A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of __________, 2023 is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as “ANAHEIM,”
A
N
D
________________________________________
hereinafter referred to as “CONTRACTOR.”
W I T N E S S E T H:
WHEREAS, ANAHEIM'S departments occasionally have a need to utilize temporary personnel services; and
WHEREAS, CONTRACTOR desires to provide such services as needed from time to time;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. LEGAL CAPACITY OF CONTRACTOR
CONTRACTOR and the signators for CONTRACTOR represent that CONTRACTOR is formed pursuant to the laws of the State of California and is qualified to do business in the State of California.
2. SCOPE OF SERVICES
CONTRACTOR shall perform temporary employment services as needed from time to time to ANAHEIM, as follows:
A. Provide qualified, experienced personnel pursuant to the job specifications furnished by ANAHEIM upon notification by participating ANAHEIM departments.
B. Fill all requests for personnel within eight (8) hours of notification.
C. Provide payroll service and make all deductions required by law for personnel providing services to ANAHEIM.
D. Monitor the time worked by each employee to ensure that no employee works for ANAHEIM in excess of six months in a calendar or fiscal year, unless prior written approval is obtained from the Human Resources Director, or designated representative.
E. Comply with ANAHEIM’s background check policy and provide documentation of successful background check completion for each employee.
F. Comply with all law, including AB 1028, and CalPERS rules regarding CalPERS Retired Annuitants, whether formerly employed by the City or other public agency employers subscribing to CalPERS, and ensure that no employee provided under this agreement would need to be reinstated to CalPERS employment or considered to be in violation of the retirement law or otherwise in unlawful employment as a result of their work at ANAHEIM under this Agreement. A true and correct copy of the CalPERS publication "A Guide to CalPERS Employment After Retirement" is attached hereto for CONTRACTOR's reference as Exhibit A.
1. In ensuring such compliance with CalPERS rules and the retirement law, CONTRACTOR agrees to ensure that each Retired Annuitant that it provides to work at ANAHEIM under this contract has first met the following requirements:
a) The bona fide separation requirement if applicable; and b) The 180-day waiting period requirement or an allowable exception.
2. In addition, CONTRACTOR further agrees that it will only provide any Retiree Annuitants to perform work under this Agreement if they meet the following conditions:
a) Any Retired Annuitants on a Disability Retirement cannot be assigned to a similar position from which they retired, or to perform duties or activities from which they were restricted from performing at the time of their disability retirement; b) Any Retired Annuitant provided under this Agreement
must have specialized skills and be needed to perform work of limited duration or his/her employment must be needed during an emergency to prevent stoppage of public business; c) The hours worked by each Retired Annuitant do not exceed 960 hours in a fiscal year (July 1 through June 30) for employment with all CalPERS employers combined;
d) The pay rate paid to each Retired Annuitant is not less than the minimum nor exceeds the maximum paid to other employees by ANAHEIM performing comparable duties, divided by 173.333 to equal an hourly rate; e) The Retired Annuitant cannot receive any benefit,
incentive, compensation in lieu of benefits, or other form of compensation in addition to the hourly pay rate; and
f) The Retired Annuitant cannot be provided to work at ANAHEIM under this contract if s/he received unemployment insurance payments for prior work for any CalPERS employer within 12 months prior to the appointment date.
CONTRACTOR shall be solely responsible for determining which of its employees are CalPERS Retired Annuitants and for ensuring compliance with the retirement law and all CalPERS rules and regulations for each of its Retired Annuitants. CONTRACTOR agrees to defend and indemnity ANAHEIM for any fees, fines, penalties, contributions, or other monetary damages claimed, asserted, or alleged against them, as a result of Contractor's provision of a Retired Annuitant to perform work at ANAHEIM under this Agreement.
3. CONTRACTOR'S FEES AND PAYMENT THEREFOR
ANAHEIM will compensate CONTRACTOR for the services to be performed pursuant to this Agreement by the following sums of money:
A. The compensation rates for the first calendar year or portion thereof following the effective date hereof shall be as stated on Exhibit B, attached hereto, which is incorporated herein by this reference. If the contract is extended, the parties hereto agree that rates for the second calendar year may be increased at a rate approved by ANAHEIM, which shall not exceed the increase for the prior twelve months in the Consumer Price Index published by the United States Bureau of Labor Statistics for the statistical area that includes the City of Anaheim.
Any percent increase approved by ANAHEIM in the rate billed to ANAHEIM shall also be applied by CONTRACTOR to the direct labor rate paid to the employee. CONTRACTOR shall submit to ANAHEIM its request, if any, for a rate increase to be effective for any calendar year on or before the first day of December of the prior calendar year.
B. Payment for services rendered hereunder shall be made based upon invoices submitted to ANAHEIM on a bi-weekly basis and approved by the Executive Manager of the Department for which the services were rendered. Invoices must include the job classification provided to the Department, the name of the temporary employee, the hourly rate paid to the temporary employee, and the total hourly rate charged by CONTRACTOR. The net amount due to CONTRACTOR shall be paid within thirty (30) calendar days after submission of an approved invoice to ANAHEIM.
C. The overtime rate of compensation shall be computed as follows: Time and a half for hours worked over (40) hours in a week or more than eight (8) hours in one day.
Overtime rates shall not be paid for any employee who works a compressed work-week schedule (e.g., 9/80 plan) for excess hours worked within the compressed work-week schedule, regardless of whether such compressed work-week schedule is requested by the employee or required by ANAHEIM.
D. Mileage driven by CONTRACTOR's employees using their own vehicles on ANAHEIM business under this Agreement shall be reimbursed, upon presentation of proper documentation, at the same rate at which ANAHEIM reimburses its regular employees.
4. REPRESENTATIVE OF ANAHEIM
The Human Resources Director, or his/her designated representative, shall represent ANAHEIM in all matters pertaining to the services to be rendered pursuant to this Agreement and the terms and conditions thereof.
5. COMPLIANCE WITH LAWS AND REGULATIONS
In the performance of this Agreement, CONTRACTOR shall comply with and conform to any and all applicable laws of the United States and the State of California, as well as the ordinances, rules, regulations and policies of the ANAHEIM, including but not limited to securing a business license from ANAHEIM. CONTRACTOR shall conform to the IMMIGRATION REFORM AND CONTROL ACT (IRCA) of 1986 (Public Law 99-603) including, but not limited to, the verification of the employment eligibility of all persons referred to ANAHEIM.
6. INDEPENDENT CONTRACTORS
A. The performance of CONTRACTOR's services hereunder shall be in the capacity of an independent contractor and not as an officer, agent, or employee of ANAHEIM. In consideration for the compensation paid to CONTRACTOR by ANAHEIM, CONTRACTOR agrees that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, paid sick leave, health or any other benefits, and CONTRACTOR agrees that it shall not sue or file a claim, petition or application for such benefits against ANAHEIM or any of its officers, employees, agents, representatives or sureties.
B. CONTRACTOR shall communicate to its employees that personnel assigned to ANAHEIM are still employed by CONTRACTOR and shall have no entitlement to the level of wages or to any benefits that may be available to regular employees of ANAHEIM.
C. CONTRACTOR warrants and represents and agrees that the employees it assigned to ANAHEIM under this AGREEMENT are employees of CONTRACTOR and not employees of ANAHEIM. CONTRACTOR further warrants and represents that CONTRACTOR meets the business-to-business contracting relationship exception in subsection (e) of California Labor Code Section 2750.3, or other such exceptions, such that neither CONTRACTOR nor its employees assigned to ANAHEIM under this AGREEMENT are employees of ANAHEIM under that provision of the law.
D. CONTRACTOR agrees that any and all claims, demands, defense costs, actions, liability, or consequential damages related to whether the employees assigned by CONTRACTOR are or should be considered under the law to be employed by ANAHEIM are covered by CONTRACTOR’S obligations to defend and indemnify ANAHEIM in Section 14 of this Agreement.
7. TERM
The term of this Agreement shall commence on the effective date as set forth below and shall terminate on December 31, 2025, unless terminated sooner as hereinafter provided.
ANAHEIM’s Human Resources Director shall have the option, in his/her sole discretion, to extend this Agreement for an additional two-year period on the same terms and conditions set forth herein.
8. CONFLICT OF INTEREST
ANAHEIM is governed by the California Political Reform Act requiring certain designated employees to disclose financial interests and, inter alia, to abstain from participation in any decision-making that would have a material financial effect on their financial interests. Certain departments within ANAHEIM utilizing temporary employees have additional conflict of interest prohibitions designated by the Federal Government.
CONTRACTOR acknowledges the potential for its employees to perform duties for ANAHEIM that fall within the definition of a “consultant” under the Political Reform Act (Government Code Sections 81000-91015, the “Act”). When and if CONTRACTOR’s employees fall within this definition of the Act, they will be considered a public official subject to disclosure, disqualification, and other laws under the Act. Consequently, they will be required to file a Statement of Economic Interests (Form 700) based upon their personal financial interests.
The determination of whether an individual meets the definition of consultant under the Act is made by ANAHEIM based upon review of the scope of services provided and other relevant factors, generally described in a publication issued by the Fair Political Practices Commission entitled “Consultants in a Conflict of Interest Code,” a copy of which will be provided to CONTRACTOR.
CONTRACTOR agrees to advise its employees that performing services for ANAHEIM that fall within the definition of consultant under the Act will require their compliance with the requirements of the Act, including, but not limited to, filing a Statement of Economic Interests (Form 700) and all required attachments and provide the originals thereof to the City Clerk of ANAHEIM within 30 days of commencing services, and may require compliance with Conflict of Interest provisions relating to certain Federal Programs administered by ANAHEIM.
Copies of those completed forms and attachments shall be public records of ANAHEIM, to be kept and disclosed at the discretion of ANAHEIM and according to law. CONTRACTOR’s employees required to comply with the Act shall disclose pursuant to the broadest disclosure category in the City of Anaheim Conflict of Interest Code, unless otherwise determined by the City Manager, or his designee, that the range of duties of a particular position is limited in scope and that full compliance with the disclosure requirements of the Conflict of Interest Code is not required.
9. TERMINATION
Either party hereto may terminate this Agreement by providing the other party thirty (30) days advance written notice of termination.
10. AUDITS
CONTRACTOR shall make available to ANAHEIM, for inspection and auditing, its records relevant to ANAHEIM'S account, at any time during regular working hours, upon giving advance notice.
11. NON EXCLUSIVE AGREEMENT
ANAHEIM reserves the right to recruit and employ part-time or temporary employees and the right to use personnel from other agencies during the term of this Agreement.
ANAHEIM makes no commitment or guarantee as to the number of times personnel will be requested, if at all, or the number of hours that will be required. Each individual assignment will be handled separately.
12. PAYROLL AND FRINGE BENEFITS
CONTRACTOR is solely responsible for paying its employees withholding and for payment of all federal, state and local personal income taxes, social security, unemployment and disability insurance, and other payroll taxes as required by law. CONTRACTOR shall pay its employees no less than the minimum wage mandated by Federal law. Proof of such payments and maintenance of all necessary records pertaining thereto shall be furnished to ANAHEIM upon request.
CONTRACTOR acknowledges that through the Patient Protection and Affordable Care Act of 2010, as amended (‘ACA’), and regulations promulgated thereby, statutory requirements have been imposed upon certain employers to provide a certain level of benefits to their employees. CONTRACTOR will comply with its ACA obligations through offering ACA compliant benefits to eligible contingent workers, including any and all eligible CONTRACTOR personnel assigned to City.
All fringe benefits shall be paid by CONTRACTOR to its employees at no cost to ANAHEIM.
13. EEO/NON-DISCRIMINATION
CONTRACTOR understands that ANAHEIM is an Equal Employment Opportunity Employer and agrees to give consideration to ANAHEIM'S Non-Discrimination Program (NDP) when personnel are placed by CONTRACTOR.
14. INDEMNITY
As respects acts, errors, or omissions in the performance of professional services, CONTRACTOR agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the CONTRACTOR or any SUB-AGENT in the performance of professional services under this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, CONTRACTOR agrees to indemnify, defend (at ANAHEIM'S option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with CONTRACTOR’S (or CONTRACTOR'S AGENT or SUB- AGENT, if any) acts, errors, omissions, or work, relative to this Agreement, except for those Claims that arise out of the sole negligence or willful misconduct of ANAHEIM.
15. INSURANCE
Without limiting ANAHEIM’S right to indemnification, it is agreed that CONTRACTOR shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence.
Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Sexual Abuse and Molestation and Independent CONTRACTOR’S Liability where determined appropriate by ANAHEIM’S Risk Manager, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible or self-insurance retention (SIR) of more than $10,000 per occurrence, provided that such deductible or SIR is disclosed to ANAHEIM in writing, at the inception of this Agreement and approved by the Risk Manager for ANAHEIM.
Comprehensive Automobile Liability Coverage including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
Professional Liability Insurance in an amount not less than $2,000,000 per occurrence, and CONTRACTOR shall maintain such coverage for at least one (1) year from the termination of this Agreement. This coverage must include Cyber Liability Insurance where determined by ANAHEIM’s Risk Manager. Such insurance shall be written on a primary basis, but may include a deductible or self-insurance retention (SIR) of more than $10,000 per occurrence, provided that such deductible or SIR is disclosed to ANAHEIM in writing, at the inception of this Agreement and approved by the Risk Manager for ANAHEIM.
Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
“This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium that shall provide for not less than ten (10) days’ notice.”
Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance maintained by
CONTRACTOR pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
“The City of Anaheim, its officers, agents, employees,
representatives and ANAHEIM designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
Prior to commencing work under this Agreement, CONTRACTOR shall provide ANAHEIM with a certificate of insurance confirming the existence of the insurance required herein, including additional insured coverage. Also, within 30 days of the execution date of the Agreement, CONTRACTOR shall provide to ANAHEIM an endorsement to the liability policy as respects the additional insured coverage.
16. ASSIGNMENT
Neither CONSULTANT nor ANAHEIM may assign or transfer this Agreement, or any part thereof, without the written consent of the other party.
17. QUALIFICATIONS AND TESTING
ANAHEIM reserves the right to test all candidates for temporary services prior to their starting work. In the event ANAHEIM does not test a candidate or a candidate fails the test, ANAHEIM will not be charged for the candidate's time, if within four (4) hours of employment, the candidate proves unqualified in the judgment of ANAHEIM.
18. POLICE DEPARTMENT ASSIGNMENTS
Temporary employees who are given an assignment to work at ANAHEIM's Police Department will be required to undergo a background screening check as a condition of working at the Police Department. Time spent on this activity is billable to ANAHEIM.
This screening process will include reporting to the Personnel Sergeant on the first day. Temporary workers will then be given a Personal History Package to fill out, along with a polygraph questionnaire. After these documents are completed, they will be interviewed by a background investigator, scheduled for a polygraph examination and fingerprinted and photographed by the Department's Identification Bureau. Successful completion of this process is required to begin work at the Police Department.
All requests for temporary employees and billing for work completed will be handled through the Personnel Sergeant (714) 765-3922 for the Police Department.
19. EMPLOYMENT WITH ANAHEIM
Should any personnel, after being placed by CONTRACTOR in a position with ANAHEIM, seek employment with ANAHEIM, ANAHEIM shall not pay any placement fee therefor.
20. PERSONNEL REPLACEMENT
In the event any personnel placed by CONTRACTOR must be released from duty for any reason, CONTRACTOR will be given an opportunity to replace such personnel within four (4) hours of notification of such release.
21. NO THIRD-PARTY RIGHTS
The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation or undertaking established herein.
22. NOTICES
Notices and communication concerning this Agreement shall be sent to the following addresses:
CITY
City of Anaheim
Attn: Human Resources
201 S. Anaheim Blvd., Suite 501
Anaheim, CA 92805
CONTRACTOR
and copies to
City of Anaheim
Attn: City Clerk
200 S. Anaheim Blvd., Suite 217
Anaheim, CA 92805
23. AUTHORITY
CONTRACTOR and CONTRACTOR's signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of CONTRACTOR and to bind CONTRACTOR hereto.
24. EFFECTIVE DATE
The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event CONTRACTOR fails to set forth a date of execution opposite the name(s) of CONTRACTOR'S signator(s), CONTRACTOR hereby authorizes ANAHEIM, by and through its representative, to insert the date of execution by CONTRACTOR'S signator(s) as the date said Agreement, as executed by CONTRACTOR is received by ANAHEIM.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
DATE OF EXECUTION
_____________________________
DATE OF EXECUTION
_____________________________
CITY OF ANAHEIM
A municipal corporation
By: ______________________________
Linda N. Andal,
Human Resources Director
“ANAHEIM”
By: ______________________________
Title: _____________________________
Printed Name: ______________________
"CONTRACTOR"
ATTEST:
By: ______________________________
Theresa Bass City Clerk
APPROVED AS TO FORM:
ROBERT FABELA CITY ATTORNEY
By: ___________________________
Robert J. Tyson
Deputy City Attorney
135379
EXHIBIT A
A Guide to CalPERS Employment After Retirement
EXHIBIT B
CONTRACTOR'S Compensation Rates