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11-0401_MUNICIPAL MANAGEMENT GROUP_Personal Sevices Agreementi i PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 1st day of April, 2011, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter referred to as the "City") and MUNICIPAL MANAGEMENT GROUP (hereinafter referred to as the "Consultant'). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide consulting services for Utilities, management consulting services and for other strategic programs and projects as directed by the City Council and City manager, and administrative support; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The Consultant shall provide services overseeing the operations of the Utilities Department and implementation of Department strategies as well as oversight and participation in the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and/or City Manager may designate. The services shall be provided solely by Joe Tait. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than March 31, 2012, subject to Section 15 (Termination). Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed the amount of $175,000 chargeable at the rate of $225/hr. for Joe Tait, not to exceed 100 hours per month. Additionally, the City will provide a City vehicle in -lieu of mileage charges and a City identification badge through July 31, 2011. 756340.1 0 0 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit bi-weekly invoices based on total services which have been satisfactorily completed for such bi-weekly period. The City will pay bi-weekly payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor for purposes of City employee benefits, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of 2 756340.1 0 0 the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law: E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis- dhs.com/employerreaistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. [Reserved] Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. 3 756340.1 0 0 The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance 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. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full 4 756340.1 0 0 force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects 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; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. (a) Subject to subsection (b) below, City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. 5 756340.1 (b) In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk To Consultant: Municipal Management Group 536 Blue Jay Court Oceanside, CA 92058 Attn.: Joe Tait Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS] 756340.1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. all • •/���/ CONSULTANT By: de.( Joe T it ATTEJ Maria r is, City C APPROVED••- dh1m,�'w,r./ • .. 1 . - 0 SUPPLEMENTARY AGENDA REPORT TO: Mayor and Members of the City Council FROM: Omar Sandoval, City Attorney 0 3/25/2011 C2 SUBJECT: Consideration of Agreement with Municipal Management Group to Provide Utilities Department and Other Management Consulting Services. RECOMMENDATION By motion, approve the attached Agreement with Municipal Management Group to Provide Utilities Department and Other Management Consulting Services. After the posting of the agenda, the following revisions have been proposed for the Agreement with Municipal Management Group, which are included in the attached revised Agreement: Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed the amount of $175,000 chargeable at the rate of $225/hr. for Joe Tait, not to exceed 100 hours per month. Additionally, the City will provide a City vehicle in -lieu of mileage charges and a City identification badge through July 31, 2011. RECOMMENDATION By motion, approve the attached Agreement with Municipal Management Group to Provide Utilities Department and Other Management Consulting Services. Respectfully submitted, Q_r��*SaLov 4'tj_al City Attorney Attachment: Revised Agreement 756751.1 0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 1st day of April, 2011, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter referred to as the "City") and MUNICIPAL MANAGEMENT GROUP (hereinafter referred to as the "Consultant'). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide consulting services for Utilities, management consulting services and for other strategic programs and projects as directed by the City Council and City manager, and administrative support; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The Consultant shall provide services overseeing the operations of the Utilities Department and implementation of Department strategies as well as oversight and participation in the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and City Manager may designate. The services shall be provided solely by Joe Tait. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than March 31, 2012, subject to Section 15 (Termination). Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed the amount of $175,000 chargeable at the rate of $225/hr. for Joe Tait, not to exceed 100 hours per month. Additionally, the City will provide a City vehicle in -lieu of mileage charges and a City identification badge through July 31, 2011. 1 756340.1 0 9 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit bi-weekly invoices based on total services which have been satisfactorily completed for such bi-weekly period. The City will pay bi-weekly payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor for purposes of City employee benefits, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of 2 756340.1 0 0 the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law; E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.00v, or access the registration page at https:/Iwww.vis- dhs.com/employerregistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. [Reserved] Section 12. Ownership of Documents All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. 756340.1 0 0 The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VI I or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance 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. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full 4 756340.1 0 0 force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects 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; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. (a) Subject to subsection (b) below, City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. 5 756340.1 (b) In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk To Consultant: Municipal Management Group 536 Blue Jay Court Oceanside, CA 92058 Attn.: Joe Tait Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS] 6 756340.1 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: Mayor CONSULTANT 0 ATTEST: City Clerk APPROVED AS TO FORM: () 1;u 6 A z a, �J City Atrornley 756340.1 7 Joe Tait 0 • 3/25/2011 C2 AGENDA REPORT TO: Mayor and Members of the City Council FROM: Omar Sandoval, City Attorney SUBJECT: Consideration of Agreement with Municipal Management Group to Provide Utilities Department and Other Management Consulting Services RECOMMENDATION By motion, approve the attached Agreement with Municipal Management Group to provide Utilities Department and Other Management Consulting Services. SITUATION: For approximately the last three years, Municipal Management Group has provided services that include the position of Acting Director of Utilities, management consulting services for other strategic programs and projects, administrative support, Interim City Manager, and City Manager services. Joe Tait, a principal of Municipal Management Group has served as City Manager and Acting Director of Utilities for approximately the last 18 months. The attached Agreement covers the period from April 1, 2011 through March 31, 2012, and may be terminated for convenience by the City with 30 days notice. The Agreement designates Joe Tait as the principal consultant, and requires the consultant to provide services overseeing the operations of the Utilities Department. It further stipulates that the Consultant will oversee the implementation of Utilities Department strategies as well the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and City Manager may designate. The Agreement caps the compensation for the contract term at the not to exceed amount of $175,000. 0 Agenda Report Paqe 2 RECOMMENDATION 11 By motion, approve the attached Agreement with Municipal Management Group to provide Acting Utilities Director and other Specified Services. O r doval City Attorney Attachment: Personal Services Agreement 756391.1 0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 1st day of April, 2011, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter referred to as the "City") and MUNICIPAL MANAGEMENT GROUP (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide consulting services for Utilities, management consulting services and for other strategic programs and projects as directed by the City Council and City manager, and administrative support; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The Consultant shall provide services overseeing the operations of the Utilities Department and implementation of Department strategies as well as oversight and participation in the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and City Manager may designate. The services shall be provided solely by Joe Tait. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than March 31, 2012, subject to Section 15 (Termination). Section 3. Compensation, 3.1 Amount. Total compensation for the services hereunder shall not exceed the amount of $175,000 chargeable at the rate of $2251hr. for Joe Tait. Additionally, the City will provide a City vehicle in -lieu of mileage charges and a City identification badge. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit bi-weekly invoices based on total services which have been satisfactorily completed for such bi-weekly period. The ATTACHMENT 0 9 City will pay bi-weekly payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor for purposes of City employee benefits, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 0 0 Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law, E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis- dhs.com/emploverreoistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. [Reserved] Section 12. Ownership of Documents. All reports, information, data and connection with the performance of confidential to the extent permitted by I made available to any individual or org; All such reports, information, data, and be delivered to the City upon demand The City acknowledges such docume services. exhibits prepared or assembled by Consultant in its services pursuant to this Agreement are aw, and Consultant agrees that they shall not be anization without prior written consent of the City. exhibits shall be the property of the City and shall without additional costs or expense to the City. its are instruments of Consultant's professional 0 0 Section 13. Indemnity. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance 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. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 4 0 14.3 Worker's Compensation 0 If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects 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; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Ca ncellationrrermination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. (a) Subject to subsection (b) below, City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. (b) In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be 0 0 terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk To Consultant: Municipal Management Group 536 Blue Jay Court Oceanside, CA 92058 Attn.: Joe Tait Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS] 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Bv: Sam Allevato, Mayor CONSULTANT By: Joe Tait 7 3/15/2011 AGENDA REPORT D15 TO: Mayor and Members of the City Council FROM: Omar Sandoval, City Attorney SUBJECT: Consideration of Agreement with Municipal Management Group to Provide Utilities Department and Other Management Consulting Services RECOMMENDATION By motion, approve the attached Agreement with Municipal Management Group to provide Utilities Department and Other Management Consulting Services. SITUATION: For approximately the last three years, Municipal Management Group has provided services that include the position of Acting Director of Utilities, management consulting services for other strategic programs and projects, administrative support, Interim City Manager, and City Manager services. Joe Tait, a principal of Municipal Management Group has served as City Manager and Acting Director of Utilities for approximately the last 18 months. The attached Agreement covers the period from April 1, 2011 through March 31, 2012, and may be terminated for convenience by the City with 30 days notice. The Agreement designates Joe Tait as the principal consultant, and requires the consultant to provide services overseeing the operations of the Utilities Department. It further stipulates that the Consultant will oversee the implementation of Utilities Department strategies as well the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and City Manager may designate. The Agreement caps the compensation for the contract term at the not to exceed amount of $175,000. Agenda Report Paae 2 March 15, 2011 By motion, approve the attached Agreement with Municipal Management Group to provide Acting Utilities Director and other Specified Services. Respectfully submitted, dor Omar Sandoval U City Attorney Attachment: Personal Services Agreement 756391.1 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 1st day of April, 2011, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter referred to as the "City") and MUNICIPAL MANAGEMENT GROUP (hereinafter referred to as the "Consultant'). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide consulting services for Utilities, management consulting services and for other strategic programs and projects as directed by the City Council and City manager, and administrative support; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The Consultant shall provide services overseeing the operations of the Utilities Department and implementation of Department strategies as well as oversight and participation in the expansion of the GWRP and installation of the GAC treatment system, MtBE remediation, negotiations with Chevron, representation before the Regional Water Quality Control Board, assisting in the recruitment of a new Utilities Director and such other management and project consulting duties as the City Council and City Manager may designate. The services shall be provided solely by Joe Tait. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than March 31, 2012, subject to Section 15 (Termination). Section 3. Compensation, 3.1 Amount. Total compensation for the services hereunder shall not exceed the amount of $175,000 chargeable at the rate of $225/hr. for Joe Tait. Additionally, the City will provide a City vehicle in -lieu of mileage charges and a City identification badge. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit bi-weekly invoices based on total services which have been satisfactorily completed for such bi-weekly period. The ATTACHMENT City will pay bi-weekly payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor for purposes of City employee benefits, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. N Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law: E-Verifv. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at hhtt ://www.uscis.gov, or access the registration page at his://www.vis- dhs.com/emoloyerregistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. [Reserved] Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. 3 Section 13. Indemnity. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance 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. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects 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; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. (a) Subject to subsection (b) below, City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. (b) In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be 5 terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk To Consultant: Municipal Management Group 536 Blue Jay Court Oceanside, CA 92058 Attn.: Joe Tait Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS) 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO M M ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Sam Allevato, Mayor CONSULTANT Joe Tait 7 Christy JAI From: Kim Lefner Sent: Monday, March 14, 2011 12:46 PM To: Derek Reeve; Larry Kramer; John Taylor; Hon. 'Laura Freese'; Sam Allevato Cc: City Clerk Scanstation Subject: City Council Agenda item D15 Attachments: 11-0315_CC_D 15[ 1 ]. pdf Dear Mayor Allevato and Council members Freese, Kramer, Reeve and Taylor, 3/15/2011 D15 When I read the attached agenda item D15 recommending that we pay Joe Tait $225 per hour for "consulting services" up to $175,000 including a company car, I nearly fell out of my chair. Mr. Tait may be a nice man but to offer anyone that kind of money, especially during a recession when it is viewed as unecessary spending, is the height of irresponsibility. To offer it to a man who did not accomplish even one of his major objectives while collecting the ridiculously inflated compensation of $324,000 per year makes it even worse. It's bad enough that he was paid such an exhorbitant salary as interim City Manager, resulting in him being named one of the "top 20 government workers with super -sized pay" by MSNBC (see list here: http://redtape.msnbc.com/2010/10/20- qovernment-workers-with-super-sized-pay.html ). The MSNBC story is not a compliment; it is an expose' of government waste and abuse. To now pay him $225 per hour will only add to the growing public perception of tone-deaf leadership and out -of -control spending at City Hall. It's a particularly bad PR move in the wake of the Bell scandal, one that would make a perfect follow up to MSNBC's expose'. I respectfully request that you serously reconsider paying a "consultant" $225 per hour with our money to "help out" with the expansion of a facility that is the biggest money loser in San Juan history and which is a direct contributor to our skyrocketing water rates. Please explain why that outrageous fee is being offered to someone who is not even a licensed engineer. What is our highly paid water utilities staff doing? Thank you, Kim Lefner San Juan Capistrano Information from ESET Smart Security, version of virus signature database 5952 (20110314) The message was checked by ESET Smart Security. http://www.eset.com