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Resolution No. 95071 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. 9507 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR PROFESSIONAL SERVICES BY AND BETWEEN THE CITY OF VERNON AND SPURGIN & ASSOCIATES AND ENSERV WEST, LLC WHEREAS, the City of Vernon ("City") has received a proposal from Ensery West, LLC ("Enserv") to construct and operate a medical waste transfer station and treatment facility at 4726 Loma Vista Avenue, which requires the issuance of a Conditional Use Permit and other permits and approvals by the City; and WHEREAS, the City has determined that an environmental study of the impacts of the operation is required prior to the issuance of the Conditional Use Permit under the California Environmental Quality Act ("CEQA"); and WHEREAS, Ensery has agreed to pay for the preparation of any necessary environmental review documents; and WHEREAS, the City desires to retain the services of Spurgin I& Associates ("Spurgin") to conduct an environmental review for the proposed hazardous waste treatment facility at 4726 Loma Vista Avenue; and WHEREAS, the Director of Community Services & Water has irecommended that an agreement for the environmental consulting services be executed with Ensery and Spurgin to furnish the services required by the City; 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 an agreement with Ensery and Spurgin setting forth the terms and conditions for the performance of the environmental consulting services to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreement for Professional Services with Ensery and Spurgin, a copy of 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 or Mayor Pro-Tem to execute the Agreement with Ensery and Spurgin for, and on behalf of, the City of Vernon and the City Clerk is hereby authorized to attest hereto. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to give one fully executed Agreement to: Ensery West, LLC Attn. Carl Malmberg, Vice President 6565 West Loop South Bellaire, TX 77401 Spurgin & Associates Attn. Robert A. Spurgin, President P.O. Box 53338 Irvine, CA 92619-3338 - 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 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 17th day of December, 2007. ATTEST: MAAUELA GIRON, C ty Clerk � Name: Leonis C. Malburg Title: Mayor - 3 - 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, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9507, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, December 17, 2007, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. (SEAL) AANUELA GIRON, City Clerk - 4 - AGREEMENT FOR PROFESSIONAL SERVICES This Agreement for Professional Services (the "Agreement") is between the City of Vernon, a California municipal corporation (the "City"), Spurgin & Associates, and Ensery West, LLC, (the "Developer"). RECITALS The City has received from the Developer a Conditional Use Permit Application to allow property owned by the Developer within the City to be used for a Medical Waste Transfer Station and Treatment Facility. The City has determined that an environmental review is required prior to issuance of the Conditional Use Permit, under the California Environmental Quality Act ("CEQA") and the State CEQA guidelines. The Developer has agreed to pay for the preparation of any necessary environmental review documents, as set forth herein. ` The City is authorized to execute this Agreement with Spurgin & Associates if the total costs of the Services performed pursuant to the Agreement are paid by the Developer. The City and the Developer desire to contract with Spurgin & Associates to provide certain services in connection with the environmental review. NOW, THEREFORE, for good and valuable consideration, the parties agree as follows. 1. Performance of Services. Spurgin & Associates agrees to perform the professional services and provide the deliverables to the City and the Developer set forth in the Scope of Services attached hereto as Attachment A and incorporated herein (collectively the "Services"), in accordance with the terms and conditions of this Agreement. 2. Standard of Performance. Spurgin & Associates represents and warrants that each staff person to be assigned to perform the Services is fully qualified to conduct the work required hereunder. Spurgin & Associates shall be responsible, to the level of competency presently maintained by other practicing professionals performing the same type of work in the State of California, for the professional and technical soundness, accuracy and adequacy of all work and materials furnished under this Agreement. Robert Spurgin shall act as project manager and representative. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 2 of 8 3. Changes. The City and the Developer may at any time by written authorization change the Scope of Services to be provided by Spurgin & Associates hereunder. If such change results in an increase or decrease in the price, Spurgin & Associates will provide written notice to the City and the Developer of the amount of such change before proceeding with the work. No work with respect to any such changes which results in a change in the price shall be performed by Spurgin & Associates unless such change in price is first approved by the City and the Developer in writing. The City and the Developer shall have no obligation to pay Snuryin & Associates for any work relating to a change in the Scope of Services not previously approved by the City and the Developer in writing. Scheduled work may, however, be delayed by time needed to obtain written authorization of any change. 4. Time of Performance. Spurgin & Associates agrees that it shall regularly and diligently perform the Services in the time and sequence specified in Attachment A. The City and the Developer warrant their understanding that the Services Spurgin & Associates is to undertake are in part dependent on information, decisions and activities by others, including the City and the Developer, which Spurgin & Associates does not and cannot control, and that to the extent that delays occur due to such circumstances beyond Spurgin & Associates' control, the time of performance cited in Attachment A may be extended for a reasonable period of time not to exceed the length of the delay. 5. Compensation. For all labor, materials and services provided by Spurgin & Associates, including all expenses, based on the fee schedule set forth in the Scope of Services, shall receive a total contract compensation not to exceed the amount set forth in Attachment A, unless subsequently modified and approved by the City and the Developer in writing. Spurgin & Associates' right to compensation shall not be dependent upon the City's approval or disapproval of the Conditional Use Permit, or upon the result of any City action relating to the Developer. 6. Method and Time of Payment. Spurgin & Associates shall submit monthly invoices to the Developer for the Services rendered, including any direct costs incurred. If such statements are not so paid when due, the unpaid amount thereof, to the extent determined to be due and payable hereunder, shall bear interest at the prime rate of interest prevailing in the geographic area where the Services are to be performed from their due date until paid. 7. Financial Obligations by Developer. The Developer shall pay all costs for Spurgin & Associates' performance of the work set forth in Attachment A. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 3 of 8 8. Ownership of Report. Without prior written approval from the City and the Developer, Spurgin & Associates shall not provide, or disclose any of the contents of, the report, data, and exhibits prepared or assembled by Spurgin & Associates in connection with the performance of the Services to any person other than the City and the Developer. All such reports, data, and exhibits shall be the separate property of each of the City and the Developer, and the original shall be delivered to the City and the Developer upon demand. Spurgin & Associates shall have the right to retain copies of all of its work upon completion of the Services, subject to its non -disclosure requirement provided herein. 9. Sharing of Information. It is the intent of the parties that the report, data, exhibits or study. results prepared, developed or assembled by Spurgin & Associates are to be shared equally and concurrently with both the City and the Developer. Spurgin & Associates agrees that that no report, data, exhibits or study results shall be provided to either the City or the Developer, unless those same materials have previously or simultaneously been provided to the other. Notwithstanding the above, Spurgin & Associates may, as it deems necessary, consult with either the City or the Developer individually for the purpose of obtaining information required for the preparation of the report, data, exhibits or study results. fO. Insurance. Spurgin & Associates_ shall maintain insurance in the minimum amounts set forth below before beginning work on the Project, and, upon the City's or the Developer's request, provide the City or the Developer with certificates evidencing full compliance with the requirements of this provision: Minimum Required Insurance Per Aggregate Occurrence Comprehensive General and Contractual Liability Bodily injury or property damage Personal injury with employee exclusion deleted Comprehensive Automobile Liability for all owned, hired, and non -owned vehicles Bodily injury and property damage Professional Liability ...................................... $1,000,000 $2,000,000 $1,000,000 $1,0001,000 $2,000,000 6� Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 4 of 8 11. Indemnification. 11.1. Spurgin & Associates agrees to indemnify, hold harmless, defend the City the Developer, their respective affiliates, employees, and agents, from and against any liability, claim, demand, or cause of action and which action arises as a result of Spurgin & Associates negligent performance of the services or breach of its obligation under this agreement. The amount payable by Spurgin & Associates, with respect to such indemnification shall, however, be limited to the greater of (1) the amount paid by the proceeds of insurance indemnified herein, and carried by Spurgin & Associates, or (2) the amount of compensation actually paid to Spurgin & Associates hereunder by the Developer; provided such limitation shall not apply to any liability, claim, demand or cause of action, based on Spurgin & Associates grossly negligent intentional, or willful misconduct or fraudulent actions. 11.2. The Developer, independent of the indemnity obligation of Spurgin & Associates, agrees to defend, indemnify, hold harmless and defend the City, and its elected officials from and against any liability, claim, demand, or cause of action and which action arises as a result of and against any liability, claim, demand, or cause of action and which action arises as a result of a third party action brought against the City or its elected officials challenging the adequacy of the environmental review or the issuance of any permits or approvals for the Project. 12. Independent Contractor. Spurgin & Associates shall perform the Services hereunder as an independent contractor and no partnership, joint venture or other joint or fiduciary relationship between Spurgin & Associates, the City and the Developer shall be implied hereby. This Agreement shall not be construed to authorize Spurgin & Associates or any of its authorized agents, to act as the representative of the City or the Developer, unless and to the extent otherwise provided for in the Scope of Services or to bind, or have the authority to bind, the Developer with respect to the City or any third party, unless specifically authorized in writing by the Developer. 13. Nondiscrimination. Spurgin & Associates shall not discriminate against any employee or any applicant for employment because of race, religion, color, sex, national origin or disability, in accordance with all requirements of state and federal law. 14. Successors and Assigns. This Agreement shall be binding upon the successors, assigns and legal representatives of Spurgin & Associates, the City and the Developer. 15. Assignment. Spurgin & Associates agrees that it shall not assign or subcontract the Services described herein or any part thereof without the prior written approval of the City and the Developer. 16. Notice. Written notice under this Agreement shall be deemed to have been duly given if delivered in person or sent by (a) certified mail, return receipt requested, (b) a nationally recognized overnight courier, or (c) a facsimile transmission with automatic answer back, to the addresses set forth on the execution page of this Agreement. Agreement between Spurgin & Associates, the City of Vernon and Lnsery West, LLC Page 5 of 8 17. Attorneys' Fees. In the event that litigation is necessary to enforce the provisions of this Agreement, the prevailing party in said litigation shall be entitled to recover reasonable attorneys' fees from the opposing party in an amount determined by the court to be reasonable. 18. References. Any reference to the approval, consent, authorizationor other action by "the City and the Developer" in this Agreement shall mean the joint approval, consent, authorization or action of both parties. 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 20. Suspension and Termination. 20.1. The City or the Developer may suspend or terminate this Agreement at any time by written notice to Spurgin & Associates, whether or not Spurgin & Associates is in default. Upon receipt of a termination notice, Spurgin & Associates shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and the Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and - materials as may have been accumulated by Spurgin & Associates in performing Services authorized hereunder, whether completed or in progress. 20.2. If the City or the Developer seeks to resume Spurgin & Associates' Services within three months following a notification of suspension, there shall be no change in Spurgin & Associates' compensation. In the event the City or the Developer seeks to resume Spurgin & Associates services on the Project after being suspended for more than three months, Spurgin & Associates compensation shall be equitably adjusted. 20.3. Spurgin & Associates may terminate this Agreement as a result of the City's and the Developer's breach of their obligations under this Agreement, upon ten (10) days written notice to the City and the Developer if City and Developer fail to cure such breach within such period of time. Upon delivery of a termination notice, Spurgin & Associates shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and the Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by in performing Services authorized hereunder, whether completed or in progress. 20.4. In the event that the termination of this Agreement is for any reason other than the fault of Spurgin & Associates, then Spurgin & Associates shall be compensated in accordance with the provisions of the Scope of Services for the Services performed and expenses incurred to the date of such suspension or termination, plus any reasonable costs and expenses which are reasonably incurred by to effect such suspension or termination. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 6 of 8 21. Contract Term. This Agreement shall commence beginning on the date of execution by all the parties and expire on the close of business on March 31, 2008, or the completion of the Services, whichever occurs earlier, unless extended by mutual agreement of the parties. 22. Entire Agreement. This Agreement represents the entire agreement between Spurgin & Associates, the City and the Developer and supersedes all prior negotiations, representations or agreements. This Agreement may be amended only by a written instrument signed by an authorized representative of Spurgin & Associates, the City and the Developer. IN WITNESS WHEREOF, the parties hereto, each of whom warrants that they are authorized to execute agreements on behalf of Spurgin & Associates and the Developer, have executed this Agreement on the date set forth below. Executed at , California, on City: City of Vernon Leonis C. Malburg, Mayor ATTEST: Manuela Giron, City Clerk Spurgi Signatt Print N Title Date: APPROVED AS TO FORM: Jeff Harrison, City Attorney Developer: Signature Print Name q q Le Title p ,� Date: // Page 7 of 8 ATTACHMENT A SCOPE OF WORK FOR CEQA PREPARATION The purpose of this memorandum is to propose a Scope of Work for the preparation of the necessary document package to comply with the terms of the California Environmental Quality Act (CEQA), in connection with the environmental. review for the proposed siting of a medical waste transfer station and treatment facility in Vernon. All the parties listed above will conference on Monday July 23 at 9:30 with the intent of reaching a three way agreement between the City of Vernon, Ensery West LLC, and Spurgin & Associates. The City of Vernon requires the retaining of a 3rd party to prepare the CEQA documents on behalf of the City, with the expenses for that effort born by the Applicant, which in this case is Ensery West LLC. Kevin Wilson has expressed some concern to adequately prepare the necessary evaluations on potential air emissions and traffic, and hopefully the specifics of this proposal will alleviate those understandable concerns. Therefore, the following Scope of Work is proposed to address the overall responsibilities mandated by CEQA and imposed on the Lead Agency, which in this case is the City of Vernon. I. Prepare the required Environmental Checklist including the following: a. Lead Agency information b. Detailed site plan information c. Detailed description of proposed project d. Description of surrounding land uses e. Identification of other public agencies whose approval is required, and what those approvals are. f. Evaluation of any environmental factors potentially affected, identifying each impact into one in the following categories. i. Potentially Significant ii. Less than significant with mitigation incorporation iii. Less than significant impact iv. No impact g. Using the factors in f (i-iv), address the following potential environmental factors: i. Aesthetics ii. Agriculture Resources iii. Air Quality iv. Biological Resources v. Cultural Resources vi. Geology / Soils vii. Hazards and Hazardous Materials viii. Hydrology / Water Quality ix. Land Use / Planning x. Mineral Resources xi. Noise xii. Population / Housing xiii. Public Services xiv. Recreation xv. Transportation / Traffic xvi. Utilities / Service Systems xvii. Mandatory Findings of Significance Page 8 of 8 h. For any of the above factors that are identified as having other than "no impact' explain in detailed fashion what the impact is, the documentation behind the impact (e.g. prior air quality testing on autoclaves, traffic impacts of medical waste facilities in Vernon) and the reason for the factor categorization. This would include the following information: i. Include in the explanation on -site as well as off -site implications, cumulative and project - level impacts, and both direct and indirect impacts. ii. A "no impact' answer will be explained where it is based on project specific factors and general standards in the medical waste industry iii. Incorporate earlier analyses in CEQA processes for other medical waste treatment facilities currently approved and under the authority of the State Department of Public Health. iv. Prepare any mitigation documents relative to findings in the review for the City. II. Provide documentation of tests, studies, evaluations or applications in other instances that would support the evaluation of this CEQA document. These would include but not be limited to the following: a. Data and studies done for the US EPA under the Medical Waste Tracking Act. "The Second Report to Congress" includes testing of alternative technologies by Research Triangle Institute. b. Published Reports by the Occupational Health Division of the State of California on medical waste treatment facilities. C. Specific air quality testing or indoor air monitoring tests performed on autoclaves in the past. d. Other documents uncovered during the review. III. Should the City of Vernon require additional information or documentation following their initial review of the submittal, additional resources will be procured (e.g. traffic management specialists or air emissions professionals) if necessary to provide the breadth of review required by the City. IV. The estimated cost for the project is $9,650.00 and such cost will be absorbed by the Applicant. CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: January 2, 2008 TO: Kevin Wilson, Director of Community Services & Water FROM: Nelly Giron, City Clerk RE: Resolution No. 9507 - A Resolution of the City Council of the City of Vernon Approving and Authorizing the Execution of an Agreement for Professional Services By and Between the City of Vernon and Spurgin & Associates and Ensery West, LLC Transmitted herewith as requested by your department, are two executed agreements for your transmittal and a copy of Resolution No. 9507, referenced above, which was approved by City Council on December 17, 2007. Thank you. NG:dr c: Dolores Jaunzemis Resolution No.,9507 Agreement File No. 07-145 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement for Professional Services (the "Agreement") is between the City of Vernon, a California municipal corporation (the "City"), Spurgin & Associates, and Ensery West, LLC, (the "Developer"). RECITALS The City has received from the Developer a Conditional Use Permit Application to allow property owned by the Developer within the City to be used for a Medical Waste Transfer Station and Treatment Facility. The City has determined that an environmental review is required prior to issuance of the Conditional Use Permit, under the California Environmental Quality Act ("CEQA") and the State CEQA guidelines. The Developer has agreed to pay for the preparation of any necessary environmental review documents, as set forth herein. The City is authorized to execute this Agreement with Spurgin & Associates if the total costs of the Services performed pursuant to the Agreement are paid by the Developer. The City and the Developer desire to contract with Spurgin & Associates to provide certain services in connection with the environmental review. NOW, THEREFORE, for good and valuable consideration, the parties agree as follows. 1. Performance of Services. Spurgin & Associates agrees to perform the professional services and provide the deliverables to the City and the Developer set forth in the Scope of Services attached hereto as Attachment A and incorporated herein (collectively the "Services"), in accordance with the terms and conditions of this Agreement. 2. Standard of Performance. Spurgin & Associates represents and warrants that each staff person to be assigned to perform the Services is fully qualified to conduct the work required hereunder. Spurgin & Associates shall be responsible, to the level of competency presently maintained by other practicing professionals performing the same type of work in the State of California, for the professional and technical soundness, accuracy and adequacy of all work and materials furnished under this Agreement. Robert Spurgin shall act as project manager and representative. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 2 of 8 3. Changes. The City and the Developer may at any time by written authorization change the Scope of Services to be provided by Spurgin & Associates hereunder. If such change results in an increase or decrease in the price, Spurgin & Associates will provide written notice to the City and the Developer of the amount of such change before proceeding with the work. No work with respect to any such changes which results in a change in the price shall be performed by Spurgin & Associates unless such change in price is first approved by the City and the Developer in writing. The City and the Developer shall have no obligation to pay Spurgin & Associates for any work relating to a change in the Scope of Services not previously approved by the City and the Developer in writing. Scheduled work may, however, be delayed by time needed to obtain written authorization of any change. 4. Time of Performance. Spurgin & Associates agrees that it shall regularly and diligently perform the Services in the time and sequence specified in Attachment A. The City and the Developer warrant their understanding that the Services Spurgin & Associates is to undertake are in part dependent on information, decisions and activities by others, including the City and the Developer, which Spurgin & Associates does not and cannot control, and that to the extent that delays occur due to such circumstances beyond Spurgin & Associates' control, the time of performance cited in Attachment A may be extended for a reasonable period of time not to exceed the length of the delay. 5. Compensation. For all labor, materials and services provided by Spurgin & Associates, including all expenses, based on the fee schedule set forth in the Scope of Services, shall receive a total contract compensation not to exceed the amount set forth in Attachment A, unless subsequently modified and approved by the City and the Developer in writing. Spurgin & Associates' right to compensation shall not be dependent upon the City's approval or disapproval of the Conditional Use Permit, or upon the result of any City action relating to the Developer. 6. Method and Time of Payment. Spurgin & Associates shall submit monthly invoices to the Developer for the Services rendered, including any direct costs incurred. If such statements are not so paid when due, the unpaid amount thereof, to the extent determined to be due and payable hereunder, shall bear interest at the prime rate of interest prevailing in the geographic area where the Services are to be performed from their due date until paid. 7. Financial Obligations by Developer. The Developer shall pay all costs for Spurgin & Associates' performance of the work set forth in Attachment A. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 3 of 8 8. Ownership of Report. Without prior written approval from the City and the Developer, Spurgin & Associates shall not provide, or disclose any of the contents of, the report, data, and exhibits prepared or assembled by Spurgin & Associates in connection , with the performance of the Services to any person other than the City and the Developer. All such reports, data, and exhibits shall be the separate property of each of the City and the Developer, and the original shall be delivered to the City and the Developer upon demand. Spurgin & Associates shall have the right to retain copies of all of its work upon completion of the Services, subject to its non -disclosure requirement provided herein. 9. Sharing of Information. It is the intent of the parties that the report, data, exhibits or study results prepared, developed or assembled by Spurgin & Associates are to be shared equally and concurrently with both the City and the Developer. Spurgin & Associates agrees that that no report, data, exhibits or study results shall be provided to either the City or the Developer, unless those same materials have previously or simultaneously been provided to the other. Notwithstanding the above, Spurgin & Associates may, as it deems necessary, consult with either the City or the Developer individually for the purpose of obtaining information required for the preparation of the report, data, exhibits or study results. 1-0. Insurance. Spurgin & Associates_ shall maintain insurance in the minimum amounts set forth below before beginning work on the Project, and, upon the City's or the Developer's request, provide the City or the Developer with certificates evidencing full compliance with the requirements of this provision: Minimum Required Insurance Per Aggregate Occurrence Comprehensive General and Contractual Liability Bodily injury or property damage Personal injury with employee exclusion deleted Comprehensive Automobile Liability for all owned, hired, and non -owned vehicles Bodily injury and property damage Professional Liability .................................... $1,000,000 $2,000,000 $1,000,000 $1,000,000 $2,000,000 j 66v, 660 Z,o6o, boo /� . Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 4 of 8 11. Indemnification. 11.1. Spurgin & Associates agrees to indemnify, hold harmless, defend the City the Developer, their respective affiliates, employees, and agents, from and against any liability, claim, demand, or cause of action and which action arises as a result of Spurgin & Associates negligent performance of the services or breach of its obligation under this agreement. The amount payable by Spurgin & Associates, with respect to such indemnification shall, however, be limited to the greater of (1) the amount paid by the proceeds of insurance indemnified herein, and carried by Spurgin & Associates, or (2) the amount of compensation actually paid to Spurgin & Associates hereunder by the Developer; provided such limitation shall not apply to any liability, claim, demand or cause of action, based on Spurgin & Associates grossly negligent intentional, or willful misconduct or fraudulent actions. 11.2. The Developer, independent of the indemnity obligation of Spurgin & Associates, agrees to defend, indemnify, hold harmless and defend the City, and its elected officials from and against any liability, claim, demand, or cause of action and which action arises as a result of and against any liability, claim, demand, or cause of action and which action arises as a result of a third party action brought against the City or its elected officials challenging the adequacy of the environmental review or the issuance of any permits or approvals for the Project. 12. Independent Contractor. Spurgin & Associates shall perform the Services hereunder as an independent contractor and no partnership, joint venture or other joint or fiduciary relationship between Spurgin & Associates, the City and the Developer shall be implied hereby. This Agreement shall not be construed to authorize Spurgin & Associates or any of its authorized agents, to act as the representative of the City or the Developer, unless and to the extent otherwise provided for in the Scope of Services or to bind, or have the authority to bind, the Developer with respect to the City or any third party, unless specifically authorized in writing by the Developer. 13. Nondiscrimination. Spurgin & Associates shall not discriminate against any employee or any applicant for employment because of race, religion, color, sex, national origin or disability, in accordance with all requirements of state and federal law. 14. Successors and Assigns. This Agreement shall be binding upon the successors, assigns and legal representatives of Spurgin & Associates, the City and the Developer. 15. Assignment. Spurgin & Associates agrees that it shall not assign or subcontract the Services described herein or any part thereof without the prior written approval of the City and the Developer. 16. Notice. Written notice under this Agreement shall be deemed to have been duly given if delivered in person or sent by (a) certified mail, return receipt requested, (b) a nationally recognized overnight courier, or (c) a facsimile transmission with automatic answer back, to the addresses set forth on the execution page of this Agreement. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 5 of 8 17. Attorneys' Fees. In the event that litigation is necessary to enforce the provisions of this Agreement, the prevailing party in said litigation shall be entitled to recover reasonable attorneys' fees from the opposing party in an amount determined by the court to be reasonable. 18. References. Any reference to the approval, consent, authorization or other action by "the City and the Developer" in this Agreement shall mean the joint approval, consent, authorization or action of both parties. 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 20. Suspension and Termination. 20.1. The City or the Developer may suspend or terminate this Agreement at any time by written notice to Spurgin & Associates, whether or not Spurgin & Associates is in default. Upon receipt of a termination notice, Spurgin & Associates shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and the Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and - materials as may have been accumulated by Spurgin & Associates in performing Services authorized hereunder, whether completed or in progress. 20.2. If the City or the Developer seeks to resume Spurgin & Associates' Services within three months following a notification of suspension, there shall be no change in Spurgin & Associates' compensation. In the event the City or the Developer seeks to resume Spurgin & Associates services on the Project after being suspended for more than three months, Spurgin & Associates compensation shall be equitably adjusted. 20.3. Spurgin & Associates may terminate this Agreement as a result of the City's and the Developer's breach of their obligations under this Agreement, upon ten (10) days written notice to the City and the Developer if City and Developer fail to cure such breach within such period of time. Upon delivery of a termination notice, Spurgin & Associates shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and the Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by in performing Services authorized hereunder, whether completed or in progress. 20.4. In the event that the termination of this Agreement is for any reason other than the fault of Spurgin & Associates, then Spurgin & Associates shall be compensated in accordance with the provisions of the Scope of Services for the Services performed and expenses incurred to the date of such suspension or termination, plus any reasonable costs and expenses which are reasonably incurred by to effect such suspension or termination. Agreement between Spurgin & Associates, the City of Vernon and Ensery West, LLC Page 6 of 8 21. Contract Term. This Agreement shall commence beginning on the date of execution by all the parties and expire on the close of business on March 31, 2008, or the completion of the Services, whichever occurs earlier, unless extended by mutual agreement of the parties. 22. Entire Agreement. This Agreement represents the entire agreement between Spurgin & Associates, the City and the Developer and supersedes all prior negotiations, representations or agreements. This Agreement may be amended only by a written instrument signed by an authorized representative of Spurgin & Associates, the City and the Developer. IN WITNESS WHEREOF, the parties hereto, each of whom warrants that they are authorized to execute agreements on behalf of Spurgin & Associates and the Developer, have executed this Agreement on the date set forth below. Executed at ii/e�;✓ , California, op-1-2 4&) City: City of Vernon t: Leonis C. Malbu�,Mayor Spurgi Signatu Print N Title Date: AS TO FORM: City Attorney Developer: Signature Print Name Title /cP Date: // Page 7 of 8 ATTACHMENT A SCOPE OF WORK FOR CEQA PREPARATION The purpose of this memorandum is to propose a Scope of Work for the preparation of the necessary document package to comply with the terms of the California Environmental Quality Act (CEQA), in connection with the environmental review for the proposed siting of a medical waste transfer station and treatment facility in Vernon. All the parties listed above will conference on Monday July 23 at 9:30 with the intent of reaching a three way agreement between the City of Vernon, Ensery West LLC, and Spurgin & Associates. The City of Vernon requires the retaining of a 3rd party to prepare the CEQA documents on behalf of the City, with the expenses for that effort born by the Applicant, which in this case is Ensery West LLC. Kevin Wilson has expressed some concern to adequately prepare the necessary evaluations on potential air emissions and traffic, and hopefully the specifics of this proposal will alleviate those understandable concerns. Therefore, the following Scope of Work is proposed to address the overall responsibilities mandated by CEQA and imposed on the Lead Agency, which in this case is the City of Vernon. I. Prepare the required Environmental Checklist including the following: a. Lead Agency information b. Detailed site plan information c. Detailed description of proposed project d. Description of surrounding land uses e. Identification of other public agencies whose approval is required, and what those approvals are. f. Evaluation of any environmental factors potentially affected, identifying each impact into one in the following categories. i. Potentially Significant ii. Less than significant with mitigation incorporation iii. Less than significant impact iv. No impact g. Using the factors in f (i-iv), address the following potential environmental factors: i. Aesthetics ii. Agriculture Resources iii. Air Quality iv. Biological Resources v. Cultural Resources vi. Geology / Soils vii. Hazards and Hazardous Materials viii. Hydrology / Water Quality ix. Land Use / Planning x. Mineral Resources xi. Noise xii. Population / Housing xiii. Public Services xiv. Recreation xv. Transportation / Traffic xvi. Utilities / Service Systems xvii. Mandatory Findings of Significance Page 8 of 8 h. For any of the above factors that are identified as having other than "no impact' explain in detailed fashion what the impact is, the documentation behind the impact (e.g. prior air quality testing on autoclaves, traffic impacts of medical waste facilities in Vernon) and the reason for the factor categorization. This would include the following information: i. Include in the explanation on -site as well as off -site implications, cumulative and project - level impacts, and both direct and indirect impacts. ii. A "no impact" answer will be explained where it is based on project specific factors and general standards in the medical waste industry iii. Incorporate earlier analyses in CEQA processes for other medical waste treatment facilities currently approved and under the authority of the State Department of Public Health. iv. Prepare any mitigation documents relative to findings in the review for the City. II. Provide documentation of tests, studies, evaluations or applications in other instances that would support the evaluation of this CEQA document. These would include but not be limited to the following: a. Data and studies done for the US EPA under the Medical Waste Tracking Act. "The Second Report to Congress" includes testing of alternative technologies by Research Triangle Institute. b. Published Reports by the Occupational Health Division of the State of California on medical waste treatment facilities. c. Specific air quality testing or indoor air monitoring tests performed on autoclaves in the past. d. Other documents uncovered during the review. III. Should the City of Vernon require additional information or documentation following their initial review of the submittal, additional resources will be procured (e.g. traffic management specialists or air emissions professionals) if necessary to provide the breadth of review required by the City. IV. The estimated cost for the project is $9,650.00 and such cost will be absorbed by the Applicant.•