Resolution No. 80182
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RESOLUTION NO. 8018
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT FOR LEGAL CONSULTING SERVICES BY AND
AMONG THE CITY OF VERNON, THE REDEVELOPMENT AGENCY
OF THE CITY OF VERNON AND THE LAW OFFICES OF DAVID
B. BREARLEY
WHEREAS, the City of Vernon desires to retain the legal
consulting services of the Law Offices of David B. Brearley 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, ("Brearley") the retired former
City Attorney of the City of Vernon and Legal Counsel of the
Redevelopment Agency of the City of Vernon (the "Agency"), provides
legal consulting services relating to municipal business and economic
issues, including matters relating to municipal utility and
redevelopment issues; and
WHEREAS, the City Council has instructed Eduardo Olivo
("Olivo"), the City Attorney of the City of Vernon, to meet with
Brearley to discuss and negotiate on behalf of the City Council a
legal consulting services agreement to be managed, administered and
directed by Olivo; and
WHEREAS, the City Council hereby declares that it has not
discussed this matter with Bruce V. Malkenhorst, the City
Administrator/City Clerk; and
WHEREAS, Bruce V. Malkenhorst has previously informed the
City Council that he is disqualifying himself from participating in
any manner, in activities relating to the consideration and/or
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1 implementation of any contract by and between Brearley, the City of
2 Vernon, and the Agency; and
3 WHEREAS, Olivo, by letter dated July 3, 2002, has informed
4 the City Council that he has discussed and negotiated with Brearley a
5 legal consulting services agreement that he believes is fair and
6 reasonable and in accordance with his previous instructions from the
7 City Council and recommends approval of the proposed Agreement for
8 Legal Consulting Services, and further that he has not solicited nor
9 received any suggestions or guidance from Bruce V. Malkenhorst, City
10 Administrator/City Clerk, in respect to the "making" of a
11 recommendation for the Agreement; and
12 WHEREAS, the City of Vernon desires to engage Brearley for
13 legal consulting services and to enter into an agreement that will set
14 forth the terms and conditions of Brearley's engagement.
15 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
16 CITY OF VERNON AS FOLLOWS:
17 SECTION 1: The City Council of the City of Vernon hereby
18 finds and determines that the recitals contained hereinabove are true
19 and correct.
20 SECTION 2: The City Council of the City of Vernon hereby
21 declares that it has not requested and has not received any
22 information or assistance from Bruce V. Malkenhorst, City
23 Administrator/City Clerk, and is relying solely on the discussions
24 with Olivo concerning the negotiations with Brearley and is accepting
25 the recommendations of Olivo expressed in his letter to the City
26 Council dated July 3, 2002, concerning said negotiations.
27 SECTION 3: The City Council of the City of Vernon hereby
28 approves the Agreement for Legal Consulting Services with the Law
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1 Offices of David B. Brearley and the Redevelopment Agency of the City
2 of Vernon, a copy of which is attached hereto as Exhibit "A" and made
3 a part hereof.
4 SECTION 4: The City Council of the City of Vernon hereby
5 authorizes the Mayor and the City Clerk to execute said Agreement for,
6 and on behalf of, the City of Vernon.
7 SECTION 5: The City Council of the City of Vernon hereby
8 directs the City Clerk, or his designee, to send one fully executed
9 Agreement to:
10 Law Offices of David B. Brearley
Attn: David B. Brearley, Esq.
11 2440 S. Hacienda Blvd., Suite No. 223
12 Hacienda Heights, CA 91745
13 SECTION 6: The City Clerk of the City of Vernon shall
14 certify to the passage of this resolution, and thereupon and
15 thereafter the same shall be in full force and effect.
16 APPROVED AND ADOPTED this 3rd day of July, 2002.
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18
EONIS C. MAL URG, Ma or
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20 ATTEST:
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23 BRUCE V. MALKENHORST, City Clerk
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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 8018, 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, July 3,
8 2002, 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
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AGREEMENT FOR LEGAL CONSULTING SERVICES
BY AND AMONG THE CITY OF VERNON, THE REDEVELOPMENT AGENCY
OF THE CITY OF VERNON AND LAW OFFICES OF DAVID B. BREARLEY
THIS AGREEMENT FOR LEGAL 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 3rd day of July, 2002,
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 LAW OFFICES OF DAVID B. BREARLEY
(hereinafter referred to as
"Brearley")
2440 South Hacienda Blvd., 4223
Hacienda Heights, CA 91745
WHEREAS, David B. Brearley began serving the City as its City
Attorney on July , 1977; and
WHEREAS, David B. Brearley retired as City Attorney of the
City affective 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 for City and Agency so that they shall not exceed 960 hours
in any calendar year; and
WHEREAS, the City desires that Brearley perform and provide
1 assistance on issues related to municipal business and economic matters
2 and matters particularly related to City's municipal utilities; and
3 WHEREAS, the Agency desires Brearley to perform and provide
4 assistance on issues related to the redevelopment project area located
5 in the City; and
6 WHEREAS, Brearley is familiar not only with the issues facing
7 the City's municipal utilities, but also with the details of their
8 operations, as well as issues facing the Agency; and
9 WHEREAS, the City and the Agency desire to engage Brearley
10 for the services hereinabove described and to enter into an agreement
11 that will set forth the terms and conditions of Brearley's engagement;
12 and
13 WHEREAS, Brearley represents that he is qualified to perform
14 such services under this Agreement.
15 NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES,
16 COVENANTS AND CONDITIONS HEREINAFTER SET FORTH, THE PARTIES HERETO DO
17 MUTUALLY HEREBY AGREE AS FOLLOWS:
18 I. RETENTION.
19 The City and the Agency hereby retain the services of
20 Brearley upon the terms and conditions set forth herein.
21 II. SCOPE OF SERVICES
22 Brearley shall perform the requested services as directed by
23 the City Attorney of the City. Brearley shall not work more than 60
24 hours in any calendar month during the term of this Agreement, unless
25 approved in advance by the City Attorney. Brearley shall, at the
26 direction of the City Attorney, assist the City's Utilities Department,
27 the City Attorney's office or the Agency in the areas of:
28 A. Municipal utility issues;
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1 B. Public works issues related to utilities;
2 C. Legislative issues;
3 D. Any other activities deemed appropriate and reasonable
4 by the City; and
5 E. Redevelopment issues.
6 All assignments undertaken by Brearley are to be assigned and
7 approved by the City Attorney before work is commenced to ensure that
8 the assignment is consistent with Brearley's Scope of Services. If
9 requested by the City Attorney, the results of Brearley's assignments
10 and any recommendations provided to the City or the Agency shall be in
11 writing.
12 III. PUBLIC EMPLOYEES RETIREMENT LIMITATION
13 The City, the Agency and Brearley acknowledge that this
14 Agreement is subject to the provisions of Government Code Section
15 21224, which states in its entirety as follow:
16 "A retired person may serve without
17 reinstatement from retirement or loss or
18 interruption of benefits provided by this system
19 upon appointment by the appointing power of a
20 state agency or any other employer either during
21 an emergency to prevent stoppage of public business or
22 because the retired employee has skills needed in performing
23 work of limited duration. These appointments shall not
24 exceed a total for all employers of 960 hours in any
25 calendar year, and the rate of pay for the
26 employment shall not be less than the minimum, nor exceed nor
27 exceed that paid by the employer to other employees
28 performing comparable duties."
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1 IV. TERM OF AGREEMENT AND TIME OF PERFORMANCE
2 Brearley's services herewith shall commence on July 1, 2002,
3 and shall terminate on June 30, 2003, unless otherwise terminated or
4 extended.
5 V. COMPENSATION
6 1. Monthly Fee. The City shall compensate Brearley for
7 Brearley's obligation to provide the services described herein the sum
8 of Twenty Thousand Dollars ($20,000) per month payable as provided in
9 Section VI and, in addition thereto, pay Brearley an hourly fee of
10 Three Hundred Thirty-three Dollars and No Cents ($333.00) per hour for
11 all requested excess service hours, if any, performed in excess of the
12 Seven Hundred Twenty-(720) hour requirement for the twelve-(12) month
13 period. Brearley shall invoice the City for all such required excess
14 services hours after the expiration of the term of the Agreement (June
15 30, 2003).
16 2. Medical Insurance. The City shall provide Brearley
17 with medical benefits during the term of this Agreement. Such benefits
18 shall include one annual physical per calendar year.
19 3. Expenses. In addition, directly related expenses
20 shall be reimbursed at cost. Such expenses may include: non -local
21 telephone calls, delivery, electronic data processing, non -local
22 facsimiles, graphics and printing, or any earlier agreements. Such
23 benefits shall include one physical per calendar year.
24 4. Other Expenses. Other expenses may be reimbursed but
25 only if such other expenses have been given advance approval by the
26 City Attorney. Such other expenses may include, but are not limited
27 to, air fares, hotels, motels, video, and promotional material and
28 subcontract charges.
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1 VI. METHOD OF PAYMENT
2 1. The City or the Agency shall pay Brearley the total
3 sum of Twenty Thousand Dollars ($20,000.00) per month for the
4 obligation to provide the services set forth in the Scope of Services
5 by Brearley during the term of this Agreement. Such compensation shall'
6 be paid on a current and deferred basis in accordance with the schedule
7 provided for in the attached Exhibit "A: which is incorporated herein
8 as though fully set forth at length.
9 Within thirty- (30) days after the last day of any
10 calendar month in which services have been performed or costs incurred
11 hereunder, Brearley shall submit a report to the City Attorney stating
12 the amount of time worked by Brearley during the previous month. The
13 hours spent on an assignment must be reported for the month in which
14 they were actually performed. If Brearley does not work the entire 60
15 hours in any particular month, Brearley's obligation to work the
16 additional hours, up to the 60- hour total, shall be carried over from
17 month to month, until such obligation is satisfied. Further, if
18 Brearley, after obtaining approval from the City Attorney, works more
19 than the 60 hours required in any particular month, Brearley will be
20 allowed to offset the additional amount of time worked against the 60
21 hour requirement for the next month.
22 VII. CHANGES AND EXTRA SERVICES
23 The City and Brearley may request additional services to be
24 performed by Brearley. All such requests shall be incorporated in a
25 written change order or an amendment to this Agreement and executed by
26 the City Attorney and Brearley that shall specify the change requested
27 and the adjustment of compensation and completion time required
28 thereof, if any.
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1 Any services added to the scope of this Agreement by a change
2 order shall be consistent with other applicable conditions of this
3 Agreement and shall not cause Brearley's obligation to exceed 460 hours
4 for the period from July 1, 2002 through December 31, 2002 or 850 hours
5 from January 1, 2003 through June 30, 2003, unless consented to by
6 Brearley.
7 VIII. CONFIDENTIAL INFORMATION
8 1. Access to Confidential Information. The City may
9 provide Brearley with, or allow Brearley access to, certain information
10 not available to the public concerning the City, or businesses located
11 in the City. The information may include company information, taxes,
12 sales, value of assets, or other such information. All such
13 information shall be known as "Confidential Information" and may not be
14 used to circumvent the responsibility of either party to this
15 Agreement.
16 2. No Disclosure. Except as expressly permitted,
17 Brearley shall not disclose, permit the disclosure of, release,
18 disseminate, or transfer, whether orally or by any other means, any
19 part of such Confidential Information to any other person or entity,
20 whether corporate, governmental, or individual, without the express
21 prior written consent of an authorized representative of the City.
22 Brearley shall return any written Confidential Information, and all
23 copies made of such items, to the City upon the City's written request,
24 but in any event not later than the date that Brearley has performed
25 all services to be performed pursuant to this Agreement. Brearley
26 hereby agrees that such Confidential Information and any documents
27 provided may used by Brearley only as authorized by the City.
28 Brearley shall take reasonable measures to avoid any disclosure of any
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such Confidential Information to any unauthorized person.
3. Court -Ordered Disclosure. Brearley 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.
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. Brearley 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
Law Offices of David B. Brearley, during Brearley's performance of
services under this Agreement, Brearley 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.
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1 X. GENERAL PROVISIONS
2 1. Independent Contractor. At all times during the term
3 of this Agreement, Brearley shall be an independent contractor and
4 shall not be an employee of the City. The City shall have the right to
5 control Brearley only insofar as the results of Brearley's services
6 rendered pursuant to this Agreement; ;however, the City shall not have
7 the right to control the means by which Brearley accomplishes services
8 rendered pursuant to the Agreement except to the extent that such
9 services involve the use of City property or Confidential Information.
10 2. Disputes. Any disputes that may arise under this
11 Agreement, if unresolved after 90 days, shall be presented to an
12 arbitrator to be mutually selected by the parties, or appointed by a
13 court of competent jurisdiction. Costs for the arbitration shall be
14 borne by the party deemed to be liable.
15 3. Brearley Not Agent. Except as the City may specify in
16 writing, Brearley shall have no authority, express or implied, to act
17 on behalf of the City in any capacity whatsoever as an agent. Brearley
18 shall have no authority, expressed or implied, pursuant to this
19 Agreement to bind the City to any obligation whatsoever.
20 4. Validity. The validity, interpretation and
21 performance of this Agreement shall be controlled and construed under
22 the laws of the State of California.
23 5. Products of Consulting. All products of consulting
24 services shall become the property of the City and shall be delivered
25 to the City before the end of the performance of this Agreement.
26 6. Assignment Prohibited. No party to this Agreement
27 may assign any right or obligation pursuant to this Agreement except
28 with the express written consent of the other party. Any other
1 attempted or purported assignment of any right or obligation pursuant
2 to this Agreement shall be void and of no effect.
3 7. Termination. Neither the City nor Brearley may
4 terminate this agreement within one -hundred twenty (120) days after its
5 approval. Thereafter, the City or Brearley may terminate this
6 Agreement by providing the other party with thirty (30) days written
7 notice. Brearley shall be entitled to the compensation earned by him
8 prior to the date of the termination notice, computed pro rata up to
9 and including that date, plus compensation for work performed during
10 the thirty (30) day notice period and authorized in the termination
11 notice
12 8. Notices. Notices to the parties unless otherwise
13 requested in writing shall be sent to:
14 CITY: THE CITY OF VERNON
ATTN: EDUARDO OLIVO, ESQ.
15 CITY ATTORNEY
16 8255 FIRESTONE BLVD., #210
DOWNEY, CA 90241
17
AGENCY: THE REDEVELOPMENT AGENCY OF THE CITY OF VERNON
18 ATTN: EDUARDO OLIVO, ESQ.
19 LEGAL COUNSEL
8255 FIRESTONE BLVD., #210
20 DOWNEY, CA 90241
21 LEGAL CONSULTANT: LAW OFFICES OF DAVID B. BREARLEY
22 ATTN: DAVID B. BREARLEY, PRESIDENT
2440 SOUTH HACIENDA BLVD., 4223
23 HACIENDA HEIGHTS, CA 91745
24 Any such notices, demand, invoice and written communications
25 shall be (i) hand delivered, (ii) sent by facsimile and mail, or (iii)
26 sent by mail. Mail shall be conclusively deemed to have been received
27 by the addressee five (5) days after the deposit thereof in the United
28 States mail, postage prepaid and properly addressed as noted above.
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XI. ENTIRE AGREEMENT
This Agreement supersedes any and all other agreements, either
oral or in writing, between the parties with respect to the 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 Agency, and Brearley have
executed this Agreement as of the date first hereinabove set forth.
ATTEST:
BY:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
BY:
EDUARDO OLIVO, City Attorney
THE CITY OF VERNON
BY:
LEONIS C. MALBURG, Mayor
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a
ATTEST;
BY:
BRUCE V. MALIEN-HORST,
APPROVED AS To rmm,
BY:
EbU 10 OLIVO ,Legal 1
la1S d
Ill
THE REDEVELOPMENT AGENCY OF THE
CITY OF VERNON
j k�Y
LEONIS C. MALBUAG, Chairmar,
LAW OrFICES OF DAVID 3. BREAnEY
w
DAVID S. BRE',p►RLEY
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EXHIBIT A
2
LEGAL CONSULTING SERVICES AGREEMENT
JULY 1, 2002 - JUNE 30, 2003
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4
CURRENT
COMPENSATION EARNED
PAYMENTS
DEFERRED PAYMENTS
5
1.
$20,000
JULY
2002
-0-
la pay
$10,000 -
July 15, 2004
6
lb pay
$10,000 -
August 15, 2004
7
2.
$20,000
AUGUST
2002
-0-
2a pay
$10,000 -
September 15, 2004
2b pay
$10,000 -
October 15, 2004
8
3.
$20,000
SEPTEMBER
2002
-0-
3a pay
$10,000 -
November 15, 2004
9
3b pay
$10,000 -
December 15, 2004
10
4.
$20,000
OCTOBER
2002
-0-
4a pay
$10,000 -
January 15, 2005
4b pay
$10,000 -
February 15, 2005
11
5.
$20,000
NOVEMBER
2002
-0-
5a pay
$10,000 -
March 15, 2005`
12
5b pay
$10,000 -
April 15, 2005
13
6.
$20,000
DECEMBER
2002
$5,000 15fl'
6a pay
$ 7,500 -
May 15, 2005
DECEMBER 2002
6b pay
$ 7,500 -
June 15, 2005
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7.
$20,000
JANUARY
2003
$5,000 15'h
7a pay
$ 7,500 -
July 15, 2005
15
JANUARY 2003
7b pay
$ 7,500 -
August 15, 2005
16
8.
$20,000
FEBRUARY
2003
$5,000 15'h
8a pay
$ 7,500 -
September 15, 2005
FEBRUARY 2003
8b pay
$ 7,500 -
October 15, 2005
17
9.
$20,000
MARCH
2O03
$5,000 156'
9a pay
$ 7,500 -
November 15, 2005
18
MARCH 2O03
9b pay
$ 7,500 -
December 15, 2005
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10.
$20,000
APRIL
2003
$5,000 15t'
10a pay
$ 7,500 -
January 15, 2006
APRIL 2003
10b pay
$ 7,500 -
February 15, 2006
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11.
$20,000
MAY
2003
$5,000 15t'
1 la pay
$ 7,500 -
March 15, 2006
21
MAY 2003
I lb pay
$ 7,500 -
April 15, 2006
22
12.
$20,000
JUNE
2003
$5,000 15t'
12a pay
$ 7,500 -
May 15, 2006
JUNE 2003
12b pay
$ 7,500 -
June 15, 2006
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A -
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SUPPORTING
DOCUMENTS
r,
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. `BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
City Council
City of Vernon
Honorable Members:
4305 SANTA FE AVEN UE, VERNON, CALIFUKNIA 90058
TELEPHONE (323) 583-8811
June 27, 2002
Oo/,/
Water
Police Chief
FAX: (323) 826-1481
Staff is advising that an agreement by and between the City of Vernon
and the Law Offices of David B. Brearley for consulting services be
entered into to include, but not limited to, utility matters. This has
been reviewed by the Director of Utilities and the City Attorney and
it is hereby recommended that the agreement be approved and executed.
BVM/gm
Very truly yours,
Bruce V. Malkenhorst
City Administrator/City Clerk
�Qni�yn�n�
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
July 3, 2002
Vernon City Council
CITY OF VERNON
4305 Santa Fe Avenue
Vernon, California 90058
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
Re: Legal Consulting Services Agreement by and between the
City Council and the Law Offices of David B. Brearley
Dear Vernon City Council:
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
At the City Council meeting on June 19, 2002, the City Council directed me to
enter into negotiations in connection with legal consulting services agreement between the City
and the Law Offices of David B. Brearley. I have now completed negotiations with Mr. Brearley
in connection with such agreement and have submitted a proposed agreement for your review
and consideration.
As you know, the Utilities Department is facing significant issues relating to
various FERC proceedings and other issues that continue to require expertise and institutional
knowledge. I believe that Mr. Brearley's services can be best utilized in this area. Based upon
Mr. Brearley's past performance and the expertise that he brings to the City on these matters, I
believe that the agreement terms are fair and reasonable. Therefore, I recommend that the
agreement be approved.
As you know, the City Administrator has disqualified himself from participating
in the negotiation of the contract. Therefore, pursuant to your prior direction, I have negotiated
directly with Mr. Brearley and am submitting this document directly to you for your
consideration. In that regard, I will request that the City Administrator recuse himself from any
participation during the discussion of this matter at the City Council meeting this evening.
Sincerely,
Eduardo Olivo
City Attorney