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2010/06/01 Kosmont and Associates, Inc. Steve Harding Agreement CITY MANAGER - PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT for Professional Services ("Agreement") is made this 1st day of June, 2010, ("Effective Date") by and between the CITY OF MENIFEE ("City") and Kosmont & Associates, Inc., doing business as "Kosmont Companies" (Consultant") (together sometimes referred to the "Parties") in order to provide for interim city manager services to the City on the terms and conditions set out here. Section 1. SERVICES. Consultant has specific skills to fill the special assignment of interim City Manager services on a short-term basis. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide interim City Manager services as follows: Consultant's designated contractor, Stephen Harding, shall be present at Menifee City Hall five days per week (Monday through Friday) at such times as necessary to carry out the provisions of this Agreement and otherwise shall be available by telephone (including text messaging) and email, and shall be otherwise available 24/7 in case of emergency. Mr. Harding will attend City events as requested by the City Council. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall continue until terminated pursuant to Section 8 of this Agreement. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement to the standards required of city managers and to the sole satisfaction of the City Council. Consultant shall complete a Form 700 within 30 days of the date of execution of this Agreement and specifically states that it/he has reviewed the requirements of state law and regulation and has no conflicts of interest as to any matters within the City or involving individual Council members of which he is aware at this time. Consultant further states that it/he has made no campaign contributions to any Council members and that he will not do so during the term of this Agreement. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may necessary to satisfy Consultant's obligations hereunder. 1.5 Assignment of Personnel. Consultant understands that the selection is based upon the specific experience and competence of Stephen Harding and that Mr. Harding shall provide all services hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant a fixed monthly amount of $20,000/month for all services to be performed hereunder and any and all reimbursable costs of any kind incurred under this Agreement. Reimbursable expenses shall include the cost of attendance at conferences Consultant is requested to attend on behalf of the City. 2.1 Invoices/Procedure. Consultant understands that the City Code provides for the review and approval of all invoices on the warrant register by the City 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 1 Of Manager or Finance Director. Consultant further understands that the review and approval of its/his invoices as City Manager raises a potential conflict of interest issue. Therefore, Consultant discloses such conflict and specifically agrees that all invoices under this Agreement shall be submitted directly to the Finance Director and shall be reviewed and approved by her without any input or influence from Consultant !other than to respond to questions in his capacity as a Consultant). Further, such invoices shall not be placed on the warrant register for approval until the Finance Director has confirmed her approval with the City's Finance Committee. No recommendation by the City Manager for approval of the warrant register shall be deemed to include the approval of its invoices. 2.2 Monthly Payment. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment and any and all other taxes incurred under this Agreement and any federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding amounts owing as of the date of such termination. Section 3. FACILITIES AND EQUIPMENT. Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of insurance checked below and provide Certificates of Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and which is satisfactory, in all respects, to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's compensation. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 4.1 Workers' Compensation. Consultant shall provide City with a certificate of insurance from its workers compensation carrier, for the purpose of any issues that arise from Consultant's employees supporting Mr. Harding. Additionally, Mr. Harding will provide a statement to City, stating that he is self-employed and has no employees. 4.2 General and Automobile Liability Insurance. 4.2.1 Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 2 of in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached limiting the coverage. 4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that coverage shall not be suspended, voided, canceled by either party, or reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified, mail, return receipt requested, has been given to the City. In the event that any coverage required by this section is reduced, limited, cancelled, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than ten (10) working days after Consultant is notified of the change in coverage. 4.4.4 Additional insured; primary insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant in the course of providing services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 3 of officials, employees and volunteers, and that no insurance or self- insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Section 5. INDEMNIFICATION Consultant shall indemnify and hold harmless the City and its officials, officers, employees. agents and authorized volunteers from and against any and all losses, liability, claims, suits, actions, damages and causes of action arising out of any personal injury, bodily injury, loss of life or damage to property, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors or agents, except when (1) the injury, loss of life, damage to property or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents or authorized volunteers, other than Consultant's employees. In no event will Consultant indemnify City for actions brought by parties related to City Council actions, including but not limited to actions related to the City's denial or approval of a project, City actions related to processing a project or project application, challenges brought related to the California Environmental Quality Act, challenges in connection with eminent domain proceedings and/or actions related to employee discipline, probation or termination. It is understood by the parties that Mr. Harding is an independent contractor to Consultant, and is not personally indemnifying City nor personally providing the insurance coverages described in this Agreement. Consultant, Kosmont & Associates, Inc., is providing the indemnification to City and the insurance coverages described in this Agreement or as otherwise provided. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulat;on, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 4 of' 7.2 Compliance with Applicable Laws. Consultant and any subcontractor shall comply with any and all applicable local, state and federal laws and regulations applicable to the performance of the work hereunder. 7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term or this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City or Consultant may terminate this Agreement at any time and without cause immediately upon written notification to Consultant. Consultant may terminate this Agreement upon 30 days prior written notice to City. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement for a period of three years following termination of this Agreement. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 5 of of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties unless required by law. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of, the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If either party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled and expenses. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be venued exclusively in Riverside County. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 6 of 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.5 Notices. Any written notice to Consultant shall be sent to: Kosmont Companies Attention: Larry J. Kosmont, President 865 S. Figueroa Street, 35th Floor Los Angeles, CA 90017 Any written notice to City shall be sent to the City Clerk at City Hall. 10.6 Integration. This Agreement represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 10.7 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CITY OF MENIFEE CONSULTANT Kosmont & Associates, Inc. dba "Kosmont Companies" Wallace Wallace W. Edgerton, Mayor Larry J. Kosmonf, President Attest: ArJv? �; - Kathy Bennett, City Clerk Approved as to Form: Karen Feld, City Attorney 4812-6521-2166.1 Professional Services Agreement with Kosmont Companies(Stephen Harding) 7 o f"