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HomeMy WebLinkAboutThe Segal Group (Western States) Inc; 2014-06-11;AGREEMENT FOR COMPENSATION CONSULTING SERVICES THE SEGAL GROUP, INC THIS AGREEMENT is made and entered into on ^H , 2014 but effective retroactively to 29th day of January, 2013, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and THE SEGAL GROUP (WESTERN STATES), INC., a Maryland corporation ("Contractor"). RECITALS A. City requires the professional services of a compensation consulting firm that is experienced in conducting salary surveys and developing pay for performance plans. B. Contractor under a separate 18 month agreement, dated February 17, 2012 ("2012 Agreement"), provided consulting services related to compensation in an amount not to exceed $87,000. The 2012 Agreement was amended on April 6, 2012 to increase project scope of services and $12,500 in funding. With the amendment, the 2012 Agreement's total not to exceed fee was $99,500. C. During performance of the 2012 Agreement Contractor performed consulting work not initially contemplated under said agreement. This additional work required Contractor to meet with City Council at a fee not to exceed $6,196.15 (preparation, attendance at meeting, and travel). This additional work was authorized by the City as City believed at that time that there would be sufficient monies in the 2012 Agreement to cover this work and would thereafter, amend the scope to include the consulting services to the City Council. However, if the 2012 Agreement was insufficient, the parties would execute a new contract. D. Also during performance of the 2012 Agreement the City disputed the quality of implementation work performed by Contractor. City offered to offset the monies owed on the disputed work against the Contractor's additional work fee. E. The 2012 Agreement concluded on August 17, 2013 with nominal monies remaining from the $99,500. Contractor continued to invoice the City for the amount of the disputed bill. City and Contractor have tried to negotiate a resolution. City has agreed to pay Contractor for the disputed work. The 2012 Agreement does not have sufficient funds to pay for Contractor's additional work and such work and fees, as initially contemplated, are the subject matter of this new agreement. F. This Agreement shall not exceed six thousand three hundred five dollar and 6 cents ($6,305.06) and shall immediately terminate after Contractor has been paid the outstanding invoice. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein. City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform compensation consulting services/presentations which required Contractor to retain Consultant to meet with the Carlsbad City Council, prepare materials, attend the January 29, 2013 meeting, and travel. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. City Attorney Approved Version 1/30/13 3. TERM The term of this Agreement will be from January 29, 2013 to the date in which the Contractor's outstanding invoice is paid by the City at which time this Agreement shall terminate. 4. RECITALS The above recitals are incorporated herein by reference. 5. COMPENSATION The total fee payable for the Services is six thousand three hundred five dollar and 6 cents ($6,305.06). 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to Indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election. City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. City Attorney Approved Version 1/30/13 The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor has previously performed the services required by this Agreement and the City has accepted the services. Therefore, the Contractor insurance requirements for this Agreement are waived. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will 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 under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For Citv For Contractor Name Cheri Abbott Name Carol L. Mercer Title Human Resources manager Title Vice President Department Human Resources Address 330 North Brand Blvd, Suite 1100 City of Carlsbad Glendale, CA Address 1635 Faraday Ave Phone No. 602 381 4045 Carlsbad, CA 92008 Email cmercer(^sibson.com Phone No. 760 602 2496 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 1/30/13 16. CONFLICT OF INTEREST Upon the request by City, Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware ofthe requirements ofthe Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fon/varded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fon/varded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION This Agreement shall terminate upon City's final payment of the outstanding invoice. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty. City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount ofthe fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must City Attorney Approved Version 1/30/13 be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 etseq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a nght or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. (Remainder of Page Intentionally Left Blank) City Attorney Approved Version 1/30/13 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) City Manager or Mayor or Division Director as authorized by the City Manager (print name/title) ATTEST: By: iU (sign here) mA/Ufimi F/t/€2>^^ \ (print name/title) Co^fo/t/h71^ BARBARA ENGLESpN City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. _ ALEXIS BANGURA JI^T /, • -T t-* i ** I ^ NOTARY PUBLIC DISTRICT OF COLUMBIA |;r:6t0« ,:*| MyCommlsslonExplresMay31,2019 * *" " ' " APPROVED AS TO FORM: CELIA A. BREWER, City Attorney istant City Attorney District of Columbia: SS Subscritod and swom tohefore me, in my presence, thls_Z?_dayof (lUa/yy^ " »•* Ale«s Bangura, Nolary Public, D.C. My commission expires May 31,2019. City Attorney Approved Version 1/30/13