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Resolution No. 86021 2 3 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8602 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A CONSULTING AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND JOE FURNISH FOR THE REAL ESTATE LAND ACQUISITION PROGRAM WHEREAS, the City of Vernon has determined that it needs the services of a consultant to assist the City with property valuations and land acquisition and/or sale of industrial real estate (hereinafter referred to as the "Real Estate Land Acquisition Program"); and WHEREAS, the City of Vernon desires to engage the services of Joe Furnish as a real estate consultant for matters concerning the Real Estate Land Acquisition Program; and WHEREAS, on November 17, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, the Director of Finance, dated November 10, 2004, that an agreement with Joe Furnish 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 a consulting agreement with Joe Furnish. 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 Consulting Agreement with Joe Furnish, in substantially 1 the same form as the copy which is attached hereto as Exhibit A and 2 incorporated by reference. 3 SECTION 3: The City Council of the City of Vernon hereby 4 authorizes the Mayor and the City Clerk to execute said Agreement for, 5 and on behalf of, the City of Vernon. 6 SECTION 4: The City Council of the City of Vernon hereby 7 directs the City Clerk, or his designee, to send one fully executed 8 Agreement to: 9 Joe Furnish 4100 West Alameda Avenue, Suite 103 10 Burbank, CA 91505 11 SECTION 5: The City Clerk of the City of Vernon shall 12 certify to the passage of this resolution, and thereupon and 13 thereafter the same shall be in full force and effect. 14 APPROVED AND ADOPTED this 17th day of November, 2004. 15 16 17 = LEONIS C. MALB RG, Ma or ATTES 18-�' _ 19 BRUCE V. MALKENHORST, City Clerk 20 21 22 23 24 25 26 27 28 2 - 11 2i 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 STATE 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. 8602, 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 17, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 3 - EXHIBIT VA, CONSULTING AGREEMENT This Agreement, executed this 17th day of November, 2004, is entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes, by and between the City of Vernon ("the City") and Joe Furnish ("Furnish"), 4100 West Alameda Avenue, Suite 103, Burbank, CA 91505. WHEREAS, the City is in need of obtaining expert industrial real estate advice concerning appropriate property valuations and assistance in land acquisitions; and WHEREAS, Furnish is experienced in industrial real estate transactions; and WHEREAS, City desires to obtain the services of Furnish to provide and assist the City in the acquisition and/or sale of industrial real estate in Vernon. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: Scope of Services. The City retains Furnish to act as a consultant to represent the City in the acquisition of properties within the City of Vernon on a month -to -month basis. Fumish's scope of services shall be assigned by the City Administrator and/or his designee, and may include, but not be limited to, the following services: (a) Providing market information, negotiation of business terms including purchase price and transaction timeliness, supervision of the escrow transfer process, review of title insurance documentation, review of environmental and soils Phase 1 and Phase 2 reports, review of construction and development analysis, in order to assist the City in the acquisition process; and (b) Conducting a review of industrial real estate sites located in the City and making recommendations on potential sites for possible acquisition by the City; 2. Term. The term of this Agreement shall commence on November 17, 2004 and shall continue through November 17, 2005, with an option to renew said Agreement on a year- to-year basis on the same terms and conditions as prescribed in this Agreement, subject to City's right to terminate the services provided for herein on thirty (30) days written notice. 3. Compensation. City shall pay Furnish a monthly fee of Twelve Thousand Five Hundred Dollars ($12,500) for the duration of this agreement. The first month's payment of Twelve Thousand Five Hundred Dollars ($12,500) shall accompany this Agreement. Thereafter, each month's payment of Twelve Thousand Five Hundred Dollars ($12,500) is agreed to be due and payable, without additional notice or demand, on or before the fifteenth (15t') day of each calendar month beginning on or before December 15, 2004. 4. Relationship of Parties. Furnish shall conform with any instruction given by City Administrator or his designee to Furnish from time to time and may not make any representation, promise, contract, agreement or do any other act binding City. City is not responsible for any act or failure to act by Furnish in excess of or contrary to City's instruction. Except as the City may specify in writing, Furnish shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Furnish shall have no authority, express or implied, pursuant to this Agreement to bind the City to any obligation whatsoever. All negotiations with respect to any industrial real estate shall only be undertaken pursuant to written instructions given by City. Furnish shall have permission to contact respective property owners on behalf of City to solicit sales or purchase information on behalf of City. Indemnification. During the term of this agreement, the City agrees to indemnify and defend Furnish against any and all claims made by third parties as a result of any lawful activity engaged in by Furnish hereunder with the prior consent and approval of the City. Conversely, Furnish agrees to indemnify and defend against any and all claims made by third parties as a result of any activity engaged in by Furnish without the prior consent and approval of the City. 6. Interests of Furnish. Furnish affirms that he presently has no interest and shall not have any interest, direct or indirect in any real property in the City or any other interest, which would conflict in any manner with performance of the services contemplated by this Agreement. No person having such interest shall be employed by or be associated with Furnish. 7. Products of Consultine. All documents, data, studies, drawings, models, and reports prepared by Furnish under this Agreement, with the exception of Confidential Information provided by businesses located in City, shall be considered the property of City. All such information prepared or assembled by Furnish in connection with the performance of his services pursuant to this Agreement is confidential until released by the City to the public and Furnish agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. Furnish shall deliver such documents and materials to the City as they are generated; however, Furnish 2 may take and retain copies of said documents and materials that are not confidential information, as desired. 8. Conflicts of Interest. In the event that a potential conflict should arise between the interests of the City and the interests of any one of Furnish' other clients, during Furnish' performance of services under this Agreement, Furnish shall notify City of such potential conflict. Notice of the existence of a potential conflict of interest shall be given in writing to 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 that give rise to the potential conflict. In the event that a potential conflict of interest is deemed by City to be an actual conflict of interest, City may, at its discretion, terminate this Agreement immediately. 9. Standard of Care. All of the work shall be performed by Furnish or under Furnish's supervision. Furnish represents that Furnish employs the professional and technical personnel required to perform the services required by the City and that Furnish possesses appropriate equipment to perform all services. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Furnish shall be responsible to City for any errors or omissions in the performance of this Agreement. Furnish represents and warrants that Furnish will keep in effect all licenses, permits, and other approvals required to perform the described services during the term of this Agreement, including any extensions thereto. 10. Confidential Information. a. Access to Confidential Information. City may provide Furnish with, or allow Furnish and/or its subcontractor with, or allow Furnish access to, certain information not available to the public concerning, but not limited to City, or businesses located in City. The information may include, but is not limited to, company information, taxes, sales, value of assets, utility usage, confidential policies, 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. b. No Disclosure. Except as expressly permitted, Furnish and/or its subcontractor 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 City. Furnish and/or its subcontractor shall return any written Confidential Information, and all copies made of such items, to City upon City's written request, but in any event not later than the date that the Furnish has performed all services to be performed pursuant to this Agreement. Furnish hereby agrees that such Confidential Information and any documents provided 3 may be used by Furnish and/or its subcontractor only as authorized by City. Furnish shall include a contract provision in its contract with subcontractors that binds the subcontractors to this non -disclosure requirement. Furnish shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. Furnish shall immediately notify City of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with legal counsel in responding to any such order or subpoena. Furnish may only disclose Confidential Information required to be disclosed pursuant to court order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge. d. Remedies. In addition to any other remedies that it may have at law or in equity, City shall be entitled to a temporary and permanent injunction by a court of competent jurisdiction against any breach or threatened breach of the Confidential Information provisions of this Agreement. Furnish acknowledges that in case of such breach or threatened breach of said provisions, City would have no adequate remedy at law. 11. Disputes. Any dispute that may arise as a result of actions by either party to this Agreement, if unresolved after 90 days, shall be presented to Judicial Arbitration and Medication Services, Inc. for resolution. Any costs of the arbitration hearing shall be borne by the party adjudged culpable. 12. Termination. This Agreement may be terminated by the City without cause on thirty (30) days written notice to Furnish. Furnish shall be entitled to the compensation earned by it prior to the date of the termination notice, computed on a pro rata basis up to and including the date of termination, plus any work authorized in the termination notice. 13. 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 Furnish: JOE FURNISH 4100 WEST ALAMEDA AVENUE BURBANK, CA 91505 4 14. General Provisions. a. Independent Contractor. At all times during the term of this Agreement, Furnish shall be an independent contractor and shall not be an employee of City. City shall have the right to control Furnish only insofar as the results of Furnish' services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Furnish accomplishes services rendered pursuant to this Agreement except to the extent that such services involve the use of City property or Confidential Information. b. Furnish Not Agent. Except as City may specify in writing Furnish shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Furnish shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. C. Assignment and Subcontracting Prohibited. Furnish may not assign or subcontract any right or obligation of this Agreement except with the express written consent of City. Any other attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. d. Amendments. This Agreement may be modified or amended only by a written document executed by both Furnish and City and approved as to form by the City Attorney. e. Benefit Of Agreement. This Agreement shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns. f. Governing Law. The validity, interpretation and performance of this Agreement shall be controlled and construed under the laws of the State of California as enacted and in force at the time this Agreement is executed. g. Forum Selection. Any action brought relating to this Agreement shall be brought and held exclusively in a State Court in the County of Los Angeles, California. h. Entire Agreement. This Agreement is the entire agreement of the parties. Furnish represents that in entering into this Agreement, he has not relied on any previous representations or understandings of any kind or nature. i. Attorney's Fees. In the event that it becomes necessary for either party to this Agreement to enforce any of the provisions of this Agreement, the parties agree that a court of competent jurisdiction may determine and fix reasonable attorney's fees to be paid to the successful litigant. 5 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 written above. City of Vernon Joe Furnish, a Sole Proprietor LM LEONIS C. MALBURG Mayor ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, City Attorney Lo JOE FURNISH Cel SUPPORTING DOCUMENTS CONSULTING AGREEMENT This Agreement, executed this 17t' day of November, 2004, is entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes, by and between the City of Vernon ("the City") and Joe Furnish ("Furnish"), 4100 West Alameda Avenue, Suite 103, Burbank, CA 91505. WHEREAS, the City is in need of obtaining expert industrial real estate advice concerning appropriate property valuations and assistance in land acquisitions; and WHEREAS, Furnish is experienced in industrial real estate transactions; and WHEREAS, City desires to obtain the services of Furnish to provide and assist the City in the acquisition and/or sale of industrial real estate in Vernon. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Scope of Services. The City retains Furnish to act as a consultant to represent the City in the acquisition of properties within the City of Vernon on a month -to -month basis. Furnish's scope of services shall be assigned by the City Administrator and/or his designee, and may include, but not be limited to, the following services: (a) Providing market information, negotiation of business terms including purchase price and transaction timeliness, supervision of the escrow transfer process, review of title insurance documentation, review of environmental and soils Phase 1 and Phase 2 reports, review of construction and development analysis, in order to assist the City in the acquisition process; and (b) Conducting a review of industrial real estate sites located in the City and making recommendations on potential sites for possible acquisition by the City; 2. Term. The term of this Agreement shall commence on November 17, 2004 and shall continue through November 17, 2005, with an option to renew said Agreement on a year- to-year basis on the same terms and conditions as prescribed in this Agreement, subject to City's right to terminate the services provided for herein on thirty (30) days written notice. 3. Compensation. City shall pay Furnish a monthly fee of Twelve Thousand Five Hundred Dollars ($12,500) for the duration of this agreement. The first month's payment of Twelve Thousand Five Hundred Dollars ($12,500) shall accompany this Agreement. Thereafter, each month's payment of Twelve Thousand Five Hundred Dollars ($12,500) is agreed to be due and payable, without additional notice or demand, on or before the fifteenth (151h) day of each calendar month beginning on or before December 15, 2004. 4. Relationship of Parties. Furnish shall conform with any instruction given by City Administrator or his designee to Furnish from time to time and may not make any representation, promise, contract, agreement or do any other act binding City. City is not responsible for any act or failure to act by Furnish in excess of or contrary to City's instruction. Except as the City may specify in writing, Furnish shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Furnish shall have no authority, express or implied, pursuant to this Agreement to bind the City to any obligation whatsoever. All negotiations with respect to any industrial real estate shall only be undertaken pursuant to written instructions given by City. Furnish shall have permission to contact respective property owners on behalf of City to solicit sales or purchase information on behalf of City. 5. Indemnification. During the term of this agreement, the City agrees to indemnify and defend Furnish against any and all claims made by third parties as a result of any lawful activity engaged in by Furnish hereunder with the prior consent and approval of the City. Conversely, Furnish agrees to indemnify and defend against any and all claims made by third parties as a result of any activity engaged in by Furnish without the prior consent and approval of the City. 6. Interests of Furnish. Furnish affirms that he presently has no interest and shall not have any interest, direct or indirect in any real property in the City or any other interest, which would conflict in any manner with performance of the services contemplated by this Agreement. No person having such interest shall be employed by or be associated with Furnish. 7. Products of Consultiniz. All documents, data, studies, drawings, models, and reports prepared by Furnish under this Agreement, with the exception of Confidential Information provided by businesses located in City, shall be considered the property of City. All such information prepared or assembled by Furnish in connection with the performance of his services pursuant to this Agreement is confidential until released by the City to the public and Furnish agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. Furnish shall deliver such documents and materials to the City as they are generated; however, Furnish 2 may take and retain copies of said documents and materials that are not confidential information, as desired. 8. Conflicts of Interest. In the event that a potential conflict should arise between the interests of the City and the interests of any one of Furnish' other clients, during Furnish' performance of services under this Agreement, Furnish shall notify City of such potential conflict. Notice of the existence of a potential conflict of interest shall be given in writing to 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 that give rise to the potential conflict. In the event that a potential conflict of interest is deemed by City to be an actual conflict of interest, City may, at its discretion, terminate this Agreement immediately. 9. Standard of Care. All of the work shall be performed by Furnish or under Furnish's supervision. Furnish represents that Furnish employs the professional and technical personnel required to perform the services required by the City and that Furnish possesses appropriate equipment to perform all services. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Furnish shall be responsible to City for any errors or omissions in the performance of this Agreement. Furnish represents and warrants that Furnish will keep in effect all licenses, permits, and other approvals required to perform the described services during the term of this Agreement, including any extensions thereto. 10. Confidential Information. a. Access to Confidential Information. City may provide Furnish with, or allow Furnish and/or its subcontractor with, or allow Furnish access to, certain information not available to the public concerning, but not limited to City, or businesses located in City. The information may include, but is not limited to, company information, taxes, sales, value of assets, utility usage, confidential policies, 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. b. No Disclosure. Except as expressly permitted, Furnish and/or its subcontractor 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 City. Furnish and/or its subcontractor shall return any written Confidential Information, and all copies made of such items, to City upon City's written request, but in any event not later than the date that the Furnish has performed all services to be performed pursuant to this Agreement. Furnish hereby agrees that such Confidential Information and any documents provided 3 maybe used by Furnish and/or its subcontractor only as authorized by City. Furnish shall include a contract provision in its contract with subcontractors that binds the subcontractors to this non -disclosure requirement. Furnish shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. Furnish shall immediately notify City of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with legal counsel in responding to any such order or subpoena. Furnish may only disclose Confidential Information required to be disclosed pursuant to court order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge. d. Remedies. In addition to any other remedies that it may have at law or in equity, City shall be entitled to a temporary and permanent injunction by a court of competent jurisdiction against any breach or threatened breach of the Confidential Information provisions of this Agreement. Furnish acknowledges that in case of such breach or threatened breach of said provisions, City would have no adequate remedy at law. 11. Dis utes. Any dispute that may arise as a result of actions by either party to this Agreement, if unresolved after 90 days, shall be presented to Judicial Arbitration and Medication Services, Inc. for resolution. Any costs of the arbitration hearing shall be borne by the party adjudged culpable. 12. Termination. This Agreement may be terminated by the City without cause on thirty (30) days written notice to Furnish. Furnish shall be entitled to the compensation earned by it prior to the date of the termination notice, computed on a pro rata basis up to and including the date of termination, plus any work authorized in the termination notice. 13. Notices. Notices to the parries, 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 Furnish: JOE FURNISH 4100 WEST ALAMEDA AVENUE BURBANK, CA 91505 4 14. General Provisions. a. Independent Contractor. At all times during the term of this Agreement, Furnish shall be an independent contractor and shall not be an employee of City. City shall have the right to control Furnish only insofar as the results of Furnish' services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Furnish accomplishes services rendered pursuant to this Agreement except to the extent that such services involve the use of City property or Confidential Information. b. Furnish Not Agent. Except as City may specify in writing Furnish shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Furnish shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. C. Assipnent and Subcontracting Prohibited. Furnish may not assign or subcontract any right or obligation of this Agreement except with the express written consent of City. Any other attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. d. Amendments. This Agreement may be modified or amended only by a written document executed by both Furnish and City and approved as to form by the City Attorney. e. Benefit Of Agreement. This Agreement shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns. f. Governing Law. The validity, interpretation and performance of this Agreement shall be controlled and construed under the laws of the State of California as enacted and in force at the time this Agreement is executed. g. Forum Selection. Any action brought relating to this Agreement shall be brought and held exclusively in a State Court in the County of Los Angeles, California. h. Entire A eement. This Agreement is the entire agreement of the parties. Furnish represents that in entering into this Agreement, he has not relied on any previous representations or understandings of any kind or nature. i. Attorney's Fees. In the event that it becomes necessary for either party to this Agreement to enforce any of the provisions of this Agreement, the parties agree that a court of competent jurisdiction may determine and fix reasonable attorney's fees to be paid to the successful litigant. E 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 written above. City of Vernon By. _ R , �EONIS C. MALB G Mayor ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: C -'7a ERIC T. FRIESCH, INty Attorney 0 Joe Furnish, a Sole Proprietor