HomeMy WebLinkAboutMACPHERSON, DUNN - 2002-06-16,,U ity Contracts Checklist for Submittal to
City Clerk's Office
L'�
Hunt Beach•
(Please transmit this form when your contract is ready to be filed in the City Clerk's office)
Connie Brockway, City Clerk
x54O4
1. Name of Contractor:
DUNCAN MacPHERSON
2. Purpose of Contract: For Example: Audit Services or Water Quality Testing Huntington Lake — Huntington Central Park
Consultant for technical expert witness services in connection with the civil case entitled Davis v. City
of Huntington Beach, et al. OCSC Case No. OOCC09935
3. Expiration Date: If no expiration date, please put a tentative expiration date so the City Clerk's office can inquire of your
department if the file is ready to inactivate.
Tentatively June 2004
4. Amount of Contract: 4101 O00
A. Is the attached contract RELATED to a PREVIOUSLY SUBMITTED contract (renewal/amendment/etc)? ❑ YES �WO
B. Did you attach the LIST OF CONSULTANTS from whom proposals were requested — pursuant to HBMC 3.03.100? ❑ YES N/A
OR Is the attached contract a SOLE SOURCE? ❑ YES 6NIA
C. Did you attach a COPY of the insurance certificate/waiver and send the ORIGINAL to Risk Management? YYES
»=r_V*4I►Eel 4]DIM
Name/Extension IJ
t Departm nt ��"i{�` r /"i � % S fJ�� `
Date
g./forms/city clerk contract checklist.doc
CITY CLERK'S OFFICE USE ONLY:
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
DUNCANMuoT^}{ERS[)N
FOR
TECHNICAL EXPERT WITNESS SERVICES
Table ofContents
lScope
ofServices .....................................................................................................
l
2
City Staff Assistance ................................................................................................
2
3
Ten-n' T�ncofporf�rolonco
, ----------------------------�
2
4
Compensation -----------------------------------.2
5
Extra Work ...............................................................................................................
2
6
Method of Payment --------------------------------..
3
7
Disposition ofPlans, Estimates and Other Documents ...........................................
3
8
Hold Harmless .........................................................................................................
]
9
Professional Liability Insurance .............................................................................
4
10
Certificate nfInsurance ............................................................................................
5
ll
Independent Contractor ............................................................................................
6
12
Termination of Agreement -----------------------------0
13
- aodDelegation----------------------------..8
l4i
---------------------------------7
15
City Employees and Officials ..................................................................................
16
N0doco................................................... ...... .................-7
17
Consent ....................................................................................................................
8
18
Modificaton------------------------------------.8
lQSection
Headings .....................................................................................................
0
20
Interpretationof this Agreement --------------------------8
21
Duplicate Original .....................................................................................................
9
22
Immigration ...............................................................................................................9
23
Legal Services Subcontracting Pn)hibitcd--------------'------..9
24
Fcos---------------------------------'—.]0
25
Survival .....................................................................................................................
l0
26
Governing Law .........................................................................................................
lO
27
Entirety-----------------------------_---------.l0
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
DUNCAN MacPHERSON
FOR
TECHNICAL EXPERT WITNESS SERVICES
THIS AGREEMENT ("Agreement") is made and entered into this IZ7-y day of
2002, by and between the City of Huntington Beach, a municipal
corporation of the State of California, hereinafter referred to as "CITY, and DUNCAN
MacPHERSON, an individual, hereinafter referred to as "CONSULTANT."
WHEREAS, CITY desires to engage the services of a consultant for technical expert
witness services in connection with the civil case entitled Davis v. City of Huntington Beach, et.
al., OCSC, Case No. OOCC09935 and
The requirements of Huntington Beach Municipal Code, Chapter 3.03, the: three
proposals be obtained, were not complied with because: This was an extraordinary circumstance
where expert testimony had to be obtained in a few days, 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 DUNCAN MacPHERSON who shall represent it and
be its sole contact and agent in all consultations with CITY during the performance of this
Agreement.
agree/forms/profsery 10/ 15/0 1 1
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 when terminated as provided
herein. All tasks specified in Exhibit "A" shall be completed in a professional and timely
:fashion.
4. COMPENSATION
In consideration of the perfornance of the services described herein, CITY
agrees to pay CONSULTANT, on a time and .materials basis, at the rates specified in
Exhibit "B", a fee, including all costs and -expenses, not to exceed Ten Thousand Dollars
($10,000).
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
[The rest of this page is intentionally left blank]
agree/forms/profserv10/15101 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 shall occur 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 or 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
damage which was caused by the sole negligence or willful misconduct of CITY. CITY
agree/forms/profsery 10/ 1 5/01 3
9 .0
shall be reimbursed by CONSULTANT for all costs and attorney's fees incurred by CITY
in enforcing this obligation. 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.
�.
J�I�l�fnMn�l
11 11
of any other- similar fen:n
l•l�I�������.�9�1�r. Is.1i�'���l. r•i �, ����� I��������.�1 ��1T�1 �i•�f��Ii���l����i��l��.l�I i.l ��lis��l i���i��ii
agree/forms/profserv10/15/01 4
G. shall pfemise that sueh peliey shall not be suspended, voided ef
agree/ forms/prof sery 10/ 15101
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, exhibits, 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.
agree/forms/profsery 10/ 15/01 6
14. COPYRIGHTS/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 Code.
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 DUNCAN MacPHERSON
ATTN: Scott Field, Asst. City Attorney PO Box 772
2000 Main Street El Segundo, CA 90245
Huntington Beach, CA 92648
Telephone: 714/536-5555 310/322-9229
Facsimile: 714/374-1590 310/322-0780
agree/forms/profsery 10/15/01 7
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
phrasesat 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 or plural number
shall be deemed to include the other whenever the context so indicates or requires.
agree/forms/prof sery 10/ 1 5/01 8
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 Attorney is the exclusive
legal counsel for CITY; and CITY shall not be liable for payment of any legal services
expenses incurred by CONSULTANT.
agree.!forms/profsery 10/15101 9
24. ATTORNEY'S FEES
Except as expressly set forth in Section 8 of this Agreement, 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
own 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, contain the entire agreement
between the parties respecting the subject matter of this Agreement, and supersede all prior
agree/forms./profsery 10/ 15101 10
,
• - •
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,
DUNCAN MacPHERSON, a municipal corporation of the State of California
An indivi
By:
CA� acPHERSON City Attorney
APPROVED AS TO FORM:
ttomey
S L1 L6��Z f 5-6 z
REVIEWED AND APPROVED:
City Administrator
(only for contracts over $50, 000. 00)
agree/forms/profsery 10/ 15/01 11
EXHIBIT #A
•
EXHIBIT "A"
A. STATEMENT OF WORK: (Narrative of work to be performed)
CONSULTANT to provide technical expert witness services in connection with the civil case
entitled Davis v. City of Huntington Beach, et. al., OCSC, Case No. OOCC09935
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
NOT APPLICABLE
C. CITY'S DUTIES AND RESPONSIBILITIES:
NOT APPLICABLE
1.
2.
D. WORK PROGRAM/PROJECT SCHEDULE:
NOT APPLICABLE
G/agree/2002/G EDDES.doc
♦ 1- 1 '
1 • •
EXHIBIT #B
EXHIBIT "B"
Payment Schedule (Hourly Payment)
A. Hourly Rate:
CONSULTANT'S fees for such services shall be based upon the following hourly rate and
cost schedule:
DUNCAN MacPHERSON $200 an 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 Twenty-seven Cents ($0.27) per mile. 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. Billin
1. 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 and
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
G/agree/2002/GE DDES. doc
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 (50.10) 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.
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 should respond without charging CITY for the time required.
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
G/agree/2002/G E D D E S. d oc
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.
G/a.-ree/2002/G E DD ES.doc
•
LP
I
•
SurCity PROFESSIONAL SERVICE CONTRACTS
HB/Beach,,
HunfinPURCHASING CERTIFICATION
1. Requested by:
SCOTT FIELD, Assistant City Attorney
2. Date: Junvk, 2002
3. Name of consultant: DUNCAN MacPHERSON
4. Description of work to be performed: Technical Expert Witness Services
5. Amount of the contract: $10,000.00
6. Are sufficient funds available to fund this contract?' ® Yes, ❑ No
7. Company number and object code where funds are budgeted: 55215610.69375
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, ® No
Explanation: This was an extraordinary circumstance where expert testimony
had to be obtained in a few days.
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.
Pu rc
nasingiuentrai bervices
' If the answer to any these questions is "No," the contract will require approval from the City Council.
Documents 6/20/2002 2:49 PM
• � .r �� C � � ij � n o'-�
suAiiy INSURANCE AND INDEMNIFICATION WAIVER
H,
HUM !&dch MODIFICATION REQUEST
1. Requested by: SCOTT FIELD, Assistant City Attorney
2. Date: Junew, 2002
3. Name of contractor/permittee: DUNCAN MacPHERSON
4. Description of work to be performed: Technical Expert Witness Services
5. Value and length of contract: $10,000 - one year
6. Waiver/modification request:' Complete waiver of Professional Liability
7. Reason for request and why it should be granted: For technical expert witness services,
only.
8. Identify the risks to the City in approving,this waiver/modification: no risk.
/-ref .�
Department Head ignature
6 12,6 /02
Date:
APPROVALS
Approvals must be obtaine in the order listed on this form. Two approvals are required
fora request to be grante . Approval from the City Administrator's Office is only required if
Risk M agement and the City Attorney's Office disagree.
1. Risk Management /
ff'Approved El Denied
Signature Date
2. City Attorneys Office
❑ Approved ❑ Denied ,y�-� -' b
Signature D afe
3. City Administrator's Office .
❑ Approved ❑ Denied
Signature Date
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
Document3 6/2012002 2:00 PM