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HomeMy WebLinkAboutS30 - Contract with Jim SinasekCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. S30 June 14, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Contract with Former City Employee —Jim Sinasek ISSUE: Should the City Council allow the City to engage a former employee to assist the Code and Water Quality Enforcement Division on code enforcement issues? RECOMMENDATION: Authorize the Mayor to execute a Professional Services Agreement with a former employee, Mr. Jim Sinasek, to provide consultant services relating to Code and Water Quality Enforcement. DISCUSSION: Background: Council Policy F -20 says that the City Council shall review and consider any contract the City makes with a former employee. City staff seeks to hire Jim Sinasek, on a limited basis, to advise his former staff at Code and Water Quality Enforcement on code issues. Mr. Sinasek has agreed to do this at least until such time as his replacement is named. We expect that several code issues may arise following Jim's departure that will require his knowledge of past actions and his knowledge of the code. The Professional Services Agreement provides that the City will • Engage Mr. Sinasek at an amount per hour equaling his current hourly rate (about $41 /hour); • Limit consultant hours to eight hours in any one two -week pay period; • Provide for a 7 -day notice of termination of the PSA without cause; Contract with Former Employee June 14, 2005 Page 2 Provide that the City will allow Mr. Sinasek to retain his computer and his cellular phone (and include these items as reimburseable expenses) until such time as the PSA is terminated, provided that the equipment is used for City purposes and that only City -use of the equipment may be billed to the City. This Agenda Item asks the Council to allow the Mayor to sign a PSA substantially similar to the above terms. Submitted by: Dave iff Assistant City Manager Attachments: Draft PSA Council Policy F -20 Contract with Former Employee June 14, 2005 Page 3 PROFESSIONAL SERVICES AGREEMENT WITH Mr. JIM SINASEK THIS AGREEMENT is made and entered into as of this _ day of June, 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Mr. Jim Sinasek ( "CONSULTANT'), and 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 provides Code and Water Quality Enforcement Services to the community. C. CITY desires to engage Consultant to advise the current Code and Water Quality Enforcement Division team on specialized code enforcement issues ('Project'). D. CONSULTANT possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. CITY has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to retain CONSULTANT to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: The term of this Agreement shall commence on the _ day of June, 2005, and shall terminate on the 315` day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: CONSULTANT shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The CITY may elect to delete certain tasks of the Scope of Services at its sole discretion. Contract with Former Employee June 14, 2005 Page 4 3. TIME OF PERFORMANCE: Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by CITY. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 4. COMPENSATION TO CONSULTANT: CITY shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed $41 /hour without additional authorization from CITY. No billing rate changes shall be made during the term of this Agreement without the prior written approval of CITY. 4.1 Consultant shall not bill more than eight (8) hours in any one two -week pay period. 4.2 Consultant shall submit monthly invoices to CITY describing the work performed the preceding month. Consultant's bills shall include a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. CITY shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by CITY staff. 4.3 CITY shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by CITY. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by CITY and awarded in accordance with this Agreement. B. Approved phone, Internet connection, and reproduction charges. Contract with Former Employee June 14, 2005 Page 5 C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work without the prior written authorization of CITY. As used herein, "Extra Work" means any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. ADMINISTRATION: This Agreement will be administered by the City Manager's Department. Assistant City Manager Dave Kiff shall be the Project Administrator and shall have the authority to act for CITY under this Agreement. The Project Administrator or his /her authorized representative shall represent CITY in all matters pertaining to the services to be rendered pursuant to this Agreement. 6. STANDARD OF CARE: All of the services shall be performed by Consultant or under Consultant's supervision. 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 community professional standards. 7. INDEPENDENT CONTRACTOR: It is understood that CITY retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give CITY the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of CITY with respect to the results of the services. Contract with Former Employee June 14, 2005 Page 6 8. COOPERATION: Consultant agrees to work closely and cooperate fully with CITY's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with the Consultant on the Project. 9. CITY POLICY: Consultant shall discuss and review all matters relating to policy and Project direction with CITY's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with CITY goals and policies. 10. PROGRESS: Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 11. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS: Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of CITY. 12. SUBCONTRACTING: The parties recognize that a substantial inducement to CITY for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of CITY. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of CITY. 13. OWNERSHIP OF DOCUMENTS: Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of CITY, and CITY shall have the sole right to use such materials in its discretion without 14. i &I 16. Contract with Former Employee June 14, 2005 Page 7 further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to CITY upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by CITY or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at CITY's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by CITY or persons other than Consultant is waived against Consultant and CITY assumes full responsibility for such changes unless CITY has given Consultant prior notice and has received from Consultant written consent for such changes. CONFIDENTIALITY: All documents, notes and communications that result from the services in this Agreement, shall be kept confidential unless CITY authorizes in writing the release of information. 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 and any services, expenditures and disbursements charged to CITY, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of CITY to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other Consultants in connection with the Project. 17. CONFLICTS OF INTEREST: The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such Contract with Former Employee June 14, 2005 Page 8 persons to disclose any 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. 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 immediate 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. NOTICES: All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to CITY by Consultant 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. All notices, demands, requests or approvals from Consultant to CITY shall be addressed to CITY at: Dave Kiff Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3002 Fax 644 -3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Mr. Jim Sinasek ADDRESS TO BE ADDED 19. TERMINATION: Notwithstanding the above provisions, CITY shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, CITY shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to CITY all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. Contract with Former Employee June 14, 2005 Page 9 20. COMPLIANCE WITH ALL LAWS: Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable CITY, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 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. 23. CONFLICTS OR INCONSISTENCIES: In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 24. AMENDMENTS: This Agreement may be modified or amended only by a written document executed by both Consultant and CITY and approved as to form by the CITY Attorney. 25. SEVERABILITY: If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. CONTROLLING LAW AND VENUE: Contract with Former Employee June 14, 2005 Page 10 The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 27. EQUAL OPPORTUNITY EMPLOYMENT: Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: 0 LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Mayor for the City of Newport Beach CONSULTANT: M Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Contract with Former Employee June 14, 2005 Page 11 Exhibit A SCOPE OF SERVICES Consultant shall provide verbal or written advice about Code or Water Quality enforcement issues to current staff members of the Code and Water Quality Enforcement Division as requested by the current staff members. Contract with Former Employee June 14, 2005 Page 12 Exhibit B SCHEDULE OF BILLING RATES Mr. Jim Sinasek $41 /hour up to a maximum of eight hours in any one pay period