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Resolution No. 8617a t . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Norm 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8617 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 KRISHNA NAND WHEREAS, the City of Vernon has determined that it needs the services of a consultant to assist the City with regulatory compliance matters for the Malburg Generating Station Project and environmental remediation compliance matters for the City's Land Acquisition Program (hereinafter referred to as the "Compliance Services"); and WHEREAS, Krishna Nand ("Nand") is currently associated with the firm of Parsons Infrastructure & Technology, Inc., who has provided services to the Malburg Generating Station respecting cultural resources monitoring, environmental awareness program and regulatory compliance matters; and WHEREAS, Nand represents that he possesses the experience and expertise to provide the City with his Compliance Services; and WHEREAS, the City of Vernon desires to engage Nand for Compliance Services for matters based upon his expertise and familiarity with the City of Vernon; and WHEREAS, on December 14, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, the Director of Finance, dated December 9, 2004, that an agreement with Nand 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 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 necessity to enter into a consulting agreement with Nand. 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 Krishna Nand, in substantially the same form as the copy which is attached hereto as Exhibit A and incorporated by reference. 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: Krishna Nand 22811 Madrona Avenue Torrance, CA 90505 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 15th day of December, 2004. ATTES . BRUCE V. MALKENHORST, City Clerk LEONIS C. LBUR , Mayor 2 - 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 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. 8617, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, December 15, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 3 - EXHIBIT 0 CONSULTING AGREEMENT This Agreement, executed this 15t' day of December, 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 Krishna Nand ("Nand"), 22811 Madrona Avenue, Torrance, CA 90505. WHEREAS, the City is in need of obtaining expert regulatory compliance advice for the Malburg Generating Station Project and environmental remediation compliance advice for the City's Land Acquisition Program; and WHEREAS, Nand is experienced in regulatory compliance and environmental remediation compliance matters; and WHEREAS, City desires to obtain the services of Nand to provide and assist the City in regulatory and environmental remediation compliance matters. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: Scope of Services. The City retains Nand to act as a consultant to represent the City in regulatory and environmental remediation compliance matters on a month -to -month basis. Nand'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 information and advice to ensure timely compliance with all State and Federal regulatory matters to assist the City with its Malburg Generating Station Project; and (b) Providing information and advice to ensure timely compliance with environmental remediation matters in order to assist the City in its Land Acquisition Program. 2. Term. The term of this Agreement shall initially be for two (2) years and shall commence on March 1, 2005, and shall continue through February 28, 2007. Thereafter, this Agreement shall automatically renew on a year-to-year basis on the same terms and conditions as prescribed in this Agreement, unless the City gives Nand thirty (30) days written notice to terminate this Agreement on each February 1 thereafter. Compensation. City shall pay Nand a monthly fee of Eleven Thousand Five Hundred Dollars ($11,500) for the duration of this agreement. The first month's payment of Eleven Thousand Five Hundred Dollars ($11,500) shall accompany this Agreement. Thereafter, each month's payment of Eleven Thousand Five Hundred Dollars ($11,500) is agreed to be due and payable, without additional notice or demand, on or before the fifteenth (15ch) day of each calendar month beginning on or before January 15, 2005. 4. Relationship of Parties. Nand shall conform with any instruction given by City Administrator or his designee to Nand 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 Nand in excess of or contrary to City's instruction. Except as the City may specify in writing, Nand shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Nand 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. Nand 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 Nand against any and all claims made by third parties as a result of any lawful activity engaged in by Nand hereunder with the prior consent and approval of the City. Conversely, Nand agrees to indemnify and defend against any and all claims made by third parties as a result of any activity engaged in by Nand without the prior consent and approval of the City. 6. Interests of Nand. Nand 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 Nand. 7. Products of Consulting. All documents, data, studies, drawings, models, and reports prepared by Nand 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 Nand in connection with the performance of his services OA pursuant to this Agreement is confidential until released by the City to the public and Nand agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. Nand shall deliver such documents and materials to the City as they are generated; however, Nand 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 Nand's other clients, during Nand's performance of services under this Agreement, Nand 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 ofthe 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 Nand or under Nand's supervision. Nand represents that Nand employs the professional and technical personnel required to perform the services required by the City and that Nand 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. Nand shall be responsible to City for any errors or omissions in the performance of this Agreement. Nand represents and warrants that Nand 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 Nand with, or allow Nand and/or its subcontractor with, or allow Nand 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, Nand 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. Nand 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 Nand has performed all services to be performed pursuant to this Agreement. Nand hereby agrees that such Confidential Information and any documents provided may be used by Nand and/or its subcontractor only as authorized by City. Nand shall include a contract provision in its contract with subcontractors that binds the subcontractors to this non -disclosure requirement. Nand shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. Nand 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. Nand 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. Nand 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. During the first two (2) yeas of this Agreement, this Agreement may only be terminated by the City for cause on thirty (30) days written notice to Nand. Nand 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 Nand: KRISHNA NAND, PH.D., Q.E.P. 22811 Madrona Avenue Torrance, CA 90505 14. General Provisions. a. Independent Contractor. At all times during the term of this Agreement, Nand shall be an independent contractor and shall not be an employee of City. City shall have the right to control Nand only insofar as the results of Nand's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Nand accomplishes services rendered pursuant to this Agreement except to the extent that such services involve the use of City property or Confidential Information. b. Nand Not Agent. Except as City may specify in writing Nand shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Nand shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. C. Assijznment and Subcontracting Prohibited. Nand 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 Nand 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 L . 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. Nand 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. 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 Krishna Nand, a Sole Proprietor By: LEONIS C. MALBURG KRISHNA NAND Mayor ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, City Attorney r SUPPORTING DOCUMENTS CONSULTING AGREEMENT This Agreement, executed this 15`h day of December, 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 Krishna Nand ("Nand"), 22811 Madrona Avenue, Torrance, CA 90505. WHEREAS, the City is in need of obtaining expert regulatory compliance advice for the Malburg Generating Station Project and environmental remediation compliance advice for the City's Land Acquisition Program; and WHEREAS, Nand is experienced in regulatory compliance and environmental remediation compliance matters; and WHEREAS, City desires to obtain the services of Nand to provide and assist the City in regulatory and environmental remediation compliance matters. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Scope of Services. The City retains.Nand to act as a consultant to represent the City in regulatory and environmental remediation compliance matters on a month -to -month basis. Nand'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 information and advice to ensure timely compliance with all State and Federal regulatory matters to assist the City with its Malburg Generating Station Project; and (b) Providing information and advice to ensure timely compliance with environmental remediation matters in order to assist the City in its Land Acquisition Program. 2. Term. The term of this Agreement shall initially be for two (2) years and shall commence on March 1, 2005, and shall continue through February 28, 2007. Thereafter, this Agreement shall automatically renew on a year-to-year basis on the same terms and conditions as prescribed in this Agreement, unless the City gives Nand thirty (30) days written notice to terminate this Agreement on each February 1 thereafter. 3. Compensation. City shall pay Nand a monthly fee of Eleven Thousand Five Hundred Dollars ($11,500) for the duration of this agreement. The first month's payment of Eleven Thousand Five Hundred Dollars ($11,500) shall accompany this Agreement. Thereafter, each month's payment of Eleven Thousand Five Hundred Dollars ($11,500) is agreed to be due and payable, without additional notice or demand, on or before the fifteenth (15`h) day of each calendar month beginning on or before January 15, 2005. 4. Relationship of Parties. Nand shall conform with any instruction given by City Administrator or his designee to Nand 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 Nand in excess of or contrary to City's instruction. Except as the City may specify in writing, Nand shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Nand 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. Nand 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 Nand against any and all claims made by third parties as a result of any lawful activity engaged in by Nand hereunder with the prior consent and approval of the City. Conversely, Nand agrees to indemnify and defend against any and all claims made by third parties as a result of any activity engaged in by Nand without the prior consent and approval of the City. 6. Interests of Nand. Nand 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 Nand. 7. Products of Consulting. All documents, data, studies, drawings, models, and reports prepared by Nand 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 Nand in connection with the performance of his services 2 pursuant to this Agreement is confidential until released by the City to the public and Nand agrees that such documents shall not be available to any individual or organization without the written consent of the City prior to such release. Nand shall deliver such documents and materials to the City as they are generated; however, Nand 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 Nand's other clients, during Nand's performance of services under this Agreement, Nand 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 Nand or under Nand's supervision. Nand represents that Nand employs the professional and technical personnel required to perform the services required by the City and that Nand 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. Nand shall be responsible to Cityfor any errors or omissions in the performance of this Agreement. Nand represents and warrants that Nand 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 Nand with, or allow Nand and/or its subcontractor with, or allow Nand 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, Nand 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. Nand 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 Nand has performed all services to be performed pursuant to this Agreement. Nand hereby agrees that such Confidential Information and any documents provided may be used by Nand and/or its subcontractor only as authorized by City. Nand shall include a contract provision in its contract with subcontractors that binds the subcontractors to this non -disclosure requirement. Nand shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. Nand 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. Nand 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. Nand 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. During the first two (2) years of this Agreement, this Agreement may only be terminated by the City for cause on thirty (30) days written notice to Nand. Nand 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 4 Nand: KRISHNA NAND, PH.D., Q.E.P. 22811 Madrona Avenue Torrance, CA 90505 14. General Provisions. a. Independent Contractor. At all times during the term of this Agreement, Nand shall be an independent contractor and shall not be an employee of City. City shall have the right to control Nand only insofar as the results of Nand's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Nand accomplishes services rendered pursuant to this Agreement except to the extent that such services involve the use of City property or Confidential Information. b. Nand Not Agent. Except as City may specify in writing Nand shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Nand shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. C. Assignment and Subcontracting Prohibited. Nand 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 Nand 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. Nand represents that in entering into this Agreement, he has not relied on any previous representations or understandings of any kind or nature. i. Attorne '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 5 agree that a court of competent jurisdiction may determine and fix reasonable attorney's fees to be paid to the successful litigant. 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:, tLOS A.M�,RGaN�v ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: �� --714 ERIC T. FRES H, City Attorney Krishna Nand, a Sole Proprietor By: SHNA NAND Ce