HomeMy WebLinkAboutCC AG PKT 2010-01-11 #LDATE: January 11, 2010
TO: Honorable Mayor and City Council
FROM: Oc vavid Carmany, City Manager
SUBJECT: APPROVAL OF CONTRACTS WITH JONES & MAYER
AND BLAYLOCK INVESTIGATIONS, INC.
SUMMARY OF REQUEST:
Authorize and approve attached contracts.
BACKGROUND:
The City handles all matters of personnel on the basis of merit so that fairness
and impartiality govern personnel decisions. In disciplinary matters, 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.
Jim Blaylock is a licensed California Private Investigator who conducts complex
personnel investigations for the public and private sectors. Types of
investigations conducted include discrimination; police and fire department
internal affairs; and expert witness testimony. Jones & Mayer provides
employment matter advice and representation to public entities. Approval of
these contracts will allow the City to conduct personnel investigations as the
need arises.
FINANCIAL IMPACT:
The rates range from $175 -$350 per hour, plus limited reimbursable expenses. A
budget amendment is being requested by separate action.
(Budget Amendment No. 10- 07 -01)
RECOMMENDATION:
It is recommended that the City Council adopt Resolution No. 5960 (Jones &
Mayer) and Resolution No. 5961 (Blaylock) and authorize the City Manager to
sign the attached contracts.
A. Resolutions No. 5960 (Jones & Mayer) and Resolution No. 5961 (Blaylock)
B. Contracts for Professional Services (2)
Agenda Item L
RESOLUTION NUMBER 5960
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING THE AGREEMENT FOR SPECIAL COUNSEL
SERVICES BETWEEN THE CITY AND JONES & MAYER
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 Jones & Mayer
dated December 18, 2009 and directs the City Manger to execute the agreement.
PASSED, APPROVED and ADOPTED by the City Council of the City of Seal
Beach at a regular meeting held on the 11th day of January , 2010 by the
following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Membe
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
1, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 5960 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council at
a regular meeting held on the 11th day of January , 2010.
City Clerk
RESOLUTION NUMBER 5961
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING THE AGREEMENT FOR SPECIAL SERVICES
BETWEEN THE CITY OF SEAL BEACH AND BLAYLOCK
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 Blaylock
Investigations, Inc. dated December 18, 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 the 11th day of January , 2010 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 5961 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council at
a regular meeting held on the 11th day of January , 2010.
City Clerk
De -. , 2C0 9 ;:3?Pt, 11�. x:44 ;� P, 2
PROFESSIONAL SERVICES AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Jones & Mayer
3777 North Harbor Boulevard
Fullerton, CA 92835
This Professional Service Agreement ( "Agreement ") is made as of December 18, 2009,
by and between Jones & Mayer ( "W ") and the City of Seal Beach ("City "), a California
charter city, (collectively, "the Parties ").
1;94001_1(2)
In consideration of the Parties' performance of the promises, covenants, and conditions
stated herein, the City and JM agree as follows:
Scope of Services
JM 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 JM on an independent contractor basis and not as an employee. JM
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 JM are not employees of City and shall at all times be under
IM's exclusive direction and control. JM 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. JM 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. JM hereby designates Martin J, Mayer 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 JM at the rate of $225 per
hour for attorneys, and $125 for paralegals, for all services rendered. JM will charge in
increments of one tenth of an hour, rounded off for each particular activity to the nearest
one tenth of an hour. The minimum time charged for any particular activity will be one
tenth of an hour.
B. Expenses City shall reimburse JM for mileage incurred in
performing the Services at $,45 cents per mile and messenger service fees.
C. Billin . JM shall submit to the City Manager 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.
1194001_1(2)
Dec, ' 2CO9 — ) :37rLi \3. 6!411 F. 4
5. Schedules and Deadlines
JM shall meet any schedules and deadlines established by the City.
6. Indemnity
JM 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 JM or any person employed by JM in the performance of
this Agreement.
7. Representation of Adverse Interests JM represents that the Rules of
Professional Conduct of the State Bar of California require the City's informed written
consent before an attorney may begin or continue to represent the City when the attorney
has had a relationship with another party interested in the subject matter of the attorney's
proposed representation of the City. City and JM are not aware of any potential conflicts
and have discussed the issue in detail. JM will consult with City in accordance with the
requirements of the Rules of Professional Conduct as to any new matters assigned to JM
after the entering of this Agreement regarding any potential conflicts of interest relating
to such new matters.
8. 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: Martin J. Mayer
Jones & Mayer
3777 North Harbor Boulevard
Fullerton, CA 92835
Address: City Manager David Carmany
City of Seal Beach
211 8' Street
Seal Beach, California 90740 -6305
9. Insurance
A. JM 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 $7,000,000 aggregate. Such insurance may be subject to a self -
insured retention or deductible to be borne entirely by JM.
B. JM shall obtain and maintain workers' compensation insurance in
accordance with Section 3700 of the California Labor Code,
1194001_1(2) 3
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C. JM 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.
10. 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.
11. 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
JM shall be submitted to binding arbitration in Los Angeles to be conducted by the
American Arbitration Association in accordance with its commercial arbitration rules.
12. 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
patty 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.
Jones & Mayer
t ,
i
By: Richard D. kfies, Esq.
Dated: December 18, 2009
City of Seal Beach
By :" David Carmany
- Citep Manager, City of Seal Beach
Dated:
1194001_1(2) 4
PROFESSIONAL SERVICES AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
0
BLAYLOCK INVESTIGATIONS, INC.
1001 Avenida Pico, Suite C -298
San Clemente, CA 92673
949 - 922 -8711
This Professional Service Agreement ( "Agreement ") is made as of
December 18, 2009 (the "Effective Date "), by and between Blaylock Investigations, Inc.
( "CONSULTANT "), a California corporation, and the City of Seal Beach ( "City "), a
California charter city, (collectively, "the Parties ").
investigation (Blaylock) final.12.22.09.DOC
In consideration of the Parties' performance of the promises, covenants, and conditions
stated herein, the City and CONSULTANT agree as follows:
1. Scope of Services
CONSULTANT shall provide confidential investigative services ( "Services ") 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. CONSULTANT shall perform the services called for under
this Agreement, keep City informed of progress and developments, and respond promptly
to City's inquiries and communications.
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. CONSULTANT agrees to pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and to indemnify and hold City harmless from
any and all taxes, assessments, penalties, and interest asserted against City by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees, if any. CONSULTANT further agrees to indemnify and
hold City harmless from any failure of CONSULTANT to comply with applicable
workers' compensation laws. City shall have the right to offset against the amount of any
fees due to CONSULTANT under this Agreement any amount due to City from
CONSULTANT as a result of CONSULTANT's failure to promptly pay to City any
reimbursement or indemnification arising under this Section 2.
3. Designated Representatives
A. CONSULTANT hereby designates James Blaylock to act as its
representative. Blaylock shall be primarily responsible for the investigation in
accordance with the terms and conditions set forth in this Agreement and will conduct all
interviews. CITY is retaining CONSULTANT in reliance on Blaylock's special
investigation (Blaylock) final.12.22.09.DOC 2
expertise and experience. Thus, Blaylock shall personally perform all of the services
required under this Agreement. CONSULTANT shall not hire any subcontractor or third
party to provide or perform the services required under this Agreement.
B. Special Counsel Martin J. Mayer of the law firm of Jones and
Mayer will provide legal advice to CONSULTANT in connection with the investigation.
4. Compensation
A. Professional Services City shall pay CONSULTANT at the rate of
$120.00 per hour for all services rendered. CONSULTANT will charge in increments of
one tenth of an hour, rounded off for each particular activity to the nearest one tenth of an
hour. The minimum time charged for any particular activity will be one tenth of an hour.
B. Ex enses City shall reimburse CONSULTANT for reasonable
out -of- pocket expenses incurred during the investigation, 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 rate of $.55 cents per
mile. Any voluminous copying in excess of 200 pages will be billed at Investigator's
actual cost. Any transcription services required will be billed at $4.00 per page. If the
City Manager 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. Billing 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 the 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
investigation (Blaylock) final.12.22.09.DOC 3
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
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: James Blaylock
Blaylock Investigations, Inc.
1001 Avenida Pico, Suite C -298
San Clemente, CA 92673
Address: City Clerk's Office
City of Seal Beach
211 8`" 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) Errors and Omissions Liability: $1,000,000 per occurrence; and
(2) Automobile Liability: $250,000 /$500,000 per accident for bodily injury and
property damage.
The Errors and Omissions policy shall contain a standard separation of insureds provision
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.
investigation (Blaylock) final.12.22.09.DOC 4
9. Confidentialitv
The City shall provide CONSULTANT access to any relevant, non - privileged
information requested by CONSULTANT. CONSULTANT shall not disclose any
information regarding the 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. Assimmen
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
The City may terminate this Agreement with or without cause by providing notice
at least 3 days prior to the effective date of termination. CONSULTANT 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.
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,
investigation (Blaylock) final.12.22.09.DOC 5
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.
Blaylock Investigation, Inc. City of Seal Beach
e ffbyames Blaylock by David CarrAany
President City Manager
Dated: fZ�2L/y!q Dated:
/, JD - lZ5
investigation (Blaylock) final. 12.22.09.130C 6