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Resolution No. 2010-046RESOLUTION NO. 2010-46 A RESOLUTION OF, THE CITY COUNCIL OF THE CITY OF VERNON RESCINDING APPROVAL OF THE INDEPENDENT CONTRACTOR AGREEMENT APPROVED BY RESOLUTION NO. 9914 AND APPROVING A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND MORIARTY & ASSOCIATES, LLC FOR FINANCIAL MANAGEMENT AND REPORTING SERVICES WHEREAS, on April 13, 2009, the City Council of the City of Vernon adopted Resolution No. 9914 approving an Independent Contractor Agreement with F. James Moriarty and terminating the letter agreement approved by Resolution No. 9547 and adopted on February 4, 2008; and WHEREAS, the Independent Contractor Agreement was never fully executed; and WHEREAS, the City of Vernon and Moriarty & Associates, LLC ("Moriarty") desire to enter into a Professional Services Agreement under which Moriarty will assist the City with administration of the City's financial management and reporting system; and WHEREAS, by memo dated March 22, 2010, the Director of Light & Power recommends the City enter into an agreement setting forth the terms and conditions under which Moriarty will provide professional services on an as needed basis; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (b)(1) and (7) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into an agreement with Moriarty to provide professional services. 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 does hereby find and determine that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby revokes its April 13, 2009, offer of.an agreement to F. James Moriarty and rescinds its approval of the Independent Contractor Agreement approved by Resolution No. 9914. SECTION 3: The City Council of the City of Vernon hereby approves the Professional Services Agreement, a copy of which is attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Professional Services 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 5: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized. SECTION 6: All resolutions, or parts of resolutions, not consistent with or in conflict with this Resolution are superseded by this Resolution. SECTION 7: The City.Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to send the fully executed Professional Services Agreement to Moriarty. 2 SECTION 8: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this 'City. ATTAST: Will APPROVED AND ADOPTED this 29th day of March, 2010. l l.y L.l C.L 11 Name: Hilario Gonzales Title: Mayor / 1� prn-Te7 3 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2010-46, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, March 29, 2010, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this �z day of March, 2�10, at Vernon, California. (SEAL) Rd, City Clerk 4 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at Vernon, California this 29 th day of March, 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City") and Moriarty & Associates, LLC, a Missouri limited liability company ("Contractor"). 1. ENGAGEMENT: City hereby engages Contractor and Contractor hereby accepts such engagement upon the terms and conditions hereinafter set forth. 2. TERM: This Agreement will become effective on the Effective Date and will continue in effect until terminated by either party as set forth below. Any services performed on or after April 13, 2009, but prior to the Effective Date listed above, shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions of this Agreement. 3. SERVICES: a. On the terms and conditions set forth herein, City hereby engages Contractor to provide to City the following services: (i) administration of the City's annual budget process; (ii) administration of the City-wide Monthly Management Report (MM[R); (iii) oversight of the credit review procedures associated with the City's natural gas and physical power transactions with approved counterparties; and (iv) any other services directed in writing by the City Administrator (collectively, the "Services"). b. Contractor shall provide Services to City on an as needed basis, as authorized by the City Administrator. C. Contractor will not be compensated for any work performed not specified in this Section unless City authorizes such work in advance and in writing. 4. COMPENSATION: a. City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the hourly rate and expense reimbursement set forth in Exhibit A ("Hourly Rate and Expenses")-. The Hourly Rate and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including without limitation, all labor, materials, delivery, and tax as applicable). 12720-0001\1215203v3.doc b. Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit A. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. 5. METHOD OF PAYMENT: a. Invoices. Contractor shall submit invoices every two (2) weeks for services and expenses. Invoices shall include the time period for which the Services were provided, the dates of such Services, and a description of the Services provided for that billing period. Each invoice shall include copies of timesheets, if any, and other supporting documents as City may require. b. Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. 6. STANDARD OF SERVICES: a. Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality as the City under similar circumstances and in a manner reasonably satisfactory to City. Contractor shall at all times comply with the highest ethical standards when performing Services for the City. b. Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect, those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this section. C. All persons performing Services shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. 7. CONTRACTOR'S DUTIES AND REPRESENTATIONS: Contractor represents, covenants and agrees as follows: a. There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. b. Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services 2 12720-0001\1215203v3.doc contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. C. There is no litigation pending against Contractor and Contractor is not the subject of any criminal investigation or proceeding, and neither Contractor nor its personnel, to its actual knowledge, have been convicted of a felony. 8. INDEPENDENT CONTRACTOR: a. Contractor is and shall at all times remain, as to City, a wholly independent contractor, The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees, agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. b. No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing Services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing Services hereunder. C. Contractor agrees to pay and be responsible for paying all Federal, State and local taxes for compensation received by Contractor from City while performing services for City. 9. TERMINATION OF CONTRACT: a. Termination Right: This Agreement may be terminated by either party at any time, for any reason or for no reason, with or without cause. Contractor shall give thirty (30) days written notice of termination to City prior to terminating this Agreement. City may terminate this Agreement with no notice. b. Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for work performed up to the time of termination. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. . C. Actions Subsequent to Termination. In the event of termination of this Agreement, Contractor shall deliver all Confidential Information, as defined in this Agreement, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's duties and activities hereunder. 3 12720-0001\1215203v3.doc d. All of the terms and conditions in the Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. 10. LIMITATION OF CITY'S LIABILITY: City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the Services required by this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. 11. DEFAULT: Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default. 12. CONFIDENTIALITY: a. Confidential Status, Disclosure of Information. All data, customer information, business practices, business methods, privileged information, trade secrets, financial statements, floor plans, designs, maps, surveys, drawings, models, reports, correspondence, logs, documents, materials or other information developed or created by Contractor, received by Contractor, revealed to Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. b. All Confidential Information shall remain the sole, exclusive and permanent property of City. Said materials shall not be removed from the premises of City without the prior written consent of City. C. Contractor's obligation not to disclose any Confidential Information shall not extend to information that: (i) was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; (ii) is or becomes generally known to the public without violation of this Agreement; 4 12720-0001 \12152030.doc (iii) is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) information which is required to be disclosed pursuant to any court order or directive having the force of law. d. The provisions of this section shall survive the termination of this Agreement. 13. RECORDS RETENTION: Contractor shall prepare and maintain, or cause to be prepared and maintained, necessary or appropriate reports, records and correspondence relating to all Services rendered by Contractor under this Agreement. Contractor shall provide all reports, records and correspondence to City and City shall be responsible for the retention and storing of all such records. 14. NOTICE: Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and sent by certified mail, return receipt requested, and mailed to the parties at the following addresses: City: City of Vernon Attention: City Administrator 4305 Santa Fe Avenue Vernon, California 90058 Contractor: Moriarty & Associates, LLC F. James Moriarty 1580 Renderer Drive St. Louis, Missouri 63122 Mailed notices will be deemed communicated as of the day of receipt. 15, ASSIGNMENT AND SUBCONTRACTING: Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. 16, ARBITRATION AND VENUE: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be 5 12720-0001\12152030.doc administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the, arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. 17, ATTORNEYS FEES: In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained 18. GOVERNING LAW: This Agreement shall be interpreted and enforced according to, and the parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. 19. SEVERABILITY: It is the intention of both parties that the terms of this Agreement be construed so as to comply with the laws, rules and regulations of the State of California. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. 20. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof and supersedes all prior and collateral agreements, understandings, statements and negotiations of the parties. Each party acknowledges that no representations, inducements, promises, or agreements, oral or written, with reference to the subject matter hereof have been made other than as expressly set forth herein. 21. AMENDMENTS: This Agreement may be amended only by an instrument in writing executed by duly authorized representatives of both parties. 22. WAIVER: The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have 6 12720-0001\12152030.doc hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 23. FORCE MAJEURE: Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 24. CITY NOT OBLIGATED TO THM PARTIES: City shall not be obligated or liable under this Agreement to any party other than Contractor. 25. EXHIBITS: All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. 26. HEADINGS: Headings used in this Agreement are for convenient reference only and shall not affect the interpretation of this Agreement. 27. AUTHORITY TO EXECUTE THIS AGREEMENT: The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page] 7 12720-0001\1215203v3.doe IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CITY OF VERNON, California charter City MORIARTY & ASSOCIATES, LLC, a and California municipal corporation Missouri limited liability company By: By: HILARIO GONZALES Mayor Name: F. JAMES MORIARTY Title: ATTEST: 1.2 Name: WILLARD YAMAGUCHI, City Clerk Title: APPROVED AS TO FORM: LAURENCE S. WIENER, City Attorney 8 12720-0001\1215203v3.doc EXHIBIT A Hourly Rate and Expenses In consideration for the services to be provided by Contractor under this Agreement, City shall pay to Contractor One Hundred Fifty Dollars ($150.00) per hour. Contractor shall be entitled to reimbursement for all reasonable travel expenses, including air transportation, motel, meals, car rental, gas and parking. Any other expense must be approved in advance in writing by the City Administrator or his designee. 9 12720-0001\1215203v3.doc f OFFICE OF THE MI. CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-SSll March 30, 2010 F. James Moriarty Moriarty & Associates, LLC 1580 Renderer Drive St. Louis, MO 63122 VIA HAND DELIVERY Re: Professional Services Agreement for Financial Management and Reporting Services Dear Mr. Moriarty: Transmitted herewith are two partially executed original agreements as referenced above, approved by City Council on March 29, 2010, through Resolution No. 2010-46. Please ensure that a fully executed original agreement is returned to the attention of the undersigned. If you have any questions regarding this matter, please call Mr. Donal O'Callaghan, at (323) 583-8811 ext. 834. Very ruly yours, WILLARD G. VAA City Clerk WY:dj c: Donal UCallaghan Purchasing Department Resolution Nos. 9914 & 2010-46 Agreement File No. 10-024 Exc& vehy I1 dustriaf PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at Vernon, California this 29 th day of March, 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City") and Moriarty & Associates, LLC, a Missouri limited liability company ("Contractor"). 1. ENGAGEMENT: City hereby engages Contractor and Contractor hereby accepts such engagement upon the terms and conditions hereinafter set forth. 2. TERM: This Agreement will become effective on the Effective Date and will continue in effect until terminated by either party as set forth below. Any services performed on or after April 13, 2009, but prior to the Effective Date listed above, shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions of this Agreement. 3. SERVICES: a. On the terms and conditions set forth herein, City hereby engages Contractor to provide to City the following services: (i) administration of the City's annual budget process; (ii) administration of the City-wide Monthly Management Report (MMR); (iii) oversight of the credit review procedures associated with the City's natural gas and physical power transactions with approved counterparties; and (iv) any other services directed in writing by the City Administrator (collectively, the "Services"). b. Contractor shall provide Services to City on an as needed basis, as authorized by the City Administrator. C. Contractor will not be compensated for any work performed not specified in this Section unless City authorizes such work in advance and in writing. 4. COMPENSATION: a. City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the hourly rate and expense reimbursement set forth in Exhibit A ("Hourly Rate and Expenses")-. The Hourly Rate and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including without limitation, all labor, materials, delivery, and tax as applicable). 12720-0001\1215203v3.doc b. Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit A. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. 5. METHOD OF PAYMENT: a. Invoices. Contractor shall submit invoices every two (2) weeks for services and expenses. Invoices shall include the time period for which the Services were provided, the dates of such Services, and a description of the Services provided for that billing period. Each invoice shall include copies of timesheets, if any, and other supporting documents as City may require. b. Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. 6. • STANDARD OF SERVICES: a. Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality as the City under similar circumstances and in a manner reasonably satisfactory to City. Contractor shall at all times comply with the highest ethical standards when performing Services for the City. b. Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, officials, employees, agents or volunteers shall not be liable_ at law or in equity occasioned by failure of Contractor to comply with this section. C. All persons performing Services shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. 7. CONTRACTOR'S DUTIES AND REPRESENTATIONS: Contractor represents, covenants and agrees as follows: a. There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. b. Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services 2 12720-0001\1215203v3.doc contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. C. There is no litigation pending against Contractor and Contractor is not the subject of any criminal investigation or proceeding, and neither Contractor nor its personnel, to its actual knowledge, have been convicted of a felony. 8. INDEPENDENT CONTRACTOR: a. Contractor is and shall at all times remain, as to City, a wholly independent contractor. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees, agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. b. No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing Services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing Services hereunder. C. Contractor agrees to pay and be responsible for paying all Federal, State and local taxes for compensation received by Contractor from City while performing services for City. 9. TERMINATION OF CONTRACT: a. Termination Right: This Agreement may be terminated by either party at any time, for any reason or for no reason, with or without cause. Contractor shall give thirty (30) days written notice of termination to City prior to terminating this Agreement. City may terminate this Agreement with no notice. b. Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for work performed up to the time of termination. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. C. Actions Subsequent to Termination. In the event of termination of this Agreement, Contractor shall deliver all Confidential Information, as defined in this Agreement, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's duties and activities hereunder. 12720-0001\12152030.doc d. All of the terms and conditions in the Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. 10. LIMITATION OF CITY' S LIABILITY: City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the Services required by this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. 11. DEFAULT: Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default. 12. CONFIDENTIALITY: a. Confidential Status: Disclosure of Information. All data, customer information, business practices, business methods, privileged information, trade secrets, financial statements, floor plans, designs, maps, surveys, drawings, models, reports, correspondence, logs, documents, materials or other information developed or created by Contractor, received by Contractor, revealed to Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. b. All Confidential Information shall remain the sole, exclusive and permanent property of City. Said materials shall not be removed from the premises of City without the prior written consent of City. C. Contractor's obligation not to disclose any Confidential Information shall not extend to information that: (i) was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; (ii) is or becomes generally known to the public without violation of this Agreement; 4 12720-0001 \ 1215203 v3 . doc (iii) is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (iv) information which is required to be disclosed pursuant to any court order or directive having the force of law. d. The provisions of this section shall survive the termination of this Agreement 13. RECORDS RETENTION: Contractor shall prepare and maintain, or cause to be prepared and maintained, necessary or appropriate reports, records and correspondence relating to all Services rendered by Contractor under this Agreement. Contractor shall provide all reports, records and correspondence to City and City shall be responsible for the retention and storing of all such records. 14. NOTICE: Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and sent by certified mail, return receipt requested, and mailed to the parties at the following addresses: City: City of Vernon Attention: City Administrator 4305 Santa Fe Avenue Vernon, California 90058 Contractor: Moriarty & Associates, LLC F. James Moriarty 1580 Renderer Drive St. Louis, Missouri 63122 Mailed notices will be deemed communicated as of the day of receipt. 15."ASSIGNMENT AND SUBCONTRACTING: Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. 16. ARBITRATION AND VENUE: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be 12720-0001 \ 12152030.doc administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. 17. ATTORNEYS FEES: In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained 18. GOVERNING LAW: This Agreement shall be interpreted and enforced according to, and the parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. 19. SEVERABILITY: It is the intention of both parties that the terms of this Agreement be construed so as to comply with the laws, rules and regulations of the State of California. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. 20. ENTIRE AGREEMENT: This Agreement contains the entire understanding of the parties hereto relating to the subject matter hereof and supersedes all prior and collateral agreements, understandings, statements and negotiations of the parties. Each party acknowledges that no representations, inducements, promises, or agreements, oral or written, with reference to the subject matter hereof have been made other than as expressly set forth herein. 21. AMENDMENTS: This Agreement may be amended only by an instrument in writing executed by duly authorized representatives of both parties. 22. WAIVER: The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have 6 12720-0001\1215203v3.doc hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 23. FORCE MAJEURE: Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. 24. CITY NOT OBLIGATED TO THIRD PARTIES: City shall not be obligated or liable under this Agreement to any party other than Contractor. 25. EXHIBITS: All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. 26. HEADINGS: Headings used in this Agreement are for convenient reference only and shall not affect the interpretation of this Agreement. 27. AUTHORITY TO EXECUTE THIS AGREEMENT: The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page] 7 12720-0001 \ 1215203 v3 . doc IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CITY OF VERNON, California charter City and California municipal corporation • 4. By: p HILARIO GONZALES Mayor ATT T: WIL ARD U HI, i y Clerk APPROVED AS TO FORM: ';2 LA CE S. WIENER, City Attorney 8 12720-0001\12152030.doc MORIARTY & ASSOCIATES, LLC, a Missouri limited liability company By: terns Name: F. JAMES MORIARTY an Name: Title: EXHIBIT A 10.14 go 11: Hourly Rate and Expenses In consideration for the services to be provided by Contractor under this Agreement, City shall pay to Contractor One Hundred Fifty Dollars ($150.00) per hour. Contractor shall be entitled to reimbursement for all reasonable travel expenses, including air transportation, motel, meals, car rental, gas and parking. Any other expense must be approved in advance in writing by the City Administrator or his designee. 9 12720-0001\1215203v3.doc REcEiveo MAR 2 5 2010 STAFF REPORT CITY CLERK'S OFFICE LIGHT & POWER DATE: March 24, 2010 \J 2U\ TO: Honorable Mayor and City Council a FROM Donal O'Callaghan, Director of Light & Power RE: Moriarty & Associates, LLC Agreement The Department of Light & Power has been receiving consultant services from Moriarty & Associates, LLC formerly known as F. James Moriarty, CPA since February 4, 2008 as stated in Resolution No. 9547. Moriarty & Associates, LLC will continue to provide the City with services relating to the administration of the City's financial management and reporting system, which include administration of the City's annual budget process, administration of the City-wide Monthly Management Report (MMR), oversight of the credit review procedures associated with the City's natural gas and physical power transactions with approved counterparties, and any other services directed in writing by the City Administrator. On April 13, 2009, the City Council approved Resolution No. 9914. In that Resolution, the City Council terminated the prior letter agreement with F. James Moriarty, CPA, and approved, a form of agreement under which those services would continue to be performed. The agreement approved by Resolution No. 9914 was never fully executed. A revised agreement has been approved as to form by the City Attorney's office under which Moriarty and Associates, LLC ("Moriarty") will provide services formerly performed by F. James Moriarty. The new agreement will cover the work performed by Moriarty between April 13, 2009 and the present, as well as Moriarty's continuing services. Recommendation: am recommending rescinding approval of the proposed agreement approved by Resolution No. 9914, and the approval of the attached agreement for continuation of Moriarty & Associates, LLC services. Fiscal Impact: It is anticipated the cost of these consulting services will not exceed $330,000.00 for fiscal year July 1, 2009 through June 30, 2010. Attachment MAR 2 4 2010 BY: -Kw- 9'.00 INTEROFFICE MEMORANDUM Light & Power Department DATE: March 24, 2010 TO: Donal O'Callaghan Director of Light and Power RECEIVED FROM: Javier Valdez BAR 2 5 2010 Senior Business & Accounts SUBJECT: Moriarty & Associates, LLC Agreement CITY CLERK'S OFFICE The Department of Light & Power has been receiving consultant services from Moriarty & Associates, LLC formerly known as F. James Moriarty, CPA since February 4, 2008 as stated in Resolution No. 9547. Moriarty & Associates, LLC will continue to provide the City with services relating to the administration of the City's financial management and reporting system, which include administration of the City's annual budget process, administration of the City- wide Monthly Management Report (MMR), oversight of the credit review procedures associated with the City's natural gas and physical power transactions with approved counterparties, and any other services directed in writing by the City Administrator. On April 13, 2009, the City Council approved Resolution No. 9914. In that Resolution, the City Council terminated the prior letter agreement with F. James Moriarty, CPA, and approved a form of agreement under which those services would continue to be performed. The agreement approved by Resolution No. 9914 was never fully executed. A revised agreement has been approved as to form by the City Attorney's office under which Moriarty and Associates, LLC ("Moriarty") will provide services formerly performed by F. James Moriarty. The new agreement will cover the work performed by Moriarty between April 13, 2009 and the present, as well as Moriarty's continuing services. Recommendation: I am recommending rescinding approval of the proposed agreement approved by Resolution No. 9914, and the approval of the attached agreement for continuation of Moriarty & Associates, LLC services. DOC:jv c: Document Control Project Control RIWEIVED MAR 2 4 2010 )3 `- 4 a0 e_161 Transmittal Number: UP 329 D; City of Vernon NOV 16 T N SM ITTAL Light & Power Department LETTER 4305 Santa Fe Avenue, Vernon, CA 9FdMANAGEMENT DEPT Tel.: 323-583-8811, Ext. 561 Fax: 323-826-1425 FROM: Light & Power Department DATE:11/16/2010 We Transmit For Your ": The followin Herewith ' Under Separate Cover Transmitted Via Approval (Q Specifications. Q Fax Number: Q Review and Comment Submittals Overnight Service: © Distribution as indicated] Drawings US Mail: Information Only Close -Out Documents 0 Per Your Instructions: ( Use/File ] Computer Files Hand Delivered Action: Documents Contract Documents d Other:] Other: k` 11 -.0, _ . 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 November 15, 2010 Mr. James F. Moriarty Via U.S. Mail Moriarty & Associates, LLC 1580 Renderer Drive St. Louis, Missouri 63122 Phone No. (314) 520-7579 Re: Notice of Termination — Professional Services Agreement for Financial Management and Reporting Services Dear Mr. Moriarty: This letter is to serve as written notice of the termination of the Professional Services Agreement adopted by the City of Vernon per Resolution No. 2010-46 on March 29, 2010. I would like to personally thank you for your services performed on behalf of the City. Sincerely, 4Carlosandino Director of Light & Power CF:JV: Cc: City Clerk Project Control Document Control Resolution No. 2010-46 usive III t �' E usive Inc ustriaf