HomeMy WebLinkAboutTOM BAY SPEAKS UP INC. - 2002-03-05 Su x, ityy Contracts Checklist for Submittal to
City Clerk's Office
Hun ''Bea6*
(Please transmit this form when your contract is ready to be filed in the City Clerk's office) .
To: Connie Brockway, City Clerk
x5404
1. Name of Contractor:
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2. Purpose of Contract: For Example:Audit Services or Water Quality Testing Huntington Lake—Huntington Central Park
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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.
4. Amount of Contract:
A. Is the attached contract RELATED to a PREVIOUSLY SUBMITTED contract(renewal/amendment/etc)? ❑YES*NO
B. Did you attach the LIST OF CONSULTANTS from whom proposals were requested-pursuant to HBMC 3.03.100? ❑YES.4,N/A
OR Is the attached contract a SOLE SOURCE? M ,a.c4acla ,®YES❑NIA
C. Did you attach a COPY of the insurance certificate/waiver and send the ORIGINAL to Risk Management? ,4 YES
PLEASE INCLUDE: CITY CLERK'S OFF USE ONLY:
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PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
"TO bks
1 R �7 +
Table of Contents
1 Scope of Services.....................................................................................................1
2 City Staff Assistance................................................................................................2
3 Term; Time of Performance.....................................................................................2
4 Compensation..........................................................................................................2
5 Extra Work...............................................................................................................2
6 Method of Payment..................................................................................................3
7 Disposition of Plans, Estimates and Other Documents ...........................................3
8 Hold Harmless .........................................................................................................3
9 Professional Liability Insurance.............................................................................4
10 Certificate of Insurance............................................................................................5
11 Independent Contractor............................................................................................6
12 Termination of Agreement.......................................................................................6
13 Assignment and Delegation......................................................................................6
14 Copyrights/Patents...................................................................................................7
15 City Employees and Officials..................................................................................7
16 Notices.........................................................................................7
17 Consent....................................................................................................................8
18 Modification........................................................................................:....................8
19 Section Headings .....................................................................................................8
20 Interpretation of this Agreement..............................................................................8
21 Duplicate Original....................................................................................................9
22 Immigration...............................................................................................................9
23 Legal Services Subcontracting Prohibited................................................................9
24 Attorney's Fees..........................................................................................................10
25 Survival...................
............:.....................................................................................10
26 Governing Law.........................................................................:.........:.....................10
27 Entirety......................................................................................................................10
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
6�,��r ,\ke, U p I
VOR
THIS AGREEMENT ("Agreement") is made and entered into this }� day of
�u 6, , 2001-, by and between the City of Huntington Beach, a municipal
corporation of the State of California, hereinafter referred to as "CITY, and
j a � �'C�n 10►
hereinafter referred to as "CONSULTANT."
WHEREAS, CITY desires to engage the services of a consultant to
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 service 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 �1Clwsy� ,�p�o,,, 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 10/15/01 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 on D4,Le, 2_ , 2-col unless
sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be
completed no later than ; 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 writing 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 "B," a fee, including all costs and expenses, not to exceed
_5Ad6ucr iLw eun 4s;L Dollars ($ J2,,e'00.00
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/profscrv10/15/01 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 10/15/01 3
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.
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 ($1,000,000) 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
agree/forms/profsery 10/15101 4
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
shall:
A. provide the name and policy number of each carrier and policy;
B. shall state that the policy is currently in force; and
C. shall 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 indemnification and defense.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.
i
agree/forms/profserv10/15/01 5
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/profserv10/15/01 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 Inc,
ATTN: C-�rGi.ya� v
2000 Main Street
Huntington Beach, CA 92648 Coroo-Iti [k,l Oar CA
agree/forms/profservl0/15/01 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
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 or plural number
shall be deemed to include the other whenever the context so indicates or requires.
agree/forms/profservl0/15/01 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/fomis/profserv10/15/01 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 supercede all prior
agree/fomis/profscrv10/15101 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,
�S11pr�• 5��.�CS P vie, a municipal corporation of the State of California
M
By: Ti:/GM /y• Bi4 y Pair•b. (Pursuant ro HBMC§3.03.100)
print name
ITS: (circle one)Chairman Presiders Vice Pr s' ent APPROVED AS TO F>O
AND /
� -�'-6?- City Attorney
By: U A t,l N( T TC—R SdJ S.Y P �•�'
C6L"�<s'���7REVIEWED AND APPROVED:
tint name
ITS: (circle on creta Se Chief Financial Officer/Asst.
Secretary—Treasurer
City Administrator
(only for contracts over$50,000.00)
agree/forms/profscrvl0/15/01 1 1
EXHIBIT "A"
A. STATEMENT OF WORK: (Narrative of work to be performed)
Staff training and development.
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
1. Make presentations at the following events:
• Mid Management meeting on March 13, 2002
• Two (2) one-half day long workshops, date to be determined
• A workshop with the Administrative Services department not to exceed
two hours in length, date to be determined
C. CITY'S DUTIES AND RESPONSIBILITIES:
1. Arrange dates, facilities, and attendance for training sessions
D. WORK PROGRAM/PROJECT SCHEDULE:
To be determined.
jmp/contracts group/exA/l/18/02
• EXHIBIT "B" •
Payment Schedule
A. Hourl Rate:
CONSULTANT'S fees for such services shall be based upon the following cost schedule:
$2,500.00 at the conclusion of the mid-management presentation
$4,000.00 at the conclusion of each one-half day training session
$2,000.00 at the conclusion of the two-hour workshop with the Administrative Services
department
B. Travel
1. Charges for time during travel are not.
C. Billing
1. All billing shall be done at the completion of each of the presentations or workshops
detailed in section A.
2. CONSULTANT.shall submit to CITY an invoice for each payment due. Such invoice
shall:
A) Reference this Agreement;
B) Describe the services performed;
C) Show the total amount of the payment due.
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.
3. 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.
EXHIBIT B 1
su 6 INSURA CE AND INDEMNIFIC TION WAIVER
MODIFICATION REQUEST
1. Requested by: Pete Grant
2. Date: February 20, 2002
3. Name of contractor/permittee: Tom Bay Presents, Inc
4. Description of work to be performed: Training and Development -
5. Value and length of contract: $12,500: 180 days
6. Waiver/modification request: Professional liability insurance
7. Reason for request and why it should be granted: Contractor is a motivational speaker
and unable to provide
8. Identify the risks to the City in approving this waiver/modification: None
Z�� gm t 1. ,, 2/20/02
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 ,
Approved ❑ Denied
Signature Date
2. City Attorney's Office
Approved ❑.Denied V``°'�
Signature ate
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
nnnimantl 7/,2n/n7 A-9A PM
Su 11y
CITY OF HUNTINGTON BEACH
INTRADEPARTMENTAL COMMUNICATION
To: Connie Brockway, City Clerk
From: Peter Grant, Principal Administrative Analyst
'�', 9-,In—k
Date: March 6, 2002
Subject: Selection of Tom Bay Speaks Up, Inc
Tom Bay Speaks Up, Inc. was selected as a sole source vendor for customer service
training. Mr. Bay offers a unique and specific approach to training the city desires to
delivery to its employees.