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Resolution No. 2010-100RESOLUTION NO. 2010-100 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN. CITY OF VERNON AND ENVIRONMENTAL MANAGEMENT PROFESSIONALS, LLC FOR ENVIRONMENTAL REGULATORY COMPLIANCE SERVICES WHEREAS, on January.12, 2009, the City Council of the City of Vernon adopted Resolution. No. 9821, approving a Consulting Agreement with Environmental Management Professional,`LLC ("EMP") in which EMP would provide certain compliance services relating to state and federal regulatory matters and environmental matters; and WHEREAS, the City desires to continue using the services of a consultant to assist the City with environmental regulatory compliance (the "Services"), but under revised terms and conditions; and WHEREAS, by memo dated July 20, 2010, the Director of Light & Power recommends the City enter into a professional services agreement terminating the prior Consulting Agreement with EMP and setting forth the revised terms and conditions under which EMP will provide the Services (the "Agreement"); 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 EMP to provide environmental regulatory compliance services: NOW, THEREFORE, BEITRESOLVED 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, a copy of which is attached hereto as Exhibit A. SECTION 3: 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 4: 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 5: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to send a fully executed Agreement to EMP. 2 SECTION 6: 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. APPROVED AND ADOPTED this 2nd day of August, 2010. Name. Hilario Gonzales Title: Mayor ATT ST: Will rd G. Ya u hi, C ty Clerk 3 J 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. 2010-100, 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, August 2, 2010, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of August, 2010, at Vernon, California. W liar G. g City Clerk (SEAL) 4 i PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND ENVIRONMENTAL MANAGEMENT PROFESSIONALS, LLC FOR ENVIRONMENTAL REGULATORY COMPLIANCE SERVICES COVER PAGE Contractor: Environmental Management Professionals, LLC Responsible Principal of Contractor: Notice Information - Contractor: Notice Information - City: Commencement Date: Termination Date: Consideration: 12720-000 1 \1222762v5.doc Dr. Krishna Nand, PH.D., Q.E.P. Environmental Management Professionals, LLC 22811 Madrona Avenue Torrance, CA 90505 Attention: Roopa Krishna Nand, Member and Manager Phone: (424) 263-7717 Facsimile: (310) 539-0606 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Donal O'Callaghan, Director of Light and Power Telephone: (323) 583-8811, ext. 561 Facsimile: (323) 826-1408 July 1, 2010 As described in Section 1 As described in Exhibit B PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND ENVIRONMENTAL MANAGEMENT PROFESSIONALS, LLC FOR ENVIRONMENTAL REGULATORY COMPLIANCE SERVICES THIS AGREEMENT is made and entered into as of , 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Environmental Management Professionals, LLC, a California limited liability company ("Contractor"). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain environmental regulatory compliance services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A. B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the Parties agree as follows: Section 1. Term and Time of Performance. This Agreement shall commence upon the Commencement Date listed on the Cover Page and will continue in effect until terminated by either party as set forth below. Any services performed prior to the Effective Date listed above, but on or after the Commencement Date, shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A and defined therein as "Services." Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) 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 City. (c) 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. 2 12720-000 1 \1 222762v5.doc (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. 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 B ("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). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses on or before the 5th of each month. Invoices shall include the month 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, including receipts for expenses. (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. Section 5. Personnel. 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. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. Section 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 contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. 12720-0001\1222762v5.doc (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. Section 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. Section 9. Termination. (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 Services performed up to the time of termination, on an hourly basis for services rendered, and Contractor shall submit an invoice to City as required under this Agreement. 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 Section 11 below, 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. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. Section 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 4 12720-0001\1222762v5.doc 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. Section 11. Confidential Status: Disclosure of Information. (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, 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; iii. is obtained without an obligation of confidentiality by 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. Section 12. 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. Section 13. 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 12720-000 1 \1222762v5.doc of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default. Section 14. 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. Section 15. 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 (3) arbitrators. The arbitration shall be 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. Section 16. 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. Section 17. 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. Section 18. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire agreement and understanding between the Parties, and any and all negotiations, proposals or oral agreements are intended to be integrated herein and are superseded by this Agreement. This Agreement may only be modified by a writing signed by both Parties. Section 19. Prior Agreements. (a) ,City, Contractor and Krishna Nand ("Nand"), individually and collectively, agree that the Consulting Agreement between City and Nand, as a sole proprietor, executed December 15, 2004, was terminated on January 19, 2005. (b) City, Contractor and Nand, individually and collectively, agree that Amendment No. One to Consulting Agreement between City and Contractor executed January 19, 2005, was terminated on or before January 12, 2009. (c) City, Contractor and Nand, individually and collectively, agree that the Consulting Agreement between City and Contractor executed January 12, 2009, is terminated and superseded by this Agreement as of the Commencement Date of this Agreement. (d) City, Contractor and Krishna Nand ("Nand") agree that any and all prior agreements between the City and. Contractor, City and Nand, or City, Contractor and Nand, not 6 12720-0001\1222762v5.doc listed in (a), (b) or (c) of this Section 19, are hereby terminated and superseded by this agreement to the extent those agreements have not been previously terminated. (e) The only provision of this Agreement that applies to Nand as an individual is this Section 19, and any amendments to the remaining provisions of this Agreement do not require Nand's agreement or his signature. Section 20. 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 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. Section 21. Force Maieure. 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. Section 22. City Not Obliqated to Third Parties. City shall not be obligated or liable under this Agreement to any party other than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the Parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information - Contractor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Pape and Exhibits. The Cover Page and 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. Section 25. Headings. Headings used in this Agreement are for convenient reference only and shall not affect the interpretation of this Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. 7 12720-0001\1222762v5.doc Section 27. Severability. 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. Section 28. 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. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City and California municipal corporation HILARIO GONZALES Mayor ATTEST: WILLARD YAMAGUCHI, City Clerk APPROVED AS TO FORM: LAURENCE S. WIENER, City Attorney Environmental Management Professionals, LLC, a California limited liability company By: 4 ROO A KRISHNA NAND Member and Manager By: Name: 1S i� 1V�1 1V6� 1� Title:, PA APPROVED AND AGREED as to Section 19: Krishna Nand, as an individual By: KRI 12720-0001\1222762v3.doc *00.1 SCOPE OF SERVICES Section 1. Scope of Services to be performed by Contractor Contractor shall perform environmental regulatory compliance services ("Services"). At the request of the Director of Light & Power, Contractor shall perform all required Services, including but not limited to, the following: A. Provide information and advice to City to ensure City's timely compliance with all state and federal regulatory matters; B. Provide information and advice to City to ensure City's timely compliance with environmental matters; C. Provide information and advice to City on renewable energy program; D. Provide information and advice to City on the Global Warming Solutions Act, Sustainability Issues, and Cap -and -Trade Program applicable to the Malburg Generating Station and City's Natural Gas Transmission and Distribution System; E. Manage all compliance related issues for the Light & Power Department existing power plant, including the management of preparation of all air, hazardous material, industrial wastewater, and storm water related documents for submission to the various regulatory agencies; F. Provide advice and manage preparation of Green House Gas Emission Inventories for (i) City -owned facilities for the California Climate Action Registry; (ii) City's existing power plant for the California Air Resources Board (CARB); and (iii) City's Natural Gas Transmission and Distribution System to the United States Environmental Protection Agency (USEPA) and CARE; G. Provide advice to City's Health & Environmental Control Department on matters relating to the implementation of California and USEPA Risk Management and Process Safety Management Programs; and H. Provide assistance to City's Community Services Department and Water Department on matters relating to air quality and air permitting for equipment owned and operated by the Community Services Department and Water Department. As an independent contractor, Contractor will determine the method, details, and means of performing the Services. Section 2. Responsible Principal of Contractor The responsible principal of Contractor is Dr. Krishna Nand ("Responsible Principal"), who shall perform all Services under -this Agreement unless otherwise agreed to in writing by City. 9 12720-0001\1222762v5.doc Section 3. Responsible Principal's Availability Contractor hereby agrees to make Responsible Principal available up to two thousand eighty (2,080) hours for each twelve (12)-month period, beginning with the Commencement Date (the "Yearly Contract Hours"), to perform Services for City as requested by the Director of Light & Power. Contractor shall be available to provide additional hours of Services; provided, however, any hours in excess of two thousand eighty (2,080) must be approved in writing in advance by the Director of Light & Power. City is not required to use Responsible Principal for the full amount of Yearly Contract Hours, and may use Responsible Principal for any lesser amount of time at City's sole and absolute discretion. 10 12720-0001\1222762v5.doc EXHIBIT B HOURLY RATE AND EXPENSES Section 1. Consideration In consideration for the Services provided by Contractor under this Agreement, City shall pay Contractor at the rate of Ninety -Five Dollars ($95,00) per hour of Services rendered. Section 2. Project Related Travel Expenses A. City shall reimburse Contractor for reasonable travel expenses, including required meetings or other business trips, .pre -approved in writing by the Director of Light and Power or his designee. B. "Travel expenses" include airfare, lodging, food, parking, car rental and taxi. Contractor shall not be reimbursed for travel expenses for travel between Contractor's office in Torrance, California and the City of Vernon. C. Travel expenses shall be at cost, with no mark-up. D. Airfare shall be reimbursed at economy class, unless economy class seating is unavailable through no fault of Contractor. E. Reasonable attempts shall be made to make air travel reservations in advance in order to take advantage of lower fares. In the event that travel plans must be canceled or re -scheduled due to no fault of Contractor, then City shall pay for any costs associated therewith; if the travel is canceled or re -scheduled due to the fault of Contractor, then Contractor shall bear the expense. "Due to the fault of Contractor' shall include, but not be limited to, travel canceled or re -scheduled (i) at the request of Contractor, (ii) due to Contractor's mistake or (iii) because Contractor becomes unavailable for any reason. Section 3. Other Reimbursable Expenses A. City shall reimburse Contractor for reasonable nontravel expenses, pre -approved in writing by the Director of Light and Power or his designee. B. "Nontravel expenses" include but are not limited to the cost of obtaining documents from research libraries or official agencies and technical publications. C. Nontravel expenses shall be at cost, with no mark-up. 11 12720-0001\1222762v5.doc OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 August 4, 2010 Krishna Nand, Ph.D., Q.E.P. Environmental Management Professionals, LLC 22811 Madrona Avenue Torrance, CA 90505 Re: Environmental Regulatory Compliance Services Agreement Dear Dr. Nand: Transmitted herewith is a fully executed Agreement as referenced above, approved by City Council on August 2, 2010. If you have any questions regarding this matter, please call Mr. Donal O'Callaghan at (323) 583- 8811 ext. 834. Very, ruly yours, �6W WILLARD G. Y PGU City Clerk WGY:dj c: Carlos Fandino Donal O'Callaghan Purchasing Department. Resolution No. 2010-100 Agreement File No. 10-049 E Ccfusivefy Industfiaf PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND ENVIRONMENTAL MANAGEMENT PROFESSIONALS, LLC FOR ENVIRONMENTAL REGULATORY COMPLIANCE SERVICES COVER PAGE Contractor: Environmental Management Professionals, LLC Responsible Principal of Contractor: Dr. Krishna Nand, PH.D., Q.E.P. Notice Information - Contractor: Notice Information - City: Commencement Date: Termination Date: Consideration: Environmental Management Professionals, LLC 22811 Madrona,Avenue Torrance, CA 90505 Attention: Roopa Krishna Nand, Member and Manager Phone: (424) 263-7717 Facsimile: (310) 539-0606 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Donal O'Callaghan, Director of Light and Power Telephone: (323) 583-8811, ext. 561 Facsimile: (323) 826-1408 July 1, 2010 As described in Section 1 As described in Exhibit B 12720-000 1\1 222762v5.doc PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND ENVIRONMENTAL MANAGEMENT PROFESSIONALS, LLC FOR ENVIRONMENTAL REGULATORY COMPLIANCE SERVICES THIS AGREEMENT is made and entered into as of August 2 , 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Environmental Management Professionals, LLC, a California limited liability company ("Contractor"). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain environmental regulatory compliance services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A. B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the Parties agree as follows: Section 1. Term and Time of Performance. This Agreement shall commence upon the Commencement Date listed on the Cover Page and will continue in effect until terminated by either party as set forth below. Any services performed prior to the Effective Date listed above, but on or after the Commencement Date, shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A and defined therein as "Services." Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) 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 City. (c) 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. 2 12720-0001\1222762v5.doc (d) Contractor will not be compensated for any work performed not specified in Exhibit unless. City authorizes such work in advance and in writing. Section 3. 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 B ("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). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses on or before the 5th of each month. Invoices shall include the month 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, including receipts for expenses. (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. Section 5. Personnel. 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. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. Section 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 contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. 12720-0001\1222762v5.doc (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. Section 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. Section 9. Termination. (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 Services performed up to the time of termination, on an hourly basis for services rendered, and Contractor shall submit an invoice to City as required under this Agreement. 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 Section 11 below, 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. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. Section 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 4 12720-0001\1222762v5.doc 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. Section 11. Confidential Status; Disclosure of Information. (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, 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; iii. is obtained without an obligation of confidentiality by 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. Section 12. 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. Section 13. 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 12720-0001\1222762v5.doc of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default. Section 14. 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. Section 15. 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 (3) arbitrators. The arbitration shall be 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. Section 16. 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. Section 17. 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. Section 18. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire agreement and understanding between the Parties, and any and all negotiations, proposals or oral agreements are intended to be integrated herein and are superseded by this Agreement. This Agreement may only be modified by a writing signed by both Parties. Section 19. Prior Agreements. (a) City, Contractor and Krishna Nand ("Nand"), individually and collectively, agree that the Consulting Agreement between City and Nand, as a sole proprietor, executed December 15, 2004, was terminated on January 19, 2005. (b) City, Contractor and Nand, individually and collectively, agree that Amendment No. One to Consulting Agreement between City and Contractor, executed January 19, 2005, was terminated on or before January 12, 2009. (c) City, Contractor and Nand, individually and collectively, agree that the Consulting Agreement between City and Contractor executed January 12, 2009, is terminated and superseded by this Agreement as of the Commencement Date of this Agreement. (d) City, Contractor and Krishna Nand ("Nand") agree that any and all prior agreements between the City and Contractor, City and Nand, or City, Contractor and Nand, not 6 12720-0001\1222762v5.doc listed in (a), (b) or (c) of this Section 19, are hereby terminated and superseded by this agreement to the extent those agreements have not been previously terminated. (e) The only provision of this Agreement that applies to Nand as an individual is this Section 19, and any amendments to the remaining provisions of this Agreement do not require Nand's agreement or his signature. Section 20. 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 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. Section 21. Force Maieure. 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. Section 22. City Not Obligated to Third Parties. City shall not be obligated or liable under this. Agreement to any party other than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the Parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using. the address set forth on the Cover Page under "Notice Information - City" or "Notice Information - Contractor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and,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. Section 25. Headings. Headings used in this Agreement are for convenient reference only and shall not affect the interpretation of this Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, dispute resolution and waiver shall survive termination of this Agreement. 7 12720-000 1 \1222762v5.doc Section 27. Severability. 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. Section 28. 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. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City and California municipal corporation HILARIO GONZALE Mayor /v/A- City Attorney Environmental Management Professionals, LLC, a Califor 'a limited liability company By: ROOPA KRISHNA NAND Member and Manager By: Name: "A &)A N ®® DI Title: D w c i PA L APPROVED AND AGREED as to Section 19: Krishna:NanQ,n ndividual AJ- By: HNA NAND M. 12720-000 1 \1 222762v3.doc EXHIBIT A EXHIBIT A SCOPE OF SERVICES Section 1. Scope of Services to be performed by Contractor Contractor shall perform environmental regulatory compliance services ("Services"). At the request of the Director of Light & Power, Contractor shall perform all required Services, including but not limited to, the following: A. Provide information and advice to City to ensure City's timely compliance with all state and federal regulatory matters; B. Provide information and advice to City to ensure City's timely compliance with environmental matters; C. Provide information and advice to City on renewable energy program; D. Provide information and advice to City on the Global Warming Solutions Act, Sustainability Issues, and Cap -and -Trade Program applicable to the Malburg Generating Station and City's Natural Gas Transmission and Distribution System; E. Manage all compliance related issues for the Light & Power Department existing power plant, including the management of preparation of all air, hazardous material, industrial wastewater, and storm water related documents for submission to the various regulatory agencies; F. Provide advice and manage preparation of Green House Gas Emission Inventories for (i) City -owned facilities for the California Climate Action Registry; (ii) City's existing power plant for the California Air Resources Board (CARB); and (iii) City's Natural Gas Transmission and Distribution System to the United States Environmental Protection Agency (USEPA) and CARB; G. Provide advice to City's Health & Environmental Control Department on matters relating to the implementation of California and USEPA Risk Management and Process Safety Management Programs; and H. Provide assistance to City's Community Services Department and Water Department on matters relating to air quality and air permitting for equipment owned and operated by the Community Services Department and Water Department. As an independent contractor, Contractor will determine the method, details, and means of performing the Services. Section 2. Responsible Principal of Contractor The responsible principal of Contractor is Dr. Krishna Nand ("Responsible Principal"), who shall perform all Services under this Agreement unless otherwise agreed to in writing by City. - 9 12720-0001\1222762v5.doc Section 3. Responsible Principal's Availability Contractor hereby agrees to make Responsible Principal available up to two thousand eighty (2,080) hours for each twelve (12)-month period, beginning with the Commencement Date (the "Yearly Contract Hours"), to perform Services for City as requested by the Director of Light & Power. Contractor shall be available to provide additional hours of Services; provided, however, any hours in excess of two thousand eighty (2,080) must be approved in writing in advance by the Director of Light & Power. City is not required to use Responsible Principal for the full amount of Yearly Contract Hours, and may use Responsible Principal for any lesser amount of time at City's sole and absolute discretion. 10 12720-000 1 \1 222762v5.doc EXHIBIT B HOURLY RATE AND EXPENSES Section 1. Consideration In consideration for the Services provided by Contractor under this Agreement, City shall pay Contractor at the rate of Ninety -Five Dollars ($95.00) per hour of Services rendered. Section 2. Project Related Travel Expenses A. City shall reimburse Contractor for reasonable travel expenses, including required meetings or other business trips, pre -approved in writing by the Director of Light and Power or his designee. B. "Travel expenses" include airfare, lodging, food, parking, car rental and taxi. Contractor shall not be reimbursed for travel expenses for travel between Contractor's office in Torrance, California and the City of Vernon. C. Travel expenses shall be at cost, with no mark-up. D. Airfare shall be reimbursed at economy class, unless economy class seating is unavailable through no fault of Contractor. E. Reasonable attempts shall be made to make air travel reservations in advance in order to take advantage of lower fares. In the event that travel plans must be canceled or re -scheduled due to no fault of Contractor, then City shall pay for any costs associated therewith; if the travel is canceled or re -scheduled due to the fault of Contractor, then Contractor shall bear the expense. "Due to the fault of Contractor' shall include, but not be limited to, travel canceled or re -scheduled (i) at the request of Contractor, (ii) due to Contractor's mistake or (iii) because Contractor becomes unavailable for any reason. Section 3. Other Reimbursable Expenses A. City shall reimburse Contractor for reasonable nontravel expenses, pre -approved in writing by the Director of Light and Power or his designee. B. "Nontravel expenses" include but are not limited to the cost of obtaining documents from research libraries or official agencies and technical publications. C. Nontravel expenses shall be at cost, with no mark-up. ll 12720-0001\1222762v5.doc RECEIVED JUL 2 0 2010 STAFF REPORT CITY CLERK'S OFFICE LIGHT & POWER DATE: July 20, 2010Z�`� TO: Honorable Mayor and City Council j FROM: Donal O'Callaghan, Director of Light& Power J RE: Environmental, Management Professionals, LLC Agreement The Department of Light & Power requires Ithe services of a consultant to represent the City with regulatory and environmental matters to ensure timely compliance with the State and federal regulatory agencies. Since December 15, 2004, approved by Resolution No. 8617 Krishna Nand has - - provided these consulting services to the Department of Light and Power as an independent contractor. On December 15, 2004, the City Council approved Resolution No. 8645, to amend the agreement to modify the contract provisions to provide for the name change to Environmental Management Professionals, LLC and to clarify the scope of services to be performed. ,Environmental Management Professionals, LLC ("EMP") is qualified to perform environmental regulatory compliance services with all state and federal regulatory; health & environmental, renewable energy programs, global warming solutions, and all related issues in the. City. A professional services agreement has been prepared under which EMP will provide the services. The responsible principal of EMP who will perform the services is Krishna Nand. The professional services agreement has been approved as to form by the City Attorney's office. The new agreement will cover the work performed by EMP as of July 1 2010: Recommendation: am recommending the City Council approve the attached signed agreement by Environmental Management Professionals, LLC on August 2, ;2010 to ensure the services and maintain compliance with all state and federal regulatory. Fiscal Impact: It is anticipated the cost of these consulting services will not exceed $200,000 for each twelve-month period. DO:jv Attachment CEIVE JUL 2 0 2010 INTEROFFICE MEMORANDUM Light & Power Department DATE: July 20, 2010 C= � TO: Donal O'Callaghan Director of Light and Power FROM: Javier Valdez Senior Business & Accounts SUBJECT: Environmental Management Professionals, LLC. Agreement The Department of Light & Power requires the services of a consultant to represent the City with regulatory and environmental matters to ensure timely compliance with the State and Federal regulatory agencies. Since December 15, 2004, approved by Resolution No. 8617 Krishna Nand has provided these consulting services to the Department of Light and Power as an independent contractor. On December 15, 2004, the City Council approved Resolution No. 8645, to amend the agreement to modify the contract provisions to provide for the name change to Environmental Management Professionals, LLC and to clarify the scope of services to be performed. Environmental Management Professionals, LLC ("EMP") is qualified to perform environmental regulatory compliance services with all state and federal regulatory, health & environmental; renewable energy programs, global warming solutions, and all related issues in the City. A professional services agreement has been prepared under which EMP will provide the services. The responsible principal of EMP who will -perform the services is Krishna Nand. The , professional services agreement has been approved as to form by the 'City Attorney's office. The new agreement will cover the work performed by EMP as of July 1, 2010. Recommendation: I am recommending the City Council approve the attached signed agreement by Environmental Management Professionals, LLC on August 2, 2010 to ensure the services and maintain compliance with all state and federal regulatory. DOC Jv c: Document Control Project Control RECEIVE JUL 2 A 2010 °S - xx xt- CITY ATTORNEY'S OFFICE MEMORANDUM To: Donal O'Callaghan, City Administrator FROM: Gena M. Stinnett, Assistant City Attorney CC: Laurence S. Wiener, City Attorney Javier Valdez, Department of Light & Power DATE: July 15, 2010 SUBJECT: Professional Services Agreement Between the City of Vernon and Environmental Management Professionals, LLC for Environmental Regulatory Compliance Services - Approved as to Form The City Attorney's office has reviewed the revised professional services agreement between the City of Vernon and Environmental Management Professionals, LLC for environmental regulatory compliance services and has approved it as to form. 12720-0001\1246634v1.doc