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Resolution No. 85871 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8587 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND J.D. HICKS & ASSOCIATES WHEREAS, the City needs the services of a firm to provide administrative services for the Malburg Generating Station Project as well as general services for the City Attorney's office; and WHEREAS, J.D. Hicks & Associates ("Hicks") has performed administrative and security services for the City in the past for the Malburg Generating Station ("MGS") Project, including 9/11 security requirements for the MGS Project pursuant to the California Energy Commission compliance regulations; and WHEREAS, on November 3, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, dated October 28, 2004, that an agreement with J.D. Hicks & Associates be approved and executed; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into an agreement with Hicks. 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approves the Services Agreement with J.D. Hicks & Associates, a copy of which is attached hereto as Exhibit A and incorporated by preference. 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: J.D. Hicks & Associates Attn. J.D. Hicks Corte Madera Plaza 21 Tamal Vista Blvd., Suite 172 Corte Madera, CA 94925 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 3Id day of November, 2004. ATTEST: BRUCE V. MALKENHORST, City Clerk LEONIS C. " LBURG, Mayor - 2 - ESTATE OF CALIFORNIA ss (COUNTY OF LOS ANGELES I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8587, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, November 3, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) P BRUCE V. MALKENHORST, City Clerk - 3 - EXHIBIT 0 SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND J.D. HICKS & ASSOCIATES This Services Agreement (this "Agreement') is made, entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for A purposes, as of November 4, 2004 (the "Execution Date'), in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058-0805 AND J.D. HICKS & ASSOCIATES (hereinafter referred to as "JDH"), a California limited liability company (in formation) Corte Madera Plaza 21 Tamal Vista Blvd., Suite 172 Corte Madera, CA 94925 RECITALS WHEREAS, the City desires to use the services of various qualified professionals, including but not limited to investigative, process, security and administrative consultants in connection with the City Attorney's Office and the development and construction of various capital projects, for the City; and WHEREAS, JDH has proposed to the City to perform the services described in the "Scope of Work", a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference (the "Scope Document") at the rates per hour and costs set forth in JDH's rate and expense schedule, a copy of which is attached hereto as Exhibit "B" and incorporated herein by this reference (the "Rate/Expense Schedule"); and WHEREAS, JDH represents that it is qualified to perform such services and is willing to render such services; and WHEREAS, based upon JDH's qualifications and the experience and expertise of its personnel, the City desires to engage the services of JDH to perform the services identified in the Scope Document. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET FORTH HEREIN; 01910/0001 90018.3 SCOPE OF SERVICES JDH shall initially perform the services outlined in the Scope Document. In the event of a conflict between the Scope Document and this Agreement, the terms of this Agreement shall prevail. Commencing on November 4, 2004, and thereafter on the first day of each month and on the last day of each month throughout the term of this Agreement, JDH shall deliver to the City a revised and updated Scope Document and Rate/Expense Schedule that sets forth the services to be performed during the upcoming 30 day period, the personnel to perform such services, the anticipated number of hours per person, the hourly rate for such personnel, reimbursable costs for such 30 day period, and any costs of subcontractors or outside consultants or service providers. If the City approves- the Scope Document and the Rate/Expense Schedule, the City shall provide funding for the services described therein at the cost described therein; provided, however, that the City may, in its sole discretion, limit the costs set forth therein and provide funding for only those specific personnel costs, reimbursable costs, and costs of subcontractors or outside consultants or service providers that it approves. The City shall deliver its approval of the Scope Document and Rate/Expense Schedule within 3 business days after receipt. The totality of all services provided by JDH under or in connection with this Agreement and the Project is referred to as the "Services". 2. PROGRESS REPORTS JDH shall provide written progress reports, as requested by the City, in order to advise the City, as quickly as reasonably possible, of significant milestones or conclusions within the scope of Services that will assist the City in making progress toward the completion of any capital projects. JDH shall also meet with the City staff, upon the City's request, or as needed, in order to provide reports or information concerning the Services being performed by JDH under this Agreement. 3. TERM AND TIME OF PERFORMANCE. JDH'S Services shall commence upon the Execution Date and shall be for an initial term of one year and shall continue on a year to year basis thereafter, terminable at any time thereafter upon 30 days' prior written notice. Any Services performed prior to the Execution Date shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. 4. COMPENSATION. 4.1 Rates and Exnenses. The City will compensate JDH for the Services in the amount of $37,820 per month plus the variable cost of the hourly personnel, as set forth in the Rate/Expense Schedule. JDH shall bill the City on a time and material basis for said hourly Personnel, throughout the term of this Agreement; provided, however, that the invoice for the applicable period shall not exceed the amounts approved by the City for that period pursuant to the submission and approval of the Scope Document and Rate/Expense Schedule as described in Section 1 above, subject to Sections 4.2 and 6 hereof. The City will reimburse JDH for costs incurred for office space, including its corporate offices to the extent used by the City Attorney's 01910/0001 90018.3 2 Office and for costs of necessary equipment (including furniture, fixtures, and equipment, such as copy machines, fax machines, and computer equipment) approved by the City. 4.2 Budgets and Additional Charges. The parties acknowledge that (a) some ofthe Services are to be performed on a time and materials basis based on the Services proposed in each Scope Document and the corresponding costs and expenses associated with such Services set forth in the Rate/Expense Schedule, (b) the Scope Document and Rate/Expense Schedule will be submitted every 30 days based on estimates of the number of hours for JDH's hourly component personnel required to complete all Services required during that 30 day period, and the estimated expenses associated therewith, and (c) if JDH becomes aware that such estimates are or become incorrect in any manner that is reasonably likely to require any increase in the estimated budgets for time or expenses set forth in the documents presented to the City pursuant to Section 1 (whether as a result of force majeure, Project delay, or other reason beyond the reasonable control of JDH), JDH will provide the City with written notice thereof, it being agreed that JDH shall have no right (and no obligation) to perform any Services in excess of the amounts approved by the City every 30 days pursuant to Section 1 above unless and until each of the parties have executed a Change Order in accordance with Section 6. 5. METHOD OF PAYMENT 5.1 Invoices. JDH shall submit on the first day of each month in which Services will be performed or costs incurred hereunder to the City. Invoices shall include the month for which Services were provided, the date of the Services, the name and title of the person providing the Services, monthly salary or the hourly rate of such person, the number of hours of Services provided, and a description of the Services provided, as well as the charges for any costs and expenses incurred in such month. Each invoice shall be in a form acceptable to the City and shall be accompanied by copies of the invoices, receipts, and such other evidence as the City may require to support the invoice. Invoices shall only include charges that have been approved by the City pursuant to Section 1 or to a Change Order. 5.2 Interim Payments. Payment of each invoice shall be made after acceptance and approval by the City, but not later than thirty (30) days following receipt (excluding only such amounts as are subject to a good faith dispute by the City). The City's approval of invoices shall not be unreasonably withheld. 6. CHANGE ORDERS 6.1 City Requests. The City reserves the right to request changes in the Services to be performed by JDH. All such changes shall be incorporated in written Change Orders executed by the City and JDH which shall specify the changes and the adjustment of compensation and completion time required therefor. 6.2 Change Orders. Any Services added to the scope of this Agreement by a Change Order shall be subject to all of the applicable terms and conditions of this Agreement. No change or Change Order shall be effective until mutually agreed and executed by both parties, and no claim for additional compensation or extension of time shall be recognized unless contained in a duly executed Change Order. 01910/000190018.3 3 7. PROPERTY OF THE CITY. 7.1 All documents, data, studies, surveys, drawings, maps, models, photographs, reports, specifications, calculations, notes, analyses, records, information, and other work product, in whatever form or medium, prepared or obtained by JDH in connection with any capital project, whether in draft or final form (collectively, "Work Product"), including (a) land plans, maps, engineering studies, soils studies, geological studies and other engineering information; (b) all documentation filed with a governmental or quasi -governmental agency, including, without limitation, applications, plans and specifications and environmental reports; and (c) all trademarks, copyright privileges, and other tangible and intangible rights attaching thereto, in the possession or under the control of JDH shall be deemed to be a "work made for hire" within the meaning of the Copyright Act and shall immediately be and become the sole and exclusive property of the City. JDH shall assign or otherwise transfer to the City, without charge, all Work Product and any and all warranties provided by any manufacturers or suppliers ofany materials, products, equipment, systems or other items purchased for or incorporated into any capital project. All Work Product shall be delivered to the City by JDH as generated; provided, however, that JDH may take and retain copies of such documents and materials as desired, subject to the confidentiality terms of Section 12 of this Agreement. JDH shall have no liability to the City for (and the City shall indemnify and hold JDH harmless from) any liabilities or damages arising out of the City's use of the Work Product for any purpose other than the Project as contemplated hereby. 8. PERSONNEL. 8.1 Personnel. All persons performing Services shall, at all times during which Services are being performed, have all necessary technical expertise, permits, professional or business licenses, certificates, training, and other qualifications required by this Agreement or any applicable laws. At any time and for any reason, the City may request that JDH replace any of JDH's personnel 8.2 Access. JDH shall comply with all reasonable access and other restrictions that the City may impose. No access for performance of the Services will be permitted prior to delivery to the City of proof of insurance maintained by JDH. 9. JDH's DUTIES AND REPRESENTATIONS. JDH represents, covenants and agrees as follows: 9.1 All Services performed hereunder, and all Work Product produced in connection with this Agreement by JDH shall be in strict conformity with all applicable governmental and quasi governmental regulations, statutes, ordinances, and permits, and will be accurate and free from material defects. 9.2 There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. 9.3 The Services performed hereunder shall be of the standard and quality which prevail among companies or entities who provide similar services throughout the United 4 01910/Ml 90018.3 States under the same or similar circumstances involving the design and construction of a project such as the Project. 9.4 JDH's duties as set forth herein shall at no time be in any way diminished by anon of any approval by the City of the deliverables or the Services nor shall JDH be released from any liability by reason of such approval by the City, it being understood that the Cityst all times is ultimately relying upon JDH's skills and knowledge. 9.5 JDH shall promptly pay all bills for labor and material performed and furnished by others in connection with the performance of the Services. 9.6 JDH shall furnish efficient business administration and perform the Services in an expeditious and economical manner consistent with the interests of the City. 9.7 JDH is authorized to do business in California and properly licensed and regidered by all necessary governmental and public and quasi -public authorities having jurisdiction over it and over the Services and the Project. 9.8 There is ho litigation pending against JDH and JDH is not the subject of any criminal investigation or proceeding, and neither JDH nor, to the actual knowledge of JDH's seniormanagement, any employee or representative of JDH, have been convicted of a felony. The Iitregoing representations shall survive any termination of this Agreement and are in addition to, and not in lieu of, any and all other liability imposed upon JDH by law with respect to JDH's duties, obligations and performance hereunder. 10. TERMINATION. 10.1 Termination Right. This is a one year Agreement that automatically renews each and every year on the execution date unless terminated by the City after one year with or without cause upon 30 days' prior written notice to JDH: In the event of such termination by the City, JDH shall be entitled to only the compensation earned by it prior to the date ofthe termination notice, Plus compensation for (i) necessary work performed during the 30 day notice period and authorized in the termination notice, and (ii) all costs reasonably and necessirily incurred by JDH to the date of the termination and in effectuating the termination. 10.2 Actions Subsequent to Termination Within three (3) business days after any termination of this Agreement, for any reason, by either party, with or without cause, JDH shall assign and deliver to the City all Work Product and any and all copies thereof, whether in the possession of JDH or a party engaged by JDH; provided, however, that JDH may retain copies as described in Section 7 above, subject to the terms of Section 12 hereof. JDH shall also fumiA all such information, take all such other action and shall cooperate with the City as the City reasonably requires in order to effectuate an orderly and systematic termination of JDH's duties and activities hereunder. All personal property (including capital equipment, hardware, trade and non -trade fixtures, materials and supplies) acquired pursuant to this Agreement, whether paid for directly by the City or by way of reimbursement to JDH, shall at all times be the personal property of the City and shall be returned to the City upon such termination. 0191ORM 90018.3 5 11. NOTICES. All notices, demands, approvals, and other communications provided for in this Agreement shall be in writing and shall be deemed received and effective (a) when delivered to the recipient; or (b) three (3) calendar days after deposit in a sealed envelope in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, addressed to the recipient as set forth below; or (c) upon receipt by fax, with confirmationof receipt. All notices to the City shall be sent to: City of Vernon Attn: Eric T. Fresch City Attorney 4305 Santa Fe Avenue Vernon, CA 90058-0805 All notices to JDH shall be sent to: J.D. Hicks & Associates Corte Madera Plaza 21 Tamal Vista Blvd., Suite 172 Corte Madera, CA 94925 If the date on which any notice to be given hereunder falls on a Saturday, Sunday, or legal holiday, then such date shall automatically be extended to the next business day immediately following such Saturday, Sunday or legal holiday. The foregoing addresses may be changed by notice given in accordance with this Section 11. 12. CONFIDENTIAL INFORMATION 12.1 Access to Confidential Information. The City may provide JDH with, or allow JDH access to, certain information not available to the public concerning the City or businesses located in the City or doing business with the City. The information may 'include information about companies located in or considering locating in the City, taxes, sales, value of assets, or other such information. For the purposes of this Agreement, "Confidential Information" includes any non-public data or information pertaining to the City or to any project, or business located in the City, considering locating in the City, or doing business with the City, whether oral or written or obtained through some other form or medium, that is provided by the City to JDH, including any copies thereof, and any information developed by JDH from such Confidential Information. Confidential Information shall not include any information (a) approved in writing by the City for release to third parties, (b) that JDH possesses independently of the City, (c) that the City places in the public domain, or (d) required to be disclosed by JDH in response to an order from a court, administrative agency, or other regulatory authority. 12.2 No Disclosure. JDH shall keep all Confidential Information of the City confidential, shall hold it in the strictest confidence, and shall not disclose, permit disclosure of,. release, disseminate, or transfer, whether orally or by any other means, any of the Confidential Information to any person or entity, without the express prior written consent of an authorized representative of -the City. JDH shall not make any unauthorized use of any Confidential 01910/0001 90018.3 6 Information. JDH shall ensure that each of its employees, agents, and subconsultants shall comply with the terms of this Section 12. JDH shall return any written or computerized Confidential Information and all copies made of such items to the City immediately upon the City's written request, but in any event not later than the date that JDH has performed all Services to be performed pursuant to this Agreement. JDH shall delete all computerized records from its computers and destroy its discs containing Confidential Information at the same time and on the same terms that all Confidential Information is to be returned to the City. 12.3 Court Ordered Disclosure. JDH shall immediately notify the City of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with the City's legal counsel in the appeal or challenge of any such order or subpoena. JDH may only disclose Confidential Information required to be disclosed pursuant to court order or subpoena after the City's legal counsel has exhausted any lawful and timely appeal or challenge. 12.4 Remedies. JDH acknowledges and agrees that a breach or threatened breach of Section 12 of this Agreement may result in irreparable harm to the City and that the City may have no adequate remedy at law. Therefore, in addition to any other remedies that it may have at law or in equity, the City shall be entitled to injunctive relief, including temporary and permanent injunctions, preventing any breach or threatened breach of the terms of this Section 12 without the need to post a bond or other security and without the need to prove damages. Nothing set forth herein shall affect the City's right to seek damages in the event of a breach of this Section 12. Agreement. 12.5 Survival. The terms of this Section 12 shall survive the termination of this 13. COMPLETION NOTICES If applicable, upon completion of the Services, JDH shall, and upon completion of any independently identifiable portion of the Services JDH may, notify the City in writing of the date of said completion and request confirmation of such completion by the City. Upon receipt of any such notice, the City shall promptly confirm to JDH in writing that the Services referred to in such notice were completed on the date indicated in said notice or provide JDH with a written listing of the Services not completed. With respect to Services listed by the City as incomplete, JDH shall complete such Services and the above acceptance procedure shall be repeated. 14. LIENS. JDH agrees to keep the City and all improvements on the Project free and clear of all Liens (as defined below) arising from the performance of any of the Services. JDH shall immediately discharge, bond over or otherwise cause to be removed any lien, claim, stop notice or other encumbrance made, recorded, or filed in connection with the Services or any work performed or materials provided by JDH's subcontractors, material suppliers, employees, agents, and other persons engaged by JDH (collectively, "Liens") and shall defend, indemnify and hold the City and its affiliates, and its agents, employees, directors, and officers (collectively, "Indemnified Parties") harmless from all claims, liabilities, damages, losses, costs or expenses (including without limitation attorneys' and experts' fees and costs) incurred in connection with any Liens. If any Lien is filed, the City shall have the right to withhold payment from JDH to the extent necessary to protect the City from any such liability, damage, cost or 01910/0001 90018.3 7 expense until the Lien has been removed or the City has received satisfactory assurances that it will suffer no liability, damage, cost or expense in connection with the Lien. 15. INSURANCE. When applicable and if required by the City, JDH shall carry Worhes Compensation Insurance in the amount of $100,000 and such other insurance as the City may require from time to time. 15.1 Policies. JDH shall provide to the City proof of insurance providing and maintaining the coverages and endorsements when required by the City. Said proof of insurance shall also provide that said policy or policies shall not be cancelled or materially reduced in coverage without giving at least ten (10) days' prior written notice to the City. JDH shall not permit a subcontractor or vendor to perform work on City premises unless and until a certificate. of insurance is obtained showing that such subcontractor or vendor has workers' compensation coverage. 15.2 Subcontractors. If the City permits JDH to employ subcontractors to perform part of the Services to be performed under the terms of this Agreement, JDH's protective coverage is required. JDH may include all subcontractors as insured under its own policy or shall furnish separate -insurance for each subcontractor, meeting the requirements set forth herein. 16. MISCELLANEOUS. 16.1 Successors and Assigns. JDH shall not assign or transfer its interest in this Agreement without the prior written consent of the City. A sale or transfer of stock shall constitute an assignment hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 16.2 Governing Law of the State of California. . This Agreement shall be governed by the internal laws 16.3 Jurisdiction and Venue. Any legal action or proceeding relating to this Agreement shall be submitted to the nonexclusive general jurisdiction of the.state and federal courts of the County of Los Angeles, California and the appellate courts from any thereof. JDH hereby consents to such jurisdiction and waives any objection that it may now or hereafter have (1) to the venue of any such action or proceeding in any such court, or (2) that such action or Proceeding was brought in an inconvenient forum and agrees not to plead or claim the same. JDH further agrees that nothing herein shall affect the right of the City to institute proceedings against JDH in the courts of other jurisdictions. 16.4 Attorneys' Fees. In the event of any action or proceeding by either party arising out of this Agreement, whether sounding in tort, contract or otherwise, the prevailing party in such action or proceeding shall be entitled to recover from the other party reasonable attorneys' fees and costs, whether or not such action or proceeding is pursued to a final judgment, in addition to any other relief rewarded by the Court. 01910/0001 90018.3 8 16.5 Indemnification. 16.5.1 To the fullest extent permitted by applicable law, JDH and its agents, partners, employees, and consultants (collectively "Indemnitor") agree to indemnify, protect, defend, and hold harmless the City and its representatives, agents, officers, directors, and employees (collectively the "Indemnified Parties") from and against all claims, damages, losses, liens, causes of action, suits, judgments and expenses, including reasonable attorney fees, of any nature, kind, or description (collectively "Claims") of any person or entity whomsoever arising out of, caused by, or resulting from the performance of the Services or any part thereof to the extent caused by the negligent act or omission or the willful misconduct of any Indemnitor. The indemnity set forth herein shall survive the termination of this Agreement and the completion of the Services provided hereunder. 16.6 Relationship of Parties. The relationship of JDH to the City shall be that Of an independent contractor. The City shall have the right to control JDH only insofar as the results of JDH's Services rendered pursuant to this Agreement; however, the City shall not have the right to control the means by which JDH accomplishes the Services except to the extent that such Services involve the use of City property or Confidential Information. Except as the City may specify in writing, JDH shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. JDH shall have no authority, express or implied, pursuant to this Agreement or otherwise, to bind the City to any obligation whatsoever. 16.7 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such provision shall be limited to the extent required to make the provision enforceable, and, if necessary, severed from the Agreement. Any such invalidity, illegality or unenforceability shall not affect any other provision hereof, all of which shall remain binding on the parties. 16.8 Counterparts and Facsimile. This Agreement may be executed in multiple counterparts and by facsimile. 16.9 Amendments. This Agreement may be modified or amended only by a written document executed by both JDH and the City and approved as to form by the City Attorney. 16.10 Entire Agreement. This Agreement is the entire agreement of the parties, and supersedes and replaces any prior or contemporaneous oral or written discussions, negotiations, and documents. Each party represents that in entering into this Agreement it has not relied on any previous representations or understandings of any kind or nature. 01910/0001 90018.3 9 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by and through their authorized officers on the date, month, and year first above written. CITY OF VERNON By: LEONIS C. MALBURG, Mayor ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRES H, City Attorney J.D. HICKS & ASSOCIATES By: .— J. S, Principal Exhibit A — Scope of Work Exhibit B - Rate/Expense Schedule SCOPE DOCUMENT Chief Investigator, City Attorney's Office 9/11 Security Personnel: Malburg Generation Station City Attorney's Office: process servers; investigation services; office support for City Attorney's office Capital Projects Administrative Support: Malburg Generation Station; New Fuels Renewable Resource Portfolio Project: Contracts Administrator Audit Support Personnel California Energy Commission Historical Facilities Compliance Officer Exhibit "A" RATE/EXPENSE SCHEDULE Chief Investigator $72.50/hour 9/11 Security Personnel $25.00/hour to $28.00/hour City Attorney's Office: Office Support Personnel $45.00/hour MGS Administrative: Contracts Administrator $40.90/hour Audit Support Personnel $15.90/hour CEC Historical Compliance Officer $24.00/hour Office Support, furniture, supplies estimate: $6,800 (one-time charge) $1,400 monthly Exhibit `V' SUPPORTING DOCUMENTS SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND J.D. HICKS & ASSOCIATES This Services Agreement (this "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 November 4, 2004 (the "Execution Date"), in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, CA 90058-0805 AND J.D. HICKS & ASSOCIATES (hereinafter referred to as "JDH"), a California limited liability company (in formation) Corte Madera Plaza 21 Tamal Vista Blvd., Suite 172 Corte Madera, CA 94925 RECITALS WHEREAS, the City desires to use the services of various qualified professionals, including but not limited to investigative, process, security and administrative consultants in connection with the City Attorney's Office and the development and construction of various capital projects for the City; and WHEREAS, JDH has proposed to the City to perform the services described in the "Scope of Work", a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference (the "Scope Document") at the rates per hour and costs set forth in JDH's rate and expense schedule, a copy of which is attached hereto as Exhibit `B" and incorporated herein by this reference (the "Rate/Expense Schedule"); and WHEREAS, JDH represents that it is qualified to perform such services and is willing to render such services; and WHEREAS, based upon JDH's qualifications and the experience and expertise of its personnel, the City desires to engage the services of JDH to perform the services identified in the Scope Document. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET FORTH HEREIN: 01910/0001 90018.3 SCOPE OF SERVICES. JDH shall initially perform the services outlined in the Scope Document. In the event of a conflict between the Scope Document and this Agreement, the terms of this Agreement shall prevail. Commencing on November 4, 2004, and thereafter on the first day of each month and on the last day of each month throughout the term of this Agreement, JDH shall deliver to the City a revised and updated Scope Document and Rate/Expense Schedule that sets forth the services to be performed during the upcoming 30 day period, the personnel to perform such services, the anticipated number of hours per person, the hourly rate for such personnel, reimbursable costs for such 30 day period, and any costs of subcontractors or outside consultants or service providers. If the City approves the Scope Document and the Rate/Expense Schedule, the City shall provide funding for the services described therein at the cost described therein; provided, however, that the City may, in its sole discretion, limit the costs set forth therein and provide funding for only those specific personnel costs, reimbursable costs, and costs of subcontractors or outside consultants or service providers that it approves. The City shall deliver its approval of the Scope Document and Rate/Expense Schedule within 3 business days after receipt. The totality of all services provided by JDH under or in connection with this Agreement and the Project is referred to as the "Services". 2. PROGRESS REPORTS. JDH shall provide written progress reports, as requested by the City, in order to advise the City, as quickly as reasonably possible, of significant milestones or conclusions within the scope of Services that will assist the City in making progress toward the completion of any capital projects. JDH shall also meet with the City staff, upon the City's request, or as needed, in order to provide reports or information concerning the Services being performed by JDH under this Agreement. 3. TERM AND TIME OF PERFORMANCE. JDH'S Services shall commence upon the Execution Date and shall be for an initial term of one year and shall continue on a year to year basis thereafter, terminable at any time thereafter upon 30 days' prior written notice. Any Services performed prior to the Execution Date shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. 4. COMPENSATION.. 4.1 Rates and Ex enses. The City will compensate JDH for the Services in the amount of $37,820 per month plus the variable cost of the hourly personnel, as set forth in the Rate/Expense Schedule. JDH shall bill the City on a time and material basis for said hourly personnel, throughout the term of this Agreement; provided, however, that the invoice for the applicable period shall not exceed the amounts approved by the City for that period pursuant to the submission and approval of the Scope Document and Rate/Expense Schedule as described in Section 1 above, subject to Sections 4.2 and 6 hereof. The City will reimburse JDH for costs incurred for office space, including its corporate offices to the extent used by the City Attorney's 2 01910/0001 90018.3 Office and for costs of necessary equipment (including furniture, fixtures, and equipment, such as copy machines, fax machines, and computer equipment) approved by the City. 4.2 Budgets and Additional Charges. The parties acknowledge that (a) some of the Services are to be performed on a time and materials basis based on the Services proposed in each Scope Document and the corresponding costs and expenses associated with such Services set forth in the Rate/Expense Schedule, (b) the Scope Document and Rate/Expense Schedule will be submitted every 30 days based on estimates of the number of hours for JDH's hourly component personnel required to complete all Services required during that 30 day period, and the estimated expenses associated therewith, and (c) if JDH becomes aware that such estimates are or become incorrect in any manner that is reasonably likely to require any increase in the estimated budgets for time or expenses set forth in the documents presented to the City pursuant to Section 1 (whether as a result of force majeure, Project delay, or other reason beyond the reasonable control of JDH), JDH will provide the City with written notice thereof, it being agreed that JDH shall have no right (and no obligation) to perform any Services in excess of the amounts approved by the City every 30 days pursuant to Section 1 above unless and until each of the parties have executed a Change Order in accordance with Section 6. 5. METHOD OF PAYMENT. 5.1 Invoices. JDH shall submit on the first day of each month in which Services will be performed or costs incurred hereunder to the City. Invoices shall include the month for which Services were provided, the date of the Services, the name and title of the person providing the Services, monthly salary or the hourly rate of such person, the number of hours of Services provided, and a description of the Services provided, as well as the charges for any costs and expenses incurred in such month. Each invoice shall be in a form acceptable to the City and shall be accompanied by copies of the invoices, receipts, and such other evidence as the City may require to support the invoice. Invoices shall only include charges that have been approved by the City pursuant to Section 1 or to a Change Order. 5.2 Interim Pavments. Payment of each invoice shall be made after acceptance and approval by the City, but not later than thirty (30) days following receipt (excluding only such amounts as are subject to a good faith dispute by the City). The City's approval of invoices shall not be unreasonably withheld. 6. CHANGE ORDERS. 6.1 CitRequests. The City reserves the right to request changes in the Services to be performed by JDH. All such changes shall be incorporated in written Change Orders executed by the City and JDH which shall specify the changes and the adjustment of compensation and completion time required therefor. 6.2 Change Orders. Any Services added to the scope of this Agreement by a Change Order shall be subject to all of the applicable terms and conditions of this Agreement. No change or Change Order shall be effective until mutually agreed and executed by both parties, and no claim for additional compensation or extension of time shall be recognized unless contained in a duly executed Change Order. 3 01910/0001 90018.3 7. PROPERTY OF THE CITY. 7.1 All documents, data, studies, surveys, drawings, maps, models, photographs, reports, specifications, calculations, notes, analyses, records, information, and other work product, in whatever form or medium, prepared or obtained by JDH in connection with any capital project, whether in draft or final form (collectively, "Work Product"), including (a) land plans, maps, engineering studies, soils studies, geological studies and other engineering information; (b) all documentation filed with a governmental or quasi -governmental agency, including, without limitation, applications, plans and specifications and environmental reports; and (c) all trademarks, copyright privileges, and other tangible and intangible rights attaching thereto, in the possession or under the control of JDH shall be deemed to be a "work made for hire" within the meaning of the Copyright Act and shall immediately be and become the sole and exclusive property of the City. JDH shall assign or otherwise transfer to the City, without charge, all Work Product and any and all warranties provided by any manufacturers or suppliers of any materials, products, equipment, systems or other items purchased for or incorporated into any capital project. All Work Product shall be delivered to the City by JDH as generated; provided, however, that JDH may take and retain copies of such documents and materials as desired, subject to the confidentiality terms of Section 12 of this Agreement. JDH shall have no liability to the City for (and the City shall indemnify and hold JDH harmless from) any liabilities or damages arising out of the City's use of the Work Product for any purpose other than the Project as contemplated hereby. 8. PERSONNEL. 8.1 Personnel. All persons performing Services shall, at all times during which Services are being performed, have all necessary technical expertise, permits, professional or business licenses, certificates, training, and other qualifications required by this Agreement or any applicable laws. At any time and for any reason, the City may request that JDH replace any of JDH's personnel. 8.2 Access. JDH shall comply with all reasonable access and other restrictions that the City may impose. No access for performance of the Services will be permitted prior to delivery to the City of proof of insurance maintained by JDH. 9. JDH's DUTIES AND REPRESENTATIONS. JDH represents, covenants and agrees as follows: 9.1 All Services performed hereunder, and all Work Product produced in connection with this Agreement by JDH shall be in strict conformity with all applicable governmental and quasi governmental regulations, statutes, ordinances, and permits, and will be accurate and free from material defects. 9.2 There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. 9.3 The Services performed hereunder shall be of the standard and quality which prevail among companies or entities who provide similar services throughout the United 4 01910/0001 90018.3 States under the same or similar circumstances involving the design and construction of a project such as the Project. 9.4 JDH's duties as set forth herein shall at no time be in any way diminished by reason of any approval by the City of the deliverables or the Services nor shall JDH be released from any liability by reason of such approval by the City, it being understood that the City at all times is ultimately relying upon JDH's skills and knowledge. 9.5 JDH shall promptly pay all bills for labor and material performed and furnished by others in connection with the performance of the Services. 9.6 JDH shall furnish efficient business administration and perform the Services in an expeditious and economical manner consistent with the interests of the City. 9.7 JDH is authorized to do business in California and properly licensed and registered by all necessary governmental and public and quasi -public authorities having jurisdiction over it and over the Services and the Project. 9.8 There is no litigation pending against JDH and JDH is not the subject of any criminal investigation or proceeding, and neither JDH nor, to the actual knowledge of JDH's senior management, any employee or representative of JDH, have been convicted of a felony. The foregoing representations shall survive any termination of this Agreement and are in addition to, and not in lieu of, any and all other liability imposed upon JDH by law with respect to JDH's duties, obligations and performance hereunder. 10. TERMINATION. 10.1 Termination Right. This is a one year Agreement that automatically renews each and every year on the execution date unless terminated by the City after one year with or without cause upon 30 days' prior written notice to JDH. In the event of such termination by the City, JDH shall be entitled to only the compensation earned by it prior to the date of the termination notice, plus compensation for (i) necessary work performed during the 30 day notice period and authorized in the termination notice, and (ii) all costs reasonably and necessarily incurred by JDH to the date of the termination and in effectuating the termination. 10.2 Actions Subsequent to Termination. Within three (3) business days after any termination of this Agreement, for any reason, by either party, with or without cause, JDH shall assign and deliver to the City all Work Product and any and all copies thereof, whether in the possession of JDH or a party engaged by JDH; provided, however, that JDH may retain copies as described in Section 7 above, subject to the terms of Section 12 hereof. JDH shall also furnish all such information, take all such other action and shall cooperate with the City as the City reasonably requires in order to effectuate an orderly and systematic termination of JDH's duties and activities hereunder. All personal property (including capital equipment, hardware, trade and non -trade fixtures, materials and supplies) acquired pursuant to this Agreement, whether paid for directly by the City or by way of reimbursement to JDH; shall at all times be the personal property of the City and shall be returned to the City upon such termination. 5 01910/0001 90018.3 11. NOTICES. All notices, demands, approvals, and other communications provided for in this Agreement shall be in writing and shall be deemed received and effective (a) when delivered to the recipient; or (b) three (3) calendar days after deposit in a sealed envelope in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, addressed to the recipient as set forth below; or (c) upon receipt by fax, with confirmation of receipt. All notices to the City shall be sent to: City of Vernon Attn: Eric T. Fresch City Attorney 4305 Santa Fe Avenue Vernon, CA 90058-0805 All notices to JDH shall be sent to: J.D. Hicks & Associates Corte Madera Plaza 21 Tamal Vista Blvd., Suite 172 Corte Madera, CA 94925 If the date on which any notice to be given hereunder falls on a Saturday, Sunday, or legal holiday, then such date shall automatically be extended to the next business day immediately following such Saturday, Sunday or legal holiday. The foregoing addresses may be changed by notice given in accordance with this Section 11. 12. CONFIDENTIAL INFORMATION. 12.1 Access to Confidential Information. The City may provide JDH with, or allow JDH access to, certain information not available to the public concerning the City or businesses located in the City or doing business with the City. The information may include information about companies located in or considering locating in the City, taxes, sales, value of assets, or other such information. For the purposes of this Agreement, "Confidential Information" includes any non-public data or information pertaining to the City or to any project, or business located in the City, considering locating in the City, or doing business with the City, whether oral or written or obtained through some other form or medium, that is provided by the City to JDH, including any copies thereof, and any information developed by JDH from such Confidential Information. Confidential Information shall not include any information (a) approved in writing by the City for release to third parties, (b) that JDH possesses independently of the City, (c) that the City places in the public domain, or (d) required to be disclosed by JDH in response to an order from a court, administrative agency, or other regulatory authority. 12.2 No Disclosure. JDH shall keep all Confidential Information of the City confidential, shall hold it in the strictest confidence, and shall not disclose, permit disclosure of, release, disseminate, or transfer, whether orally or by any other means, any of the Confidential Information to any person or entity, without the express prior written consent of an authorized representative of the City. JDH shall not make any unauthorized use of any Confidential 6 01910/0001 90018.3 Information. JDH shall ensure that each of its employees, agents, and subconsultants shall comply with the terms of this Section 12. JDH shall return any written or computerized Confidential Information and all copies made of such items to the City immediately upon the City's written request, but in any event not later than the date that JDH has performed all Services to be performed pursuant to this Agreement. JDH shall delete all computerized records from its computers and destroy its discs containing Confidential Information at the same time and on the same terms that all Confidential Information is to be returned to the City. 12.3 Court Ordered Disclosure. JDH shall immediately notify the City of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with the City's legal counsel in the appeal or challenge of any such order or subpoena. JDH may only disclose Confidential Information required to be disclosed pursuant to court order or subpoena after the City's legal counsel has exhausted any lawful and timely appeal or challenge. 12.4 Remedies. JDH acknowledges and agrees that a breach or threatened breach of Section 12 of this Agreement may result in irreparable harm to the City and that the City may have no adequate remedy at law. Therefore, in addition to any other remedies that it may have at law or in equity, the City shall be entitled to injunctive relief, including temporary and permanent injunctions, preventing any breach or threatened breach of the terms of this Section 12 without the need to post a bond or other security and without the need to prove damages. Nothing set forth herein shall affect the City's right to seek damages in the event of a breach of this Section 12. 12.5 Survival. The terms of this Section 12 shall survive the termination of this Agreement. 13. COMPLETION NOTICES. If applicable, upon completion of the Services, JDH shall, and upon completion of any independently identifiable portion of the Services JDH may, notify the City in writing of the date of said completion and request confirmation of such completion by the City. Upon receipt of any such notice, the City shall promptly confirm to JDH in writing that the Services referred to in such notice were completed on the date indicated in said notice or provide JDH with a written listing of the Services not completed. With respect to Services listed by the City as incomplete, JDH shall complete such Services and the above acceptance procedure shall be repeated. 14. LIENS. JDH agrees to keep the City and all improvements on the Project free and clear of all Liens (as defined below) arising from the performance of any of the Services. JDH shall immediately discharge, bond over or otherwise cause to be removed any lien, claim, stop notice or other encumbrance made, recorded, or filed in connection with the Services or any work performed or materials provided by JDH's subcontractors, material suppliers, employees, agents, and other persons engaged by JDH (collectively, "Liens") and shall defend, indemnify and hold the City and its affiliates, and its agents, employees, directors, and officers (collectively, "Indemnified Parties") harmless from all claims, liabilities, damages, losses, costs or expenses (including without limitation attorneys' and experts' fees and costs) incurred in connection with any Liens. If any Lien is filed, the City shall have the right to withhold payment from JDH to the extent necessary to protect the City from any such liability, damage, cost or 7 01910/0001 90018.3 expense until the Lien has been removed or the City has received satisfactory assurances that it will suffer no liability, damage, cost or expense in connection with the Lien. 15. INSURANCE. When applicable and if required by the City, JDH shall carry Worker's Compensation Insurance in the amount of $100,000 and such other insurance as the City may require from time to time. 15.1 Policies. JDH shall provide to the City proof of insurance providing and maintaining the coverages and endorsements when required by the City. Said proof of insurance shall also provide that said policy or policies shall not be cancelled or materially reduced in coverage without giving at least ten (10) days' prior written notice to the City. JDH shall not permit a subcontractor or vendor to perform work on City premises unless and until a certificate of insurance is obtained showing that such subcontractor or vendor has workers' compensation coverage. 15.2 Subcontractors. If the City permits JDH to employ subcontractors to perform part of the Services to be performed under the terms of this Agreement, JDH's protective coverage is required. JDH may include all subcontractors as insured under its own policy or shall furnish separate insurance for each subcontractor, meeting the requirements set forth herein. 16. MISCELLANEOUS. 16.1 Successors and Assigns. JDH shall not assign or transfer its interest in this Agreement without the prior written consent of the City. A sale or transfer of stock shall constitute an assignment hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 16.2 Governing Law. This Agreement shall be governed by the internal laws of the State of California. 16.3 Jurisdiction and Venue. Any legal action or proceeding relating to this Agreement shall be submitted to the nonexclusive general jurisdiction of the state and federal courts of the County of Los Angeles, California and the appellate courts from any thereof. JDH hereby consents to such jurisdiction and waives any objection that it may now or hereafter have (1) to the venue of any such action or proceeding in any such court, or (2) that such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same. JDH further agrees that nothing herein shall affect the right of the City to institute proceedings against JDH in the courts of other jurisdictions. 16.4 Attorneys' Fees. In the event of any action or proceeding by either party arising out of this Agreement, whether sounding in tort, contract or otherwise, the prevailing party in such action or proceeding shall be entitled to recover from the other party reasonable attorneys' fees and costs, whether or not such action or proceeding is pursued to a final judgment, in addition to any other relief rewarded by the Court. 01910/0001 90018.3 16.5 Indemnification. 16.5.1 To the fullest extent permitted by applicable law, JDH and its agents, partners, employees, and consultants (collectively "Indemnitor") agree to indemnify, protect, defend, and hold harmless the City and its representatives, agents, officers, directors, and employees (collectively the "Indemnified Parties") from and against all claims, damages, losses, liens, causes of action, suits, judgments and expenses, including reasonable attorney fees, of any nature, kind, or description (collectively "Claims") of any person or entity whomsoever arising out of, caused by, or resulting from the performance of the Services or any part thereof to the extent caused by the negligent act or omission or the willful misconduct of any Indemnitor. The indemnity set forth herein shall survive the termination of this Agreement and the completion of the Services provided hereunder. 16.6 Relationship of Parties. The relationship of JDH to the City shall be that of an independent contractor. The City shall have the right to control JDH only insofar as the results of JDH's Services rendered pursuant to this Agreement; however, the City shall not have the right to control the means by which JDH accomplishes the Services except to the extent that such Services involve the use of City property or Confidential Information. Except as the City may specify in writing, JDH shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. JDH shall have no authority, express or implied, pursuant to this Agreement or otherwise, to bind the City to any obligation whatsoever. 16.7 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such provision shall be limited to the extent required to make the provision enforceable, and, if necessary, severed from the Agreement. Any such invalidity, illegality or unenforceability shall not affect any other provision hereof, all of which shall remain binding on the parties. 16.8 Counterparts and Facsimile. This Agreement may be executed in multiple counterparts and by facsimile. 16.9 Amendments. This Agreement may be modified or amended only by a written document executed by both JDH and the City and approved as to form by the City Attorney. 16.10 Entire Agreement. This Agreement is the entire agreement of the parties, and supersedes and replaces any prior or contemporaneous oral or written discussions, negotiations, and documents. Each party represents that in entering into this Agreement it has not relied on any previous representations or understandings of any kind or nature. 9 01910/0001 90018.3 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by and through their authorized officers on the date, month, and year first above written. CITY OF VERNON By: GG EONIS C. MALB G, Mayo ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: 9 L� ':�K - ERIC T. FRE CH, City Attorney J.D. HICKS & ASSOCIATES By TD.kUWKS, Principal Exhibit A — Scope of Work Exhibit B - Rate/Expense Schedule SCOPE DOCUMENT Chief Investigator, City Attorney's Office 9/11 Security Personnel: Malburg Generation Station City Attorney's Office: process servers; investigation services; office support for City Attorney's office Capital Projects Administrative Support: Malburg Generation Station; New Fuels Renewable Resource Portfolio Project: Contracts Administrator Audit Support Personnel California Energy Commission Historical Facilities Compliance Officer Exhibit "A" RATE/EXPENSE SCHEDULE Chief Investigator $72.50/hour 9/11 Security Personnel $25.00/hour to $28.00/hour City Attorney's Office: Office Support Personnel $45.00/hour MGS Administrative: Contracts Administrator $40.90/hour Audit Support Personnel $15.90/hour CEC Historical Compliance Officer $24.00/hour Office Support, furniture, supplies estimate: $6,800 (one-time charge) $1,400 monthly Exhibit `B"