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2022/01/25 City Council Resolution 2022-016 RESOLUTION NO. 2022-016 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING CITY ATTORNEY TO ENTER INTO AN AGREEMENT WITH MICHAEL GENNACO DBA OIR GROUP AND AUTHORIZING THE CITY ATTORNEY TO TAKE ALL ACTIONS NECESSARY TO IMPLEMENT THE INDEPENDENT POLICE AUDITOR PROGRAM FOR REVIEW OF THE PUBLIC SAFETY DEPARTMENT WHEREAS, the City desires to implement police oversight of the Rohnert Park Public Safety Department; WHEREAS,the City has determined that a police oversight model that utilizes an outside Independent Police Auditor("IPA Program") is necessary; WHEREAS, an IPA Program will enhance police accountability by making periodic public reports based on auditing activities. This contributes to greater openness with respect to police procedures; WHEREAS,to implement an IPA Program,the City needs an auditing firm with extensive knowledge of police operations, procedures, and performance standards, experience conducting statistical analysis and auditing of internal investigations, along with capability to present results and findings in a clear and concise manner to a non-police audience such as members of City Council and the public; WHEREAS,the City Attorney's Office evaluated and interviewed firms for Police Auditor Services resulting in the recommendation to retain Michael Gennaco dba OIR Group; and WHEREAS,to implement an IPA Program, City Staff and the City Attorney's office will be required to take additional actions such as developing written policies and complying with the Meyers-Milias Brown Act. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert Park hereby authorizes the City Attorney to enter into an Agreement with Michael Gennaco dba OIR Group for Independent Police Auditor Services for an annual cost of$25,000 with automatic yearly renewal; NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Attorney, or her designee, is hereby authorized to take any and all actions necessary to enter into the IPA Program. DULY AND REGULARLY ADOPTED by the City Council of Rohnert Park this 25th day of January, 2022. OAK#4864-2164-4810 v7 CITY OF ROHNERT PARK ackie , ayor ATTEST: • Sylvia Lopez evas, City Clerk Attachment: Exhibit A GIUDICE: Aker. HOLLINGSWORTH-ADAMS: STAFFORD: Rlh. , LINARES: _ F. ELWARD: AYES: (S ) NOES: (0j ) ABSENT: ( j ) ABSTAIN: OAK#4864-2164-4810 v7 - 1 - OAK #4887-4590-6185 v10 05605-0088 AGREEMENT BETWEEN THE CITY OF ROHNERT PARK AND MICHAEL GENNACO DBA OIR GROUP FOR INDEPENDENT POLICE AUDITOR SERVICES This Agreement is entered into on this ___ day of __________, 2022 (“Agreement”) by and between the CITY OF ROHNERT PARK, a California municipal corporation (“CITY”), and MICHAEL GENNACO dba OIR GROUP, a sole proprietor ("CONSULTANT"). R E C I T A L S The following recitals are a substantive portion of this Agreement, fully incorporated herein by this reference: A. CITY intends to provide independent police auditor services (“Project”) and desires to engage a consultant to provide services in connection with the Project (“Services”). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit “A”, attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Agreement, the Parties agree: SECTION 1.TERM. The term of this Agreement shall be from the date of its full execution to twelve (12) months after, unless terminated earlier pursuant to Section 16 of this Agreement. This Agreement will automatically renew yearly unless City provides thirty days written notice ending the term. SECTION 2.SCOPE OF SERVICES. CONSULTANT shall perform the Services described at Exhibit “A” in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. SECTION 3.SCHEDULE OF PERFORMANCE.Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the Schedule of Performance set forth in Exhibit “B”, attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY’s agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4.NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services shall be at the rates and costs reflected in Exhibit A to Resolution - 2 - OAK #4887-4590-6185 v10 05605-0088 Exhibit C but in any event, shall not exceed Twenty Five Thousand Dollars ($25,000.00). CONSULTANT agrees to complete all Services, including specified reimbursable expenses, within this amount. In the event Services outside of Basic Services are required, separate authorization must be obtained. CONSULTANT shall not receive any compensation for any additional services performed without the prior written authorization of CITY. SECTION 5.INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including, if applicable, an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses), based upon Exhibit “C” or, if applicable, the CONSULTANT’s billing rates set forth in Exhibit “C- 1.” If applicable, the invoice shall also describe the percentage of completion of each task. The information in CONSULTANT’s payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City’s project manager at the address specified in Section 17 (“Notices”) below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6.QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT’s supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and sub-consultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the Services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. SECTION 7.COMPLIANCE WITH ALL LAWS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8.ERRORS/OMISSIONS. CONSULTANT is solely responsible for costs, including, but not limited to, increases in the cost of Services, arising from or caused by CONSULTANT’s errors and omissions, including, but not limited to, the costs of corrections such errors and omissions, any change order markup costs, or costs arising from delay caused by the errors and omissions or unreasonable delay in correcting the errors and omissions. SECTION 9.INDEPENDENT CONTRACTOR. It is understood and agreed that in performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of CITY. - 3 - OAK #4887-4590-6185 v10 05605-0088 SECTION 10.ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the performance of any of CONSULTANT’s obligations hereunder without the prior written consent of the City Attorney. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the City Attorney will be void. SECTION 11.PROJECT MANAGEMENT AND OWNERSHIP OF MATERIALS. 11.1 CONSULTANT will assign Michael Gennaco as the CONSULTANT’s Project Manager to have supervisory responsibility for the performance, progress, and execution of the Services and Stephen Connolly as the Project Manager to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the CONSULTANT’s Project Manager, project coordinator, or any other of CONSULTANT’s key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY’s City Attorney. CONSULTANT, at CITY’s request, shall promptly remove personnel who CITY finds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. 11.2 CITY’s Project Manager is the City Attorney. The CITY’s Project Manager will be CONSULTANT’s point of contact with respect to performance, progress and execution of the Services. CITY may designate an alternate Project Manager from time to time. 11.3 Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULTANT nor its contractors, if any, shall make any of such materials available to any individual or organization without the prior written approval of the City Attorney or designee. CONSULTANT makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work SECTION 12.AUDITS. CONSULTANT will permit CITY to audit, at any reasonable time during the term of this Agreement and for four (4) years thereafter, CONSULTANT’s records pertaining to matters covered by this Agreement. CONSULTANT further agrees to maintain and retain such records for at least four (4) years after the expiration or earlier termination of this Agreement. SECTION 13.INDEMNITY. 13.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs - 4 - OAK #4887-4590-6185 v10 05605-0088 and expenses of whatever nature including attorney’s fees, experts fees, court costs and disbursements (“Claims”) resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 13.2. Notwithstanding the above, nothing in this Section 13 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of the City. 13.3. The acceptance of CONSULTANT’s services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 13 shall survive the expiration or early termination of this Agreement. SECTION 14.WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. SECTION 15.INSURANCE. 15.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "D" (“Insurance Requirements”). CONSULTANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 15.2. All insurance coverage required hereunder shall be provided through carriers with AM Best’s Key Rating Guide ratings of A-:VII or higher, unless otherwise acceptable to the City, which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 15.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution of this Agreement. The certificates will be subject to the approval of CITY’s Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification. If the insurer cancels or modifies the insurance and provides less than thirty (30) days’ notice to CONSULTANT, CONSULTANT shall provide the Purchasing Manager written notice of the cancellation or modification within two (2) business days of the CONSULTANT’s receipt of such notice. CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY’s Chief Procurement Officer during the entire term of this Agreement. - 5 - OAK #4887-4590-6185 v10 05605-0088 15.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 16.TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 16.1. The City Attorney may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 16.2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY. 16.3. Upon such suspension or termination, CONSULTANT shall deliver to the City Attorney immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 16.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 10 days after giving notice) of suspension or termination; provided, however, if this Agreement is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY as such determination may be made by the City Attorney acting in the reasonable exercise of her discretion. The following Sections will survive any expiration or termination of this Agreement: 13 Indemnity, 14 Waivers, 15 Insurance, and 18 Conflict of Interest. 16.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 17.NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid addressed as follows: To CITY:Michelle Marchetta Kenyon, City Attorney Burke, Williams & Sorensen 1901 Harrison Street, Suite 900 Oakland, CA 94612 - 6 - OAK #4887-4590-6185 v10 05605-0088 To CONSULTANT: Michael Gennaco OIR Group 7142 Trask Avenue Playa Del Rey, CA, 90293 SECTION 18.CONFLICT OF INTEREST. 18.1. In executing this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 18.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ sub-consultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Rohnert Park Municipal Code and the Government Code of the State of California. 18.3. If the Project Manager determines that CONSULTANT is a “Consultant” as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Rohnert Park Municipal Code and the Political Reform Act. SECTION 19.MISCELLANEOUS PROVISIONS. 19.1. This Agreement will be governed by California law, without regard to its conflict of law provisions. . 19.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Sonoma, State of California. 19.3. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the authorized representatives of the parties and approved as required under Rohnert Park Municipal Code. 19.4. The covenants, terms, conditions and provisions of this Agreement will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 19.5. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. 19.6. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement referred to herein are, by such reference, incorporated into this Agreement in full and will be deemed to be a part of this Agreement. - 7 - OAK #4887-4590-6185 v10 05605-0088 19.7. In the event of a conflict between the terms of this Agreement and the exhibits hereto or CONSULTANT’s proposal (if any), the Agreement shall control. In the case of any conflict between the exhibits hereto and CONSULTANT’s proposal (if any), the exhibits shall control. 19.8. If, pursuant to this contract with CONSULTANT, CITY shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5(d) about a California resident (“Personal Information”), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City’s express written consent. The provisions of this paragraph shall survive the termination or expiration of this Agreement. 19.9. CONSULTANT understands and agrees that, in connection with this Agreement, the CONSULTANT may have access to proprietary and/or confidential information which may be owned or controlled by the CITY, the disclosure of which to third parties may be damaging to the CITY, its employees or customers/residents. CONSULTANT also understands and agrees that the disclosure of such information may violate state and/or federal law and may subject the CONSULTANT to civil liability. Consequently, CONSULTANT agrees that all information disclosed by the CITY to the CONSULTANT shall only be used in the performance of this Agreement, unless disclosure is required by law or court order. CONSULTANT shall exercise the same standard of care to protect such information as is used to protect its own proprietary and/or confidential information and in no case less than a reasonable standard of care. The provisions of this paragraph shall survive the termination or expiration of this Agreement. 19.10. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 19.11. This Agreement may be signed in multiple counterparts, which, when executed by all the parties, shall constitute a single binding agreement SECTION 20.EXHIBITS. The following exhibits are hereby attached and incorporated into this Agreement by reference as though fully set forth herein: EXHIBIT “A”: SCOPE OF SERVICES EXHIBIT “B”: SCHEDULE OF PERFORMANCE EXHIBIT “C”: SCHEDULE OF RATES EXHIBIT “D”: INSURANCE REQUIREMENTS - 8 - OAK #4887-4590-6185 v10 05605-0088 SIGNATURES OF THE PARTIES IN WITNESS WHEREOF, the Parties have by their duly authorized representatives executed this Agreement effective as of the date first above written. CITY OF ROHNERT PARK By: Michelle Marchetta Kenyon Title: City Attorney, City of Rohnert Park MICHAEL GENNACO DBA OIR GROUP By: Michael Gennaco Title: Principal, OIR Group Attachments: Exhibit “A” entitled “Scope of Services” Exhibit “B” entitled “Schedule of Performance” Exhibit “C” entitled “Schedule of Rates” Exhibit “D” entitled “Insurance Requirements”