HomeMy WebLinkAbout*AGMT - Payroll Services Unlimited t' i
AGREEMENT BETWEEN SLACK d/b /a
PAYROLL SERVICES UNLIMITED,
AND THE CITIES OF LOS ALAMITOS, SEAL
BEACH, AND STANTON TERMINATING
SERVICES AND TRANSFERRING EQUIPMENT
AND FILES
This Agreement is made and entered into on June 29, 2001 by and between ktd7
Slack doing business as Payroll Services Unlimited ( "Contractor") and the City of Los
Alamitos, the City of Seal Beach, and the City of Stanton, all California municipal
corporations (hereinafter collectively and individually referred to as "Cities ").
Recitals
WHEREAS, Cities previously entered into agreements with Virginia Harter
( "Harter ") at various times since 1998 for the provision of payroll services; and,
. WHEREAS, Harter leased certain payroll production equipment and payroll
compilation software from Amtech ( "Lessor ") with which Harter provided payroll
services for Cities pursuant to that certain lease dated April, 1999 between Harter and
Amtech (the "Lease "); and,
WHEREAS, Contractor acquired Harter's business (Payroll Services Unlimited),
assuming such outstanding obligations as the Lease and the various payroll service
agreements with Cities, and hired Harter as an employee to operate the leased equipment
_ ..- - and continue to provide payroll services to the Cities; and,
WHEREAS, Harter has terminated her employment with Contractor; and,
WHEREAS, Cities now wish to unilaterally terminate their respective agreements
with Contractor and assume control and responsibility for the Lease and the equipment
leased thereunder; and,
WHEREAS, the respective payroll service agreements between Contractor and
the Cities, where written, require an advance notice period before such termination would
be effective.
NOW, THEREFORE, in consideration of the mutual benefits and promises
provided herein, and for other good and valuable consideration the receipt and
sufficiency of which is expressly acknowledged, the parties hereto agree as follows:
1. Cities hereby unilaterally terminate their respective payroll service agreements
with Contractor effective immediately. Contractor expressly waives any notice
provision that may be included in any written agreement between the parties.
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2. Contractor shall transfer, convey and assign to the City of Los Alamitos all
equipment and software necessary for the provision of payroll services for the
Cities as more particularly described herein (hereinafter referred to as
"Equipment "). Such transfer, conveyance and assignment to the City of Los
Alamitos shall include, but shall not be limited to, the Lease, all of the present and
future leasehold interests in the equipment and software leased thereunder, and
the remaining balance.of the deposit paid by Contractor to Lessor. The parties
understand and acknowledge that the payments for the months of May and June
have been deducted from the deposit and all rights to the balance remaining on the
deposit in the amount of Three Hundred Eighty Four Dollars ($384.00) shall be
transferred and assigned to the City of Los Alamitos accordingly. Contractor
agrees to execute any paperwork required by Lessor to effectuate the purpose and
substance of this paragraph. The Equipment subject to this paragraph includes:
a. One (1) Hewlett- Packard 3000;
b. All hard drives containing the Cities' relevant payroll information;
c. All backup tapes with rack containing the Cities' relevant payroll
information;
d. Five (5) monitors including consoles;
e. Five (5) keyboards;
f. One (1) Hewlett- Packard "MICR" printer with ribbons;
g. Two (2) Hewlett- Packard 2650 line printers with ribbons and line printer
stands;
h. One (1) external modem;
i. One (1) "Reflections" software;
One (1) box of timesheets and loose timesheets; and
k. One (1) full box of blank check stock.
3. Cities hereby fully and irrevocably release, acquit, and forever discharge
Contractor of and from any and all liabilities, claims, causes of action, damages,
costs, expenses (including attorneys' fees and expenses), or demands, of whatever
nature, character, type, or description, whether known or unknown, existing or
potential, or suspected or unsuspected, that Cities have or had against Contractor
concerning the Equipment, the Lease and any payroll services provided by
Contractor pursuant to prior agreement. Contractor does hereby fully and
irrevocably release, acquit, and forever discharge Cities, its employees, officials,
and officers of and from any and all liabilities, claims, causes of action, damages,
costs, expenses (including attomeys' fees and expenses), or demands, of whatever
nature, character, type, or description concerning the actions by Cities regarding
this Agreement including, but not limited to, the termination of prior contractual
relationships between the parties, noncompliance with terms of such prior
contractual relationships, the substitution of payroll services, and any interference
with contract claims arising from the loss of Cities as clients. The foregoing
releases do not extend to the respective obligations of the Parties set forth in this
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IN WITNESS WHEREOF, the Parties hereto certify that they have read and
understood all the terms and conditions contained herein and have duly authorized and
caused this Agreement as of the date first above written.
CONTRACTOR:
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" • 'AYROLL SER` CES UNLIMITED
CITIES: ATTEST: a • • do
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Ci anag � � • lerk
CITY OF/ AL ' I OS CITY OF LOS ALAMITOS
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C +/ anager Ci 4 1erk
/ OF SEAL BEA C,� OF SEAL BEACH
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City Manager City Clerk
CITY OF ST - ' 0.4 CITY OF STANTON
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CITY OF SEAL BEACH
CONSULTANT AGREEMENT
Apnl 27, 1998
THIS AGREEMENT (this "Agreement ") is entered into in the state of California by and
between the City of Seal Beach, a California municipal corporation, hereinafter called ( "City "),
and Payroll Services Limited, a California sole proprietorship operated by Virginia Harter,
hereinafter called ( "Consultant "), it is hereby agreed as follows.
WITNESSETH
WHEREAS, the City desires payroll processing services; and,
WHEREAS, Consultant has the professional ability and technical means to
provide these services; and,
WHEREAS, Consultant desires to provide these services; and,
WHEREAS, the City and Consultant desire to set forth in writing the obligations
and responsibilities of each party relating to providing the service..
NOW, THEREFORE, in consideration of the. promises and mutual benefit, which will
accrue to the parties hereto in carrying out the terms of this Agreement, and for other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is .mutually
understood and agreed as follows:
1. Retention of Consultant:
City hereby retains, Consultant in accordance with the terms of this Agreement to do and
perform the services set forth in Attachment "A" Scope of Services, attached hereto and
incorporated herein by this reference, and subject to the terms and conditions set forth in
Attachment `B ", attached hereto and incorporated herein by this reference, (collectively, the
"Services ").
2. Personnel:
All of the services will be performed by Consultant or under their supervision, and all
personnel engaged in the work shall be fully qualified, licensed, insured, and shall be authorized
and permitted under state and local law, to perform such services, and shall be acceptable to City.
3. Performance Specifications and Produce:
Consultant shall perform the tasks and deliver specific products as set forth in Attachment
"A ", Scope of Services, attached hereto and incorporated herein by this reference.
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4. Compensation and Payment Schedule.
Consultant agrees to provide the services set forth in the Scope of Services,
Attachment
"A" hereto for time and materials in accordance with the rate schedule set forth in Attachment
"B" hereto and incorporated herein by this reference. Consultant shall not be paid for additional
work not listed within the Scope of Services shown in Attachment "A" unless additional or extra
work and payment is authorized in advance in writing by the City.
5. Method of Payment:
A. Each month Consultant shall furnish to City an original invoice for all work performed and
expenses incurred during the preceding month. The invoice shall detail charges based upon the
Payroll Processing Charges set forth in Attachment B. City shall independently review each
invoice submitted by the Consultant to determine whether the work performed and expenses
incurred are, in compliance with the provisions of this Agreement. In the event that no charges
or expenses are disputed, the invoice shall be approved and paid according to the terms set forth
in Subsection (c). In the event any charges or expenses are disputed by City, the original invoice
shall be returned within thirty (30) days of receipt by City to Consultant for correction and
resubmission.
B. Except as to any charges for work performed or expenses incurred by Consultant which are
disputed by City, City will use its best efforts to cause Consultant to be paid within thirty (30)
days of receipt of Consultant's invoice,
C. Payment to Consultant for work performed pursuant to this Agreement
shall not be deemed to waive any defects in work performed by Consultant.
6. City Management:
City's Director of Administrative Services shall represent City in all matters pertaining to
the administration of this Agreement, including without limitation, coordination of all necessary
meetings and conferences, and review and approval of all products submitted by the Consultant,
but not, including the authority to enlarge the Scope of Services or change the compensation due
to Consultant. City's City Manager shall be authorized to act on behalf and to execute all
necessary documents which enlarge the Scope of Services or change Consultant's compensation.
7. No Benefit to Arise to Local Employees:
No member, officer, or employee of the City, or its designees or agents, and no public
official who exercises authority over or responsibilities with respect to the Services during his/her
tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or
sub - agreement, or the proceeds thereof, for work to be performed in connection with the Services
performed under this Agreement.
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8. The Consultant as an Independent Agent.
' Consultant is, and at all times, hereafter shall be, an independent agent of City during the
term of this Agreement, Consultant specifically recognizes and acknowledges his/her /its status as
an independent agent and not as an employee of City All Consultant's personnel shall be
employees of Consultant and not employees of City, Consultant shall pay all salaries and wages,
employer's social security taxes when applicable, and unemployment insurance and similar taxes
relating to employees and shall be responsible for all withholding taxes. Consultant shall comply
with all federal and state statues and regulations relating to the employer /employee relationship
including but not limited to, minimum wage, nondiscrimination, equal opportunity, Workers'
Compensation, hazardous /unsanitary or dangerous surroundings, the Fair Labor Standards Act,
29 U.S.C. 201, et seq., and the Immigration Reform and Control Act of 1986 8 U.S C. 245(a).
9. Keeping Accounts:
Consultant shall keep separate books of accounts in connection with the work to be
performed under this Agreement. These books shall be subject to audit by City or other
governmental entity or Officer as authorized by statute. All such books and records shall be
retained for such periods of time as required by law, provided, however, notwithstanding any
shorter periods of retention, all books, records, and supporting detail shall be retained for a period
of at least three (3) years after the expiration of the term of this Agreement.
10. Ownership of Materials and Documents:
All reports and other material prepared by Consultant shall be property of City, and
Consultant shall deliver such materials to City according to the terms of this Agreement.
However, Consultant shall have the right to make duplicate copies of such materials and
documents for his/her files or other proposes as may be authorized in writing by, the City.
Consultant shall be held free and clear of any liability resulting from City's use of materials and
documents for work unrelated to this Agreement.
11. Release of information/Conflicts of Interest:
A. All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City's prior written
authorization excepting that Information which is a public record and subject to disclosure
pursuant to the California Public Records Act, Government Code § 61 -50, et seq. Consultant, its
officers, employees, agents, or subcontractor, shall not voluntarily provide declarations, letters of
support. testimony at depositions, response to interrogatories, or other information concerning
the work performed under this Agreement, or cooperate in any way with a party who may be
adverse to the City or whom Consultant reasonably should know may be adverse to the City in
any subsequent litigation. Response to a court order shall not be considered 'voluntary' provided
Consultant gives City notice of such court order. Consultant shall incur no liability under this
Agreement for materials submitted by it which am later released by City, its officers, employees,
or agents. Consultant shall also incur no liability for statements made by it at any public meeting
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conducted by City, or for any document released by it for which prior written City authorization
was obtained.
If Consultant or any of its officers, employees, consultants, or subcontractors does
voluntarily provide information in violation of this Agreement, City has the right to reimbursement
and indemnity from Consultant for any damages caused by Consultant's conduct, including City's
City Attorney's fees.
Consultant shall promptly notify City should Consultant, its officers, employees, agents, or
subcontractors be served with any summons, complaint, subpoena, notice of deposition, request
for documents, interrogatories, request for admissions or other discovery request or court order
from any party regarding this Agreement and the work performed thereunder. City retains the
right, but not the obligation, to represent Consultant and /or to be present at any deposition,
hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide City
with the opportunity to review any response to discovery requests provided by Consultant.
However, City's right to review any such response does not imply or mean the right by City to
control, direct, or rewrite said response.
City warrants that Consultant will have fully met the requirements of this provision by
obtaining City's written approval prior to providing documents, testimony, or declarations;
consulting with City before responding to a subpoena or court order, in the case of depositions
upon providing notice to City of same; or providing City the opportunity to review discovery
responses prior to submission. For purposes of this section, a written authorization from City
shall include a "faxed" letter.
12. Indemnification:
A. City and its respective elected and appointed boards, officials, officers, agents,
employees and volunteers (individually and collectively, "Indemnitees ") shall have no liability to w;.
Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold
harmless Indemnitees from and against, any and all liabilities, claims, actions, causes of action,
proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature,
including reasonable attorneys' fees and disbursements (collectively "Claims "), which Indemnitees
may suffer or incur or to which Indemnitees may become subject by reason of or arising out of
any injury to or death of any person(s), damage to property, loss of use of property, economic
loss or otherwise occurring as a result of or allegedly caused by the Consultant's performance of
or failure to perform any services under this Agreement or by the negligent or willful acts or
omissions of Consultant, its agents, officers, directors or employees, committed in performing any
of the services under this agreement.
B. If any action or proceeding is brought against Indemnitees by reason of any of the
matters against which Consultant has agreed to indemnify Indemnitees as provided above.
Consultant, upon notice from City, shall defend Indemnitees at Consultants expense by counsel
acceptable to City, such acceptance not to be unreasonably withheld. Indemnitees need not have
first paid for any of the matters to which Indemnitees are entitled to indemnification in order to be
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so indemnified. The insurance required to be maintained by Consultant under Section 13 shall
ensure Consultant's obligations under this Section 12 B, but the limits of such insurance shall not
limit the liability of Consultant hereunder. The provisions of this section shall survive the
expiration or earlier termination of this Agreement
C. The provisions of this section do not apply to Claims occurring as a result of the
City's sole negligence or willful acts or omissions.
13 Insurance:
Consultant shall secure, and maintain throughout this term of this Agreement the following
types of insurance issued by companies acceptable to the City, and which are admitted and
authorized to do business in California as insurance carriers, with limits as shown:
A. Workers' Compensation: As of the effective date of this agreement Consultant
represents it has no employees and therefore is not required by law to comply with the
requirements of the State of California regarding Workers Compensation. If, at any time during
the term of this agreement, Consultant enters into any employment agreements, Consultant shall
forthwith establish a program of Workers' Compensation insurance or state - approved Self -
Insurance Program in an amount and form to meet all applicable requirements of the Labor Code
of the State of California, including Employer's Liability with two - hundred- fifty - thousand
dollar($250,000) limits, covering all persons providing services or, behalf of the Consultant and
all risks to such persons under this Agreement.
B. Comprehensive General and Automobile Liability Insurance: This coverage shall
include contractual coverage and automobile liability coverage for owned, hired, and non -owned
vehicles. The policy shall have per occurrence limits for bodily, injury, and property damage of
not less than one - million dollars ($1,000.000). If Commercial General Liability, Insurance or
other form with a general aggregate limit is used, either the general aggregate limit shall apply
separately to the work or services performed under this Agreement, or the general aggregate limit
shall be twice the required occurrence limit. Said insurance coverage shall be at least as broad as
Insurance Services Office Commercial General Liability coverage (Occurrence Form CG001) and
Insurance Services Office Form Number CA 0001 (Ed. 1/87) covering Automobile Liability,
Code 1 (any auto).
C. Surety Bond: Consultant agrees to furnish to City a fidelity bond in the amount of
$100,000 conditioned on the rendering of a true account by Consultant of all moneys, goods,
checks, or other property which may come into the custody, charge or possession, of Consultant
during the term of this agreement. The surety company issuing the bond and the terms and
amount of the bond must be acceptable to the City. The premiums shall be paid by Consultant.
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14. City as Insured:
All policies shall contain additional endorsements covering City and its officers, agents,
employees, and volunteers, as insured under the policies with respect to liabilities arising out of
the performance of services hereunder
I5. Waiver of Subrogation Rights:
Consultant shall require the carriers of the above required coverage to waive all rights of
subrogation against City its: officers, employees, volunteers, agents, contractors, and
subcontractors.
16. Policies Primary and Non - contributory.
All insurance policies, required above are to be primary and non - contributory with any
insurance or self - insurance programs carried or administered by City.
17. Proof of Coverage:
Consultant shall immediately furnish certificates of insurance to City evidencing the
insurance coverage above required prior to the commencement of performance of services
hereunder. These certificates shall provide that such insurance, shall not be terminated or expire
without thirty (30) days written notice to City. Consultant agrees that if Consultant commences
work under this Agreement without first providing City copies of the required insurance
certificates that Consultant does so at its own and sole risk. In the event Consultant's insurance
is not acceptable to City or copies of insurance certificates are not provided, City shall have no
obligations to compensate Consultant for such work unless Consultant possesses a notice to
proceed from City for this work. Within sixty (60) days of the commencement of this Agreement,
Consultant shall furnish certified copies of the policies and endorsements. Failure to submit such
policies shall constitute a material breach of this Agreement entitling City to any and all remedies
at law or in equity, including summary termination of this Agreement.
18. Insurance Review:
The above insurance requirements shall be subject to periodic review by City. City is
authorized, but not required; to reduce or waive any of the above insurance requirements
whenever city determines that any of the above insurance is not available, is unreasonably priced,
or is not needed to protect the interest of the City. In addition, if the City determines that
heretofore unreasonably priced or unavailable types of insurance, coverage or coverage limits
become reasonably priced or available, City is authorized, not but requested to change the above
insurance requirements to require additional types of insurance coverage or higher coverage
limits, provided that any such change is reasonable in light of past claims against City, inflation, or
any other item reasonably related to City's risk.
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Any such reduction or ; waiver for the entire term of the Agreement and any change
requiring additional types of in coverage or higher coverage limits must be made by
amendment to this Agreement. Consultant agrees to execute any such amendment within thirty
(30) days of receipt.
19. Notification:
All notices and written communications sent to City under the Agreement shall be sent to
the following address, unless authorized to be sent elsewhere, by City,
City Clerk
City of Seal Beach
211 8 Street
Seal Beach, California 90740
Telephone: (562) 431 -2527
All such being sent to Consultant shall be sent to:
Payroll Services Unlimited
10840 Warner Avenue, Suite 206
Fountain Valley, CA 92708
Telephone: (714) 378 -3866
Any such notices and written communications by mail shall be conclusively deemed to
have been received by the addressee five, (5) days after the deposit thereof in the U.S. Mail, first -
class postage prepaid and properly addressed as noted above, or upon actual receipt thereof if
delivered by personal service.
20. Effective Date:
This Agreement shall become effective upon execution by both parties.
21. Entire Agreement:
This Agreement is the complete, final, entire, and exclusive expression of the Agreement
between the parties hereto and supersedes any and all other agreements, either oral or in writing,
between the parties with respect to the subject matter herein. Each party to this Agreement
acknowledges that no representations by any party which are not embodied herein and that no
other agreement, statement, or promise not contained in this Agreement shall be valid and
binding.
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22. Assignment or Substitution:
City has an interest in the qualifications of and capability of the persons and entities who
will fulfill the duties and obligations imposed upon Consultant by this Agreement. In recognition
of that interest, neither any complete or partial assignment of this Agreement may be made by
Consultant, nor changed. substituted for, deleted, or added to without the prior written consent of
City. Any attempted assignment or substitution shall be ineffective, null and void, and constitute a
material breach of this Agreement entitling City to any and all remedies at law or in equity,
including summary termination of this Agreement.
23. Modification of Agreement:
The terms of this Agreement are subject to modification by mutual agreement between
City and Consultant provided such changes are incorporated by written amendments to this
Agreement. The parties agree that the requirement for prior written changes, amendments, or
modifications to this Agreement may not be waived and any attempted waiver shall be void.
24. Waiver:
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision, nor a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of
the provisions of this Agreement.
25. Law to Govern: Venue:
This Agreement shall be interpreted, construed and governed according to the laws of the
State of California in the event of litigation between the parties, venue in state trial courts shall lie
exclusively in the County of Orange.
26. Attorneys Fees, Costs and Expenses:
In the event litigation or other proceeding is required to enforce or interpret any provision
of this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to an
award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it
may be entitled.
27. Joint Drafting:
Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed
that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted
against ether party on the ground that the party prepared the Agreement or caused it to be
prepared.
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28. Suspension of Agreement:
City shall have the right to cancel or suspend the Agreement by giving Consultant fifteen
(I5) days written, notice thereof. Except as provided for in paragraph 5, if such cancellation or
suspension shall take effect during the performance of any uncompleted work, Consultant shall be
paid the reasonable value to City of work accomplished, but to exceed the price agreed to in this
Agreement
29. Savings Clause: .
If any provision of this Agreement is found to be invalid, void, unenforceable, the
remaining provisions shall nevertheless continue in full force and effect without being impaired or
invalidated in any way.
30. Termination:
Except as otherwise provided herein, this Agreement shall continue from, month to month
and may be terminated by either party at any time by giving sixty (60) days prior written notice to
the other party.
31. Authority to Execute:
The person or persons executing this Agreement on behalf of Consultant warrants and
represents that he /she /they has/have the authority to execute this Agreement on behalf of
his /'her /they corporation, partnership, business, or governmental entity and warrants and
represents that he/she/they has/have the authority to bind Consultant to the performance of its
obligations hereunder.
IN WITNESS WHEREOF, this Agreement is executed by the parties at Seal Beach,
California,
CITY: CONSULTANT:
CITY OF SEAL BEACH PAYROLL . RVICES'UNLMTED
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B ..2.4,1i .//.
Keit , , ity Manager Vir: Harter
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Dat • _ / s Date:
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ATTEST: APPROVED AS TO FORM.
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"Clerk Quinn Barrow, City Attorney
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CITY HALL • 211 EIGHTH STREET
SEAL BEACH CALIFORNIA 90/40.6379
5621431 2521
September 4, 2001
Burke, Williams & Sorensen, LLP
Attention: Bryan C. LeRoy,
City Attorney
City of Los Alamitos •
18301 Von Karman Avenue, Suite 1050
Irvine, California 92612
Dear Mr. LeRoy,
Pursuant to the letter received from your secretary dated
August 23 returned are the four (4) original copies of
the Agreement with Judy Slack, d /b /a Payroll Services
Unlimited, and the cities of Los Alamtios, Seal Beach and
Stanton, executed by and on behalf of the City of Seal
Beach.
Please return one (1) copy of said Agreement when it is
fully executed. Thank you.
Very truly yours,
Joanne M. Yeo, City Clerk
City of Seal Beach
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