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HomeMy WebLinkAbout2004-04-19 City Council (10)City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT:PUBLIC WORKS 5 DATE:APRIL 19, 2004 CMR:218:04 SUBJECT:APPROVAL OF RESTATEMENT AND AMENDMENT OF A FOUR YEAR CONTRACT WITH BAY SPAN INC. FOR TEMPORARY SKILLED FACILITIES STAFF IN THE AMOUNT OF $82,000 .FOR FISCAL YEAR 2003-04; AND $73,000 FOR EACH OF THE TWO ADDITIONAL YEAR TERMS RECOMMENDATION Staff recommends that Council approve and authorize the Mayor to execute the attached Restatement and Amendment to contract with Bay Span, Inc. in the amount of $82,000 for temporary skilled facilities staff for fiscal year 2003-04; and $73,000 for each of two remaining contract years. DISCUSSION The Public Works Facilities Management Division maintains over one million square feet of space in various City facilities with five Facilities Mechanic positions providing all mechanical and general service work. A Facilities Mechanic position was removed last fiscal year from this division due to required budget reductions. The Facilities Management Division has had a Facilities Mechanic on disability with a work-related injury since March 2002. There is no estimated return date at this time. When an injured employee suffers an actual work-related injury, the treating doctor has complete medical control and is the only one Who determines what is the appropriate length and course of treatment. The City’s experience has been that determining the appropriate treatment for serious injuries can be difficult and drawn out. While it would seem reasonable that an employer should have the ability to terminate an employee who has not been on the job for over a year, California Labor Code section 132a prohibits this as discriminatory treatment of an employee for pursuing worker’s compensation claim. Also, termination on this sole basis would violate State (Fair Employment and Housing Act, etc.) and Federal (Americans with Disabilities Act, etc.) laws prohibiting disability discriminationl The City could only legally terminate such an employee following full compliance with these laws, including the FEHA/ADA required reasonable accommodation analysis. CMR:218:04 Page 1 of 2 A temporary Facilities Mechanic was retained in 2002 through Bay Span, Inc. to fill in for the injured worker. The Facilities Mechanic position provides preventative maintenance and repair for heating and ventilating equipment, plumbing, minor electrical, and general maimenance on City facilities. The ageement with Bay Span, Inc. was set up under a blanket order but will exceed the $65,000 limit in April 2004 due to carry over costs from FY 2002-03. If backfill of this position with contract services is not continued, repair selwices to City facilities will be reduced and some service types will. be eliminated. RESOURCE IMPACT Funds are available in FY 2003-2004 adjusted Public Works Department operating budget. Future contract years funding is subject to budget appropriation. ENVIRONMENTAL REVIEW This is not a project under the California Environmental Quality Act (CEQA). ATTACHMENTS Attachment A: Contract PREPARED BY: DEPARTMENT HEAD: CITY MANAGER APPROVAL: I¢~MREN SMITH Manager, Facilities Maintenance and Projects GLENN S. ROBERTS Director of Public Works Assistant City Manager CMR:218:04 Page 2 of 2 ATTACHMENT A RESTATEMENT AND AMENDMENT OF AGREEMENT BY AND BETWEEN THE CITY OF PALO ALTO AND BAY SPAN, INC. FOR TEMPORARY EM]?LOYMENT SERVICES THIS AGREEMENT is made and entered into this dak of , 2004, by and between the CITY OF PALO ALTO, a municipal corporation of California, hereinafter referred to as "CITY," and BAY SPAN, INC., a California corporation (Taxpayer Identification Number 94-3~09655), a California corporation, with offices at 5201 Great America Parkway, Suite 320, Santa Clara, CA 95054, hereinafter referred to as "CONTRACTOR". W I T N E S S E T H: WHEREAS, the CITY and CONTRACTOR entered into an Agreement (Agreement Number P2004~28) on March 7, 2002 for the provision of temporary employment services to CITY through June 30, 2002. The Agreement was then amended by Purchase Order number FAC30694 to extend the contract term for an additional one year period through June 30, 2003. The parties amended the Agreement on July i, 2003 (Amendment Number FAC04JA001) to extend the term for a second additional one year term; and WHEREAS, CITY desires to retain CONTRACTOR to provide additional temporary employment services for CITY as needed through June 30, 2006; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such servides, and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein; and WHEREAS, parties wish to res%ate and amend the Agreement as set forth below. NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: SECTION I - PROJECT COORDINATION I.I city The City Manager. shall be representative of CITY for all purposes under this Agreement. DENNIS HUEBNER is designated as the PROJECT MANAGER for the City Manager, and he shall supervise the progress and execution of this Agreement. 040413 sm 0100226 1.2 Contractor CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. BARBARA CUGA hereby is designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR. for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written approval of the PROJECT HANAGER. SECTION 2 - DUTIES OF CONTRACTOR 2.1 Services to be F.urnished CONTRACTOR shall provide temporary employment services as requested by CITY. Prior to engaging a temporary employee, C-ITY and CONTRACTOR shall agree in writing on the terms of the eKgagement by completing and signing a temporary employee engagement summary in the form attached hereto as Exhibit "A" and incorporated herein by reference. CONTRACTOR agrees that any and all temporary employees provided to CITY by CONTRACTOR under this Agreement, including but not limited to those provided under facilities maintenance, shall be the employees of CONTRACTOR and not the employees of the City of Palo Alto. The parties expressly acknowledge that the temporary employees retained by CITY from CONTRACTOR will perform al! duties within their skills related to the engagement. 2.2 Laws to be Observed CONTRACTOR shall: 2.2.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the services to be performed by CONTRACTOR under this Agreement. 2.2.2 Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this Agreement, any materials used in CONTRACTOR’s performance under this Agreement, or the conduct of the services under this Agreeient. 2.2.3 At all times observe and comply with, and cause all of its subcontractors and emp!oyees, if any, to observe 2 040413 sm 0100226 and comply with, all of said laws, ordinances, regulations, orders and decrees mentioned above. 2.2.4 Immediately report to the PROJECT MANAGER in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this Agreement. 2.3 Qualifications of Contractor CONTRACTOR represents that it is qualified to furnish the services described under this Agreement. As evidence thereof, CONTRACTOR warrants that ohe or more members of employees of the firm are licensed by the State of California and that the services to be provided under this Agreement will be performed by them or under their supervision. SECTION 3 - COMPENSATION For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR as follows: 3.1 For furnishing temporary employees, CONTRACTOR shall be paid at the rates agreed to in the temporary employee engagement form. For the period March 7, 2002 through June 30, 2002, total compensation to CONTRACTOR for all services shall not exceed Nine Thousand Dollars ($9,000); for the period July i, 2002 through June 30, 2003 a sum not to exceed Sixty-Seven Thousand Thirty-Eight and 45/100 Dollars ($67,438.45); for the period July i, 2003 through June 30, 2004 a sum not to exceed Eighty-Two Thousand Dollars ($82,000) and a sum not to exceed Seventy-three Thousand Dollars ($73,000) for each of the following two contract years (July I, 2004 through June 30, 2005 and July i, 2005 through June 30, 2006). CONTRACTOR shall ensure that each temporary emp!oyee keeps a written record of hours worked and presents it to CITY’s PROJECT DIRECTOR, or his designee, for approval. 3.2 Notwithstanding the foregoing, CITY shall not be charged for the services of any temporary employee, when in the opinion of the PROJECT MANAGER or his designee the services of a temporary employee have not been satisfactory, provided that the CITY notifies CONTRACTOR that said services were unsatisfactory before completion of the first sixteen (16) hours of work or before the end of the second day of work, whichever is less. 3.3 CONTRACTOR shall provided CITY with weekly itemized invoices for said services. These invoices shall have information deemed sufficient by the PROJECT MANAGER or his designee and shall be paid within 30 days of receipt by CITY. 040413 sm 0100226 3.4 All compensation payable hereunder ~hall be subject to the appropriation of funds by CITY’s Council for the applicable fiscal year during which such.temporary employment services are to be or are rendered. In the event funds are not appropriated for services to be rendered in any fiscal year during the term o.f this Agreement, this Agreement shall be deemed terminated at the end of the fiscal year for which funds are appropriated. No penalty shall accrue to CITY in the event this Agreement is terminated pursuant to the provisions of this Section 3.4, and CITY shall not be liable for any future payments due or for any damages as a result of the termination of this Agreement pursuant hereto. SECTION 4 - TERM This Agreement shall commence March 7, 2002 and shal! continue in full force and effect through June 30, 2006 unless terminated earlier by CITY.. SECTION 5 - £ONVERSION No conversion fee will be due from CITY to CONTRACTOR if CITY hires or engages any temporary engaged under this Agreement after expiration of this Agreement pursuant to Section 4. SECTION 6 -SUSPENSION; TERMINATION 6.1 Temporary Suspension. The City Manager shall have the authority to suspend this Agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or due to the failure on the part of the CONTRACTOR to perform any provision of this Agreement. 6.2 Right to Suspend or Terminate The City Manager may suspend or terminatethis Agreement for any reason by giving seven (7) days’ written notice to CONTRACTOR. Upon receipt of such notice, CONTRACTOR shall immediately discontinue performance under this Agreement. 6.3 Payment Upon such suspension or termination, CONTRACTOR shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this Agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR’s services which are of benefit to CITY. 040413 sm 0100226 SECTION 7 - INDEPENDENT JUDGMENT Failure of CITY to agree with CONTRACTOR’s independent findings, conclusion~, or recommendations, if the same are called for under this Agreement, on the basis of differences in matters of judgment shall not be construed as failure on the part of CONTRACTOR to meet the requirements of this Agreement.. SECTION 8 - ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES. 8.1 Assi.gnment Both parties shal! give their personal attention to the faithful performance of this Agreement and shall not assign, transfer, convey, or otherwise dispose of this Agreement or any right, title or ..is<erest in or to the same or any part thereSf without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A .consent to one assignment shall not be deemed to be a consent to any subsequent assignments. Any assignment without such approval shall be ,void and, at the option of the other party, shall terminate this Agreement and any license or privilege granted herein. This Agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. 8.2 Subcontractors; Employees CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment .of the provisions of this Agreement by all of its employees and subcontractors, if any, and shall keep the Work under its control. If any emp!oyee or subcontractor of CONTRACTOR fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she shall be discharged immediately from the .work under this Agreement on demand of the PROJECT HANAGER. SECTION 9 - NOTICES All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: To CITY:Office of the City Clerk P.O. Box 10250 Palo Alto, CA 94303 040413 sm 0100226 above To CONTRACTOR- Attent±©n of the PROJECT DIRECTOR at the address of CONTRACTOR recited SECTION l0 - INTEREST OF CONTRACTOR In accepting this Agreement, CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect,, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this Agreemen%, no subcontractor or person having such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of CITY. It is expressly agreed that in the performance of the professional services required under this Agreement CONTRACTOR, and any of its subconsultants or employees, shall at all times be considered independent contractors and not agents or employees of CITY. SECTION ii - AUDITS CONTRACTOR agrees to permit CITY to audit, at any reasonable time, CONTRACTOR’s records pertaining to matters covered by this agreement.. SECTION 12 -INDEHNITY CONTRACTOR agrees to indemnify, defend and hold harmless CITY, its officers, agents and emp!oyees from any and all demands, claims, or liability of any nature, caused by or arising out of CONTRACTORts, its officers’~ .agents",. SUBCONTRACTORSt or emp!oyees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which the law imposes strict liability on CONTRACTOR in the performance or failure to perform this Agreement. SECTION 13 -WORKERS’ COMPENSATION CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require everY employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions before commencing the performance of the work of this Agreement. 6 040413 srn 0100226 . SECTION 14 - INSURANCE CONTRACTOR, at its sole cost and expense, shall obtain and mainta±n in full force and effect throughout the entire term of this Agreement the insurance coverage described in Exhibit "B", insuring not only CONTRACTOR, but also (with the exception of workers’ compensation and employer’s liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed, by CONTRACTOR for or on behalf of CITY under the provisions of this Agreement. Certificates of such insurance, preferably on the forms provided by CITY, shal! be filed with CITY concurrently with the execution of this Agreement or, with CITY’s approval, within ten (i0) working days thereafter. Said certificates shall be subject to the approval of the C&ty Attorney and shall contain an endorsement s%ating that said insurance is primary coverage and will not be canceled or altered by the insurer except after filing with the City Clerk thirty (30) days’ written notice of such cancellation or alteration, and that the City of Palo Alto is named as an additional insured (except on policies of professional liability insurance.) Current certificates of such insurance shall be kept on file at all times during the term of this Agreement with. the City Clerk. SECTION 15 - AGREEMENT BINDING The terms, covenants, and conditions of this Agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. SECTION 16 -WAIVERS The waiver by either party of any breach or violation of any term, covenant,or condition of this Agreement or of any provision, ordinance,or law shallnot be deemed to be a waiver of any other term, ’covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance. SECTION 17 - COSTS AND ATTORNEYS’ FEES The prevailing party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and attorney fees expended in connection with such an action from the other party. 7 040413 sm O100226 SECTION 18 - NO IMPLIED WAIVER No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 19 - NONDISCRIMINATION; PENALTY 19.1 Duty of Contractor No discrimination shall be made in the employment of persons under this. Agreement because of the race, color, nationa! origin, ancestry, religion or sex of such persoh. If the value of this Agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to met all requirements of the. Palo Alto Municipal Code pertaining to nondiscrimination in emp!oyment and to complete and submit the "Certification of Non Discrimination" on the form furnished by CITY as Exhibit "C" attached hereto and incorporated herein by reference. 19.2 Penalty for Discrimination If CONTRACTOR is f6und in violation of the nondiscrimination provisions of the State of California Fair- Employment Practices Act or similar provisions of federal law or executive order in the performance of this Agreement, it shall thereby be found in material breach of this Agreement. Thereupon, CITY shall have the power to cancel or suspend this Agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Twenty-Five Dollars ($25) for each person for each calendar day during which such person, was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or ~the equivalent federa! agency or officer shall constitute evidence of a violation of contract under this section. SECTION 20 - AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. All provisions of this Agreement are expressly made conditions. // // // 040413 sm 0100226 Th~s Agreeing-hi shali be govenned by the laws ,D£ the State of Caliio~r. ia. IN WITNZSS WHKREOF, Lhe parties hereto have executed th~.~ Agreement the day and year first above written. ATTEST CITY OF PALO ALTO Mayor Assist,~n: Civ.y Manager Assistant City ~i~ector, AaminisErative Se<vices DireCtor o~ klUi~.al% Resources Insurance Review Attachmezts: ZXHIBII "A": Temporary Empi©yee Engagement Eor[~ EXH!D:? "B": Certificate of :nsurance EXHIBIT "C": Certificate of Ncn Discrimination STATE COUNTY OT On ,2004,be ¢<’~re persnna!iy krlown to me, o: proved to me on ~he bas±~ of satisfactory evzdence to be the persun(~ whose r;ame{~) ~are subscribed to T_hi9 within iastri=men5 ~IDkd acknowledged 1o me that he~zney executed the .~_~..~ ~.n his~e~/~heir au~h~orized capacity(~), and that¯ by his~the~: signatore{-~ on the ingtrume~t the person(.~, or the enzzty uFcn b~half ol which the person~ acted, executed instrument. WITNESS my hand and official seal. 13 (Civil Cod~ ~ 11@9) COUNTY 0~" .--On ~y~! I "~-, 2004, b~form. " me, Stare, perso~%aliy known to m~ or provec to me c% t~basis of satisfactory ev%~ence tc be the person~} whose name~)(~re~scribed t<0 the within i[~strument ag~ acknowledged to me that he<sh~ithey executed the ~.e his~]th~i~ signa<ure~) on the instrument the.persos4~, or the entity upon behalf" of which the person) acted, execdted the instrument WITN£SS my hand and o[ficial " ~ Sign~ 040413 ~m8{00226 II T~qPO-~u~R~" ~LOi-EE EN~ Cli~nt N~:<ITY OE FALO ALTO ~t~ of ~ster ~~t: Thi9 att~chmer.~ co~ai~s detai!~ :~qarclng an ~gagement of the services o[ Bay Span, Inc. ~f~msion~ ~si~ [ur ~is Enga~nt: Facilities Maintenance Mechanic Cli~t Proj~t ~r & ~e ~: Barbara. Cuqa {SCCJ 246-2202 S~r~ Dat~: Appro~mat~ End Hourly B£11ing If’Bay Span, l~:c. is requ~ed by law to pay overtime, the billfng rate for ?vertiale hours will be adjusted.ic~ the same proportion as the employee’~ p~y. [’or ezampl~, if th~ employee is entitled to receive _ ~ t~mes ba~e R~y for overtime hou=~, the billing rate for those heu~s will be i ~ times th~ amount stated abo~e. Say Span, I~<c, usually c~ecks role:antes by asking specific q~estiens to seieut~d previcu~ employers with rega~-d to qualificatiu~::S an~ wu=k history. This reference check is generally done prior to the first time Bay Span, inc. places that temporary employee u~z a consulting engagement with CITY. While Say Span, !~]c. i$ wili[~]g to psovide CITY with the results of any reference checks that they have performed, if CITY cSooses to directly employ ~ne of Bay Spas Inc,’s temporary workers, CITY ~homld con<act such additional or more reccn< references i~quiries or previous employe[s or verify s~ch ~tner items (such as degrees, professional cer[ifications or criminal backgrousd) as CITY dm~ms appropriat~ for the posiLion. Bay Span, Inc. does do dr[~g testing and criminal backgroand checks, Dated: CITY OF ~ALO ALT©BAY INC. 12 E~IBIT Cli~nt 1~:CITY O~ PALO ALTO This ~ttachm~u contains detail~ regarding an engagement of ~e services of Bay Span, Inc. Profassional As~i~ for this ~~t: [acilltie~ Maintenance Me.has_ ~ Descripti~ of Ss~ces:_~.=._,T~m :~ra’-y_. Employments_ Services S~t Da~: March 7, 2002 ~rox~te End Da~: ~/3/06, unless terminated ear-liar Dy CITY H~rlx Billing ~te: $35.02 1[ Bay Span, ~;~C. i~ required by law t~ pay overtime, the billing rate for evertime hours will be a~]usted in the same proportion as the employe~’s pay. <or e~ample, if the employee is entitled [o receive I ~ tin,es ba~e pay fu~ overtime hours, the billing rate for those ho~rs will be i ~ t£me8 the amount stated above. Bay Span, Inc. usually checks re£erences by asking specific quesZions to 5sleeted pr’evlo~s employers with r~gard to qualifica=ions and work history. This ~eference check is qeneraily done prior <o th~ firs: time Bay Span, Inc. places tha[ t~mporary employee or: a consulting ~ngaqement with CITY. While Bay Span, inc. is willing to.p{ovide CiTY with the results of any referenc~ checks tha< they have performed, i[ CiTY cheosss to directiy emplOy one of Gay Span Inc.’~ temporary worke[s, CITY should contact sdch ad~iq£on~l or ~or~ r~ce~ references inquiries of previous employers or verify such other items {such as degrees, professional <erti[i~ations o~ criminal ba~qround) as CITY de~ms appropriate for the position. Bay Span, Inc. do~ do dr~/g testing and crimina[ backgrou[id checks. Dated: CITY 0~" PALO AI.TO 13