Loading...
HomeMy WebLinkAbout09-03-2015 McDaniel Reporting & Video Conferencing Inc. - AgreementAGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on June 1, 2015, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and MCDANIEL REPORTING & VIDEO CONFERENCING, INC., hereinafter referred to as Contractor. WITNESSETH: WHEREAS, on /_ 2015, the City Manager authorized payments for court reporter and hearing transcript services related to a personnel disciplinary appeal. (elnx 5 ykt-,-e� qlAW-) WHEREAS, Contractor submitted a pay schedule for court reporter and hearing transcript services; WHEREAS, court reporter services for this matter were initially anticipated to be within Department Head authority, but litigation practices by Appellant and his counsel have significantly increased the anticipated length of hearings, the volume of work to be performed and the resulting transcript costs; and NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above, until completion of court reporting and hearing transcript services in this matter. 2. INCORPORATION BY REFERENCE. Contractor agrees to comply with the City's standard terms and conditions and insurance requirements which are attached hereto as Exhibits A and B, respectively, and incorporated herein by this reference. Contractor further agrees to perform services as outlined in their pay schedule which is attached hereto as Exhibit C and incorporated herein by this reference. 3. CITY'S OBLIGATIONS. For providing court reporting and hearing transcript services in this matter as specified in this Agreement, City will pay and Contractor shall receive therefor compensation in a total sum not to exceed $28,000, without the prior written authorization of the City Manager. 4. CONTRACTOR'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City to do everything required by this Agreement. 5. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the Council or City Manager of the City. 6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Contractor Mcdaniel Reporting & Video Conferencing, Inc., 1302 Osos St. San Luis Obispo, CA 93401 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. CTT OF SAN LUIS O I By: ! Y etrij 'stine Dick City Attorney 5i ►'+�0� Oh CONTRACTOR G By. Ken McIlraniel Its: V. P Exhibit GENERAL TERMS AND CONDITIONS REQUIREMENTS Insurance Requirements. The Contractor shall provide proof of insurance in the form, coverages and amounts specified in Exhibit B within 10 (ten) calendar days as a precondition to contract execution. Business Tax. The Contractor must have a valid City of San Luis Obispo business tax certificate before execution of the contract. Additional information regarding the City's business tax program may be obtained by calling (805) 781 -7134. CONTRACT PERFORMANCE Ability to Perform. The Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. 4. Laws to be Observed. The Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 5. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Contractor is required to pay. 6. Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 7. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 8. Public and Employee Safety. Whenever the Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 9. Preservation of City Property. The Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from the Contractor's operations, it shall be replaced or restored at the Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 10. Immigration Act of 1986. The Contractor warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 11. Contractor Non - Discrimination. In the performance of this work, the Contractor agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 12. Work Delays. Should the Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed upon by the City and the Contractor. In the event that there is insufficient time to grant such extensions prior to the completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that may have accrued for failure to complete on time, due to any of the above, after hearing evidence as to the reasons for such delay, and making a finding as to the causes of same. 13. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the materials, supplies, equipment or services provided by the Contractor (Net 30). 14. Inspection. The Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of the Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements. 15. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 16. Interests of Contractor. The Contractor covenants that it presently has no interest, and shall not acquire any interest — direct, indirect or otherwise —that would conflict in any manner or degree with the performance of the work hereunder. The Contractor further covenants that, in the performance of this work, no subcontractor or person having such an interest shall be employed. The Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the Contractor shall at all times be deemed an independent contractor and not an agent or employee of the City. 17_ Hold Harmless and Indemnification. The Contractor agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to the Contractor's employees, agents or officers that arise from or are connected with or are caused or claimed to be caused by the acts or omissions of the Contractor, and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same; provided, however, that the Contractor's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 18. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 19. Termination. If, during the term of the contract, the City determines that the Contractor is not faithfully abiding by any term or condition contained herein, the City may notify the Contractor in writing of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. If the Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, any and all obligations of the Contractor's surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination thereof. In said event, the Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by the Contractor as may be set forth in the Agreement payment schedule; compensation for any other work, services or goods performed or provided by the Contractor shall be based solely on the City's assessment of the value of the work -in- progress in completing the overall workscope. The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the compensation quoted in its proposal. Exhibit B REQUIREMENTS INSURANCE Consultant Services The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shall be at least as broad as: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the consultant's profession. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project /location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. Deductibles and Self- Insured Retentions. Any deductibles or self - insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self - insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, 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. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANIL Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. Exhibit C Per Diem: $300 half day; $600 full day. After 5pm to be billed at $100 per hour. Transcript: Original and one copy $6.00 /page to be delivered within 10 business days. Next day delivery to carry a surcharge of 100% additional, with a 10% reduction in surcharge each additional day, i.e., delivery in 2 days @90 %, Mays @80 %, etc. Postage /Handling: $35 per day. Email transcript/word index/condensed transcript: $15 per day. Rough draft: $1.25 per page, delivered next day by email. Any other charges and /or services will be discussed and agreed to by both parties before implementation. City Manager Report August 5, 2015 Final City Manager Approval Approver Name Date Approved City Administration JD for DJ 09/16 Reviewer Routing List Reviewer Name Date Reviewed City Attorney jcd 8/5/15 Finance & Information Technology mwP 9/8 Police Department CHS 8/18/15 Human Resources MI 8/21/15 FROM SUBJECT: Recommendation: J. Christine Dietrick jcd 8/5/2015 Further funding for Personnel Disciplinary Appeal Authorize the City Attorney to execute an Amendment to the Legal Services Agreement with the Law Offices of Jones & Mayer for payments for legal services in a personnel disciplinary appeal (dated 10/1/2014), increasing the not to exceed amount from $25,000 to $50,000. 2. Authorize an additional $25,000 be added to Jones & Mayer encumbrance 933513. $13,656 to come from sources within the existing City Attorney budget, $8,000 from the Police Department budget and the remaining $3,344 to come from the Human Resources budget. 3. Authorize the City Attorney to execute a contract for payments to the hearing officer presiding over the disciplinary appeal pursuant to the City's personnel rules, and the applicable Memorandum of Agreements (MOA), in an amount not to exceed $30,000 and authorize the City Attorney to transfer and encumber that amount from budget sources as identified and directed by the City Manager. 4. Authorize the City Attorney to execute a contract for payments for court reporter and hearing transcript services to McDaniel Reporting in an amount not to exceed $28,000 for 10 days of hearings, creation of transcripts for the administrative record and Council, and authorize the City Attorney to transfer and encumber that amount from budget sources as identified and directed by the City Manager. 5. Authorize the use of a portion of the salary savings ($58,000) from the vacant Police Chief's position for the purpose of funding the remaining costs related to this request. Further funding for Personnel Disciplinary Appeal Page 2 Attorney Fees Last year the City Attorney's Office issued a Request for Proposals for on -call legal services, requesting proposals in a variety of practice areas. The law firm of Jones & Mayer was a successful proposer and is currently on the City's on -call list for personnel and employment matters. Greg Palmer of that firm has specialized expertise with police and fire personnel and termination matters and the City Attorney had consulted with Mr. Palmer for advice in the early stages of this particular matter. Mr. Palmer has also previously represented the City in such matters. Based on discussions with Mr. Palmer, review of other RFP responses, cost comparison, and experience with other qualified attorneys in this area, as well as his baseline knowledge of the case from the prior consultation, the City Attorney determined that Mr. Palmer was the most appropriate and cost effective representation in the current police termination matter. It is necessary to retain outside counsel in these proceedings because the City Attorney is the regular advisor to the City Council and having the Council act as an independent reviewer of a decision on which the City Attorney has already advised and advocated, raises due process concerns that could subject the Council's final decision to challenge, depending on the hearing officer's recommendation and the Council's final action. In 2014, the City Attorney engaged Mr. Palmer's services to represent the City in this matter up to Department Head authority and, in December, City Manager approval was given to continue the legal services engagement with costs not to exceed $25,000. $2,000 of this further funding came from the Legal Services budget of the City Attorney department, with the remaining $23,000 being transferred via BAR from Ventures & Contingency at the suggestion of the Finance Director. As anticipated, the current matter required significant preparation for the termination appeal hearing, which is now underway. However, we initially anticipated that the hearing on the matter could be completed in three to four days maximum. Unfortunately, opposing counsel is pursuing the matter very aggressively, proceeding at a very slow pace and has insisted that they will need ten full days of hearings to complete their defense; only five have been completed thus far and we have dates booked out through the beginning of October with the hearing officer. Opposing counsel has also served multiple discovery motions and Public Records Act requests, which have driven additional motion/opposition work, despite attempts to minimize costs by managing a significant portion of the discovery in house. The additional outside counsel work on this matter is estimated to be ten (10) additional days, including witness and hearing preparation, hearing days, motion work and closing briefing, totaling at least $18,000. Due to the contentious and cost escalating practices of opposing counsel, the City Attorney believes the costs could well exceed that estimate and is requesting the City Manager authorize funding up to her full authority. The City Attorney's office will obviously make every effort to minimize actual costs incurred, while ensuring effective representation. Hearing Officer For significant public safety disciplinary appeals, the City's personnel rules and MOAs require the appeals be heard by an independent third -party hearing officer selected by the parties through a "strike" process from a list of qualified and available hearing officers provided by State Mediation and Conciliation Services (a division of the PERB Board). While SMCS provides the list of hearing officers free of charge, the costs of the hearing officer's services must be paid entirely by the City because the hearing officer's decision is advisory to the City Council; based on case law, only where the decision is a binding final decision can the employee be required to share in the costs. The hearing officer selected via the strike process in this action, David Cameron, charges $2000 per Further funding for Personnel Disciplinary Appeal Page 3 day of hearing, plus mileage and expenses, as well as costs of preparation of the written findings and recommendation to Council at the conclusion of the hearing at a rate of $350/hr. We have received an interim invoice, not yet paid, and the total charges incurred through the first five days of hearing are just under $12,000. Assuming that all of the currently scheduled hearing days go forward and the matter is completed in those scheduled five days, I would anticipate subsequent invoices would total a similar amount. I would also anticipate two days of decision drafting and review, totaling approximately $4,000. Thus, the City Attorney is requesting authority for payment of the hearing officer charges up to $30,000 to ensure coverage of estimated costs and modest contingencies. Court Reporter and Transcript Services Because the hearing officer's decision is advisory to the Council, who will need to review the complete record in this matter before reaching its final decision, and because significant public safety disciplinary matters decided by councils are so regularly appealed by employees to the courts, it is necessary to have an official record and transcripts of proceedings. Costs of the court reporter and transcripts vary somewhat based on the length of a day's proceedings and the number of transcript volumes resulting. Based on costs to date, the court reporter and transcript fees are averaging between $2,500 and $2,800 per day. The first two days' bills from this vendor were sent to Mr. Palmer's office and paid by Jones & Mayer, with the costs being passed through to the City via the firm's invoicing. We have subsequently requested that the City be billed directly so that we can better distinguish, track and account for the different vendors from whom the City needed to retain services related to this matter. Based on the currently pending billing (three hearing days and transcript costs) and anticipating similar costs for the remaining five hearing days, the City Attorney is requesting that the City Manager authorize payment to this vendor for court reporting services and transcripts and contingencies in an amount not to exceed $28,000. Fiscal Impact In total, costs are anticipated to be approximately $108,000 to cover the three different service vendors /contracts related to this case. The City Attorney previously encumbered $25,000 for attorney's fees and expenses and now requires an additional $83,000 to cover anticipated costs. The City Attorney has reviewed the office's budget and does not have funding sufficient to fund all of these costs. By reallocating funding currently encumbered for personnel investigations, code enforcement and unused litigation funds from a completed matter (Sipple), this office has identified $13,656 that could be used for this purpose, leaving a gap of $69,344 in needed funding. At the request of the City Attorney, the Police and Human Resources Departments have identified within their own budgets $8,000 and $3,344, respectively. Combined, these contributions will cover the $25,000 needed for Jones and Mayer's attorney's fees. Funding sources for the hearing officer ($30,000) and court reporter ($28,000) costs remain undetermined. The City Attorney's office has $8,900 currently budgeted for legal services in the current fiscal year, which could be used toward this matter, but it would exhaust that line item. Staff is proposing to reallocate $58,000 in salary savings from the vacant Police Chief's position to cover the balance of the costs that exceed the amounts that are being reallocated from the departments as described above. Further funding for Personnel Disciplinary Appeal Page 4 Attachments: 1. 2014 10 01 - LSA - Jones and Mayer.pdf 2. 2015 08 - Jones & Mayer - Amendment to Agreement.docx 3. 2015 08 13 - Contract w Hearine Officer - Cameron.docx 4. 2015 06 01 - Contract w McDaniel Reporting docx 5. BAR