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HomeMy WebLinkAbout10 - William Avery & Associates Professional Services AApril 11, 2000 Agenda Item 10 CITE' OF NEWPORT BEACH HUMAN RESOURCES DEPARTMENT TO. Mayor and City Council /FROM: Sharon Wood, Assistant City Manager SUBJECT: Professional Services Agreement with William Avery & Associates Recommendation: Approve agreement for January 1 through December 31, 2000, for $4,750 per month. Discussion: The City has contracted with William Avery & Associates to perform its labor negotiations and related employee relations services since 1995. During that time, Mr. Avery has negotiated labor contracts with the City's bargaining units twice. These negotiations have included the reduction of benefits to help the City realize significant long -term cost savings. Issues on which Mr. Avery is currently working include negotiating contracts with the Marine Safety Officers Association and with UPEC Local 777, the new part-time employees association. We also expect negotiation with the recently formed seasonal lifeguards association to begin soon. In addition, we are negotiating with all employee associations regarding enhanced retirement benefits, a cafeteria health benefits plan, long -term security for the retiree medical program, and a complete rewrite of our Employee Policy Manual. With our in -house staff resources, we do not have the expertise nor the time to deal with these issues in a timely, professional manner. Staff believes that Mr. Avery provides valuable assistance to us in these areas. Our last contract with William Avery & Associates expired on December 31, 1999. The attached contract provides for a one -year renewal at the same rate, $4,750 per month. This is the same rate the firm has charged the City since 1997. Funds for these professional services are available in the Human Resources budget. PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, effective the first day of January 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and WILLIAM AVERY & ASSOCIATES, INC., (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide labor relations services upon the terms and conditions contained in this Agreement. C. City has previous experience with Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall be twelve (12) months, from January 1, 2000 to December 31, 2000, unless terminated earlier as set forth herein. 2. DUTIES OF CONSULTANT 2.1 Provide any and all requested or required services within the labor relations activities of City, including but not limited to: advice and consultation on all personnel and labor relations matters including grievances; negotiations with City employee units (Police Employees Association, Police Management Association, Firefighters Association, Fire Management Association, Marine Safety Officers Association, Professional/Technical Employees Association, City Employees Association, Employees League, UPEC Local 777, and Seasonal Lifeguards Association); mediation and any required impasse activities; and such other advice, opinion or assistance requested by the City through the City Manager or the Contract Administrator. 2.2 William Avery shall be the individual within CONSULTANT's firm who shall be primarily responsible for providing required services pursuant to this Agreement. Any back -up or supplemental services shall be provided by an individual(s) to be determined by the mutual agreement of the Parties. 2.3 Discuss and review all matters relating to policy with CITY management in advance of all critical decision points in order to ensure consistency with CITY goals and policies. 2.4 Keep Contract Administrator informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that are scheduled or desired. 3. DUTIES OF CITY 3.1 Provide all information which City may legally release that may be helpful to CONSULTANT in the performance of his services. 3.2 Provide a management team to assist CONSULTANT during negotiation sessions. 3.3 Provide clerical and stenographic assistance as CONSULTANT may reasonably require on site. 3.4 Provide a suitable location where negotiation sessions may be conducted. 4. COMPENSATION TO CONSULTANT 4.1 For the services described above, CITY shall pay CONSULTANT the sum of Four Thousand Seven Hundred Fifty Dollars ($4750.00) per month. 4.2 In addition to the fee in Section 4.1 above, CONSULTANT shall periodically submit an itemization of travel expenses including lodging, meals and transportation concerning negotiations called for in this Agreement on a form acceptable to CITY. CITY shall pay within thirty (30) days after billing is approved all reasonable expenses for such items. 4.3 CONSULTANT shall not charge for clerical time, copies, phone calls, etc., incurred by CONSULTANT in CONSULTANT's office. 5. STANDARD OF CARE 5.1 All of the services shall be performed by CONSULTANT. CONSULTANT represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it 2 has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 5.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 6. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 7. CONFORMANCE TO APPLICABLE REQUIREMENT All work performed by CONSULTANT shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of CITY management. 8. HOLD HARMLESS CONSULTANT shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 3 9. INSURANCE Without limiting CONSULTANT's indemnification of City, and prior to commencement of work, CONSULTANT shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to CITY. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with CITY prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation, all insurance policies shall add CITY, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from CONSULTANT's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the CITY Risk Manager. A. Worker's compensation insurance covering all employees and principals of CONSULTANT, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in amount of One Million Dollars ($1,000,000). Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to CITY. CONSULTANT shall give CITY prompt and timely notice of claim made or suit instituted arising out of CONSULTANT's operation hereunder. CONSULTANT shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. CONSULTANT agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, CONSULTANT shall look solely to its insurance for recovery. CONSULTANT hereby grants to CITY, on behalf of any insurer providing comprehensive general liability insurance to either CONSULTANT or CITY with respect to the services of 4 CONSULTANT herein, a waiver of any right of subrogation which any such insurer of said CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. 10. PROHIBITION AGAINST TRANSFERS CONSULTANT shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of CITY. Any attempt to do so without consent of CITY shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of CONSULTANT, or of;the interest of any general partner or joint venturer or syndicate member or cotenant 'if CONSULTANT is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of CONSULTANT, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint venture. 11. OWNERSHIP OF DOCUMENTS. Each and every report, draft, work product, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. 12. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by CITY. 13. ADMINISTRATION This Agreement will be administered by the Human Resources Department. Sharon Wood shall be considered the Contract Administrator and shall have the authority to act for CITY under this Agreement. The Contract Administrator or his /her authorized representative shall represent CITY in all matters pertaining to the services to be rendered pursuant to this Agreement. 14. RECORDS CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. CONSULTANT shall allow a representative of CITY to examine, audit and make transcripts or copies of such records during normal business hours. CONSULTANT shall allow inspection of all work, data, documents, proceedings and 61 activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 15. WITHHOLDINGS CITY may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. CONSULTANT shall not discontinue work as a result of such withholding. CONSULTANT shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 16. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS CITY reserves the right to employ other consultants in connection with labor relations and other human resources matters. 17. CONFLICTS OF INTEREST 17.1 CONSULTANT or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making decisions that will foreseeably financially affect such interest. 17.2 If subject to the Act, CONSULTANT shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by CITY. CONSULTANT shall indemnify and hold harmless CITY for any and all claims for damages resulting from CONSULTANT's violation of this Section. 18. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of CITY. 19. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. 21 All notices, demands, requests or approvals from CONSULTANT to CITY shall be addressed to CITY at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3000 Fax 644 -3230 All notices, demands, requests or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: William Avery & Associates, Inc. 3 1/2 N. Santa Cruz Ave. Suite A Los Gatos, CA 95030 (408) 399 -4424 Fax 399 -4423 20. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting parry fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 20.1 CITY shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to CONSULTANT as provided herein. Upon termination of this Agreement, CITY shall pay to the CONSULTANT that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 21. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 22. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: A Robin Clauson Assistant City Attorney ATTEST: By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Date: Homer L. Bludau City Manager CONSULTANT By: Date: William H. Avery William Avery & Associates, Inc. 0