HomeMy WebLinkAboutHENNESSEY GROUP - 2004-02-01Su ity�
Hunt Beach'
Contracts Submittal to
City Clerk's Office
Ce
To: City Clerk
1. Name of Contractor: Hennessey Group
2. Purpose of Contract: For Example: Audit Services or Water Quality Testing Huntington Lake — Huntington Central Parkx�
Real Estates Services
3. Amount of Contract: $75,000
Copy of contract distributed to: The ORIGINAL insurance certificate/waiver sent to Risk
Management
Initiating Dept._
City Treasurer ORIGINAL bonds sent to "Treasurer
City Attomey's Office
g:/Attymisc/forms/city clerk contract transmittal.doc
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PROFESSIONAL SERVICE CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
HENNESSEY GROUP
FOR REAL ESTATE SERVICES
THIS AGREEMENT ("Agreement") is made and entered into this If day of
Februarv. 2004, by and between the City of Huntington Beach, a municipal corporation
of the State of California, hereinafter referred to as "CITY, and Michael Hennessey, a
Sole Proprietorship dba Hennessey Group hereinafter referred to as "Consultant."
WHEREAS, CITY desires to engage the services of a consultant to rp ovide
Real Estate Services ; and
Pursuant to documentation on file in the office of the City Clerk, the provisions
of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of
professional services contracts have been complied with; and
CONSULTANT has been selected to perform these services,
NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows:
1. SCOPE OF SERVICES
CONSULTANT shall provide all services as described in Exhibit "A," which
is attached hereto and incorporated into this Agreement by this reference. These
services shall sometimes hereinafter be referred to as the "PROJECT."
CONSULTANT hereby designates Michael Hennessey who shall represent it
and be its sole contact and agent in all consultations with CITY during the performance
of this Agreement.
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2, CITY STAFF ASSISTANCE
CITY shall assign a staff coordinator to work directly with CONSULTANT
in the performance of this Agreement.
3. TERM; TIME OF PERFORMANCE
Time is of the essence of this Agreement. The services of CONSULTANT
are to commence as soon as practicable after the execution of this Agreement by CITY (the
"Commencement Date"). This Agreement shall expire on Sept. 3 0, 2 0 0 5 , unless
sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be
completed no later than Sept. 30_,_ 2005 from the Commencement Date of this
Agreement. These times may be extended with the written permission of CITY. The time
for performance of the tasks identified in Exhibit "A" are generally to be shown in
Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed
to in "Titing by CITY and CONSULTANT.
4. COMPENSATION
In consideration of the performance of the services described herein, CITY
agrees to pay CONSULTANT on a time and materials basis at the rates specified in
Exhibit " 13," which is attached hereto and incorporated by reference into this Agreement,
a fee, including all costs and expenses, not to exceed
Seventy -Five -Thousand _ Dollars ($75, 000. 00
5. EXTRA WORK
In the event CITY requires additional services not included in Exhibit "A"
or changes in the scope of services described in Exhibit "A," CONSULTANT will
undertake such work only after receiving written authorization from CITY. Additional
agree/forms/profsery 1 Oi 15101-A 2
compensation for such extra work shall be allowed only if the prior written approval of
CITY is obtained.
6. METHOD OF PAYMENT
CONSULTANT shall be paid pursuant to the terms of "Exhibit B,"
which is attached hereto and incorporated by reference into this Agreement.
7. DISPOSITION OF PLANS, ESTIMATES AND OTHER
DOCUMENTS
CONSULTANT agrees that title to all materials prepared hereunder
including, without limitation, all original drawings, designs, reports, both field and
office notices, calculations, computer code, language, data or programs, maps,
memoranda, letters and other documents, shall belong to CITY, and CONSULTANT
shall turn these materials over to CITY upon expiration or termination of this
Agreement or upon PROJECT completion, whichever occurs first. These materials
may be used by CITY as it sees fit.
8. HOLD HARMLESS
CONSULTANT hereby agrees to protect, defend, indemnify and hold
harmless CITY, its officers, elected or appointed officials, employees, agents and
volunteers from and against any and all claims, damages, losses, expenses, judgments,
demands and defense costs (including, without limitation, costs and fees of litigation of
every nature or liability of any kind of nature) arising out of or in connection with
CONSULTANT'S (or CONSULTANT's subcontractors, if any) negligent performance
of this Agreement or its failure to comply with any of its obligations contained in this
Agreement by CONSULTANT, its officers, agents or employees except such loss or
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damage which was caused by the sole negligence or willful misconduct of CITY.
CONSULTANT will conduct all defense at its sole cost and expense and CITY shall
approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as limitation upon the amount of indemnification to be provided by
CONSULTANT.
9. PROFESSIONAL LIABILITY INSURANCE
CONSULTANT shall obtain and furnish to CITY a professional liability
insurance policy covering the work performed by it hereunder. This policy shall provide
coverage for CONSULTANT's professional liability in an amount not less than One
Million Dollars (SI,000,000.00) per occurrence and in the aggregate. The above -
mentioned insurance shall not contain a self -insured retention, "deductible" or any other
similar form of limitation on the required coverage except with the express written consent
of CITY. A claims -made policy shall be acceptable if the policy further provides that:
A. The policy retroactive date coincides with or precedes the initiation
of the scope of work (including subsequent policies purchased as
renewals or replacements).
B. CONSULTANT shall notify CITY of circumstances or incidents
that might give rise to future claims.
CONSULTANT will make every effort to maintain similar insurance during
the required extended period of coverage following PROJECT completion. If insurance is
terminated for any reason, CONSULTANT agrees to purchase an extended reporting
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provision of at least two (2) years to report claims arising from work performed in
connection with this Agreement.
10. CERTIFICATE OF INSURANCE
Prior to commencing performance of the work hereunder, CONSULTANT
shall furnish to CITY a certificate of insurance subject to approval of the City Attorney
evidencing the foregoing insurance coverage as required by this Agreement; the certificate
MIT11fF
A. provide the name and policy number of each carrier and policy;
B. state that the policy is currently in force; and
C. promise that such policy shall not be suspended, voided or canceled
by either party, reduced in coverage or in limits except after thirty
(30) days' prior written notice; however, ten (10) days' prior written
notice in the event of cancellation for nonpayment of premium.
CONSULTANT shall maintain the foregoing insurance coverage in force
until the work under this Agreement is fully completed and accepted by CITY.
The requirement for carrying the foregoing insurance coverage shall not
derogate from CONSULTANT's defense, hold harmless and indemnification obligations as
set forth in this Agreement. CITY or its representative shall at all times have the right to
demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a
prompt and timely manner, the premiums on the insurance hereinabove required.
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11. INDEPENDENT CONTRACTOR
CONSULTANT is, and shall be, acting at all times in the performance of this
Agreement as an independent contractor herein and not as an employee of CITY.
CONSULTANT shall secure at its own cost and expense, and be responsible for any
and all payment of all taxes, social security, state disability insurance compensation,
unemployment compensation and other payroll deductions for CONSULTANT and its
officers, agents and employees and all business licenses, if any, in connection with the
PROJECT and/or the services to be performed hereunder.
12. TERMINATION OF AGREEMENT
All work required hereunder shall be performed in a good and workmanlike
manner. CITY may terminate CONSULTANT's services hereunder at any time with or
without cause, and whether or not the PROJECT is fully complete. Any termination of
this Agreement by CITY shall be made in writing, notice of which shall be delivered to
CONSULTANT as provided herein. In the event of termination, all finished and
unfinished documents, exhibit, report, and evidence shall, at the option of CITY,
become its property and shall be promptly delivered to it by CONSULTANT.
13. ASSIGNMENT AND DELEGATION
This agreement is a personal service contract and the work hereunder shall not
be assigned, delegated or subcontracted by CONSULTANT to any other person or
entity without the prior express written consent of CITY. If an assignment, delegation
or subcontract is approved, all approved assignees, delegates and subconsultants must
satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove.
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14. COPYRIGHT/PATENTS
CITY shall own all rights to any patent or copyright on any work, item or
material produced as a result of this agreement.
15. CITY EMPLOYEES AND OFFICIALS
CONSULTANT shall employ no CITY official nor any regular CITY
employee in the work performed pursuant to this Agreement. No officer or employee
of CITY shall have any financial interest in this Agreement in violation of the
applicable provisions of the California Government Cade.
16. NOTICES
Any notices, certificates, or other communications hereunder shall be
given either by personal delivery to CONSULTANT's agent (as designated in Section 1
hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a
sealed envelope, postage prepaid, and depositing the same in the United States Postal
Service, to the addresses specified below. CITY and CONSULTANT may designate
different addresses to which subsequent notices, certificates or other communications
will be sent by notifying the other party via personal delivery, a reputable overnight
carrier or U.S. certified mail -return receipt requested:
TO CITY: TO CONSULTANT:
City of Huntington Beach Michael Hennessey
ATTN: REAL ESTATE SERVICES MANAGER Hennessey Group
2000 Main Street 17300 17`ll Street. Ste. 7-251
Huntington Beach, CA 92649 Tustin, CA 92780
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17. CONSENT
When CITY's consent/approval is required under this Agreement, its
consent/approval for one transaction or event shall not be deemed to be a
consent/approval to any subsequent occurrence of the same or any other transaction or
event.
18. MODIFICATION
No waiver or modification of any language in this Agreement shall be
valid unless in writing and duly executed by both parties.
19. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and
descriptive phrases at the beginning of the various sections in this Agreement are
merely descriptive and are included solely for convenience of reference only and are
not representative of matters included or excluded from such provisions, and do not
interpret, define, limit or describe, or construe the intent of the parties or affect the
construction or interpretation of any provision of this Agreement.
20. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or against any of
the parties. If any provision of this Agreement is held by an arbitrator or court of
competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall
not invalidate or affect the remaining covenants and provisions of this Agreement. No
covenant or provision shall be deemed dependent upon any other unless so expressly
provided here. As used in this Agreement, the masculine or neuter gender and singular
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or plural number shall be deemed to include the other whenever the context so indicates
or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict between any
provision contained herein and any present or future statute, law, ordinance or
regulation contrary to which the parties have no right to contract, then the latter shall
prevail, and the provision of this Agreement which is hereby affected shall be curtailed
and limited only to the extent necessary to bring it within the requirements of the law.
21. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been
prepared and signed in counterparts as duplicate originals, each of which so executed
shall, irrespective of the date of its execution and delivery, be deemed an original.
Each duplicate original shall be deemed an original instrument as against any party who
has signed it.
22. IMMIGRATION
CONSULTANT shall be responsible for full compliance with the
immigration and naturalization laws of the United States and shall, in particular,
comply with the provisions of - the United States Code regarding employment
verification.
23. LEGAL SERVICES SUBCONTRACTING PROHIBITED
CONSULTANT and CITY agree that CITY is not liable for payment of
any subcontractor work involving legal services, and that such legal services are
expressly outside the scope of services contemplated hereunder. CONSULTANT
understands that pursuant to Huntington Beach City Charter Section 309, the City
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Attorney is the exclusive legal counsel for CITY. and CITY shall not be liable for
payment of any legal services expenses incurred by CONSULTANT.
24. ATTORNEY' S FEES
In the event suit is brought by either party to construe, interpret and/or
enforce the terms and/or provisions of this Agreement or to secure the performance
hereof, each party shall bear its ovum attorney's fees. such that the prevailing party shall
not be entitled to recover its attorney's fees from the non -prevailing party.
25. SURVIVAL
Terms and conditions of this Agreement, which by their sense and
context survive the expiration or termination of this Agreement, shall so survive.
26. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
laws of the State of California.
27. ENTIRETY
The parties acknowledge and agree that they are entering into this
Agreement freely and voluntarily following extensive arm's length negotiation, and that
each has had the opportunity to consult with legal counsel prior to executing this
Agreement. The parties also acknowledge and agree that no representations,
inducements, promises, agreements or warranties, oral or otherwise, have been made by
that party or anyone acting on that party's behalf, which are not embodied in this
Agreement, and that that party has not executed this Agreement in reliance on any
representation, inducement, promise, agreement, warranty, fact or circumstance not
expressly set forth in this Agreement. This Agreement, and the attached exhibits,
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contain the entire agreement between the parties respecting the subject matter of this
Agreement, and supersede all prior understandings and agreements whether oral or in
writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized offices the day, month and year first above
written.
CONSULTANT, CITY OF HUNTINGTON BEACH
Michael Hennessey A municipal corporation of the State of California
HennesseGroup
17300 17r' Street, Ste. J-251
Tustin, CA 92780
Director o Administra ive Services
(Pursua to HBAIC §3.03.100)
By:
ichael He Director a Ec is Development
APPROVED AS TO FORM:
City Atto
REVIEWED AND APPROVED:
City Administrator
(only for contracts over S50, 000.00)
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EXHIBIT "A"
A. STATEMENT OF WORK: (Narrative of work to be performed)
Provide real estate and business consulting services as directed.
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
1. Negotiate leases, concessions, contracts and other business
negotiations as directed.
2. Prepare written and oral reports, including financial analysis.
3. Other duties as assigned and directed.
C. CITY'S DUTIES AND RESPONSIBILITIES:
1. Direct consultant as necessary
D. WORK PROGRAM/PROJECT SCHEDULE:
On an as -needed basis.
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0 EXHIBIT `B" •
PAYMENT SCHEDULE (HOURLY PAYMENT)
A. Hourlv Rate
CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost
schedule:
Principal: $125.00 per hour
Assistant: $45.00 per hour
B. Travel
1. Charges for time during travel are normally not reimbursable and will only be paid if such time
is actually used in performing services for CITY or as otherwise arranged with CITY.
2. As CITY sometimes uses consultants that are outside of the nearest metropolitan area, CITY is
very conscious of travel costs. Subject to agreement otherwise, CONSULTANT will be held
to charging no fees on travel time to or from Huntington Beach.
3. Automobile expenses are limited to IRS standard business mileage rate. All other travel
expenses must be approved in advance by CITY in writing. Requests for approval shall be
submitted at least fourteen (14) days in advance, to allow for reduced transportation fares.
Meals are not billable to CITY, without prior written consent of CITY.
C. Billing
I. All billing shall be done monthly in one -tenth -hour (0.10) increments and matched to an
appropriate breakdown of the time that was taken to perform that work who performed it.
Minimum billing charges are unacceptable. CONSULTANT shall only charge for actual time
spent. For example, minimum of 0.2 hours for phone calls or 0.4 hours for letters is
unreasonable unless that is an accurate measure of time spent.
2. Each month's bill should include a total to date. That total should provide, at a glance, the total
fees and costs incurred to date for the case or matter.
3. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service
bills/costs should accompany the billing for each single item that exceeds Seventy -Five Dollars
($75.00). The fee for the sending or receiving of facsimiles shall not exceed Twenty-five
Cents ($0.25) per page. City will not pay a fee or charge for telephone calls or facsimiles to
CITY. Photocopier costs should be no more than the actual cost of duplication, or Ten Cents
($0.10) per page, whichever is less.
4. CITY will not pay for secretarial time or secretarial overtime. CITY will not pay for
secretarial tasks or tasks that should be subsumed into CONSULTANT'S overhead. For
example, time spent for faxing, mailing, arranging for messengers and calendaring are not
acceptable charges.
5. CITY will not pay for word processing charges. This includes per page or hourly charges.
agreellrorm fexl3-hourly feel 10122.!02 13
0 EXHIBIT "B" •
PAYMENT SCHEDULE (HOURLY PAYMENT)
6. CITY will not pay for billing or discussion of bills. If CITY has questions about billing or
needs additional information on bills, that is not a chargeable event; CONSULTANT shall not
charge CITY for work it has done and billed another client for in the past.
7. CITY appreciates when CONSULTANT has researched an issue previously and uses that
research on the present case. CITY has retained CONSULTANT because of its past
experience. CONSULTANT shall not charge CITY for work it has done and billed another
client for in the past.
8. Delivery of work product: A copy of every memorandum, letter, report, calculation and other
documentation prepared by CONSULTANT shall be submitted to CITY to demonstrate
progress toward completion of tasks. In the event CITY rejects or has comments on any such
product, CITY shall identify specific requirements for satisfactory completion.
9. CONSULTANT shall submit to CITY an invoice for each monthly payment due. Such invoice
shall:
A. Reference this Agreement;
B. Describe the services performed;
C. Show the total amount of the payment due;
D. Include a certification by a principal member of CONSULTANT's firm that the work
has been performed in accordance with the provisions of this Agreement; and
E. For all payments include an estimate of the percentage of work completed
Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making
satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall
approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the
invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve
an invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the
schedule of performance set forth in "Exhibit A" may at -the option of CITY be suspended until the
parties agree that past performance by CONSULTANT is in, or has been brought into compliance,
or until this Agreement has expired or is terminated as provided herein.
10. Any billings for extra work or additional services authorized in advance and in writing by
CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information
required above, and in addition shall list the hours expended and hourly rate charged for such
time. Such invoices shall be approved by CITY if the work performed is in accordance with
the extra work or additional services requested, and if CITY is satisfied that the statement of
hours worked and costs incurred is accurate. Such approval shall not be unreasonably
withheld. Any dispute between the parties concerning payment of such an invoice shall be
treated as separate and apart from the ongoing performance of the remainder of this
Agreement.
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sU: ity INSURANCE AND INDEMNIFICATION WAIVER
H MODIFICATION REQUEST
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��h/�D O%�S �%�✓'ecfW d�` �CdNCJ3'Hcc .V�r�C(v�s�rGvt7�'
1. Requested by: Clay Martin miractar_Adj i iii iistj atlyps
2. Date: 4 n6V6vw °eL l G 2eoll
3. Name of contra cto r/p erm itte e: Michael Hennessey dba Hennessey Group
4. Description of work to be performed: Real estate and business consulting
5. Value and length of contract: $75,000 contract for one year
6. Waive rlmodification request: Insurance Waiver
7. Reason for request and why it should be granted: Independent consultant who works
under direct supervision of staff.
8. Identify the risks to the City in approving this waiver/modification: None
Department Head Signature
Date:
APPROVALS
Approvals must be obtained in the order listed on this form. Two approvals are required
for a request to be granted. Approval from the City Administrator's Office is only required if
Risk Management and the City Attorney's Office disagree.
1. Risk Management,;-'tApproved ❑ Denied �� -11f1 /
Signature Date
2. City Attorney's Office
A proved ❑ Deni [ v
��ignat Date
3. City Administrator's Office
Approved ❑ Denied 12 - -o
Signature Da e
If approved, the completed waiver/modification request is to be submitted to the
City Attorney's Office along. with the contract for approval. Once the contract has been approved,
this form is to be filed with the Risk Management Division of Administrative Services
In.CIlranrp A Inrimmnifiratinn Waivar_MHcv F_q_C1d RIAOMA 11.1A AAA
su ''' PROFESSIONAL SERVICE CONTRACTS
PURCHASING CERTIFICATION
1. Requested by:
2. Date: July-12",-4004- 7),Z1_C_ 0 q
3. Name of consultant: Michael Hennessey
4. Description of work to be performed: Real Estate Services Consultancy
5. Amount of the contract: $75,000.00
6. Are sufficient funds available to fund this contract?1 I Yes, ❑ No
7. Company number and object code where funds are budgeted: 10035501.69340
8. Is this contract generally described on the list of professional service contracts
approved by the City Council? ® Yes, ❑ No
9. Is this contract within $25,000 or 25% (whichever is less) of the amount stated on
the list of professional service contracts approved by the City Council?'
❑ Yes, ® No
10. Were (at least) informal written proposals requested of three consultants?
❑ Yes, 2"No.________.__ —
Explanation:(IContract renewal 3e� L a D 3
11. Attach list of consultants from whom proposals were requested (including a
contact telephone number).
12. Attach proposed scope of work.
13. Attach proposed payment schedule.
CHAR AMADRIL, Maager_
Purchasing/Central Services
' If the answer to any these questions is "No," the contract will require approval from the City Council.
Purchasing Cert Hsy 03-04 7/1212004 9:35 AM