Resolution No. 78511
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RESOLUTION NO. 7851
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT FOR CONSULTING SERVICES BY AND AMONG
THE CITY OF VERNON, THE REDEVELOPMENT AGENCY OF THE
CITY OF VERNON AND IVANHOE ENERGY SERVICES &
DEVELOPMENT, INC.
WHEREAS, the City of Vernon desires to retain the services of
a consultant to perform and provide assistance on issues relating to
municipal business and economic matters, especially municipal utility
and some redevelopment project issues; and
WHEREAS, David B. Brearley, a retired former City Attorney
of the City of Vernon and Legal Counsel of the Redevelopment Agency of
the City of Vernon (the "Agency"), founded and manages Ivanhoe Energy
Services & Development, Inc. ("Ivanhoe"), which provides consulting
services relating to municipal business and economic issues, including
matters relating to municipal utility and redevelopment issues; and
WHEREAS, on March 16, 1999, the City and Ivanhoe entered
into an Agreement for Consulting Services (hereinafter the "Initial
Agreement") under which Ivanhoe provided consulting services to the
City on municipal business, economic issues and redevelopment issues;
and
WHEREAS, on October 3, 2000, the City and Ivanhoe entered
into an Amendment No. One to the Initial Agreement which extended the
term of the Initial Agreement to October 31, 2001; and
WHEREAS, pursuant to Section IV of the Initial Agreement, on
or about August 22, 2001, the City provided Ivanhoe with written
notice of its intent to terminate the Initial Agreement; and
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WHEREAS, the Initial Agreement is due to expire on
October 31, 2001; and
WHEREAS, by letter dated October 11, 2001, Bruce V.
Malkenhorst, City Administrator/City Clerk, recommended that the City
Administrator be authorized to negotiate further the terms and
compensation of an agreement with Ivanhoe; and
WHEREAS, the City desires to engage Ivanhoe for the services
hereinabove described and to enter into a new agreement that will set
forth the terms and conditions of Ivanhoe's engagement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Agreement for Consulting Services with Ivanhoe Energy
Services & Development, Inc. and the Redevelopment Agency of the City
of Vernon, a copy of which is attached hereto as Exhibit "A" and made
a part hereof.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Agreement for,
and on behalf of, the City of Vernon.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement to:
Ivanhoe Energy Services & Development, Inca
Attn. David B. Brearley, President
2440 S. Hacienda Blvd., Suite No. 223
Hacienda Heights, CA 91745
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1 SECTION 5: The City Clerk of the City of Vernon shall
2 certify to the passage of this resolution, and thereupon and
3 thereafter the same shall be in full force and effect.
4 APPROVED AND ADOPTED this 17th day of October, 2001.
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6 LEONIS C. MALB G, May r
ATTEST:
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8 BRUCE V. MALKENHORST, City Clerk
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3 _
1 STATE OF CALIFORNIA }
2 } ss
COUNTY OF LOS ANGELES )
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4 I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
5 hereby certify that the foregoing Resolution, being Resolution No.
6 7851, was duly adopted by the City Council of the City of Vernon at a
7 regular meeting of the City Council duly held on Wednesday, October 17,
8 2001, and thereafter was duly signed by the Mayor of the City of
9 Vernon.
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BRUCE V. MALKENHORST, City Clerk
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13 (SEAL)
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EXHIBIT
0
EXECUTION COPY
AGREEMENT FOR CONSULTING SERVICES
BY AND AMONG THE CITY OF VERNON, THE REDEVELOPMENT AGENCY OF THE
CITY OF VERNON AND IVANHOE ENERGY SERVICES & DEVELOPMENT, INC.
THIS AGREEMENT FOR CONSULTING SERVICES (the "Agreement")
is made, entered into and executed in duplicate originals, either
copy of which may be considered and used as the original hereof
for all purposes, as of this-17tn day of October, 2001
BY THE CITY OF VERNON (hereinafter
referred to as the "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND THE REDEVELOPMENT AGENCY OF THE
CITY OF VERNON (hereinafter
referred to as the
"Agency")4305 Santa Fe Avenue
Vernon, CA 90058
AND IVANHOE ENERGY SERVICES &
DEVELOPMENT, INC. (hereinafter
referred to as the
"Consultant")
2440 South Hacienda Boulevard
*223
Hacienda Heights, CA 91745
D V('T TTT C
WHEREAS, David B. Brearley began serving the City as its
City Attorney on July 1, 1977; and
WHEREAS, David B. Brearley retired as City Attorney of
the City effective October 31, 1999, pursuant to the provisions of
the Public Employees Retirement System; and
WHEREAS, David B. Brearley upon his retirement became
subject to the provisions of Government Code Section 21224 which
limits his activities so that they shall not exceed 960 hours in
any calendar year; and
WHEREAS, David B. Brearley has created a Subchapter S
Corporation entitled Ivanhoe Energy Services & Development, Inc.,
incorporated on May 11, 1987; and
WHEREAS, David B. Brearley serves as the President and
chief consultant in said corporation and provides consulting
services related to municipal business and economic issues,
including matters related to municipal utility issues; and
WHEREAS, on March 16, 1999, the City, the Agency and the
Consultant entered into an Agreement for Consulting Services
(hereinafter the " Initial Agreement");and
WHEREAS, on October 3, 2000, the City, the Agency and the
Consultant entered into an Amendment No. One to the Initial
Agreement; and
WHEREAS, pursuant to Section IV of the Initial Agreement,
on or about August 22, 2001, the City and the Agency each provided
the Consultant with written notice of their intent to terminate
the Initial Agreement; and
WHEREAS, the City requires Consultant to perform and
provide assistance on issues related to municipal business and
economic matters and matters particularly related to municipal
utility issues; and
WHEREAS, the Agency requires Consultant to perform and
provide assistance on issues related to the redevelopment project
area located in the City; and
WHEREAS, Consultant is familiar not only with the issues
facing the City's municipal utilities, but also with the details
of their operations, as well as issues facing the Agency; and
WHEREAS, the City and the Agency desire to engage
EPM
Consultant for the services hereinabove described and to enter
into a new agreement that will set forth the terms and conditions
of Consultant's engagement; and
WHEREAS, the Consultant represents that he is qualified
to perform such service under this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS HEREINAFTER SET FORTH, THE PARTIES DO
MUTUALLY HEREBY AGREE AS FOLLOWS:
I. RETENTION
The City and the Agency hereby retain the services of the
Consultant upon the terms and conditions set forth herein.
II. SCOPE OF SERVICES
Consultant shall perform the requested services as
directed by the City Administrator of the City. Consultant shall
not work more than 35 hours in any calendar month during the term
of this Agreement, unless approved in advance by the City.
Consultant shall, at the direction of the City Administrator,
assist the City's Utilities Department, the City Attorney's office
or the Agency in the areas of:
A. Municipal utility issues;
B. Public works issues related to utilities;
C. Legislative issues related to utilities; and
D. Any other activities deemed appropriate and
reasonable by the City;and
E. Redevelopment issues.
All assignments undertaken by Consultant are to be
approved by the City Administrator the City Attorney before work
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is commenced to ensure the assignment is consistent with the
Consultant's Scope of Services. If requested by the City
Administrator or the City Attorney, the results of Consultant's
assignments and any recommendations provided to the City or the
Agency shall be in writing.
III. Public Employees Retirement Limitation
The City, the Agency and Consultant acknowledge that this
Agreement is subject to the provisions of Government Code Section
21224, which states in its entirety as follows:
"A retired person may serve without
reinstatement from retirement or loss or
interruption of benefits provided by this system
upon appointment by the appointing power of a
state agency or any other employer either during
an emergency to preventstoppageof public
business or because the retired employee has
skills needed in performing work of limited
duration. These appointments shall not exceed a
total for all employers of 960 hours in any
calendar year, and the rate of pay for the
employment shall not be less than the minimum,
nor exceed that paid by the employer to other
employees performing comparable duties."
IV. TERM OF AGREEMENT AND TIME OF PERFORMANCE
Consultant's services herewith shall commence on
November 1, 2001, and shall terminate on October 31, 2002, unless
otherwise terminated or extended.
V. COMPENSATION
1. Monthly Fee. The City shall compensate
Consultant for Consultant's obligation to provide the services
described herein the sum of Ten Thousand Dollars ($10,000) per
month payable as provided in Section VI.
2. Medical Insurance. The City shall provide
Consultant's President, David B. Brearley, with medical benefits
during the term of this Agreement. Such benefits shall include
one annual physical.
3. Expenses. In addition, directly related
expenses shall be reimbursed at cost. Such expenses may include:
non -local telephone calls, delivery, electronic data processing,
non -local facsimiles, graphics and printing.
4. Other Expenses. Other expenses may be
reimbursed but only if such other expenses have been given advance
approval by the City Administrator. Such other expenses may
include, but are not limited to, air fares, hotels, motels, video,
and promotional material and subcontract charges.
VI. METHOD OF PAYMENT
1. The City or the Agency shall pay Consultant the
total sum of Ten Thousand Dollars ($10,000.00) per month for the
obligation to provide the services set forth in the Scope of
Services by Consultant's President Mr. Brearley during the term of
this Agreement. Such compensation shall be paid on a deferred
basis in accordance with the schedule provided for in the attached
Exhibit "A" which is incorporated herein as though fully set forth
at length.
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Within thirty- (30) days after the last day of any
calendar month in which services have been performed or costs
incurred hereunder, Consultant shall submit an invoice to the City
stating the amount of time worked by the Consultant during the
previous month. The hours spent on an assignment must be reported
for the month in which they were actually performed. If
Consultant does not work the entire 35 hours in any particular
month, Consultant's obligation to work the additional hours, up to
the 35-hour total, shall be carried over from month to month,
until such obligation is satisfied. Further, if Consultant, after
obtaining approval by the City, works more than the 35 hours
required in any particular month, Consultant will be allowed to
offset the additional amount of time worked against the 35 hour
requirement for the next month.
VII. CHANGES AND EXTRA SERVICES
The City and Consultant may request additional services
to be performed by the Consultant. All such requests shall be
incorporated in written change orders executed by the City and the
Consultant that shall specify the changes requested and the
adjustment of compensation and completion time required thereof.
Any services added to the scope of this Agreement by a
change order shall be consistent with other applicable conditions
of this Agreement and shall not cause Consultant's obligation to
exceed thirty-five (35) hours per month.
VIII. CONFIDENTIAL INFORMATION
1. Access to Confidential Information. The City
may provide Consultant with, or allow Consultant access to,
certain information not available to the public concerning the
Q.
City, or businesses located in the City. The information may
include company information, taxes, sales, value of assets, or
other such information. All such information shall be known as
"Confidential Information" and may not be used to circumvent the
responsibility of either party to this Agreement.
2. No Disclosure. Except as expressly permitted,
Consultant shall not disclose, permit the disclosure.of, release,
disseminate, or transfer, whether orally or by any other means,
any part of such Confidential Information to any other person or
entity, whether corporate, governmental, or individual, without
the express prior written consent of an authorized representative
of the City. Consultant shall return any written Confidential
Information, and all copies made of such items, to the City upon
the City's written request, but in any event not later than the
date that the Consultant has performed all services to be
performed pursuant to this Agreement. Consultant hereby agrees
that such Confidential Information and any documents provided may
be used by Consultant only as authorized by the City. Consultant
shall take reasonable measures to avoid any disclosure of any such
Confidential Information to any unauthorized person.
3. Court Ordered Disclosure. Consultant shall
immediately notify the City of any court order or subpoena
requiring disclosure of Confidential Information, and shall
cooperate with City Attorney in the appeal or challenge of any
such order or subpoena. Recipient may only disclose Confidential
Information required to be disclosed pursuant to court order or
subpoena after the City has exhausted any lawful and timely appeal
or challenge.
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4. Remedies. In addition to any other remedies
that it may have at law or in equity, the City shall be entitled
to apply to a court of competent jurisdiction for a temporary
and/or permanent injunction against any breach or threatened
breach of the Confidential Information provisions of this
Agreement. Consultant acknowledges that in case of such breach or
threatened breach of said provisions, the City would have no other
adequate remedy at law.
IX. CONFLICT OF INTEREST
In the event that a potential conflict should arise
between the interests of the City and the interests of any other
client of the Consultant, during the Consultant's performance of
services under this Agreement, the Consultant shall notify the
City of the potential conflict. Notice of the existence of a
potential conflict of interest shall be given in writing to the
City within ten (10) days of the perceived conflict. The conflict
of interest letter shall specify when the potential conflict
arose, the identity of the other party(ies) and the facts, which
give rise to the potential conflict. In the event that a
potential conflict of interest is deemed by the City to be an
actual conflict of interest, the City may, at its discretion,
terminate this Agreement immediately.
X. GENERAL PROVISIONS
1. Independent Contractor. At all times during
the term of this Agreement, the Consultant shall be an independent
contractor and shall not be an employee of the City. The City
shall have the right to control the consultant only insofar as the
results of the Consultant's services rendered pursuant to this
Agreement; however, the City shall not have the right to control
the means by which the Consultant accomplishes services rendered
pursuant to the Agreement except to the extent that such services
involve the use of City property or Confidential Information.
2. Disputes. Any disputes that may arise under
this Agreement, if unresolved after 90 days, shall be presented to
an arbitrator to be mutually selected by the parties, or appointed
by a court of competent jurisdiction. Costs for the arbitration
shall be borne by the party deemed to be liable.
3. Consultant Not Agent. Except as the City may
specify in writing the Consultant, shall have no authority,
express or implied, to act on behalf of the City in any capacity
whatsoever as an agent. The Consultant shall have no authority,
expressed or implied, pursuant to this Agreement to bind the City
to any obligation whatsoever.
4. Validity. The validity, interpretation and
performance of this Agreement shall be controlled and construed
under the laws of the State of California.
5. Products of Consulting. All products of
consulting services shall become the property of the City and
shall be delivered to the City before the end of the performance
of this Agreement.
6. Assignment Prohibited. No party to this
Agreement may assign any right or obligation pursuant to this
Agreement except with the express written consent of the other
party. Any other attempted or purported assignment of any right
or obligation pursuant to this Agreement shall be void and of no
effect.
7. Termination. The City or Consultant may
terminate this Agreement by providing the other party with thirty-
(30) days written notice. Consultant shall be entitled to the
compensation earned by him prior to the date of the termination
notice, computed pro rata up to and including that date, plus
compensation for work performed during the thirty -day notice
period and authorized in the termination notice.
8. Notices. Notices to the parties unless
otherwise requested in writing shall be sent to:
CITY: THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
CITY ADMINISTRATOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
AGENCY THE REDEVELOPMENT AGENCY OF THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
EXECUTIVE DIRECTOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
CONSULTANT: IVANHOE ENERGY SERVICES & DEVELOPMENT, INC.
ATTN: DAVID B. BREARLEY
PRESIDENT
2440 SOUTH HACIENDA BOULEVARD, #223
HACIENDA HEIGHTS, CA 91745
Any such notices, demand, invoice and written
communications shall be (i)hand delivered, (ii) sent by facsimile
and mail, or (iii) sent by mail. Mail shall be conclusively
deemed to have been received by the addressee five (5) days after
the deposit thereof in the United States mail, postage prepaid and
properly addressed as noted above.
XI. ENTIRE AGREEMENT
This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties with respect to the
Bitola
subject matters herein. Each party to this Agreement acknowledges
that no representations have been made by any party which are not
embodied herein and that no other agreement, statement or promise
not contained in this Agreement shall be valid and binding. Any
modifications of this Agreement will be effective only if it is in
writing and signed by the parties hereto.
XII. BENEFIT OF AGREEMENT
This Agreement shall bind and benefit the parties hereto
and their heirs and successors.
XIII. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the City and the Consultant have
executed this Agreement as of the date first hereinabove set
forth.
THE CITY OF VERNON
BY:
LEONIS C. MALBURG, Mayor
ATTEST:
BY:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
BY:
EDUARDO OLIVO, City Attorney
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�'
., t
THE REDEVELOPMENT AGENCY OF THE
CITY OF VERNON
BY:
LEONIS C. MALBURG, Chairman
ATTEST:
BY:
BRUCE V. MALKENHORST, Secretary
APPROVED AS TO FORM:
BY:
EDUARDO OLIVO, Legal Counsel
IVANHOE ENERGY SERVICES &
DEVELOPMENT, INC.
BY:
DAVID B. BREARLEY, President
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EXHIBIT
FAW
EXHIBIT A
1. $10,000 NOVEMBER 2001
2.
$10,000
DECEMBER
2001
3.
$10,000
JANUARY
2002
4. $10,000 FEBRUARY 2002
5.
$10,000
MARCH
2O02
6.
$10,000
APRIL
2002
7.
$10,000
MAY
2002
8.
$10,000
JUNE
2002
9.
$10,000
JULY
2002
10.
$10,000
AUGUST
2002
11. $10,000 SEPTEMBER 2002
12. $10,000 OCTOBER 2002
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pay
$5,000 -
July
15,
2002
lb
pay
$5,000 -
August
15,
2002
2a
pay
$5,000 -
September
15,
2002
2b
pay
$5,000 -
October
15
2002
3a
pay
$5,000 -
November
15,
2002
3b
pay
$5,000 -
December
15,
2002
4a
pay
$5,000 -
January
15,
2003
4b
pay
$5,000 -
February
15,
2003
5a
pay
$5,000 -
March
15,
2003
5b
pay
$5,000 -
April
15,
2003
6a
pay
$5,000 -
May
15,
2003
6b
pay
$5,000 -
June
15,
2003
7a
pay
$5,000 -
July
15,
2003
7b
pay
$5,000 -
August
15,
2003
8a
pay
$5,000 -
September
15,
2003
8b
pay
$5,000 -
October
15,
2003
9a
pay
$5,000 -
November
15,
2003
9b
pay
$5,000 -
December
15,
2003
10a pay
$5,000 -
January
15,
2004
10b pay
$5,000 -
February
15,
2004
11a pay
$5,000 -
March
15,
2004
11b pay
$5,000 -
April
15,
2004
12a pay
$5,000 -
May
15,
2004
12b pay
$5,000 -
June
15,
2004