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HomeMy WebLinkAboutCC AG PKT 2009-11-09 #GAGENDA STAFF REPORT DATE: November 9, 2009 TO: Honorable Mayor and City Council FROM: City Attorney SUBJECT: APPROVAL OF CONTRACTS WITH MIKE JENKINS, R. CRAIG SCOTT AND BARBARA DALTON SUMMARY OF REQUEST: Authorize and approve attached contracts. BACKGROUND: Employees can file grievances and make complaints about the workplace and the work environment. Upon receipt of a grievance or complaint the City has an affirmative duty to investigate the merits of the matter pursuant to applicable law. In order to assure fairness and impartiality during the investigation it is often best to use outside professional services. Likewise, the City Attorney may need assistance from Special Counsel with respect to such matters. Barbara Dalton is a licensed investigator and attorney. Her firm of Public Interest Investigations, Inc. values accountability, fairness and concern for others in all its work. Mike Jenkins is a principal in the firm of Jenkins & Hogin, LLP, which specializes in the practice of municipal law. R. Craig Scott is the CEO of Executive Law Group, which specializes in employment matters. Approval of these contracts will allow the City to conduct personnel investigations as the need arises. FINANCIAL IMPACT: The rates range from $175.00 -$350 per hour, plus limited reimbursable expenses. A budget amendment is being requested by separate action (Budget Amendment No. 10- 05 -01) RECOMMENDATION: It is recommended that the City Council adopt Resolution No. 5933, 5934, and 5935 and authorize the City Manager to sign the attached contracts. A. Resolutions No. 5933, 5934, and 5935 B. Contracts for Professional Services (3) Agenda Item G RESOLUTION NUMBER 5933 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING THE AGREEMENT FOR SPECIAL SERVICES BETWEEN THE CITY OF SEAL BEACH AND PUBLIC INTEREST INVESTIGATIONS, INC. WHEREAS, the City endeavors to handle all matters of personnel on the basis of merit so that fairness and impartiality govern decisions pertaining to appointments, pay adjustments, promotions and discipline; and WHEREAS, from time to time the City has the need for professional investigative services in the area of personnel and human resources; and WHEREAS, the City is authorized and empowered to employ consultants and specialists in the performance of its duties and functions. NOW, THEREFORE, the City Council of the City of Seal Beach does hereby resolve: Section 1. The Council hereby approves the agreement with Public Interest Investigations, Inc. dated November 9, 2009 and directs the City Manager to execute the agreement. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a regular meeting held on this 9th day of November 1 2009 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 5933 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 9th day of November , 2009. City Clerk RESOLUTION NUMBER 5934 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING THE AGREEMENT FOR SPECIAL COUNSEL SERVICES BETWEEN THE CITY AND JENKINS & HOGIN WHEREAS, the City endeavors to handle all matters of personnel on the basis of merit so that fairness and impartiality govern decisions pertaining to appointments, pay adjustments, promotions and discipline; and WHEREAS, from time to time the City has the 'need for special counsel services in the area of personnel and human resources; and WHEREAS, the City is authorized and empowered to employ counsel in the performance of its duties and functions. NOW, THEREFORE, the City Council of the City of Seal Beach does hereby resolve: Section 1. The Council hereby approves the agreement with Jenkins & Hogin dated November 9, 2009 and directs the City Manager to execute the agreement. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a regular meeting held on this 9th day of November , 2009 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 5934 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 9th day of November , 2009. City Clerk RESOLUTION NUMBER 5935 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING THE AGREEMENT FOR SPECIAL COUNSEL SERVICES BETWEEN THE CITY AND EXECUTIVE LAW GROUP WHEREAS, the City endeavors to handle all matters of personnel on the basis of merit so that fairness and impartiality govern decisions pertaining to appointments, pay adjustments, promotions and discipline; and WHEREAS, from time to time the City has the need for special counsel services in the area of personnel and human resources; and WHEREAS, the City is authorized and empowered to employ counsel in the performance of its duties and functions. NOW, THEREFORE, the City Council of the City of Seal Beach does hereby resolve: Section 1. The Council hereby approves the agreement with Executive Law Group dated November 9, 2009 and directs the City Manager to execute the agreement. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a regular meeting held on this 9th day of November 2009 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 5935 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 9th day of November , 2009. City Clerk PROFESSIONAL SERVICES AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 0 Public Interest Investigations, Inc. 1055 Wilshire Boulevard, Suite 1985 Los Angeles, CA 90017 213.482.1780 213.482.1650 fax Revisedagreement This Professional Service Agreement ( "Agreement ") is made as of November 9, 2009, by and between Public Interest Investigations, Inc. ( "CONSULTANT "), a California corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). In consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the City and CONSULTANT agree as follows: 1. Scone of Services A. Investigation CONSULTANT shall provide confidential investigative services ( "Services ") on an as- needed basis as requested by the City Attorney in a timely, professional and workman-like manner in compliance with all applicable federal, state and local laws, and according to the standards and ethics in the industry as established by the California Secretary of State, Department of Consumer Affairs, Bureau of Investigative Services. B. Testimony In the event the City requires CONSULTANT to attend and provide testimony at a post- investigative hearing, deposition or trial, City shall pay CONSULTANT in accordance with Section 5. 2. Independent Contractor CONSULTANT will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT retains the right to perform similar or different services for others during the term of this Agreement, provided such work does not conflict or interfere with CONSULTANT's obligations under this Agreement. Any personnel performing the Services under this Agreement on behalf of CONSULTANT are not employees of City and shall at all times be under CONSULTANT's exclusive direction and control. CONSULTANT 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. CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3. Designated Representatives A. CONSULTANT hereby designates Barbara Dalton to act as its representative. Dalton shall be primarily responsible for any investigation in accordance with the terms and conditions set forth in this Agreement and will conduct all interviews required. CITY is retaining CONSULTANT in reliance on Dalton's special expertise and experience. Thus, Dalton shall personally perform all of the services required under Revisedagreement 2 this Agreement. CONSULTANT shall not hire any subcontractor or third party to provide or perform the services required under this Agreement. B. City hereby designates the City Attorney to act as its representative. The City Clerk will provide logistical support to CONSULTANT. Special Counsel will provide legal advice to CONSULTANT as needed. 4. Compensation A. Professional Services City shall pay CONSULTANT at the rate of $175.00 per hour for all services rendered. , B. Expenses City shall reimburse CONSULTANT for reasonable out -of- pocket expenses incurred, including but not limited to travel expenses, parking fees, and costs incurred in connection with messenger services and overnight delivery. City will reimburse CONSULTANT at the Internal Revenue Service rate in effect at the time the travel is incurred for mileage. If the City Attorney has provided his prior,. written approval, City will also reimburse CONSULTANT for any other reasonable and necessary costs incurred by CONSULTANT (e.g., airfare, hotels, rental cars, database searches). C. Billin . CONSULTANT shall submit to the City Attorney a monthly itemized statement that indicates work performed, hours of services rendered and all reimbursable expenses incurred in connection with an investigation. City shall pay in full all approved fees and expenses within 30 days of the City's receipt of the itemized statement. 5. Schedules and Deadlines CONSULTANT shall meet any schedules and deadlines established by the City. 6. Indemnity. CONSULTANT shall indemnify and hold the City, its officials, officers, employees, volunteers and agents (collectively "Indemnitees ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts, omissions or willful misconduct of CONSULTANT, its officials, officers, employees, agents, and contractors arising out of or in connection with the performance of the services or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. CONSULTANT shall defend, at CONSULTANT's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Indemnitees. CONSULTANT shall pay and satisfy any judgment, award or decree that may be rendered against Indemnitees in any such suit, action or other legal proceeding. CONSULTANT shall reimburse Revisedagreement 3 Indemnitees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONSULTANT's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by CONSULTANT or Indemnitees. 7. Notices All notices shall be in writing and shall be considered effective when deposited in the U.S. mail and addressed to the appropriate party at the address noted below: Address: Vice President Barbara Dalton Public Interest Investigations, Inc. 1055 Wilshire Boulevard, Suite 1985 Los Angeles, CA 90017 Phone: 213.482.1780; fax: 213.482.1650 Address: City Clerk's Office City of Seal Beach 2118"' Street Seal Beach, California 90740 -6305 8. Insurance CONSULTANT shall, at its expense, procure and maintain for the duration of the Agreement the following insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, by CONSULTANT, its agents, representatives, or employees, and provide to the City Clerk a certificate of insurance documenting the following insurance: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Code of the State of California. All insurance required by this Section shall contain standard separation of insureds provisions and name the City as an additional insured. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. Any deductibles or self - insured retentions must be declared to and approved by the City. At its sole discretion, the City may require: (1) the insurer to reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the CONSULTANT to procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. Revisedagreement 4 9. Confidentiality The City shall provide CONSULTANT access to any relevant, non - privileged information requested by CONSULTANT. CONSULTANT shall not disclose any information regarding any investigation to anyone other than Special Counsel or the City Attorney. CONSULTANT shall not, without the prior written consent of the City Attorney, use such materials for any purposes other than the performance of the Services. CONSULTANT shall not use City's name or insignia, photographs of City property or facilities, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production or other similar medium. 10. Assignment CONSULTANT shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 11. Entire Agreement & Modification. This Agreement shall constitute the entire Agreement between the parties with respect to the subject matter hereof, supersede all prior or contemporaneous Agreements or communications (oral or written), and may not be modified except by a Agreement in writing dated subsequent to the Effective Date and signed on behalf of both parties by their respective authorized representatives. 12. Termination Either parry may terminate this Agreement with or without cause by providing notice at least 30 days prior to the effective date of termination. 13. General Provisions A. If any provision of this Agreement is deemed unenforceable, the remaining provisions will be given full force and effect. B. This Agreement will be governed by and construed, interpreted, applied and enforced according to the laws of California, including California law relating to choice of law. Revisedagreement 5 C. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party all of its attorney's fees and other costs incurred in connection with such action. D. This Agreement may be signed in counterparts. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. Public Interest Investigation, Inc. by Barbara Dalton Vice President Dated: 10 - 9K a 0 0 City of Seal Beach by Gordon Shanks Mayor of the City of Seal Beach Dated: Revisedagreement PROFESSIONAL. SERVICES AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 :4 Jenkins & Hogin, LLP Manhattan Towers 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Tel: 310.643.8448 - Fax: 310.643.8441 MJenkins @LocalGovLaw.com www.LocalGovLaw.com This Professional Service Agreement ( "Agreement ") is made as of November 9, 2009, by and between Jenkins & Hogin, LLP ( "JH "), a California corporation, and the City of Seal Beach ( "City "), a California charter city (collectively, "the Parties "). Seal Beach retainer In consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the City and JH agree as follows: 1. Scope of Services JH shall provide special counsel legal services ( "Services ") on an as- needed basis as requested by the City Attorney in a timely and professional manner in compliance with all applicable federal, state and local laws, and according to the standards and ethics in the legal profession. 2. Independent Contractor City retains JH on an independent contractor basis and not as an employee. JH will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Any personnel performing the Services under this Agreement on behalf of JH are not employees of City and shall at all times be under JH's exclusive direction and control. JH shall pay all wages, salaries, and other amounts due such personnel in connection with its performance of Services under this Agreement and as required by law. JH shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3. Designated Representatives A. JH hereby designates Michael Jenkins to act as its representative. B. City hereby designates the City Attorney to act as its representative. 4. Compensation A. Professional Services City shall pay JH at the rate of $275 per hour for partners, and $225 for associates, for all services rendered. B. Expen ses. City shall reimburse JH for on -line legal research and next -day delivery. C. Billing JH shall submit to the City Attorney a monthly itemized statement that indicates work performed, hours of services rendered and all reimbursable expenses incurred in connection with the services. City shall pay in full all approved fees and expenses within 30 days of the City's receipt of the itemized statement. 5. Schedules and Deadlines JH shall meet any schedules and deadlines established by the City. Seal Beach retainer 2 6. Indemnity JH shall indemnify, defend and hold harmless the City, its officers, agents and employees, from and against any and all claims or losses caused by any negligent or willful act, error or omission of JH or any person employed by JH in the perfonnance of this Agreement. 7. Notices All notices shall be in writing and shall be considered effective when deposited in the U.S. snail and addressed to the appropriate party at the address noted below: Address: Michael Jenkins Jenkins & Hogin, LLP 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Address: City Clerk's Office City of Seal Beach 211 8 Street Seal Beach, California 90740 -6305 Insurance A. JH shall obtain and maintain in full force and effect a professional liability insurance policy that provides coverage in an amount not less than $2,000,000 per occurrence and $4,000,000 aggregate. Such insurance may be subject to a self - insured retention or deductible to be borne entirely by the Firm. B. JH shall obtain and maintain workers' compensation insurance in accordance with Section 3700 of the California Labor Code. C. JH agrees to notify City in the event the limits of its insurance should fall below the coverages stated in this paragraph or if the insurance policies noted here are allowed to lapse and substitute insurance is not obtained. 9. Entire Agreement & Modification. This Agreement shall constitute the entire Agreement between the parties with respect to the subject matter hereof, supersede all prior or contemporaneous Agreements or communications (oral or written), and may not be modified except by a Agreement in writing dated subsequent to the Effective Date and signed on behalf of both parties by their respective authorized representatives. Seal Beach retainer 10. Resolution of Fee Disputes The City is entitled to require that any fee dispute be resolved by binding arbitration pursuant to applicable arbitration rules for legal fee disputes. In the event that the City chooses not to utilize the Orange County Bar Association's arbitration procedures, all disputes regarding the professional services rendered or fees charged by the Firm shall be submitted to binding arbitration in Los Angeles to be conducted by the American Arbitration Association in accordance with its commercial arbitration rules. 11. General Provisions A. If any provision of this Agreement is deemed unenforceable, the remaining provisions will be given full force and effect. B. This Agreement will be governed by and construed, interpreted, applied and enforced according to the laws of California, including California law relating to choice of law. C. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorney's fees and other costs incurred in connection with such action. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. Jenkins & Hogin, lkp City of Seal Beach by Michael J by Gordon Shanks Mayor of the City of Seal Beach Dated: 1 z " I f , i Dated: Seal Beach retainer 4 PROFESSIONAL SERVICES AGREEMENT between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 1 Executive Law Group, Inc. One Newport Place, Suite 1000 Newport Beach, CA 92660 949.222.0188 949.553.8664 fax This Professional Service Agreement ( "Agreement ") is made as of November 9, 2009 ( "Effective Date "), by and between Executive Law Group, Inc. ( "ELG "), a California corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). Professional Services Agreement In consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the City and ELG agree as follows: Scope of Services ELG shall provide special counsel legal services ( "Services ") on an as- needed basis as requested by the City Attorney in a timely and professional manner in compliance with all applicable federal, state and local laws, and according to the standards and ethics in the legal profession. 2. Independent Contractor City retains ELG on an independent contractor basis and not as an employee. ELG will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Any personnel performing the Services under this Agreement on behalf of ELG are not employees of City and shall at all times be under ELG's exclusive direction and control. ELG shall pay all wages, salaries, and other amounts due such personnel in connection with its performance of Services under this Agreement and as required by law. ELG shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. Designated Representatives A. ELG hereby designates R. Craig Scott to act as its representative. CITY is retaining ELG in reliance on Scott's special expertise and experience. Thus, Scott shall personally perform all of the services required under this Agreement. B. City hereby designates the City Attorney to act as its representative. The City Clerk will provide logistical support to ELG. 4. Compensation A. Professional Services City shall pay ELG at the rate of $350.00 per hour for all services rendered. B. Expenses City shall reimburse ELG for reasonable out -of- pocket expenses incurred, including but not limited to travel expenses, parking fees, and costs incurred in connection with messenger services and overnight delivery. C. Billing ELG shall submit to the City Attorney a monthly itemized statement that indicates work performed, hours of services rendered and all reimbursable expenses incurred in connection with the services. City shall pay in full all approved fees and expenses within 30 days of the City's receipt of the itemized statement. Professional Services Agreement 2 Schedules and Deadlines ELG shall meet any schedules and deadlines established by the City. 6. Indemnity ELG shall indemnify, defend and hold harmless the City, its officers, agents and employees, from and against any and all claims or losses caused by any negligent or willful act, error or omission of ELG or any person employed by ELG in the performance of this Agreement. 7. Notices All notices shall be in writing and shall be considered effective when deposited in the U.S. mail and addressed to the appropriate party at the address noted below: Address: R. Craig Scott Executive Law Group, Inc. One Newport Place, Suite 1000 Newport Beach, CA 92660 949.222.0188; 949.553.8664 fax Address: City Clerk's Office City of Seal Beach 211 8 th Street Seal Beach, California 90740 -6305 8. Insurance A. ELG shall obtain and maintain in full force and effect a professional liability insurance policy that provides coverage in an amount not less than $1,000,000 per occurrence and $1,000,000 aggregate. Such insurance may be subject to a self - insured retention or deductible to be borne entirely by the Firm. B. ELG shall obtain and maintain workers' compensation insurance in accordance with Section 3700 of the California Labor Code. C. ELG agrees to notify City in the event the limits of its insurance should fall below the coverages stated in this paragraph or if the insurance policies noted here are allowed to lapse and substitute insurance is not obtained. 9. Entire Agreement & Modification. This Agreement shall constitute the entire Agreement between the parties with respect to the subject matter hereof, supersede all prior or contemporaneous Agreements Professional Services Agreement or communications (oral or written), and may not be modified except by a Agreement in writing dated subsequent to the Effective Date and signed on behalf of both parties by their respective authorized representatives. 10. Resolution of Fee Disputes The City is entitled to require that any fee dispute be resolved by binding arbitration pursuant to applicable arbitration rules for legal fee disputes. In the event that the City chooses not to utilize the Orange County Bar Association's arbitration procedures, all disputes regarding the professional services rendered or fees charged by the Firm shall be submitted to binding arbitration in Los Angeles to be conducted by the American Arbitration Association in accordance with its commercial arbitration rules. 11. General Provisions A. If any provision of this Agreement is deemed unenforceable, the remaining provisions will be given full force and effect. B. This Agreement will be governed by and construed, interpreted, applied and enforced according to the laws of California, including California law relating to choice of law. C. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorney's fees and other costs incurred in connection with such action. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. Executive Law Group, Inc. City of Seal Beach by R�aig Sc by Gordon Shanks Mayor of the City of Seal Beach Dated: Dated: Professional Services Agreement 4