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CONTRACT 6015 Professional Services Agreement CLOSEDAgreement No. 6015 Agreement No. [City Clerk assigns]_ PROFESSIONAL SERVICES AGREEMENT BETWEEN - KAREN B. KRAMER, ESQ. dba KRAMER WORKPLACE INVESTIGATIONS This AGREEMENT is made and entered into this 19t" day of January, 2021, by and between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and KAREN B. KRAMER, ESQ. dba KRAMER WORKPLACE INVESTIGATIONS ("CONSULTANT"). The parties agree as follows: 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform confidential personnel investigative services ("Services"); B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY agrees to pay CONSULTANT for CONSULTANT's services at the hourly rates described in the attached Exhibit "A." In no event will the total sum paid to CONSULTANT exceed Forty -Five Thousand dollars ($45,000.00). CITY may modify this amount as set forth below. 2. SCOPE OF SERVICES. CONSULTANT will perform the Services, and will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use the appropriate generally accepted professional standards of practice existing at the time of performance utilized by persons engaged in providing similar services. CITY will continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT. 4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rates for each personnel category and reimbursable costs the tasks performed, the percentage of the task completed during the billing period, the cumulative percentage completed for each task, the total cost of that work during the preceding billing month and City of El Segundo Professional Services (REV 2018.05) Page 1 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ a cumulative cash flow curve showing projected and actual expenditures versus time to date. 5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 6. FAMILIARITY WITH WORK. A. By executing this Agreement, CONSULTANT agrees that it has: i. Carefully investigated and considered the services to be performed; ii. Carefully considered how the services should be performed; and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. B. If services involve work upon any site, CONSULTANT agrees that CONSULTANT has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should CONSULTANT discover any latent or unknown conditions that may materially affect the performance of the services, CONSULTANT will immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk until written instructions are received from CITY. 7. TERM. The term of this Agreement will be from January 19, 2021, to January 19, 2022, unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the Services; or B. Termination as stated in Section 15. 8. TIME FOR PERFORMANCE. A. CONSULTANT will not perform any work under this Agreement until: i. CONSULTANT furnishes proof of insurance as required under Section 22 of this Agreement; and City of El Segundo Professional Services (REV 2018.05) Page 2 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ CITY gives CONSULTANT a written notice to proceed. B. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk. 9. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond CONSULTANT's control, CITY may grant a time extension for the completion of the contracted services. If delay occurs, CONSULTANT must notify the Manager within forty- eight (48) hours, in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. The Manager will extend the completion time, when appropriate, for the completion of the contracted services. 10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibit; this Agreement supersedes any conflicting provisions. 11. CHANGES. CITY may order changes in the services within the general scope of this Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the contract time will be adjusted accordingly. All such changes must be authorized in writing, executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in the services will be determined in accordance with written agreement between the parties. 12.TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number. 13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement. 14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character. 15.TERMINATION. A. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. B. CONSULTANT may terminate this Agreement at any time with CITY's City of El Segundo Professional Services (REV 2018.05) Page 3 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ mutual consent. Notice will be in writing at least thirty (30) days before the effective termination date. C. Upon receiving a termination notice, CONSULTANT will immediately cease performance under this Agreement unless otherwise provided in the termination notice. Except as otherwise provided in the termination notice, any additional work performed by CONSULTANT after receiving a termination notice will be performed at CONSULTANT's own cost; CITY will not be obligated to compensate CONSULTANT for such work. D. Should termination occur, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by CONSULTANT will, at CITY's option, become CITY's property, and CONSULTANT will receive just and equitable compensation for any work satisfactorily completed up to the effective date of notice of termination, not to exceed the total costs under Section 1(C). E. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. F. By executing this document, CONSULTANT waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. 16.OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT under this Agreement are CITY's property. CONSULTANT may retain copies of said documents and materials as desired but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. 17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or public CITY without CITY's prior written approval. All press releases, including graphic display information to be published in be approved and distributed solely by CITY, unless agreement between the parties. 18.INDEMNIFICATION. A. CONSULTANT agrees to the following: newspapers or magazines, will otherwise provided by written i. Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse City of El Segundo Professional Services (REV 2018.05) Page 4 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement, except for such loss or damage arising from CITY's sole negligence or willful misconduct. ii. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. B. The CITY agrees to defend, indemnify and hold CONSULTANT harmless for and against all actions, claims, and complaints, whether formal or informal, actual or threatened, arising from or related to the investigation brought or asserted against CONSULTANT by any investigation interviewee, CITY employee or official, or anyone claiming through them. The CITY will provide a defense for CONSULTANT at its expense through its legal counsel. The CITY will also indemnify and hold CONSULTANT harmless with respect to any judgment entered against it and/or with respect to any and all terms of settlement of any third -party claims relating to the services rendered under this Agreement. This right of defense indemnification, or to be held harmless, shall not extend to any loss, liability, damage, or expense resulting from CONSULTANT's negligence or other misconduct. In accordance with California Rule of Professional Conduct 1.8.8, this provision is not intended to apply to any potential professional malpractice action brought by the CITY against CONSULTANT. C. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. D. It is expressly understood and agreed that the foregoing provisions will City of El Segundo Professional Services (REV 2018.05) Page 5 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ survive termination of this Agreement. E. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 22, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. MASSIGNABILITY. This Agreement is for CONSULTANT's professional services. CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 20.11NDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which it is performed. CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work or to exercise a measure of control over the work means that CONSULTANT will follow the direction of the CITY as to end results of the work only. 21.AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect to all services and matters covered under this Agreement. CITY will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. 22. INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of Insurance Limits Commercial general liability: $2,000,000 Professional Liability $1,000,000 City of El Segundo Professional Services (REV 2018.05) Page 6 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ Business automobile liability $1,000,000 Workers compensation Statutory requirement B. Commercial general liability insurance will meet or exceed the requirements of the most recent ISO-CGL Form. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," CONSULTANT will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement and will cover CONSULTANT for all claims made by CITY arising out of any errors or omissions of CONSULTANT, or its officers, employees or agents during the time this Agreement was in effect. D. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto). E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at CONSULTANT's expense and deduct the cost of such insurance from payments due to CONSULTANT under this Agreement or terminate pursuant to Section 155. City of El Segundo Professional Services (REV 2018.05) Page 7 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ 23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such approval must approve of the proposed consultant and the terms of compensation. 24.INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on the project, which will include a schedule update and a short narrative description of progress during the past month for each major task, a description of the work remaining and a description of the work to be done before the next schedule update. 25. NOTICES. All communications to either party by the other party will be deemed made when received by such party at its respective name and address as follows: If to CONSULTANT: Kramer Workplace Investigations P.O. Box 266 Danville, CA 94526 Attention: Karen B. Kramer, Esq. Phone: (925) 838-6435 Email: Karen@KramerLaw.net If to CITY: City of El Segundo 350 Main Street El Segundo, CA 90245 Attention: Human Resources Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 26. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation, CITY's conflict of interest regulations. 27. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than CONSULTANT's bona fide employee, to solicit or secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any company or person, other than CONSULTANT's bona fide employee, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability. 28.THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under this Agreement. City of El Segundo Professional Services (REV 2018.05) Page 8 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ 29. INTERPRETATION. This Agreement was drafted in and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County. 30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and local laws applicable to this Agreement. 31. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. This Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent successors and assigns. 32.RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 33. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 34.AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment. 35.ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by electronic (.pdf) or facsimile transmission. Such electronic or facsimile signature will be treated in all respects as having the same effect as an original signature. 36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable City of El Segundo Professional Services (REV 2018.05) Page 9 of 11 Agreement No. 6015 Agreement No. [City Clerk assigns]_ control, then the Agreement will immediately terminate without obligation of either party to the other. 39.STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private consultants, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public CITY. [Signatures on next page] City of El Segundo Professional Services (REV 2018.05) Page 10 of 11 Agreement No. 6015 Agreement No. [Citv Clerk assigns]_ IN WITNESS WHEREOF the parties hereto have executed this Agreement the d and year first hereinabove written. I Y OF EL71GUNDO KAMEN E3. KRAMER ESQ. for Scott Mitnick, Ka en B. Kramer City Manager ATTEST: �Q ) for Tracy Weaver, City Clerk APPROVED AS TO FORM: ) — for Mark D. Hensley, t:� City Attorney City of El Segundo Professional Services (REV 2018.05) Page 11 of 11 Kramer Workplace Investigations Agreement No. 6015 Exhibit A Kramer Workplace Investigations agrees to investigate LCW File No. EL140/122, made by a City employee. The investigation will be conducted primarily by Karen Kramer. Kramer Workplace Investigations will provide the City with findings of fact as to each of the allegations identified as being within the scope of this investigation set forth by the City's attorney, Liebert Cassidy Whitmore. Unless we make a different agreement in writing, this Agreement will govern all services Kramer Workplace Investigations and Ms. Kramer will perform for the City related to this investigation. Fees for services provided to the City pursuant to this Agreement will be calculated and billed at Ms. Kramer's hourly rate of $325 per hour for services related to conducting a workplace investigation and $425 per hour for testimony. The hourly rate for paralegal services, which may include document review and organization, and/or assistance with report -writing, is $150 per hour. Statements for services will contain a description of the services performed, the date they were performed, and the time devoted to this matter. The foregoing hourly rates apply to all time spent reviewing the above -referenced matter, including, but not limited to, traveling to/from and conducting interviews; personal and telephone conferences; preparing, analyzing and reviewing correspondence; analyzing and reviewing documents; preparing reports and memoranda. This agreement creates an attorney/client relationship between Kramer Workplace Investigations and the City. On matters covered by this Agreement, Kramer Workplace Investigations will provide legal services to the City by conducting an impartial workplace investigation. Kramer Workplace Investigations will make factual findings utilizing our skills, knowledge and experience in doing so. The scope of this retention is limited, in that Kramer Workplace Investigations and Ms. Kramer will not provide legal advice to the City regarding the scope of the investigation, the confidentiality of the investigation and/or how to admonish witnesses regarding confidentiality, or other legal matters related to the investigation, including but not limited to interim measures concerning witnesses, privacy issues, the duty to preserve evidence, wage and hour issues, and employment consequences, if any, for uncooperative witnesses. Furthermore, Kramer Workplace Investigations and Ms. Kramerwill not act as an advocate, provide advice to the City with respect to what employment action, if any, should be taken as a result of Kramer Workplace Investigations' findings, or represent the City in any legal action or proceeding, including pre/post-investigation litigation strategy and advocacy with respect to responding to subpoenas, discovery requests, and/or actions of any kind, including motions to compel production of Kramer Workplace Investigation's file(s) as well as any other legal issues that may arise during the course of the investigation or subsequent to the investigation. It is understood that our legal advice is the performance of the investigation itself and decisions made relating to the investigation, including whom to interview, what documents to review, and analyzing the facts as presented during the investigation. Kramer Workplace Investigations' services are protected by the attorney/client and work product privileges, unless the City waives these privileges. Kramer Workplace Investigations will incur various costs and expenses or will provide certain in-house services while performing investigative services for the City. The City agrees to pay for these items in addition to fees for investigative services. The costs, expenses, and in-house services may include, but will not necessarily be limited to, out-of-town travel expenses; messenger and other delivery services; photocopying and other reproduction services; transcription of taped interviews; and similar items. External costs and expenses will be charged at Kramer Workplace Investigations' cost. Kramer Workplace Investigations will not charge the City for word processing; overtime expenses associated with administrative personnel; local telephone charges; and similar items; and Kramer Workplace Investigations will not add a "handling" charge for costs and expenses incurred on Kramer Workplace Investigations' behalf. Kramer Workplace Investigations shall not be required to advance payment for major external expenses, which the City shall pay directly. Without prior approval, Kramer Workplace Investigations will not incur on the City's behalf any such major external expenses. 1 I Page! Agreement No. 6015 Kramer Workplace Investigations This engagement and our attorney/client relationship shall be considered concluded after Kramer Workplace Investigations has provided an investigation report to the City. After conclusion of the investigation, should a need arise for Kramer Workplace Investigations and/or Ms. Kramer to respond to any subpoena, or otherwise provide testimony in connection with this matter, the City shall compensate Kramer Workplace Investigations at Ms. Kramer's hourly rate set forth above. The City shall compensate Kramer Workplace Investigations for Ms. Kramer's time expended responding to any subpoena, including document production, and preparing for testimony, in addition to the actual time spent testifying. The City will also represent Ms. Kramer when testifying or provide Ms. Kramer with an attorney of her choice. Furthermore, the City shall be procedurally and financially responsible for addressing and responding to any subpoena, discovery request, and/or action of any kind, including a motion to compel production of Kramer Workplace Investigation's file(s) and any fee and/or cost attendant thereto. Should the City expect Kramer Workplace Investigations to object to a subpoena for investigation file(s) and/or Ms. Kramer's testimony, the City will compensate Kramer Workplace Investigations for all attorney's fees incurred in responding to the subpoena and/or motion to compel production. 2 1 P a g e!