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Resolution No. 09806PA 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. 9806 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A CONSULTING SERVICE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND CAPE CANAVERAL POWER CONSULTANTS FOR TECHNICAL SERVICES TO THE LIGHT & POWER DEPARTMENT WHEREAS, the Light & Power Department desires to retain the services of a consultant to provide technical services to the Light & lPower Department; and WHEREAS, the Light & Power Department desires to retain the services of Cape Canaveral Power Consultants ("Cape Canaveral") under which Peter Hervish would provide such technical services as requested by the Director of Light & Power, or his designee, at the rate of $145.00 per hour for a minimum of 2080 hours each year, or the sum of $301,600.00 per year, for a period of three years, and said Agreement shall automatically renew in three-year increments unless notified in writing at least 30 days prior to the anniversary date; 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 contract with Cape Canaveral. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approves the Consulting Service Agreement with Cape Canaveral, 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 or Mayor Pro-Tem to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk or Deputy City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City hereby authorizes the City Administrator, or his designee, to make whatever non - substantive, administrative and/or text changes, upon advice of counsel, to the Agreement. SECTION 5: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take any action deemed necessary to carry out or to perform such other acts and deeds as may be necessary or convenient to effect the purposes of this Resolution and the transactions herein authorized. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to send a fully executed Agreement to: Cape Canaveral Power Consultants Attn.: Peter Hervish 300 Columbia Drive, Suite 1501 Cape Canaveral, Florida 32920 - 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 7: 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 5th day of January, 2009. Name: Leonis C. Malburg Title: Mayor /-M-a-ye3s PEe 2-&rft- ATTEST: MA UELA GIRO Cf ty Clerk - 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 ESTATE 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. 9806, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, January 5, 2009, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. (SEAL) MANUELA -IRO , City Clerk - 4 - CONSULTING SERVICE AGREEMENT THIS AGREEMENT is entered into this 5th day of January, 2009, by and between the CITY OF VERNON, CALIFORNIA a municipal corporation, hereinafter referred to as "City", and CAPE CANAVERAL POWER CONSULTANTS, a Florida Corporation, hereinafter referred to as "Consultant." RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties: A. Consultant has since August 1, 2005, provided technical services to the Light & Power Department and will continue to perform projects and technical services support for the City, as directed by the Director of Light & Power, or his authorized designee. NOW THEREFORE, intending legally to be bound, the parties agree as follows: Parties to the Agreement. The parties to this Agreement are: City: The City of Vernon, a municipal corporation, having its principal office at 4305 Santa Fe Avenue, Vernon, California, 90058. Consultant: Cape Canaveral Power Consultants, having the business address of 300 Columbia Drive, Suite 1501, Cape Canaveral, Florida, 32920. 2. Representatives of the Parties and Service of Notices. The representatives of the parties who are primarily responsible for the administration of this Agreement, and to whom formal notices, demands and communications shall be given, are as follows: -1- The principal representative of the City shall be: Mr. Donal O'Callaghan Director of Light & Power City of Vernon Redevelopment Agency 4305 Santa Fe Avenue Vernon, California 90058 (323) 583-8811 (323) 826-1431 Fax The sole representative of Consultant shall be: Mr. Peter Hervish Cape Canaveral Power Consultants 300 Columbia Drive Suite 1501 Cape Canaveral, Florida 32920 (323) 353-1356 3. Contract Year. Contract Year shall mean the period commencing on January 5, 2009 and expiring at midnight on the immediately following January 4, 2010 and thereafter each subsequent twelve-month period beginning on January 5th and ending on January 4th. 4. Term of the Agreement. The term of this Agreement shall be for the period of three (3) years commencing on the 5th day of January 2009. Every three (3) years, on the anniversary of the date this Agreement was entered into, this Agreement shall automatically renew for an additional term of three (3) years, unless either party to this Agreement notifies the other in writing to the contrary at least thirty (30) days prior to the anniversary date. 5. Amount and Scope of Services. Consultant hereby agrees to provide at least two thousand eight (2080) hours of Mr. Peter Hervish's time each Contract Year to the City for Consultant services as requested and directed by the Director of Light & Power or his authorized designee. Consultant shall be available for additional hours of consulting services ("Additional Hours") to the City each Contract Year at the request of the Director of Light & Power or his authorized designee. -2- 6. Time and Amount of Payment for Consulting Services. The City shall pay the Consultant monthly for consulting services rendered to the City. The City shall pay Consultant at the rate of One Hundred Forty -Five Dollars ($145) per hour. Consultant agrees to deliver monthly invoices to City on or before the 5th of each month, detailing the hours for the previous month of service. City agrees to pay presented monthly invoices on of before the 201h of the month (within fifteen days). 7. Health Insurance. City shall pay for basic medical and dental health insurance coverage for consultant. 8. Expense Reimbursement. The City shall only reimburse the Consultant for expenses pre -approved by either the Director of Light & Power or his authorized designee and incurred by Consultant for services undertaken for the City in the performance of this Agreement. Such expenses shall include, but shall not be limited to, lengthy document typing, obtaining documents from research libraries or official agencies or the cost of travel and other expenses incurred on business trips to meetings or official appearances on behalf of the City or other projects that the Consultant is requested to undertake as directed by the Director of Light & Power or his authorized designee. 8.1 Additional Staff. The Consultant'may employ additional personnel in conjunction with the discharge of Consultant's duties to the City, pursuant to this Agreement, as approved and directed by the Director of Light & Power or his authorized designee, for whatever purpose the Director of Light & Power deems appropriate. The compensation rates and hourly billing rates of any additional staff shall be approved, in advance, by the Director of Light & Power or his designee. 9. Reports. Consultant shall submit reports of Consultant's time allocation for services rendered to the City every month, within five (5) days of the month end. Such report shall be appended to the monthly invoice. Consultant shall prepare other reports, as required or directed by the Director of Light & Power, as part of the Consultant services rendered to the City pursuant to this Agreement. 10. Cancellation. The City shall have the right to terminate and cancel this Agreement for cause. In the event that the City intends to cancel this Agreement for cause, it shall as a prerequisite thereto, give Consultant written notice of the material failure in IN performance and provide Consultant a thirty (30) day period to effect a cure reasonably satisfactory to the City. 11. Independent Contractor. Consultant and the agents and employees of Consultant in the performance of this Agreement shall act in an independent capacity and not as employees or agents of the City. However, City reserves the right to convert this Agreement to an employment agreement at its option on a future date. 12. Rules of Interpretation. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa. and the masculine gender includes the feminine and neuter and vice versa. The words "include," "includes" or "including" shall be by way of example only and shall not be considered in any way to be in limitation. 13. Calendar Days; Working Days. All references in this Agreement to a number of days in which either party shall have to consent, approve or perform shall mean calendar days unless specifically stated to be "working" days. All references in this Agreement to "working" days shall mean days on which the City is open for business. 14. Severability. If any part of this Agreement is invalid, the remaining terms and conditions shall not be affected unless their enforcement under the circumstances would be unreasonable, inequitable or otherwise frustrate the purposes of this Agreement. 15. Captions and References. The captions of the sections and subsections of this Agreement are solely for convenience of reference, and shall be disregarded in this construction and the interpretation of this Agreement. References herein to a section or subsection are to the sections and subsections of this Agreement. 16. No Oral Modifications. This Agreement supersedes all prior proposals, agreements and understandings between the parties and may not be changed or terminated orally, and no change or termination of, or attempt to waive, any of the provisions hereof shall be binding unless in writing and signed by the parties against whom the same is sought to be enforced. 17. Force Majeure. Consultant shall not be in default under this Agreement in the event that the Consultant's services are temporarily interrupted for any of the following reasons: work stoppage; riots; war or national emergency declared by the President or Congress and affecting the City of Vernon; civil disturbance; explosion; natural disasters such as floods, ME earthquakes, landslides and fires; or other catastrophic events which are beyond the reasonable control of Consultant; provided, however, that Consultant notify City in writing of the nature of the matter constituting the enforced delay within ten (10) days after the occurrence of the enforced delay. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light of the enforced delay and shall commence to run from the time of the commencement of the cause. 18. Confidentiality. Consultant acknowledges that certain information relating to the management, operation or planning of the City and generally determined to be confidential by City, (the "Confidential Information") must be maintained as confidential by City, but that access to and knowledge of such Confidential Information is essential to the performance of Consultant's duties hereunder. Consultant agrees that all Confidential Information heretofore or in the future obtained by Consultant as a result of Consultant's relationship with the City shall be considered confidential. In recognition of this fact, Consultant agrees that, during and after the Consulting Period, Consultant will not disclose any such Confidential Information to any person or entity for any reason or purpose whatsoever and will not make use of any Confidential Information for company purposes or for the benefit of any other person or entity (except the City), unless ordered to do so by a court with legal jurisdiction. 19. Law to Govern; Venue. The law of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles. In the event of litigation in a U.S. District Court, - exclusive venue shall lie in the Central District of California. 20. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including actual attorney's fees and costs, including costs of expert witnesses and Consultants, discovery costs and costs on appeal. 21. Amendments. No amendment of this Agreement shall be valid unless in writing duly executed by the parties. 22. Execution of Counterparts. This Agreement may be executed in counterparts and, when each party has signed and delivered at least one such counterpart, each counterpart -5- shall be deemed an original and all counterparts taken together shall constitute one and the same agreement. 23. Sole and Only Agreement. This instrument constitutes the sole and only agreement between the City and Consultant, and correctly sets forth the obligations of the City and Consultant to each other as of its date. Any agreements or representations or any other matter discussed in this Agreement not expressly set forth in this instrument are null and void. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate, effective the day and year first above written. CAPE CANAVERAL POWER CONSULTANTS a Florida Corporation Peter Hervish ATTEST: Manuela Giron, City Clerk CITY OF VERNON By: Leonis C. Malburg Mayor APPROVED AS TO FORM: Jeff A. Harrison, City Attorney M � � a January 15, 2009 1, Mr. Peter Hervish Cape Canaveral Power Consultants 300 Columbia Drive, Suite 1501 Cape Canaveral, Florida 32920 Re: Consulting Services Agreement Dear Mr. Hervish: Transmitted herewith is a fully executed Agreement as referenced above, approved by City Council on January 5, 2009. If you have any questions regarding this matter, please call Mr. Donal O'Callaghan at (323) 583-8811 ext. 834. Very truly yours, Nelly Giron City Clerk NG : dj c: Donal O'Callaghan Purchasing Dept. Resolution No. 9806 Agreement File No. 09-003 q � t INTEROFFICE Light & Power Department DATE: December 29, 2008 TO: Eric Fresch, City Administrator FROM: Donal O'Callaghan; Director of Light & Power MEMORANDUM APPROVED JAN O 5 '09 CITY COUNCIL CITY CL -RK DISTRIB)JTION Tom, KCS qXO G SUBJECT: Consulting Service Agreement for Cape Canaveral Power Consultants Please find attached the Consulting Service Agreement between Cape Canaveral Power Consultants and the City of Vernon. This Consulting Service Agreement is to permit Cape Canaveral Power Consultants to provide technical services support for the Light & Power Department. The Light & Power Department recommends that the City of Vernon enters into this agreement and respectfully submits said recommendation for Council approval. DOC:rmt Attachment c: Document Control CONSULTING SERVICE AGREEMENT THIS AGREEMENT is entered into this 5th day of January, 2009, by and between the CITY OF VERNON, CALIFORNIA a municipal corporation, hereinafter referred to as "City", and CAPE CANAVERAL POWER CONSULTANTS, a Florida Corporation, hereinafter referred to as "Consultant." RECITALS This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties: A. Consultant has since August 1, 2005, provided technical services to the Light & Power Department and will continue to perform projects and technical services support for the City, as directed by the Director of Light & Power, or his authorized designee. NOW THEREFORE, intending legally to be bound, the parties agree as follows: 1. Parties to the Agreement. The parties to this Agreement are: City: The City of Vernon, a municipal corporation, having its principal office at 4305 Santa Fe Avenue, Vernon, California, 90058. Consultant: Cape Canaveral Power Consultants, having the business address of 300 Columbia Drive, Suite 1501, Cape Canaveral, Florida, 32920. 2. Representatives of the Parties and Service of Notices. The representatives of the parties who are primarily responsible for the administration of this Agreement, and to whom formal notices, demands and communications shall be given, are as follows: -1- The principal representative of the City shall be: Mr. Donal O'Callaghan Director of Light & Power City of Vernon Redevelopment Agency 4305 Santa Fe Avenue Vernon, California 90058 (323) 583-8811 (323) 826-1431 Fax The sole representative of Consultant shall be: Mr. Peter Hervish Cape Canaveral Power Consultants 300 Columbia Drive Suite 1501 Cape Canaveral, Florida 32920 (323) 353-1356 Contract Year. Contract Year shall mean the period commencing on January 5, 2009 and expiring at midnight on the immediately following January 4, 2010 and thereafter each subsequent twelve-month period beginning on January 5th and ending on January 4th. 4. Term of the Agreement. The term of this Agreement shall be for the period of three (3) years commencing on the 5th day of January 2009. Every three (3) years, on the anniversary of the date this Agreement was entered into, this Agreement shall automatically renew for an additional term of three (3) years, unless either party to this Agreement notifies the other in writing to the contrary at least thirty (30) days prior to the anniversary date. Amount and Scope of Services. Consultant hereby agrees to provide at least two thousand eight (2080) hours of Mr. Peter Hervish's time each Contract Year to the City for Consultant services as requested and directed by the Director of Light & Power or his authorized designee. Consultant shall be available for additional hours of consulting services ("Additional Hours") to the City each Contract Year at the request of the Director of Light & Power or his authorized designee. -2- 6. Time and Amount of Payment for Consulting Services. The City shall pay the Consultant monthly for consulting services rendered to the City. The City shall pay Consultant at the rate of One Hundred Forty -Five Dollars ($145) per hour. Consultant agrees to deliver monthly invoices to City on or before the 5th of each month, detailing the hours for the previous month of service. City agrees to pay presented monthly invoices on of before the 201h of the month (within fifteen days). 7. Health Insurance. City shall pay for basic medical and dental health insurance coverage for consultant. Expense Reimbursement. The City shall only reimburse the Consultant for expenses pre -approved by either the Director of Light & Power or his authorized designee and incurred by Consultant for services undertaken for the City in the performance of this Agreement. Such expenses shall include, but shall not be limited to, lengthy document typing, obtaining documents from research libraries or official agencies or the cost of travel and other expenses incurred on business trips to meetings or official appearances on behalf of the City or other projects that the Consultant is requested to undertake as directed by the Director of Light & Power or his authorized designee. 8.1 Additional Staff. The Consultant may employ additional personnel in conjunction with the discharge of Consultant's duties to the City, pursuant to this Agreement, as approved and directed by the Director of Light & Power or his authorized designee, for whatever purpose the Director of Light & Power deems appropriate. The compensation rates and hourly billing rates of any additional staff shall be approved, in advance, by the Director of Light & Power or his designee. 9. Reports. Consultant shall submit reports of Consultant's time allocation for services rendered to the City every month, within five (5) days of the month end. Such report shall be appended to the monthly invoice. Consultant shall prepare other reports, as required or directed by the Director of Light & Power, as part of the Consultant services rendered to the City pursuant to this Agreement. 10. Cancellation. The City shall have the right to terminate and cancel this Agreement for cause. In the event that the City intends to cancel this Agreement for cause, it shall as a prerequisite thereto, give Consultant written notice of the material failure in -3- performance and provide Consultant a thirty (30) day period to effect a cure reasonably satisfactory to the City. 11. Independent Contractor. Consultant and the agents and' employees of Consultant in the performance of this Agreement shall act in an independent capacity and not as employees or agents of the City. However, City reserves the right to convert this Agreement to an employment agreement at its option on a future date. 12. Rules of Interpretation. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa and the masculine gender includes the feminine and neuter and vice versa. The words "include," "includes" or "including" shall be by way of example only and shall not be considered in any way to be in limitation. 13. Calendar Days; Working Days. All references in this Agreement to a number of days in which either party shall have to consent, approve or perform shall mean calendar days unless specifically stated to be "working" days. All references in this Agreement to "working" days shall mean days on which the City is open for business. 14. Severability. If any part of this Agreement is invalid, the remaining terms and conditions shall not be affected unless their enforcement'under the circumstances would be unreasonable, inequitable or otherwise frustrate the purposes of this Agreement. 15. Captions and References. The captions of the sections and subsections of this Agreement are solely for convenience of reference, and shall be disregarded in this construction and the interpretation of this Agreement. References herein to a section or subsection are to the sections and subsections of this Agreement. 16. No Oral Modifications. This Agreement supersedes all prior proposals, agreements and understandings between the parties and may not be changed or terminated orally, and no change or termination of, or attempt to waive, any of the provisions hereof shall be binding unless in writing and signed by the parties against whom the same is sought to be enforced. 17. Force Majeure. Consultant shall not be in default under this Agreement in the event that the Consultant's services are temporarily interrupted for any of the following reasons: work stoppage; riots; war or national emergency declared by the President or Congress and affecting the City of Vernon; civil disturbance; explosion; natural disasters such as floods, In earthquakes, landslides and fires; or other catastrophic events which are beyond the reasonable control of Consultant; provided, however, that Consultant notify City in writing of the nature of the matter constituting the enforced delay within ten (10) days after the occurrence of the enforced delay. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light of the enforced delay and shall commence to run from the time of the commencement of the cause. 18. Confidentiality. Consultant acknowledges that certain information relating to the management, operation or planning of the City and generally determined to be confidential by City, (the "Confidential Information") must be maintained as confidential by City, but that access to and knowledge of such Confidential Information is essential to the performance of Consultant's duties hereunder. Consultant agrees that all Confidential Information heretofore or in the future obtained by Consultant as a result of Consultant's relationship with the City shall be considered confidential. In recognition of this fact, Consultant agrees that, during and after the Consulting Period, Consultant will not disclose any such Confidential Information to any person or entity for any reason or purpose whatsoever and will not make use of any Confidential Information for company purposes or for the benefit of any other person or entity (except the City), unless ordered to do so by a court with legal jurisdiction. 19. Law to Govern; Venue. The law of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of Los Angeles. In the event of litigation in a U.S. District Court, exclusive venue shall lie in the Central District of California. 20. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including actual attorney's fees and costs, including costs of expert witnesses and Consultants, discovery costs and costs on appeal. 21. Amendments. No amendment of this Agreement shall be valid unless in writing duly executed by the parties. 22. Execution of Counterparts. This Agreement may be executed in counterparts and, when each party has signed and delivered at least one such counterpart, each counterpart -5- shall be deemed an original and all counterparts taken together shall constitute one and the same agreement. 23. Sole and Only Agreement. This instrument constitutes the sole and only agreement between the City and Consultant, and correctly sets forth the obligations of the City and Consultant to each other as of its date. Any agreements or representations or any other matter discussed in this Agreement not expressly set forth in this instrument are null and void. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate, effective the day and year first above written. CAPE CANAVERAL POWER CONSULTANTS a Florida Corporation By: Peter Hervish ATTEST: By: Manuela Giron, City Clerk CITY OF VERNON Leonis C. Malburg Mayor APPROVED AS TO FORM: Jeff A. Harrison, City Attorney IA