HomeMy WebLinkAboutAGR-7252 - MGT OF AMERICA CONSULTING LLC - SB90 CLAIMING SERVICES AGREEMENTAGR-a5 a
PROFESSIONAL SERVICES AGREEMENT
SB90 Claiming Services]
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this - day of o er , 2021 (the "Effective Date") by and
between the CITY OF ORANGE, a municipal corporation ("City"), and MGT OF AMERICA
CONSULTING, LLC, a Florida limited liability company("Contractor"), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit"A,"
which is attached hereto and incorporated herein by reference. As a material inducement to City
to enter into this Agreement,Contractor represents and warrants that it has thoroughly investigated
and considered the scope of services and fully understands the difficulties and restrictions in
performing the work. The services which are the subject of this Agreement are not in the usual
course of City's business and City relies on Contractor's representation that it is independently
engaged in the business of providing such services and is experienced in performing the work.
Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner
in conformance with the standards of quality normally observed by an entity providing such
services to a municipal agency. All services provided shall conform to all federal, state and local
laws, rules and regulations and to the best professional standards and practices. The terms and
conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
Katrin Bandhauer, Assistant Finance Director(the"City's Project Manager"), shall be the
person to whom Contractor will report for the performance of services hereunder. It is understood
that Contractor's performance hereunder shall be under the supervision of City's Project Manager
or his/her designee), that Contractor shall coordinate its services hereunder with City's Project
Manager to the extent required by City's Project Manager, and that all performances required
hereunder by Contractor shall be performed to the satisfaction of City's Project Manager and the
City Manager.
2. Compensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed TWENTY-EIGHT THOUSAND TWO HUNDRED DOLLARS and
00/100($28,200.00)for the three(3)fiscal years described in Exhibit"A"without the prior written
authorization of City.
b. The above compensation shall include all costs, incluiiing, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
3. Pavment.
a. As scheduled services are completed, Contractor shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work actually
performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed,the number of hours spent and any extra work performed.
c. City will pay Contractor the amount invoiced within thirty (30) days after
the approval of the invoice.
d. Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
4. Change Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefor have been previously authorized in writing and approved by City as an
amendment to this Agreement. City's Project Manager is authorized to approve a reduction in the
services to be performed and compensation therefor. All amendments shall set forth the changes
of work, extension of time,and/or adjustment of the compensation to be paid by City to Contractor
and shall be signed by the City's Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and its subcontractors shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
6. IndeAendent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent Contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and
expense, furnish all facilities, materials and equipment which may be required for furnishing
services pursuant to this Agreement. Contractor shall be solely responsible for, and shall
indemnify, defend and save City harmless from all matters relating to the payment of its
subcontractors, agents and employees, including compliance with social security withholding and
all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor acknowledges that it and any subcontractors, agents or employees employed by
Contractor shall not,under any circumstances,be considered employees of City,and that they shall
not be entitled to any of the benefits or rights afforded employees of City,including,but not limited
to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or
health, life, dental, long-term disability or workers'compensation insurance benefits.
7. Contractor Not A ent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Designated Persons. Only those qualified persons authorized by City's Project
Manager, or as designated in Exhibit"A," shall perform work provided for under this Agreement.
It is understood by the parties that clerical and other nonprofessional work may be performed by
persons other than those designated.
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9. Assignment or Subcontractins. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Ageement shall be of any force
or effect unless the assigntnent has the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
10. Time of Comnletion. Except as otherwise specified in Exhibit "A," Contractor
shall commence the work provided for in this Agreement within ten (10) days of the Effective
Date of this Agreement and diligently prosecute completion of the work in accordance with the
time period set forth in Exhibit "A" hereto or as otherwise agreed to by and between the
representatives of the parties.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than those delays caused by City, shall be an extension of time. No matter what the
cause of the delay,Contractor must document any delay and request an extension of time in writing
at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the
length of the delay outside Contractor's control. If Contractor believes that delays caused by City
will cause it to incur additional costs, it must specify, in writing, why the delay has caused
additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No
additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above,
absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, assessments,
reports,plans, citations, materials, manuals, technical data, logs, files, designs and other products
produced or provided by Contractor for this Agreement shall become the property of City upon
receipt. Contractor shall deliver all such products to City prior to payment for same. City may
use, reuse or otherwise utilize such products without restriction.
15. Epual Emplovment Opportunity. During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color,religion, sex,national origin,mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion,
sex, national origin,mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment,upgrading,demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
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b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs(a) and(b)to be inserted in
all subcontracts for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a contractor to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
17. Indemnity.
a. To the fullest extent pernutted by law, Contractor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers, officials, agents
and employees of City(collectively the"Indemnitees") entirely harmless fi•om all liability arising
out of:
1) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Contractor's employees or its subcontractor's employees
arising out of Contractor's work under this Agreement,including any and all claims under any law
pertaining to Contractor or its employees' status as an independent Contractor and any and all
claims under Labor Code section 1720 related to the payment of prevailing wages for public works
projects; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Contractor, or person, firm or corporation employed by Contractor, either directly or by
independent contract, including all damages due to loss or theft sustained by any person, firm or
corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including injury or damage
either on or off City's property; but not for any loss, injury, death or damage caused by the active
negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall
indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any
action, suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, and as limited by California Civil
Code 2782.8, Contractor agrees to indemnify and hold Indemnitees harmless from all liability
arising out of any claim, loss, injury to or death of persons or damage to property to the extent
caused by its negligent professional act or omission in the performance of professional services
pursuant to this Agreement.
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c. Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
d. The indemnities set forth in this section shall survive any closing,
rescission, or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Contractor and its successors.
18. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands that it
is an independent Contractor and not entitled to any workers' compensation benefits under any
City program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of One Million Dollars ($1,000,000)per occurrence; or(2) all the insurance
coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily
injury, death and property damage and be written on an occurrence basis.
c. Reserved.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits which are applicable to a given loss shall be available
to City. No representation is made that the minimum insurance requirements of this Agreement
are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability insurance shall provide that City,its officers,
officials, agents, and employees are declared to be additional insureds under the terms of the
policy,but only with respect to the work performed by Contractor under this Agreement. A policy
endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu
of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an
additional insured as a contracting party. The minimum coverage required by Subsection 18.b,
above, shall apply to City as an additional insured. Any umbrella liability insurance that is
provided as part of the general liability minimums set forth herein shall be maintained for the
duration of the Agreement.
f.Contractor shall maintain during the life of this Agreement professional
liability insurance covering errors and omissions arising out of the performance of this Agreement
with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep
such policy in force and effect for at least five (5) years from the date of completion of this
Agreement.
g. The insurance policies maintained by Contractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
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h. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City,
evidencing the aforementioned minimum insurance coverages on forms acceptable to City,which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten(10) days' prior written notice to City.
i.Except for professional liability insurance coverage that may be required by
this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to
conduct the pertinent line of insurance business in California and having a rating of Grade A or
better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of
professional liability insurance coverage, such coverage shall be issued by companies either
licensed or admitted to conduct business in California so long as such insurer possesses the
aforementioned Best rating.
j Contractor shall iininediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor
or City with respect to the services of Contractor herein,a waiver of any right to subrogation which
any such insurer may acquire against City by virtue of the payment of any loss under such
insurance.
1.Contractor shall include all subcontractors, if any, as insureds under its
policies or shall fui iish separate certificates and endorsements for each subcontractor to City for
review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
19. Termination. City may for any reason terminate this Agreement by giving
Contractor not less than five (5) days' written notice of intent to ternunate. Upon receipt of such
notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily
provided and all allowable reimbursements incurred to the date of tennination in compliance with
this Agreement,unless termination by City shall be for cause, in which event City may withhold
any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Inspection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement. Contractor shall
maintain all such records for a period of at least three(3) years after termination or completion of
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this Agreement. Contractor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days' notice from City, and copies thereof
shall be fiunished if requested.
21. Compliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. If the work provided for in this Agreement constitutes a"public works," as
that term is defined in Section 1720 of the California Labor Code,for which prevailing wages must
be paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of California promulgates
prevailing wage deternunations, Contractor hereby agrees that it, and any subcontractor under it,
shall pay not less than the specified prevailing rates of wages to all such workers. The general
prevailing wage deternunations for crafts can be located on the website of the Department of
Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract,
Contractor must meet all State registration requirements and criteria,including project compliance
monitoring.
c. Contractor represents and warrants that it:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Deparhnent of Homeland Security, the Department of Labor, or the Social Security
Administration.
d. Contractor shall require all subcontractors or subcontractors to make the
same representations and warranties as set forth in Subsection 21.c.
e. Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied liy
the verification required herein for such employees.
f.Contractor shall require all subcontractors or subconsultants to make the
same verification as set forth in Subsection 21.e.
g. If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to deternune the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for,of and,from any loss,including but not limited to fines,penalties and
corrective measures City may sustain by reason of Contractor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
24. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three(3) days of deposit in the U.S. Mail,whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
MGT of America Consulting, LLC City of Orange
2251 Harvard St., Suite 134 300 E. Chapman Avenue
Sacramento, CA 95815 Orange, CA 92866-1591
Attn.: J. Bradley Burgess Attn.: Katrin Bandhauer
Telephone: (916) 443-3411 Telephone: (714) 744-2251
E-Mail: bburgess@mgtconsulting.com E-Mail: kbandhauer@cityoforange.org
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25. Counterparts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
MGT OF AMERICA CONSULTING, LLC, CITY OF ORANGE, a municipal corporation
a Florida limited liability company
Y /
By By.
P ' ted e: . radl Bur ess City Manager
Title: Executive ' President o,n, p,c„a ,c•,, L r'? „,
By: APPROVED AS TO FORM:
Printed Name: A. Trey Traviesa
Title: Chairman&CEO 1 1. .
Mary E. inning
Senior Assistant City A ey
NOTE: City requires the following signature(s)on behalf of the Contractor:
1) the Chairman of the Board, the President or a Vice-President, AND (2) the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an
Assistant Treasurer. If only one corporate officer exists or one corporate officer holds
more than one corporate office,please so indicate.OR
The corporate officer named in a corporate resolution as authorized to enter into this
Agreement. A copy of the corporate resolution, certified by the Secretary close in
time to the execution of the Agreement,must be provided to City.
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EXHIBIT"A"
SCOPE OF SERVICES
Beneath this sheet.]
MGT of America Consulting,LLC
2251 Harvard St.,Suite 134 Q M T
Sacramento,CA 95815
916.443.3411 CONSULTING
pdyer@mgtamer.com
April 6, 2021
Via PDF& emailed
Katrin Bandhauer
Assistant Finance Director
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
Subject: Proposal for Continued SB 90 Claiming Services
Dear Ms. Bandhauer:
We appreciate the opportunity to provide a proposal to the City of Orange (City) for SB 90 State
Mandated Cost claiming services. We believe that our firm, MGT of America Consulting, LLC (MGT),
ofFers the City the specific solutions that will meet your objectives and provide expertise and project
coordination. Our SB 90 engagement will continue to deliver:
Defensible & Transparent Cost Calculation Methodology. Our SB 90 claiming masters,
methods and documentation are thorough,accurate and compliant with State requirements.:They
are also completely transparent,with calculations presented in a clear and comprehensive fashion. .
Experience, Exceptional Staff & Immediate Availability. The proposed MGT team has
performed multiple SB 90 projects. We are recommended by statewide organizations such as
CSMFO because we have a long successful history of preparing exceptional cost alloca'tion and
cost of service studies all over the state.
Proven Track Record with Mandates & Cost Claiming. Brad Burgess and Patrick Dyer,
the project executives, oversee engagements for 120+ California cities and 33 of the 58 counties.
MGT would be happy to extend the scope outlined in our agreement AGR-6228.1, executed on
February 6, 2017. MGT proposes fixed annual fee of$9,I 00 for FY 2020-2 I, $9,400 for FY 202 I-22
and $9,700 for FY 2022-23. Professional fees due to MGT over a three-year, not-to-exceed total is
28,200. This fee and effort from MGT for claiming, defending and supporting payment to the City
of Orange for$60-80,000 in annual general fund reimbursemenu. The claim total for the prior three
fiscal years was just over $200,000 for 20+ different claims for costs on specific Human Resources
and Police Department mandated, reimbursable programs.
Please contact me if you have any questions or comments about this proposal at 916.760.4121, or
at pdyer@mgtamer.com. Thanks again for your continued trust in MGT, we look forward to
assisting the City on this important project.
Sincerely,
Patrick J. Dyer
Vice President, Financial Solutions
MGT of America Consulting, LLC