he or she is interested, in violation of any federal, state or city statute, ordinance or regulation. Contractor shall not employ any such person while this Agreement is in effect. B. Contractor represents, warrants and covenants that he, she or it presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. C. Contractor acknowledges that pursuant to the provisions of the Political Reform Act (Government Code section 87100 et seq.), City may determine Contractor to be a "Consultant" as that term is defined by the Act. In the event City makes such a determination, Contractor agrees to complete and file a "Statement of Economic Interest" with the City Clerk to disclose such financial interests as required by City. In such event, Contractor further agrees to require any other person doing work under this Agreement to complete and file a "Statement of Economic Interest" to disclose such other person's financial interests as required by City. 3.17 Contractor Ethics. Contractor represents and warrants that it has not provided or promised to provide any gift or other consideration, directly or indirectly, to any officer, employee, or agent of City to obtain City's approval of this Agreement. Contractor shall not, at any time, have any financial interest in this Agreement or the project that is the subject of this Agreement other than the compensation to be paid to Contractor as set forth in this Agreement. In the event the work and/or services to be performed hereunder relate to a project and/or application under consideration by or on file with the City, (i) Contractor shall not possess or maintain any business relationship with the applicant or any other person or entity which Contractor knows to have a personal stake in said project and/or application, (ii) other than performing its work and/or services to City in accordance with this Agreement Contractor shall not advocate either for or against said project and/or application, and (iii) Contractor shall immediately notify City in the event Contractor determines that Contractor has or acquires any such business relationship with the applicant or other person or entity which has a personal stake in said project and/or application. The provisions in this Section shall be applicable to all of Contractor's officers, directors, employees, and agents, and shall survive the termination of this Agreement. MISCELLANEOUS PROVISIONS 4.1 Records and Reports. The City Manager of the City of Huntington Beach or his/her designee reserves the right to perform such audits, performance reviews, and other evaluations (collectively 'audit') that relate to or concern this Agreement at any time. Contractor agrees to participate and cooperate in up to five (5) hours of meetings and interviews (at no additional cost to City), if the same are requested by the City in connection with such an audit. Further, provided that the City pays Contractor's commercially reasonable hourly rate for services, Contractor agrees to participate and cooperate in such additional meetings and interviews (in excess of five (5) hours), if the same are requested by the City in connection with such an audit. Upon request by City, Contractor shall prepare and submit to City any reports concerning Contractor's performance of the services rendered under this Agreement. City shall have access, with 72 hours advance written notice delivered to Contractor, to the books and records of Contractor related to Contractor's performance of this Agreement in the event any audit is required. All drawings, documents, and other materials prepared by Contractor in the performance of this Agreement (i) shall be the property of City and shall be delivered at no cost to City upon request of City or upon the termination of this Agreement, and (ii) shall not be made available to any individual or entity without prior written approval of City. The obligations of this Section 4.1 shall survive the expiration (or earlier termination) of this Agreement for a period of three (3) years. During said three (3) year period, Contractor shall keep and maintain all records and reports related to this Agreement, and City shall have access to such records in the event any audit is required. 4.2 Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices to the City shall be delivered to the following address, to the attention of the City Representative set forth in Paragraph D.1 of the Fundamental Terms of this Agreement: City of Huntington Beach 2000 Main Street P. O. Box 190 Huntington Beach, CA 92648 this Agreement. 4.3 Construction and Amendment. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The headings of sections and paragraphs of this Agreement are for convenience or reference only, and shall not be construed to limit or extend the meaning of the terms, covenants and conditions of this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 4.4 Severability. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 4.5 Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. Pricing shall be as set forth . total compensation are all ordinary and overhead expenses incurred by its agents and employees, including meetings with City representatives, and incurred in performing under this Agreement. The total compensation for the as set forth herein shall not exceed , including all amounts to Contractor all costs of whatever naturE from or due to termination of this Agreement. In the event Contractor anticipates the potential need to perform services beyond those set forth herein where additional funding may be needed, Contractor shall notify City in writing allowing sufficient time for City to consider further action. Payment for services will be made monthly on invoices deemed satisfactory to the City, with payment terms of net 30 days upon receipt of invoice. Contractor shall submit invoices within fifteen (15) days from the end of each month in which services have been provided. Contractor shall provide invoices with sufficient detail to ensure compliance with pricing as set forth in this Agreement. The information required may include: date(s) of work, hours of work, hourly rate(s), and material costs. CITY OF • BEACH �� 9s RECEIVED � Professional Approval � 9 ''•tom, y 1RT I FEB 2 R 2017 Finance [),epartrnent Date: 2/27/2017 Project Manager Name: Fred A. Wilson Requested by Name if different from Project Manager: Michele S. Warren Department: City Manager 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: Contractor to provide the City with Labor Negotiations Services. 2) Estimated cost of the services being sought: $ 75,000 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 $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.) -` ® des ❑ No Fiscal Se nature (Purchasing Approval) 6) 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): Date Account number Contractual Dollar Amount Business unit. object # Fiscal Year 2016/17 Fiscal Year 2017/18 Fiscal Year Fiscal Year 10030403-69300 $10000 $ $ $ 10030404-69300 $20000 $15,000 $ $ 10030502-6 $30000 $ $ $ CL0,A- 11, -4:, a Date epartme ead Sign re(s) Date IV Chief a ial ice ignature Date sistant anager's Signature Date ....•mefj�`RAN Manager's Signature Date professional service approval form - part i 2016.doc REV: February 2015 ���pNTINGTp2CITY OF HUNTINGTON BEACH 1 PAR T 11 Date: 2/27/2017 Project Manager: Fred A. Wilson Requested by Name if different from Project Manager: Michele S. Warren Department: City Manager PARTS I & II OF THE PROFESSIONAL SERVICES CONTRACTS APPROVAL FORM MUST BE COMPLETED BY THE REQUESTING DEPARTMENT AND SIGNED FOR APPROVAL. PART I & ll MUST BE FILED WITH ALL APPROVED CONTRACTS. 1) Name of consultant: Liebert Cassidy Whitmore 2) Contract Number: ADM (Contract numbers are obtained through Finance Administration x 5630) 3) Amount of this contract: $75,000 Account number Contractual Dollar Amount Business unit. object # Fiscal Year 2016/17 Fiscal Year 2017/18 Fiscal Year Fiscal Year 10030403-69300 $10,000 $ $ $ 10030404-69300 $20,000 $15,000 $ $ 10030502-69300 $30,000 $ $ $ 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 Exhi i which desc bes the payment terms of the contract. Lr/ ent Head Date Fiscal Se es Manager (P r asing) Date Budget M ager Appr-6val Signature ChieZfF i n aan 2 a_� icer (or designee) Signature ate Date professional service approval form - part ii 2016.doc N = O rn 0 cli E �a O O O) "" O 00 00 G:', LO o E' O LPL Q Efl EA co 0- O O O 0 0 0 O L O LL 0 ff3 ER Ef? N U 0 0 C/) d 0E LO O M 0 LO -0 U 0 0 0 0 0 o 0 0 0 0 � M — EH 6ff 6c3 Efi H-} 0 0 0 0 0 o O o 0 0Lf) 0 0 0 LO LO O co " O 0 0 O NT O N— O LIi O O M LO .+ (0 .-- C0 m N � N C � CO M O Q': Q 63 Ef3 Yfl EA Ef> EA U), 64 LlJ _- `>W E w O _� 0 O co N m -0 N U 0 o J Q Q 0 L a) N w O 0 - Q o .� c :t- -o N E O} R-FzUC N 3Z� Fn J Z ai w Q o�> W E C Y U � OLL= I=0WC--0 i E o cn .- U o 0 0- 0 Cl) tf> O U m W E a. U U) N 5 - `0 - o -0U 0. a- m Y m > CL co W Co J L CO Cfl CO � r U) N N N N N 4f E d CO O N 000 N N d V< C N N > U E 4) N ll:-1 lini AGREEMENT FOR CONTRACT SERVICES THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into as of February 17 2017, by and between the CITY OF IRVINE, a municipal corporation ("City"), and LIEBERT CASSIDY WHITMORE, A PROFESSIONAL CORPORATION, a California corporation ("Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) PART FUNDAMENTAL TERMS A. Location of Project: The City of Irvine location(s) as set forth in PART IV, Scope of Services, included herein. B. Description of Services/Goods to be Provided: Labor Negotiating Services in accordance with PART IV, Scope of Services, included herein (reference RFP 17-1193). C. Term: Unless terminated earlier as set forth in this Agreement, the services shall commence on February 14, 2017 ("Commencement Date") and shall continue through January 31, 2018. The City reserves the right to extend this Agreement for up to four (4) additional one (1) year periods. Such extension shall only be valid if effectuated in writing by the City. D. Party Representatives: D.1. The City designates the following person/officer to act on City's behalf: Brian King, email: bking@cityofirvine.org D.2. The Contractor designates the following person to act on Contractor's behalf: Peter Brown, email: pbrown@lcwlegal.com E. Notices: Contractor shall deliver all notices and other writings required to be delivered under this Agreement to City at the address set forth in Part 11 ("General Provisions"). The City shall deliver all notices and other writings required to be delivered to Contractor at the address set forth following Contractor's signature below. F. Attachments: This Agreement incorporates by reference the following Attachments to this Agreement: F.1. Part I: Fundamental Terms F.2. Part 11: General Provisions F.3. Part III: Special Provisions FA. Part IV: Scope of Services F.5. Part V: Budget G. Integration: This Agreement represents the entire understanding of City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first set forth above. CITY OF IRVINE LI PI By: K. Leung Its: Assistant City Manager It: Attest: By: Molly McLaug in City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP .,-JeffreVMelching C 0 2 CASSIDY WHITMORE, A >IONAL CORPORATION `rcf &c wa Contractor Information Address for Notices and Payments: 6033 W. Century Blvd., 5th Floor Los Angeles, CA 90045 Attn: Peter Brown Telephone: 310-981-2030 Email: pbrown@lcwlegal.com PART II GENERAL PROVISIONS SECTION ONE: SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide the goods and/or services shown on Part IV hereto ("Scope of Services"), which may be referred to herein as the "services" or the "work." If this Agreement is for the provision of goods, supplies, equipment or personal property, the terms "services" and "work" shall include the provision (and, if designated in the Scope of Services, the installation) of such goods, supplies, equipment or personal property. 1.2 Changes and Additions to Scope of Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such work shall be undertaken unless a written order is first given by City to Contractor, incorporating therein any adjustment in (i) the Budget, and/or (ii) the time to perform this Agreement, which adjustments are subject to the written approval of the Contractor. City approval and/or payment for work claimed by Contractor as changed or additional shall not act to prevent City at any time to claim such work is covered by the Scope of Work and should be performed by Contractor without additional consideration due. It is expressly understood by Contractor that the provisions of this Section 1.2 shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. 1.3 Standard of Performance. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 1.4 Performance to Satisfaction of City. Notwithstanding any other provision herein, Contractor agrees to perform all work to the satisfaction of City within the time specified. If City reasonably determines that the work is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (i) meeting with Contractor to review the quality of the work and resolve matters of concern; (ii) requiring Contractor to repeat unsatisfactory work at no additional charge until it is satisfactory; (iii) suspending the delivery of work to Contractor for an indefinite time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. 1.5 Instructions from City. In the performance of this Agreement, Contractor shall report to and receive instructions from the City's Representative designated in Paragraph D.1 of Part I ("Fundamental Terms") of this Agreement. Tasks or services other than those specifically described in the Scope of Services shall not be performed without the prior written approval of the City's Representative. 1.6 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under the Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any conditions, including any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact in writing and shall not proceed except at Contractor's risk until written instructions are received from the City's Representative. 1.7 Identity of Persons Performing Work. (A) Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services required hereunder. Any personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. (B) Contractor represents that the tasks and services required hereunder will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services. Contractor will exclusively determine the means, methods and details of performing the services subject to the requirements of this Agreement. (C) This Agreement contemplates the personal services of Contractor and Contractor's employees, and if is recognized by the parties hereto that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of Contractor. Neither this Agreement nor any interest therein may be assigned by Contractor, except upon written consent of City. 1.8 Prohibition Asrainst Subcontractina or Assignment. Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express written consent of City. SECTION TWO: INSURANCE AND INDEMNIFICATION 2.1 Insurance. Without limiting Contractor's indemnification obligations, Contractor shall procure and maintain, at its sole cost and for the duration of this Agreement, insurance coverage as provided below, against all claims for injuries against persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees, and/or subcontractors. In the event that Contractor subcontracts any portion of the work in compliance with Section 1.8 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the contractor is required to maintain pursuant to this Section 2.1. 2.1.1 Insurance Coverane Required. The policies and amounts of insurance required hereunder shall be as follows: 4 A. Comprehensive General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01 including completed operations and contractual liability, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of Irvine and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. B. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $1,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned," "hired" and "non - owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (1) Name the City of Irvine and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. C. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to: (1) Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement unless your insurance carrier is the State of California Insurance Fund (SCIF) and the endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. Contractor's completion of the form attached hereto as Exhibit 1 shall be a condition precedent to Contractor's rights under this Agreement. Should Contractor certify, pursuant to Exhibit 1, that, in the performance of the work under this Agreement, it shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, Contractor shall nonetheless maintain responsibility for requiring that any subcontractors performing work under this Agreement have and maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the work performed under this Agreement. D. Professional Liability Insurance with minimum limits of $1,000,000 each claim. Covered professional services shall include all work performed under this Agreement and delete any exclusion that may potentially affect the work to be performed. E. Evidence of Insurance: Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. The City project title or description MUST be included in the "Description of Operations" box on the certificate. The City's insurance certificate tracking services provider, Exigis, LLC, will send Contractor an email message providing instructions for submitting insurance certificates and endorsements. Certificate Holder: City of Irvine, California c/o: Exigis LLC PO Box 4668 ECM #35050 New York, NY 10168-4668 F. Endorsements: A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. G. Any Deductible in Excess of $50,000 and/or Self -Insured Retentions must be approved in writing by the City. H. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A- VII or higher and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus lines brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing by the City. I. Insurance of Subcontractors. Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor's policies. 2.2 Indemnification. Contractor shall indemnify, defend, and hold City and City Personnel harmless from and against any and all actions, suits, claims, demands, judgments, attorneys fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (herein "claims" or "liabilities") that may be asserted or claimed by any person or entity arising out of the willful or negligent acts, errors or omissions of Contractor, its employees, agents, representatives or subcontractors which directly or indirectly relate to the work being performed or services being provided under this Agreement, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel, but excluding such claims or liabilities arising from the sole active negligence or willful misconduct of City or City Personnel in connection therewith: 2.2.1 Contractor shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay all costs and expenses, including attorney's fees incurred in connection therewith. 2.2.2 Contractor shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities. 2.2.3 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the work being performed or services being provided under this Agreement, Contractor shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees. SECTION THREE: LEGAL RELATIONS AND RESPONSIBILITIES 3.1 Compliance with Laws. Contractor shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. When applicable, Contractor shall not pay less than the prevailing wage, which rate is determined by the Director of Industrial Relations of the State of California. 3.2 Licenses Perms Pees and Assessments. Contractor shall obtain at its sole cost and expense all licenses, permits, and approvals that may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor's performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City thereunder. 3.3 Covenant against Discrimination. Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) as the same may be amended from time to time. 3.4 Independent Contractor. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from the City; and neither Contractor nor any of its employees shall be paid by City time and one-half for working in excess of forty (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement. 3.5 Covenant against Contingent Fees. Contractor warrants that it has not employed or retained any company or person other than a bona fide employee working for Contractor, to solicit or secure this Agreement and that it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 3.6 Use of Patented Materials. Contractor shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used or incorporated in the services or work performed by Contractor under this Agreement. Contractor shall indemnify, defend, and save the City harmless from any and ail suits, actions or proceedings of every nature for or on account of the use of any patented or copyrighted materials consistent with Section 2.2 herein. 3.7 Proprietary Information. All proprietary information developed specifically for City by Contractor in connection with, or resulting from, this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Contractors underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Contractor agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Contractors services under this Agreement. Contractor further understands and agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of services by Contractor under this Agreement shall be made to City, and that Contractor shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City. 8 3.8 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether arising out of this Agreement or otherwise) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and all amounts for which City may be liable to third parties, by reason of Contractor's negligent acts, errors, or omissions, or willful misconduct, in performing or failing to perform Contractor's obligations under this Agreement. City in its sole and absolute discretion, may withhold from any payment due Contractor, without liability for interest, an amount sufficient to cover such claim or any resulting lien. The failure of City to exercise such right to deduct or withhold shall not act as a waiver of Contractor's obligation to pay City any sums Contractor owes City. 3.9 Termination by City. City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to receipt of City's notice of termination and for any services authorized in writing by City thereafter. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and Contractor shall be liable to the extent that the total cost for completion of the services required hereunder, including costs incurred by City in retaining a replacement contractor and similar expenses, exceeds the Budget. 3.10 Right to Stop Work; Tennnination by Contractor. Contractor shall have the right to stop work and terminate only if City fails to timely make a payment required under the terms of the Budget. Contractor shall provide City thirty (30) day prior written notice of such claimed payment owed and City shall have an opportunity to remedy any such claimed breach during such time with no legal consequence to City. Contractor shall immediately cease all services hereunder following the thirty (30) day notice, except such services as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to termination and for any services authorized in writing by City thereafter. If Contractor terminates this Agreement because of an error, omission, or a fault of Contractor, or Contractor's willful misconduct, the terms of Section 3.9 relating to City's right to take over and finish the work and Contractor's liability shall apply. 3.11 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party with respect to any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent act. A waiver by either party of any default must be in writing. 3.12 Legal Actions. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and maintained in the Superior Courts of the State of California in the County of Orange, or in any other appropriate court with jurisdiction in such County, and Contractor agrees to submit to the personal jurisdiction of such court. 3.13 Rights and Remedies are Cumulative. Except as may be expressly set forth in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies or other rights or remedies as may be permitted by law or in equity shall not preclude the exercise by such party, at the same or different times, of any other rights or remedies to which such party may be entitled. 691 3.14 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any of the terms or provisions of this Agreement or in connection with the performance of the work hereunder, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to have and recover from the other party its reasonable costs and expenses, including, but not limited to, reasonable attorney's fees, expert witness fees, and courts costs. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall be entitled to its reasonable attorney's fees and costs from the other party to this Agreement. 3.15 Force Maieure. The time period specked in this Agreement for performance of services shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of City or Contractor, including, but not restricted to, acts of nature or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if the delaying party shall within ten (10) days of the commencement of such delay notify the other party in writing of the causes of the delay. If Contractor is the delaying party, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Contractor's sole remedy shall be extension of this Agreement pursuant to this Section 3.15. 3.16 Non -liability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Contractor or its successor, or for breach of any obligation of the terms of this Agreement. 3.17 Conflicts of Interest. A. No officer, official, employee, agent, representative or volunteer of City shall have any financial interest, direct or indirect, in this Agreement, or participate in any decision relating to this Agreement that affects his or her financial interest or the financial interest of any corporation, partnership, association or other entity in which he or she is interested, in violation of any federal, state or city statute, ordinance or regulation. Contractor shall not employ any such person while this Agreement is in effect. B. Contractor represents, warrants and covenants that he, she or it presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. C. Contractor acknowledges that pursuant to the provisions of the Political Reform Act (Government Code section 87100 et seq.), City may determine Contractor to be a "Consultant' as that term is defined by the Act. In the event City makes such a determination, Contractor agrees to complete and file a "Statement of Economic Interest" with the City Clerk to disclose such financial interests as required by City. In such event, Contractor further agrees to require any other person doing work under this Agreement to complete and file 10 a "Statement of Economic Interest" to disclose such other person's financial interests as required by City. 3.18 Contractor Ethics. Contractor represents and warrants that it has not provided or promised to provide any gift or other consideration, directly or indirectly, to any officer, employee, or agent of City to obtain City's approval of this Agreement. Contractor shall not, at any time, have any financial interest in this Agreement or the project that is the subject of this Agreement other than the compensation to be paid to Contractor as set forth in this Agreement. In the event the work and/or services to be performed hereunder relate to a project and/or application under consideration by or on file with the City, (i) Contractor shall not possess or maintain any business relationship with the applicant or any other person or entity which Contractor knows to have a personal stake in said project and/or application, (ii) other than performing its work and/or services to City in accordance with this Agreement Contractor shall not advocate either for or against said project and/or application, and (iii) Contractor shall immediately notify City in the event Contractor determines that Contractor has or acquires any such business relationship with the applicant or other person or entity which has a personal stake in said project and/or application. The provisions in this Section shall be applicable to all of Contractor's officers, directors, employees, and agents, and shall survive the termination of this Agreement. 3.19 Compliance with California Unemployment Insurance Code Section 1088.8. If Contractor is a Sole Proprietor, then prior to signing the Agreement, Contractor shall provide to the City a completed and signed Form W-9, Request for Taxpayer Identification Number and Certification. Contractor understands that pursuant to California Unemployment Insurance Code Section 1088.8, the City will report the information from Form W-9 to the State of California Employment Development Department, and that the information may be used for the purposes of establishing, modifying, or enforcing child support obligations, including collections, or reported to the Franchise Tax Board for tax enforcement purposes. 3.20 CaIPERS Annuitants. If Contractor is a California Public Employees' Retirement System ("CaIPERS") annuitant, Contractor must provide the City with written notification of such fact a minimum of 14 calendar days prior to commencement of services under this Agreement. Failure to provide such notification may result in termination of the Agreement, and any penalties or other costs relating thereto shall be bome by Contractor. If this Agreement remains in place, Contractor shall execute any amendment(s) to this Agreement requested by the City in order to comply with all laws and regulations applicable to CaIPERS annuitants. SECTION FOUR: MISCELLANEOUS PROVISIONS 4.1 Records and Reports. The City Manager of the City of Irvine or his/her designee reserves the right to perform such audits, performance reviews, and other evaluations (collectively 'audit') that relate to or concern this Agreement at any time. Contractor agrees to participate and cooperate in up to five (5) hours of meetings and interviews (at no additional cost to City), if the same are requested by the City in connection with such an audit. Further, provided that the City pays Contractor's commercially reasonable hourly rate for services, Contractor agrees to participate and cooperate in such additional meetings and interviews (in excess of five (5) hours), if the same are requested by the City in connection with such an audit. Upon request by City, Contractor shall prepare and submit to City any reports concerning Contractor's performance of the services rendered under this Agreement. City shall have access, with 72 hours advance written notice delivered to Contractor, to the books and records of 11 Contractor related to Contractor's performance of this Agreement in the event any audit is required. All drawings, documents, and other materials prepared by Contractor in the performance of this Agreement (i) shall be the property of City and shall be delivered at no cost to City upon request of City or upon the termination of this Agreement, and (ii) shall not be made available to any individual or entity without prior written approval of City. The obligations of this Section 4.1shall survive the expiration (or earlier termination) of this Agreement for a period of three (3) years. During said three (3) year period, Contractor shall keep and maintain all records and reports related to this Agreement, and City shall have access to such records in the event any audit is required. 4.2 Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices to the City shall be delivered to the following address, to the attention of the City Representative set forth in Paragraph D.1 of the Fundamental Terms of this Agreement: To City: City of Irvine One Civic Center Plaza (92606) (Hand Deliveries) P. O. Box 19575 Irvine, CA 92623-9575 Notices to Contractor shall be delivered to the address set forth below Contractor's signature on Part I of this Agreement, to the attention of Contractor's Representative set forth in Paragraph D.2 of the Fundamental Terms of this Agreement. Changes in the address to be used for receipt of notices shall be effected in accordance with this Section 4.2. 4.3 Construction and Amendment. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The headings of sections and paragraphs of this Agreement are for convenience or reference only, and shall not be construed to limit or extend the meaning of the terms, covenants and conditions of this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 4.4 Severability. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 4.5 Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 4.6 Special Provisions. Any additional or supplementary provisions or modifications or alterations of these General Provisions shall be set forth in Part III of this Agreement ("Special Provisions"). 12 4.7 Precedence. In the event of any discrepancy between Part I ("Fundamental Terms"), Part II ("General Provisions"), Part III ("Special Provisions"), Part IV ("Scope of Services"), and/or Part V ('Budget") of this Agreement, the order of precedence shall be as follows. Part III Part II Part IV Part V Part I 13 PART III SPECIAL PROVISIONS 1) Business License Requirement. Contractors who provide services for the City of Irvine within the city limits of Irvine shall obtain, within five (5) days of executing this Agreement and prior to commencing any work herein, a City of Irvine business license and shall maintain a current business license throughout the term of this Agreement. 2) PART II GENERAL PROVISIONS, Section 2.2 Indemnification, is replaced with the following: Defense and Indemnification. Contractor agrees to defend and indemnify City and its officers, agents and employees against, and to hold and save them harmless from, any and all actions, claims, damages to persons or property, penalties, obligations, or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of the willful or negligent act, errors or omissions of Contractor, its agents, employees, or subcontractors, in performance of the professional services under this Agreement, as well as for all acts, errors or omissions of Contractor, its agents, employees, or subcontractors which are in any way related to the services for which Contractor has been contracted, yet do not arise or occur from the performance of professional services. 3) Contractor shall consider all negotiations and discussions with representatives of the City to be confidential and shall not release any information concerning such negotiations. 4) Contractor agrees that information, documents and reports pertaining to City of Irvine labor negotiations and related matters are the property of the City of Irvine and may not be used for any purposes other than those explicitly agreed to in writing by the City. 14 PART IV SCOPE OF SERVICES Services shall be performed as set forth below and in accordance with ATTACHMENT I. Background The City of Irvine is a public sector governmental entity, a Charter City, governed by a five Member City Council. The City is managed by a City Manager with two Assistant City Managers and seven Department Directors. There are 743 authorized full-time employees, and 700 to 850 part-time employees depending on seasonal workload. Contractor shall perform services as the Chief Negotiator with labor unions for contract negotiations. The City has five bargaining units and there is a current Memorandum of Understanding in place with each unit through August 10, 2017 as set forth below. Throughout the term of the contract, the Contractor will be directed by the City Council and work closely with the City Manager and his designated support staff to successfully achieve the City Council's objectives. Scope of Services Contractor shall negotiate 2017 contract renewals with all City bargaining units through successful final Agreement, and/or completion of post -impasse processes if necessary, including performing the following services: Negotiation Planning Activities • Contractor shall become knowledgeable about the City's labor agreements and related practices and policies, and the City's negotiations history, including any relevant files and documents necessary in preparation for contract negotiations. Contractor shall participate with the City Council and City Manager or designee(s) to determine the City Council's negotiation parameters and in the development of City negotiation proposals to reach agreements within those parameters. • Contractor shall develop and recommend negotiation strategies to the City Council. • Contractor shall prepare, or whenever practicable instruct designated City staff to gather and prepare, relevant data and information needed to evaluate and determine the potential impact and anticipated cost/savings associated with bargaining unit proposals or possible City proposals. • Contractor shall advise the City Council and City Manager on the timing and requirements associated with compliance of the AB646 requirements, and work with designated City staff on the advance preparation of any materials that would be 15 required or prudent to have ready should the City and any bargaining unit reach impasse in the negotiation process. Contract Negotiation Activities • Contractor shall act as the City's Chief Negotiator in contract negotiations, impasse resolution process, if necessary, and in final adoption of agreements by the City Council. • Contractor shall be available to meet with the five bargaining units on a schedule that makes possible completion of the negotiation process prior to expiration of the current contracts. • Contractor shall be available to meet with City Manager and/or his designee(s) as requested, and to attend City Council meetings and Closed Sessions as scheduled on the second and fourth Tuesday afternoon and evening of each month through the successful conclusion of the negotiations process. • Contractor shall be available as needed to meet or consult with the City Manager and/ or his designee(s) in order to ensure proper planning of and preparation for bargaining sessions and to provide advice and guidance needed related to the negotiations process. • Contractor shall evaluate and analyze negotiations proposals received from labor organizations, advise and make recommendations to the City Council and the City Manager on how to proceed during negotiations, and perform services as requested by the City Council. • Contractor shall maintain communication with and provide updates regularly to the City Council on the status of negotiation and throughout the process as developments occur which may impact the outcomes or direction of contract negotiations, or as additional direction from City Council is needed. • Contractor shall prepare or advise City designees in the preparation of documents, staff reports, exhibits, presentations, charts or spreadsheets necessary to convey information to the City Council, and/or in preparation for final adoption of agreements by the City Council. • Contractor shall work with the City Attorney as appropriate and provide any requested information to that Office pertaining to the negotiations process. Post Negotiation Activities • Contractor shallbe present and available to speak at public meetings when labor contracts are agendized for adoption by the City Council. 16 Other Services and Requirements • Contractor will prepare and submit written reports with respect to labor negotiations when requested by the City Council or the City Manager. • Contractor will consider all negotiations and discussions with representatives of the City to be confidential and will not release any information concerning such negotiations. • Contractor agrees that information, documents and reports pertaining to City of Irvine labor negotiations and related matters are the property of the City of Irvine and may not be used for any purposes other than those explicitly agreed to in writing by the City. Information on the City of Irvine Bargaining Units Name of Association Number of Nature of Employees Occupations Included Sworn Irvine Police Association (IPA) 197 Police Officers Units and Sergeants Irvine Police Management Association (IPMA) 11 Police Lieutenants and Commanders Non- Associated Supervisory/ Administrative 123 Supervisors, Sworn Personnel (ASAP) Administrators, Units Analysts Irvine City Employee Association (ICEA) 295 General, Clerical, Blue Collar Irvine Professional Employees Association Fib Engineers, (IPEA) Planners, Accountants 17 PART V BUDGET Pricina shall be as set forth below and in accordance with ATTACHMENT 11. Included in the total compensation are all ordinary and overhead expenses incurred by Contractor and its agents and employees, including meetings with City representatives, and incidental costs incurred in performing under this Agreement. The total compensation for the Scope of Services set forth herein shall not exceed $250,000.00, including all amounts payable to Contractor for its overhead, payroll, profit, and all costs of whatever nature, including without limitation all costs for subcontracts, materials, equipment, supplies, and costs arising from or due to termination of this Agreement. ';� )erformed with a 1 excess of the Purchase Order amount as the City has not authorized nor is it obligated to Pay Contractor any such excess amount. In the event Contractor anticipates the potential need to perform services beyond those set forth herein where additional funding may be needed, Contractor shall notify City in writing allowing sufficient time for City to consider further action. Payment for services will be made monthly on invoices deemed satisfactory to the City, with payment terms of net 30 days upon receipt of invoice. Contractor shall submit invoices within fifteen (15) days from the end of each month in which services have been provided. Contractor shall provide invoices with sufficient detail to ensure compliance with pricing as set forth in this Agreement. The information required may include: date(s) of work, hours of work, hourly rate(s), and material costs. The Purchase Order number must be included on all invoices, along with the City Representative's name. Failure to include this information on the invoice shall result in the return of the unpaid invoice. Contractors should submit invoices electronically to: invoicesubmittal@cityofirvine.org Payment by City under this Agreement shall not be deemed as a waiver of the City's right to claim at a later point that such payment was not due under the terms of this Agreement. Pricing shall remain firm for the entire one (1) year Agreement term. Thereafter, any proposed pricing adjustment for follow-on renewal periods shall be submitted to the City Representative in writing at least ninety (90) days prior to the new Agreement term. The City reserves the right to negotiate any proposed pricing adjustment not to exceed the Bureau of Labor Statistics Consumer Price Index (CPI) data as follows: Los Angeles -Riverside -Orange County, CA; All Items; Not Seasonally Adjusted; annualized change comparing the most recent month's reported data to the same month of the prior year. (This information may be found on the U.S. Department of Labor's website at www.bis.gov.) 18 Exhibit 1 WORKERS' COMPENSATION INSURANCE CERTIFICATION Contract Services Description: Labor Negotiating Services WORKERS' COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: (CHECK ONE APPLICABLE BOX BELOV19 Lam- I have and will maintain workers' compensation insurance, as required by pe � Section 3700 of the Labor Code, for the performance of the work to be performed under this Agreement and shall submit insurance certificates evidencing such coverage as set forth herein. t I certify that, in the performance of the work under this Agreement, 1 shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and 1 hereby agree to indemnify, defend, and hold harmless the City of Irvine and all of its officials, employees, and agents from and against any and all claims, liabilities, and losses relating to personal injury or death, economic losses, and property damage arising out of my failure to provide such worker's compensation insurance. I further agree that, if l should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, 1 shall forthwith comply with those provisions and immediately furnish insurance certificates evidencing such coverage as set forth herein. WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. Dated: '1::,, L) Z , "Z_ Contracting Firm: ti drt Cassidy Whitmore, a Professional Corporation Signature;-,�/Alb?(A-����� Title: v e 3 i Addresy 16033 W. Century Blvd., 5th Floor, Los Angeles, CA 90045 19 ATTACHMENT I Services Provided: The services offered by our LCW negotiators are generally as follows, subject to the particular preferences of any agency which can and do bring about modifications to our role. - Meet with City staff and elected officials prior to commencement of negotiations in order to best understand (and perhaps formulate) the goals and objectives of the City in addressing the potential bargaining issues, and to be made aware of the financial/political limitations upon reaching those goals and objectives. - Provide leadership in formulating the strategies which will be employed in meeting the goals and objectives at the bargaining table. This may include asking that various City negotiation team members or resource personnel prepare budget presentations, detailed cost/revenue analyses or other financial data which may be discussed during negotiations. - Administer and/or oversee classification and compensation studies to gather the needed data to formulate and present the agency's bargaining objectives and proposals. - Review and analyze all pertinent charter provisions, codes, ordinances, rules and regulations, and existing memoranda of understanding, to verify their impact upon the goals and objectives being pursued. - Act as principal spokesperson and strategist during the bargaining process - Participate in closed sessions to provide guidance to and receive direction from elected officials. - Represent the City at impasse proceedings, including preparation and representation through the impasse process, preparation of press releases, supervising media relations, meeting with elected officials, and making those appearances provided for by the City employee relations ordinance, as requested by the City. Most of our negotiation work involves multiple units and we are adept at handling multiple concurrent negotiations. When possible we attempt to schedule meetings with various units back to back as to reduce travel time. 20 ATTACHMENT II ® LIEBERT CASSIDY WHITMORE 60M W wr Cvmmv Boutzm n, 5m Fl oox LOBANOmM CALnKWMA 90015 T:310.981.2000 F:310.337.0837 pbrowMlcwl*pl.mm 310.981.2030 February 2, 2017 VIA EMAIL bking@ciJrvine.ca.us Mr. Brian King Human Resources Administrator City of Irvine P.O. Box 19575 Irvine, CA 92623-9575 Re: LCW Amendment to RFP 17-1193 Dear Mr. King: Per our negotiations, we agree to amend our previous proposal for this matter, submitted on November 29, 2016. We amend the following: Pricing Proposal Pricing offered on a time and materials basis would be based on the standard hourly rates listed below. Peter J. Brown ............ $350 Steven M. Berliner ..... $350 Oliver Yee..................$350 Kristi Recchia ............$195 Expenses Unlike many firms, we do not bill for secretarial or word processing time or telephone charges. Facsimile transmissions are billed at the rate of $.25 per page for outgoing faxes only. We make every effort to email documents rather than fax them. Copying is charged at fifteen cents ($.15) per page. Additional prints, postage and special deliveries (i.e. Fed -Ex, UPS, DHL, messenger service), and other hired deliveries completed at the request of the client or necessary to comply with court or other deadlines will also be billed to the client. Los Angeles I San Francisco I Fresno I SanDlegol Sacramento www.lcwlcgal.com 21 Mr. Brian King Re: LCWAmendment to RFP 17-1193 February 2, 2017 Page 2 Our firm bills for travel time at the negotiator's hourly rate — for the time it takes to travel from the office to our client and back, or the time it takes from the negotiator's residence to our client and back, whichever is less. Thank you again for including Liebert Cassidy Whitmore in your search. PJB:csw Very truly yours, LIEBERT CASSIDY WHITMORE Peter J. own 22 A.-4 OF November 9, 2016 REQUEST FOR PROPOSALS for Labor Negotiating Services Thank you for considering the attached Request for Proposals (RFP). If you are interested in submitting a Proposal, please follow these instructions for submissions: Only RFP Documents downloaded from the City's website (cityofirvine.org/purchasing) shall be considered official, as the City must track RFP holders in case an addendum is issued. Proposers are responsible for acknowledging any and all addenda issued. Due Date and Time: No Later than November 30, 2016 at 4:00:00 pm NO LATE PROPOSALS WILL BE ACCEPTED. RFP Number: 17-1193 This RFP number must be clearly marked on the outside of the envelope containing one (1) original and three (3) copies of the proposal. The original proposal must be unbound. Submit Proposal to: By mail: City of Irvine Purchasing Agent P.O. Box 19575 Irvine, CA 92623-9575 Overnight or hand delivery: City of Irvine c/o Receptionist for Purchasing Agent 1 Civic Center Plaza Irvine, CA 92606-5208 Any requests for clarification or other questions concerning this RFP must be submitted in writing and sent via email to Brian King with a copy to Portia Mina (as shown below) no later than November 17, 2016 at 4:00 p.m. Brian King, Human Resources Administrator Portia Mina, Senior Buyer Email: bking@cityofirvine.org Email:pmina@cityofirvine.org The City of Irvine reserves the right to reject any or all Proposals, to waive any informality in any Proposal, and to select the Proposal that best meets the City's needs. RFP Number: 17-1193 REQUEST FOR PROPOSALS FOR LABOR NEGOTIATING SERVICES Dear Proposers: The City of Irvine (hereinafter referred to as the "City") is requesting proposals to establish a contract for Labor Negotiating Services, with work to commence on or about February 1, 2017 and be completed on January 31, 2018. The City reserves the right to extend the contract for up to four (4) additional one (1) year periods. Proposals must be submitted to the Purchasing Agent, City of Irvine, no later than the date and time stated on this RFP cover sheet. Proposals shall be reviewed and rated on the basis of the selection criteria indicated in the "SELECTION PROCESS" section of this RFP. The City will then determine which proposal best meets the City's requirements. If hand delivered to the Civic Center, proposals shall be submitted to the Receptionist for the Purchasing Agent at the Reception Desk located on the first floor. Proposals shall be submitted in sealed envelopes marked on the outside, "Labor Negotiating Services, RFP No. 17-1193." (Please see cover sheet for additional submittal information.) LATE PROPOSALS WILL NOT BE ACCEPTED The City reserves the right to reject any or all proposals, to waive any informality in any proposal and to select the proposal that best meets the City's needs. MINIMUM QUALIFICATIONS REQUIRED FOR PROPOSAL SUBMITTAL Firms who fail to meet the minimum qualifications set forth below should not submit a proposal; any such proposal shall be deemed non -responsive and not be considered. 1) Minimum six (6) most recent years of experience performing similar services as those detailed in the Scope of Services section of this RFP. 2) Experience with California Public Employment Relations Board (PERB). 3) Experience with the Meyers-Milias-Brown Act (MMBA). 4) Strong working knowledge of the Fair Labor Standards Act (FLSA). 5) Knowledge and experience related to the Police Officer's Bill of Rights (POBR). 2 6) Must be available to attend City Council meetings as requested which are generally held the second and fourth Tuesday of the month beginning at 4 pm and lasting up to about five hours. 7) Available to commence work immediately upon contract formation and meet other schedule requirements as set forth herein. OVERVIEW AND SCOPE OF WORK This Request for Proposals is for Labor Negotiating Services as set forth in ATTACHMENT I. TERMS AND CONDITIONS The City's standard Agreement for Contract Services is included as ATTACHMENT II. Upon award of the contract, it is expected that the successful proposer will accept the Agreement terms and conditions "as is" without modification. (Please refer to Part III Special Provisions of ATTACHMENT II for special requirements relating to these services.) At the discretion of the City, any or all parts of the respondent's proposal shall be made a binding part of the selected firm's contract. The City reserves the right to reject in whole or in part any of the proposals. Time frame for submittal of insurance documents: At the time the contract is awarded, the firm must be able to provide all required insurance documentation to the City's insurance certificate tracking company as set forth in ATTACHMENT II. If these requirements are not met, the City reserves the right to select the next best qualified firm. ORGANIZATION OF PROPOSAL If your proposal does not include all of the items below, it may be deemed non- responsive. The proposal will be evaluated by the City and shall include, at a minimum, the following information: 6 BUSINESS INFORMATION State the full legal name of your firm, including the state of incorporation if applicable. Include your address, phone number, fax number and email address. State the number of years your firm has been doing business. List the names of principals or officers authorized to bind your firm, including position titles. • EXPERIENCE / QUALIFICATIONS INFORMATION Provide information concerning your firm's experience and qualifications directly 3 related to the services set forth herein including addressing each of the "Minimum Qualifications" requirements as set forth above. State the number of collective bargaining units currently being handled by your firm, and identify which of these firms are located in Orange County, Calif. e PROJECT APPROACH / METHODOLOGY Provide a detailed description of your proposed methodology/project approach based on your understanding of the Scope of Services (ATTACHMENT 1). • REFERENCES Provide a minimum of three (3) references for similar work that your firm has provided within the last three (3) years. Include a detailed description of the services, the agency or firm names, contact names and phone numbers, and dates of services performed. 0 PRICING PROPOSAL Provide a fee schedule/pricing information for the project. Provide hourly rates for each category of employee or subconsultant required to perform the services as set forth in ATTACHMENT I, Scope of Services including the Chief Negotiator, attorneys, paralegals, etc. Note: The City will not reimburse for travel -related expenses, so any such anticipated costs must be incorporated into the hourly rates. Pricing shall remain firm for the entire one (1) year Agreement term. Thereafter, any proposed pricing adjustment for follow-on renewal periods shall be submitted to the City Representative in writing at least ninety (90) days prior to the new Agreement term. City reserves the right to negotiate any pricing adjustment not to exceed the Bureau of Labor Statistics Consumer Price Index (CPI) data as follows: Los Angeles -Riverside -Orange County, CA; All Items; Not Seasonally Adjusted; annualized change comparing the most recent month's reported data to the same month of the prior year. (This information may be found on the U.S. Department of Labor's website at www.bls.gov.) 0 SIGNATURE The proposal shall be signed by an official authorized to bind the firm, including his or her printed name and title, and shall contain a statement to the effect that the proposal is valid for ninety (90) days. SELECTION PROCESS The contract award will be made after selection of one (1) respondent's proposal from among all respondents with implementation of services to follow. However, this RFP does not indicate a commitment by the City to award a contract to any successful 91 respondent. An award of contract is estimated to occur within approximately sixty (60) days after receipt of proposals. The City intends to evaluate the proposed services based upon the data presented in response to the RFP. The following general selection criteria will be used to evaluate the proposals: Phase 1: 1. Experience and qualifications of firm and designated Chief Negotiator, attorney(s), paralegals and other key personnel and sub -consultants, if applicable (50%). 2. Methodology/Project Approach provided (20%). 3. Proposal Pricing (20%). 4. Responsiveness to the Request for Proposals (10%). Phase 2 for highest -rated firm(s): • The City reserves the right to conduct interviews with the highest -rated firm or firms. In the event the City does perform an interview process, the additive weighting shall be 40%. Phase 3 for highest -rated firm(s) • The City will perform reference checks for similar work completed within the last three years for the highest -rated firm(s), with an additive weighting of 10%. The City reserves the right to negotiate final pricing with the highest -rated firm(s). The City reserves the right to reject any or all proposals, to waive any informality in any proposal, and to select the proposal that best meets the City's needs. GENERAL INFORMATION The City will make payments monthly on approved invoices, with payment terms of net 30 days upon receipt of invoice. Payment for additional work, if any, will be negotiated as required. Final payment will be made after approval and acceptance of the work. Any costs incurred in the preparation of a proposal, presentation to the City, travel in conjunction with such presentations, or samples of items shall be the responsibility of the respondent. The City assumes no responsibility and no liability for costs incurred by respondents prior to issuance of a contract or purchase order. The proposer shall furnish the City with such additional information as the City may reasonably require. E Any questions or requests for clarification must be submitted in writing and sent via email as set forth on the cover sheet of this RFP. All data, documents and other products used or developed during performance of the services will remain the property of the City upon completion of the services. One (1) original and three (3) copies of the completed proposal must be enclosed in a sealed envelope and addressed as stated on the cover sheet. The original proposal must be unbound. Sealed envelopes must be marked with, "Labor Negotiating Services, RFP No. 17-1193." Sincerely, Portia Mina, CPSM, CPPB Senior Buyer 0 ATTACHMENT I LABOR NEGOTIATING SERVICES SCOPE OF SERVICES Background The City of Irvine is a public sector governmental entity, a Charter City, governed by a five Member City Council. The City is managed by a City Manager with two Assistant City Managers and seven Department Directors. There are 743 authorized full-time employees, and 700 to 850 part-time employees depending on seasonal workload. Contractor shall perform services as the Chief Negotiator with labor unions for contract negotiations. The City has five bargaining units and there is a current Memorandum of Understanding in place with each unit through August 10, 2017 as set forth below. Throughout the term of the contract, the Contractor will be directed by the City Council and work closely with the City Manager and his designated support staff to successfully achieve the City Council's objectives. Scope of Services Contractor shall negotiate 2017 contract renewals with all City bargaining units through successful final Agreement, and/or completion of post -impasse processes if necessary, including performing the following services: Negotiation Planning Activities o Contractor shall become knowledgeable about the City's labor agreements and related practices and policies, and the City's negotiations history, including any relevant files and documents necessary in preparation for contract negotiations. • Contractor shall participate with the City Council and City Manager or designee(s) to determine the City Council's negotiation parameters and in the development of City negotiation proposals to reach agreements within those parameters. • Contractor shall develop and recommend negotiation strategies to the City Council. Contractor shall prepare, or whenever practicable instruct designated City staff to gather and prepare, relevant data and information needed to evaluate and determine the potential impact and anticipated cost/savings associated with bargaining unit proposals or possible City proposals. • Contractor shall advise the City Council and City Manager on the timing and requirements associated with compliance of the AB646 requirements, and work with 7 designated City staff on the advance preparation of any materials that would be required or prudent to have ready should the City and any bargaining unit reach impasse in the negotiation process. Contract Negotiation Activities • Contractor shall act as the City's Chief Negotiator in contract negotiations, impasse resolution process, if necessary, and in final adoption of agreements by the City Council. • Contractor shall be available to meet with all bargaining units on a schedule that makes possible completion of the negotiation process prior to expiration of the current contracts. • Contractor shall be available to meet with City Manager and/or his designee(s) as requested, and to attend City Council meetings and Closed Sessions as scheduled on the second and fourth Tuesday afternoon and evening of each month through the successful conclusion of the negotiations process. • Contractor shall be available as needed to meet or consult with the City Manager and/ or his designee(s) in order to ensure proper planning of and preparation for bargaining sessions and to provide advice and guidance needed related to the negotiations process. • Contractor shall evaluate and analyze negotiations proposals received from labor organizations, advise and make recommendations to the City Council and the City Manager on how to proceed during negotiations, and perform services as requested by the City Council. • Contractor shall maintain communication with and provide updates regularly to the City Council on the status of negotiation and throughout the process as developments occur which may impact the outcomes or direction of contract negotiations, or as additional direction from City Council is needed. • Contractor shall prepare or advise City designees in the preparation of documents, staff reports, exhibits, presentations, charts or spreadsheets necessary to convey information to the City Council, and/or in preparation for final adoption of agreements by the City Council. • Contractor shall work with the City Attorney as appropriate and provide any requested information to that Office pertaining to the negotiations process. Post Negotiation Activities • Contractor shall be present and available to speak at public meetings when labor contracts are agendized for adoption by the City Council. N. Other Services and Requirements • Contractor will prepare and submit written reports with respect to labor negotiations when requested by the City Council or the City Manager. • Contractor will consider all negotiations and discussions with representatives of the City to be confidential and will not release any information concerning such negotiations. • Contractor agrees that information, documents and reports pertaining to City of Irvine labor negotiations and related matters are the property of the City of Irvine and may not be used for any purposes other than those explicitly agreed to in writing by the City. Information on the City of Irvine Bargaining Units Name of Association Number of Nature of Employees Occupations Included Sworn Irvine Police Association (IPA) 197 Police Officers Units and Sergeants Irvine Police Management Association (IPMA) 11 Police Lieutenants and Commanders Non- Associated Supervisory/ Administrative 123 Supervisors, Sworn Personnel (ASAP) Administrators, Units Analysts Irvine City Employee Association (ICEA) 295 General, Clerical, Technicians, Specialists Irvine Professional Employees Association 68 Engineers, (IPEA) Planners, Accountants W ATTACHMENT II AGREEMENT FOR CONTRACT SERVICES THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into as of 2016, by and between the CITY OF IRVINE, a municipal corporation ("City"), and a (insert legal entity such as "a sole proprietorship" or "a California corporation") ("Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) :7_1:4a FUNDAMENTAL TERMS A. Location of Project: The City of Irvine location(s) as set forth in PART IV, Scope of Services, included herein. B. Description of Services/Goods to be Provided: Labor Negotiating Services in accordance with PART IV, Scope of Services, included herein (reference RFP 17-1193). C. Term: Unless terminated earlier as set forth in this Agreement, the services shall commence on February 1, 2017 ("Commencement Date") and shall continue through January 31, 2018. The City reserves the right to extend this Agreement for up to four (4) additional one (1) year periods. Such extension shall only be valid if effectuated in writing by the City. D. Party Representatives: D.1. The City designates the following person/officer to act on City's behalf: Brian King, email: bking@cityofirvine.org D.2. The Contractor designates the following person to act on Contractor's behalf: , email: E. Notices: Contractor shall deliver all notices and other writings required to be delivered under this Agreement to City at the address set forth in Part II ("General Provisions"). The City shall deliver all notices and other writings required to be delivered to Contractor at the address set forth following Contractor's signature below. F. Attachments: This Agreement incorporates by reference the following Attachments to this Agreement: F.1. Part I: Fundamental Terms F.2. Part II: General Provisions F.3. Part III: Special Provisions FA. Part IV: Scope of Services F.5. Part V: Budget G. Integration: This Agreement represents the entire understanding of City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes ml and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first set forth above. CITY OF IRVINE Grace K. Leung Its: Assistant City Manager Attest: la Molly McLaughlin City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP Jeffrey Melching CONTRACTOR'S NAME By: Its: By: Its: Contractor Information Address for Notices and Payments: Attn: Telephone: Email: PART II GENERAL PROVISIONS SECTION ONE: SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide the goods and/or services shown on Part IV hereto ("Scope of Services"), which may be referred to herein as the "services" or the "work." If this Agreement is for the provision of goods, supplies, equipment or personal property, the terms "services" and "work" shall include the provision (and, if designated in the Scope of Services, the installation) of such goods, supplies, equipment or personal property. 1.2 Changes and Additions to Scope of Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such work shall be undertaken unless a written order is first given by City to Contractor, incorporating therein any adjustment in (i) the Budget, and/or (ii) the time to perform this Agreement, which adjustments are subject to the written approval of the Contractor. City approval and/or payment for work claimed by Contractor as changed or additional shall not act to prevent City at any time to claim such work is covered by the Scope of Work and should be performed by Contractor without additional consideration due. It is expressly understood by Contractor that the provisions of this Section 1.2 shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. 1.3 Standard of Performance. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 1.4 Performance to Satisfaction of City. Notwithstanding any other provision herein, Contractor agrees to perform all work to the satisfaction of City within the time specified. If City reasonably determines that the work is not satisfactory, City shall have the right to take appropriate action, including but not limited to: (i) meeting with Contractor to review the quality of the work and resolve matters of concern; (ii) requiring Contractor to repeat unsatisfactory work at no additional charge until it is satisfactory; (iii) suspending the delivery of work to Contractor for an indefinite time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. 1.5 Instructions from City. In the performance of this Agreement, Contractor shall report to and receive instructions from the City's Representative designated in Paragraph D.1 of Part I ("Fundamental Terms") of this Agreement. Tasks or services other than those specifically described in the Scope of Services shall not be performed without the prior written approval of the City's Representative. 1.6 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under the Agreement. If 12 the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any conditions, including any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact in writing and shall not proceed except at Contractor's risk until written instructions are received from the City's Representative. 1.7 Identity of Persons Performing Work. (A) Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services required hereunder. Any personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. (B) Contractor represents that the tasks and services required hereunder will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services. Contractor will exclusively determine the means, methods and details of performing the services subject to the requirements of this Agreement. (C) This Agreement contemplates the personal services of Contractor and Contractor's employees, and it is recognized by the parties hereto that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of Contractor. Neither this Agreement nor any interest therein may be assigned by Contractor, except upon written consent of City. 1.8 Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express written consent of City. SECTION TWO: INSURANCE AND INDEMNIFICATION 2.1 Insurance. Without limiting Contractor's indemnification obligations, Contractor shall procure and maintain, at its sole cost and for the duration of this Agreement, insurance coverage as provided below, against all claims for injuries against persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees, and/or subcontractors. In the event that Contractor subcontracts any portion of the work in compliance with Section 1.8 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the contractor is required to maintain pursuant to this Section 2.1. 2.1.1 Insurance Coverage Required. The policies and amounts of insurance required hereunder shall be as follows: 13 A. Comprehensive General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01 including completed operations and contractual liability, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of Irvine and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. B. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $1,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned," "hired" and "non - owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (1) Name the City of Irvine and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. C. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to: (1) Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement unless your insurance carrier is the State of California Insurance Fund (SCIF) and the endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. Contractor's completion of the form attached hereto as Exhibit 1 shall be a condition precedent to Contractor's rights under this Agreement. Should Contractor certify, pursuant to Exhibit 1, that, in the performance of the work under this 14 Agreement, it shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, Contractor shall nonetheless maintain responsibility for requiring that any subcontractors performing work under this Agreement have and maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the work performed under this Agreement. D. Professional Liability Insurance with minimum limits of $1,000,000 each claim. Covered professional services shall include all work performed under this Agreement and delete any exclusion that may potentially affect the work to be performed. E. Evidence of Insurance: Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. The City project title or description MUST be included in the "Description of Operations" box on the certificate. The City's insurance certificate tracking services provider, Exigis, LLC, will send Contractor an email message providing instructions for submitting insurance certificates and endorsements. Certificate Holder: City of Irvine, California c/o: Exigis LLC PO Box 4668 ECM #35050 New York, NY 10168-4668 F. Endorsements: A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. G. Any Deductible in Excess of $50,000 and/or Self -Insured Retentions must be approved in writing by the City. H. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A- VII or higher and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus lines brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing by the City. 15 I. Insurance of Subcontractors. Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor's policies. 2.2 Indemnification. Contractor shall indemnify, defend, and hold City and City Personnel harmless from and against any and all actions, suits, claims, demands, judgments, attorney's fees, costs, damages to persons or property, losses, penalties, obligations, expenses or liabilities (herein "claims" or "liabilities") that may be asserted or claimed by any person or entity arising out of the willful or negligent acts, errors or omissions of Contractor, its employees, agents, representatives or subcontractors which directly or indirectly relate to the work being performed or services being provided under this Agreement, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel, but excluding such claims or liabilities arising from the sole active negligence or willful misconduct of City or City Personnel in connection therewith: 2.2.1 Contractor shall defend any action or actions filed in connection with any such claims or liabilities, and shall pay all costs and expenses, including attorney's fees incurred in connection therewith. 2.2.2 Contractor shall promptly pay any judgment rendered against City or any City Personnel for any such claims or liabilities. 2.2.3 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such damages or other claims arising out of or in connection with the work being performed or services being provided under this Agreement, Contractor shall pay to City any and all costs and expenses incurred by City or City Personnel in such action or proceeding, together with reasonable attorney's fees and expert witness fees. SECTION THREE: LEGAL RELATIONS AND RESPONSIBILITIES 3.1 Compliance with Laws. Contractor shall keep itself fully informed of all existing and future state and federal laws and all county and city ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. When applicable, Contractor shall not pay less than the prevailing wage, which rate is determined by the Director of Industrial Relations of the State of California. 3.2 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense all licenses, permits, and approvals that may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor's performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City thereunder. In 3.3 Covenant against Discrimination. Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seg.) as the same may be amended from time to time. 3.4 Independent Contractor. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from the City; and neither Contractor nor any of its employees shall be paid by City time and one-half for working in excess of forty (40) hours in any one week. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights an employee may have in the event of termination of this Agreement. 3.5 Covenant against Contingent Fees. Contractor warrants that it has not employed or retained any company or person other than a bona fide employee working for Contractor, to solicit or secure this Agreement and that it has not paid or agreed to pay any company or person any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 3.6 Use of Patented Materials. Contractor shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used or incorporated in the services or work performed by Contractor under this Agreement. Contractor shall indemnify, defend, and save the City harmless from any and all suits, actions or proceedings of every nature for or on account of the use of any patented or copyrighted materials consistent with Section 2.2 herein. 3.7 Proprietary Information. All proprietary information developed specifically for City by Contractor in connection with, or resulting from, this Agreement, including but not limited to inventions, discoveries, improvements, copyrights, patents, maps, reports, textual material, or software programs, but not including Contractor's underlying materials, software, or know-how, shall be the sole and exclusive property of City, and are confidential and shall not be made available to any person or entity without the prior written approval of City. Contractor agrees that the compensation to be paid pursuant to this Agreement includes adequate and sufficient compensation for any proprietary information developed in connection with or resulting from the performance of Contractor's services under this Agreement. Contractor further understands and agrees that full disclosure of all proprietary information developed in connection with, or resulting from, the performance of services by Contractor under this Agreement shall be made to City, and that Contractor shall do all things necessary and proper to perfect and maintain ownership of such proprietary information by City. VA 3.8 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether arising out of this Agreement or otherwise) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and all amounts for which City may be liable to third parties, by reason of Contractor's negligent acts, errors, or omissions, or willful misconduct, in performing or failing to perform Contractor's obligations under this Agreement. City in its sole and absolute discretion, may withhold from any payment due Contractor, without liability for interest, an amount sufficient to cover such claim or any resulting lien. The failure of City to exercise such right to deduct or withhold shall not act as a waiver of Contractor's obligation to pay City any sums Contractor owes City. 3.9 Termination by City. City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to receipt of City's notice of termination and for any services authorized in writing by City thereafter. If termination is due to the failure of Contractor to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and Contractor shall be liable to the extent that the total cost for completion of the services required hereunder, including costs incurred by City in retaining a replacement contractor and similar expenses, exceeds the Budget. 3.10 Right to Stop Work; Termination by Contractor. Contractor shall have the right to stop work and terminate only if City fails to timely make a payment required under the terms of the Budget. Contractor shall provide City thirty (30) day prior written notice of such claimed payment owed and City shall have an opportunity to remedy any such claimed breach during such time with no legal consequence to City. Contractor shall immediately cease all services hereunder following the thirty (30) day notice, except such services as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to termination and for any services authorized in writing by City thereafter. If Contractor terminates this Agreement because of an error, omission, or a fault of Contractor, or Contractor's willful misconduct, the terms of Section 3.9 relating to City's right to take over and finish the work and Contractor's liability shall apply. 3.11 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party with respect to any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent act. A waiver by either party of any default must be in writing. 3.12 Legal Actions. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and maintained in the Superior Courts of the State of California in the County of Orange, or in any other appropriate court with jurisdiction in such County, and Contractor agrees to submit to the personal jurisdiction of such court. 3.13 Rights and Remedies are Cumulative. Except as may be expressly set forth in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies or other rights or remedies as may be permitted by law or in equity shall not preclude the exercise by such party, at the same or different times, of any other rights or remedies to which such party may be entitled. 3.14 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any of the terms or provisions of this Agreement or in connection with the performance of the work hereunder, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to have and recover from the other party its reasonable costs and expenses, including, but not limited to, reasonable attorney's fees, expert witness fees, and courts costs. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall be entitled to its reasonable attorney's fees and costs from the other party to this Agreement. 3.15 Force Majeure. The time period specified in this Agreement for performance of services shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of City or Contractor, including, but not restricted to, acts of nature or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if the delaying party shall within ten (10) days of the commencement of such delay notify the other party in writing of the causes of the delay. If Contractor is the delaying party, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Contractor's sole remedy shall be extension of this Agreement pursuant to this Section 3.15. 3.16 Non -liability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City, or for any amount which may become due to Contractor or its successor, or for breach of any obligation of the terms of this Agreement. 3.17 Conflicts of Interest. A. No officer, official, employee, agent, representative or volunteer of City shall have any financial interest, direct or indirect, in this Agreement, or participate in any decision relating to this Agreement that affects his or her financial interest or the financial interest of any corporation, partnership, association or other entity in which he or she is interested, in violation of any federal, state or city statute, ordinance or regulation. Contractor shall not employ any such person while this Agreement is in effect. B. Contractor represents, warrants and covenants that he, she or it presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor's obligations and responsibilities under this Agreement. C. Contractor acknowledges that pursuant to the provisions of the Political Reform Act (Government Code section 87100 et seq.), City may determine Contractor to be a "Consultant" as that term is defined by the Act. In the event City makes such a determination, Contractor agrees to complete and file a "Statement of Economic Interest" with the City Clerk to disclose such financial interests as required by City. In such event, Contractor further agrees to require any other person doing work under this Agreement to complete and file 19 a "Statement of Economic Interest" to disclose such other person's financial interests as required by City. 3.18 Contractor Ethics. Contractor represents and warrants that it has not provided or promised to provide any gift or other consideration, directly or indirectly, to any officer, employee, or agent of City to obtain City's approval of this Agreement. Contractor shall not, at any time, have any financial interest in this Agreement or the project that is the subject of this Agreement other than the compensation to be paid to Contractor as set forth in this Agreement. In the event the work and/or services to be performed hereunder relate to a project and/or application under consideration by or on file with the City, (i) Contractor shall not possess or maintain any business relationship with the applicant or any other person or entity which Contractor knows to have a personal stake in said project and/or application, (ii) other than performing its work and/or services to City in accordance with this Agreement Contractor shall not advocate either for or against said project and/or application, and (iii) Contractor shall immediately notify City in the event Contractor determines that Contractor has or acquires any such business relationship with the applicant or other person or entity which has a personal stake in said project and/or application. The provisions in this Section shall be applicable to all of Contractor's officers, directors, employees, and agents, and shall survive the termination of this Agreement. 3.19 Compliance with California Unemployment Insurance Code Section 1088.8. If Contractor is a Sole Proprietor, then prior to signing the Agreement, Contractor shall provide to the City a completed and signed Form W-9, Request for Taxpayer Identification Number and Certification. Contractor understands that pursuant to California Unemployment Insurance Code Section 1088.8, the City will report the information from Form W-9 to the State of California Employment Development Department, and that the information may be used for the purposes of establishing, modifying, or enforcing child support obligations, including collections, or reported to the Franchise Tax Board for tax enforcement purposes. 3.20 CaIPERS Annuitants. If Contractor is a California Public Employees' Retirement System ("CaIPERS") annuitant, Contractor must provide the City with written notification of such fact a minimum of 14 calendar days prior to commencement of services under this Agreement. Failure to provide such notification may result in termination of the Agreement, and any penalties or other costs relating thereto shall be borne by Contractor. If this Agreement remains in place, Contractor shall execute any amendment(s) to this Agreement requested by the City in order to comply with all laws and regulations applicable to CaIPERS annuitants. SECTION FOUR: MISCELLANEOUS PROVISIONS 4.1 Records and Reports. The City Manager of the City of Irvine or his/her designee reserves the right to perform such audits, performance reviews, and other evaluations (collectively `audit') that relate to or concern this Agreement at any time. Contractor agrees to' participate and cooperate in up to five (5) hours of meetings and interviews (at no additional cost to City), if the same are requested by the City in connection with such an audit. Further, provided that the City pays Contractor's commercially reasonable hourly rate for services, Contractor agrees to participate and cooperate in such additional meetings and interviews (in excess of five (5) hours), if the same are requested by the City in connection with such an audit. Upon request by City, Contractor shall prepare and submit to City any reports concerning Contractor's performance of the services rendered under this Agreement. City shall have access, with 72 hours advance written notice delivered to Contractor, to the books and records of 20 Contractor related to Contractor's performance of this Agreement in the event any audit is required. All drawings, documents, and other materials prepared by Contractor in the performance of this Agreement (i) shall be the property of City and shall be delivered at no cost to City upon request of City or upon the termination of this Agreement, and (ii) shall not be made available to any individual or entity without prior written approval of City. The obligations of this Section 4.1 shall survive the expiration (or earlier termination) of this Agreement for a period of three (3) years. During said three (3) year period, Contractor shall keep and maintain all records and reports related to this Agreement, and City shall have access to such records in the event any audit is required. 4.2 Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices to the City shall be delivered to the following address, to the attention of the City Representative set forth in Paragraph DA of the Fundamental Terms of this Agreement: To City: City of Irvine One Civic Center Plaza (92606) (Hand Deliveries) P. O. Box 19575 Irvine, CA 92623-9575 Notices to Contractor shall be delivered to the address set forth below Contractor's signature on Part I of this Agreement, to the attention of Contractor's Representative set forth in Paragraph D.2 of the Fundamental Terms of this Agreement. Changes in the address to be used for receipt of notices shall be effected in accordance with this Section 4.2. 4.3 Construction and Amendment. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The headings of sections and paragraphs of this Agreement are for convenience or reference only, and shall not be construed to limit or extend the meaning of the terms, covenants and conditions of this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 4.4 Severability. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 4.5 Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 4.6 Special Provisions. Any additional or supplementary provisions or modifications or alterations of these General Provisions shall be set forth in Part III of this Agreement ("Special Provisions"). PAI 4.7 Precedence. In the event of any discrepancy between Part I ("Fundamental Terms"), Part 11 ("General Provisions"), Part III ("Special Provisions"), Part IV ("Scope of Services"), and/or Part V ("Budget") of this Agreement, the order of precedence shall be as follows. Part III Part 11 Part IV Part V PartI 22 PART III SPECIAL PROVISIONS 1) Business License Requirement. Contractors who provide services for the City of Irvine within the city limits of Irvine shall obtain, within five (5) days of executing this Agreement and prior to commencing any work herein, a City of Irvine business license and shall maintain a current business license throughout the term of this Agreement. 2) PART II GENERAL PROVISIONS, Section 2.2 Indemnification, is replaced with the following: Defense and Indemnification. Contractor agrees to defend and indemnify City and its officers, agents and employees against, and to hold and save them harmless from, any and all actions, claims, damages to persons or property, penalties, obligations, or liabilities that may be asserted or claimed. by any person, firm, entity, corporation, political subdivision or other organization arising out of the willful or negligent act, errors or omissions of Contractor, its agents, employees, or subcontractors, in performance of the professional services under this Agreement, as well as for all acts, errors or omissions of Contractor, its agents, employees, or subcontractors which are in any way related to the services for which Contractor has been contracted, yet do not arise or occur from the performance of professional services. 3) Contractor shall consider all negotiations and discussions with representatives of the City to be confidential and shall not release any information concerning such negotiations. 4) Contractor agrees that information, documents and reports pertaining to City of Irvine labor negotiations and related matters are the property of the City of Irvine and may not be used for any purposes other than those explicitly agreed to in writing by the City. 23 PART IV SCOPE OF SERVICES Services shall be performed as set forth below and in accordance with ATTACHMENT I Background The City of Irvine is a public sector governmental entity, a Charter City, governed by a five Member City Council. The City is managed by a City Manager with two Assistant City Managers and seven Department Directors. There are 743 authorized full-time employees, and 700 to 850 part-time employees depending on seasonal workload. Contractor shall perform services as the Chief Negotiator withdabor unions for contract negotiations. The City has five bargaining units and there is a current Memorandum of Understanding in place with each unit through August 10, 2017 as set forth below. Throughout the term of the contract, the Contractor will be directed by the City Council and work closely with the City Manager and his designated support staff to successfully achieve the City Council's objectives. Scope of Services Contractor shall negotiate 2017 contract renewals with all City bargaining units through successful final Agreement, and/or completion of post -impasse processes if necessary, including performing the following services: Negotiation Planning Activities • Contractor shall become knowledgeable about the City's labor agreements and related practices and policies, and the City's negotiations history, including any relevant files and documents necessary in preparation for contract negotiations. • Contractor shall participate with the City Council and City Manager or designee(s) to determine the City Council's negotiation parameters and in the development of City negotiation proposals to reach agreements within those parameters. • Contractor shall develop and recommend negotiation strategies to the City Council. • Contractor shall prepare, or whenever practicable instruct designated City staff to gather and prepare, relevant data and information needed to evaluate and determine the potential impact and anticipated cost/savings associated with bargaining unit proposals or possible City proposals. • Contractor shall advise the City Council and City Manager on the timing and requirements associated with compliance of the AB646 requirements, and work with designated City staff on the advance preparation of any materials that would be 24 required or prudent to have ready should the City and any bargaining unit reach impasse in the negotiation process. Contract Negotiation Activities • Contractor shall act as the City's Chief Negotiator in contract negotiations, impasse resolution process, if necessary, and in final adoption of agreements by the City Council. • Contractor shall be available to meet with the five bargaining units on a schedule that makes possible completion of the negotiation process prior to expiration of the current contracts. • Contractor shall be available to meet with City Manager and/or his designee(s) as requested, and to attend City Council meetings and Closed Sessions as scheduled on the second and fourth Tuesday afternoon and evening of each month through the successful conclusion of the negotiations process. • Contractor shall be available as needed to meet or consult with the City Manager and/ or his designee(s) in order to ensure proper planning of and preparation for bargaining sessions and to provide advice and guidance needed related to the negotiations process. • Contractor shall evaluate and analyze negotiations proposals received from labor organizations, advise and make recommendations to the City Council and the City Manager on how to proceed during negotiations, and perform services as requested by the City Council. • Contractor shall maintain communication with and provide updates regularly to the City Council on the status of negotiation and throughout the process as developments occur which may impact the outcomes or direction of contract negotiations, or as additional direction from City Council is needed. • Contractor shall prepare or advise City designees in the preparation of documents, staff reports, exhibits, presentations, charts or spreadsheets necessary to convey information to the City Council, and/or in preparation for final adoption of agreements by the City Council. • Contractor shall work with the City Attorney as appropriate and provide any requested information to that Office pertaining to the negotiations process. Post Negotiation Activities • Contractor shall be present and available to speak at public meetings when labor contracts are agendized for adoption by the City Council. 25 Other Services and Requirements ® Contractor will prepare and submit written reports with respect to labor negotiations when requested by the City Council or the City Manager. Contractor will consider all negotiations and discussions with representatives of the City to be confidential and will not release any information concerning such negotiations. ® Contractor agrees that information, documents and reports pertaining to City of Irvine labor negotiations and related matters are the property of the City of Irvine and may not be used for any purposes other than those explicitly agreed to in writing by the City. Information on the City of Irvine Bargaining Units Name of Association Number of Nature of Employees Occupations Included Sworn Irvine Police Association (IPA) 197 Police Officers Units and Sergeants Irvine Police Management Association (IPMA) 11 Police Lieutenants and Commanders Non- Associated Supervisory/ Administrative 123 Supervisors, Sworn Personnel (ASAP) Administrators, Units Analysts Irvine City Employee Association (ICEA) 295 General, Clerical, Blue Collar Irvine Professional Employees Association 68 Engineers, (I PEA) Planners, Accountants 26 PART V BUDGET Pricina shall be as set forth below and in accordance with ATTACHMENT II. Included in the total compensation are all ordinary and overhead expenses incurred by Contractor and its agents and employees, including meetings with City representatives, and incidental costs incurred in performing under this Agreement. The total compensation for the Scope of Services set forth herein shall not exceed $ , including all amounts payable to Contractor for its overhead, payroll, profit, and all costs of whatever nature, including without limitation all costs for subcontracts, materials, equipment, supplies, and costs arising from or due to termination of this Agreement. No work shall be performed in connection with this Agreement until the receipt of a signed City of Irvine Purchase Order; and no work shall be performed with a value in excess of the Purchase Order amount as the City has not authorized nor is it obligated to pay Contractor any such excess amount. In the event Contractor anticipates the potential need to perform services beyond those set forth herein where additional funding may be needed, Contractor shall notify City in writing allowing sufficient time for City to consider further action. Payment for services will be made monthly on invoices deemed satisfactory to the City, with payment terms of net 30 days upon receipt of invoice. Contractor shall submit invoices within fifteen (15) days from the end of each month in which services have been provided. Contractor shall provide invoices with sufficient detail to ensure compliance with pricing as set forth in this Agreement. The information required may include: date(s) of work, hours of work, hourly rate(s), and material costs. The Purchase Order number must be included on all invoices, along with the City Representative's name. Failure to include this information on the invoice shall result in the return of the unpaid invoice. Contractors should submit invoices electronically to: invoicesubmittal@cityofirvine.org Payment by City under this Agreement shall not be deemed as a waiver of the City's right to claim at a later point that such payment was not due under the terms of this Agreement. Pricing shall remain firm for the entire one (1) year Agreement term. Thereafter, any proposed pricing adjustment for follow-on renewal periods shall be submitted to the City Representative in writing at least ninety (90) days prior to the new Agreement term. The City reserves the right to negotiate any proposed pricing adjustment not to exceed the Bureau of Labor Statistics Consumer Price Index (CPI) data as follows: Los Angeles -Riverside -Orange County, CA; All Items; Not Seasonally Adjusted; annualized change comparing the most recent month's reported data to the same month of the prior year. (This information may be found on the U.S. Department of Labor's website at www.bls.gov.) 27 Exhibit 1 WORKERS' COMPENSATION INSURANCE CERTIFICATION Contract Services Description: WORKERS' COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: (CHECK ONE APPLICABLE BOX BELOM FI have and will maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the performance of the work to be performed under this Agreement and shall submit insurance certificates evidencing such coverage as set forth herein. FI certify that, in the performance of the work under this Agreement, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and I hereby agree to indemnify, defend, and hold harmless the City of Irvine and all of its officials, employees, and agents from and against any and all claims, liabilities, and losses relating to personal injury or death, economic losses, and property damage arising out of my failure to provide such worker's compensation insurance. I further agree that, if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions and immediately furnish insurance certificates evidencing such coverage as set forth herein. WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. Dated: Contracting Firm: Signature: Title: Address: 28 WORKERS' COMPENSATION INSURANCE CERTIFICATION Contract Services Description: WORKERS' COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: (CHECK ONE APPLICABLE BOX BELOW) FI have and will maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the performance of the work to be performed under this Agreement and shall submit insurance certificates evidencing such coverage as set forth herein. FI certify that, in the performance of the work under this Agreement, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and I hereby agree to indemnify, defend, and hold harmless the City of Huntington Beach and all of its officials, employees, and agents from and against any and all claims, liabilities, and losses relating to personal injury or death, economic losses, and property damage arising out of my failure to provide such worker's compensation insurance. I further agree that, if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions and immediately furnish insurance certificates evidencing such coverage as set forth herein. WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES. Dated: Contracting Firm: Signature: Title: Address: