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Resolution No. 2010-105RESOLUTION NO. 2010-105 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND TARA ENERGY INC. FOR ENERGY CONSULTING SERVICES RELATED TO THE CITY'S UTILITY AND ENERGY SYSTEM WHEREAS, on May 7, 2007, the City Council of the City of Vernon adopted Resolution No. 9315, approving an Employment Agreement with Donal O'Callaghan ("O'Callaghan") which has subsequently been amended by Resolution Nos. 9890 and 9943; and WHEREAS, the City desires to use the services of Tara Energy Inc. to provide energy consulting services related to the City's utility and energy system (the "Services"); and WHEREAS, by memo dated July 29, 2010, the Interim City Administrator recommends the City enter into a professional services agreement setting forth the terms and conditions under which Tara Energy Inc. will provide the Services and superseding O'Callaghan's Employment Agreement (the "Agreement"). NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreement, in substantially the form attached hereto as Exhibit A, and authorizes the City Attorney to make modifications to the Agreement to meet the intent of the parties if requested by Tara Energy Inc. and approved by the City Attorney. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, and on behalf of, the City of Vernon in substantially the form attached as Exhibit A, with any modifications approved by the City Attorney, 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-carryingout- 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 Tara Energy Inc. 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. ATTEST: Willa City Clerk „Aide i'�,C Hi.lario Gonzales Name: Title: Mayor -2 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. 2010-105, was duly passed, approved and adopted by the City Council of the City of Vernon at a special 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. ___72 day of August,__ 2010_,_ at_ Vernon, California.. r x 4Wlglard Y mag c i, City Clerk (SEAL) 3 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND TARA ENERGY INC. FOR ENERGY CONSULTING SERVICES RELATED TO CITY'S UTILITY AND ENERGY SYSTEMS COVER PAGE Contractor: Tara Energy Inc. Responsible Principal of Contractor: Donal O'Callaghan Notice Information - Contractor: Tara Energy Inc. 1705 Sierra Madre Villa Avenue. Pasadena, CA 91107 Attention: Donal O'Callaghan Phone: (323) 806-3836 Notice Information - City: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth Interim City Administrator Telephone: (323) 583-8811 ext. 398 Facsimile: (323) 826-1408 Commencement Date: August 1, 2010 Termination} Date: As described in Section 1 Consideration: As described in Exhibit B 12720-000111249929v l .doc PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND TARA ENERGY INC. FOR ENERGY CONSULTING SERVICES RELATED TO CITY'S UTILITY AND ENERGY SYSTEMS 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 Tara Energy Inc., a California corporation ("Contractor'). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain energy consulting services related to the City's utility and energy systems 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 the 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. (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. 2 12720-000111249929v1.doc 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. (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. 12720-0001\1249929v1.doc 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 anytime 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. A party shall give thirty (30) days written notice of termination prior to terminating this Agreement. (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 case exceed the amount that is owed to Contractor for the performance of the Services that have been requested pursuant to 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. 4 12720-0001\1249929v1.doc 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; this Agreement; ii. is or becomes generally known to the public without violation of 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 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, 5 12720-0001\1249929v1.doc 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 integrated agreement and understanding between the Parties, and supersedes all prior or contemporaneous negotiations, representations, agreements, understandings and statements, written or oral. This Agreement may only be modified by a writing signed by both Parties. Section 19. Prior Agreements. (a) City, Contractor and Donal O'Callaghan ("O'Callaghan"), individually and collectively, agree that the Employment Agreement between City and O'Callaghan entered into as of May 7, 2007, and subsequently amended on March 16, 2009 and May 15, 2009, is terminated and superseded by this Agreement as of the Commencement Date of this Agreement. (b) City, Contractor and O'Callaghan agree that any and all prior agreements between the City and Contractor, City and O'Callaghan, or City, Contractor and O'Callaghan, not listed in (a) of this Section 19, are hereby terminated and superseded by this agreement to the extent those agreements have not been previously terminated. (c) City and O'Callaghan agree that O'Callaghan's employment with the City is terminated as of the Commencement Date of this Agreement. (d) The only provision of this Agreement that applies to O'Callaghan as an individual is this Section 19, and any amendments to the remaining provisions of this Agreement do not require O'Callaghan's agreement or his signature as an individual to be effective. 6 12720-0001\1249929v1.doc 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 convenience and ease of reference only and shall not affect the interpretation of the 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.. 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 7 12720-0001\1249929v].doc 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 Tara Energy Inc., a California corporation and California municipal corporation By: HILARIO GONZALES Mayor By: Name: Title: ATTEST: By: Name: Title: WILLARD YAMAGUCHI, City Clerk APPROVED AS TO FORM: LAURENCE S. WIENER City Attorney Donal O'Callaghan, as an individual By: Name: Title: 8 12720-0001 \1249929v 1.doc EXHIBIT A SCOPE OF SERVICES Section 1. Scope of Services to be performed by Contractor Contractor shall perform energy consulting services for City regarding City's utility and energy systems as requested by the City Council or the City Council's designee ("Services"). Section 2. Responsible Principal of Contractor The responsible principal of Contractor is Mr. Donal O'Callaghan ("Responsible Principal"), who shall perform all Services under this Agreement unless otherwise agreed to in writing by City. 9 12720-0001\1249929v1.doc EXHIBIT B HOURLY RATE AND EXPENSES 1. Consideration In consideration for the Services provided by Contractor under this Agreement, City shall pay Contractor at the rate of Three Hundred Dollars ($300.00) per hour of Services rendered. 2. Travel Expenses A. During_ the term of this Agreement, City will reimburse Contractor for reasonable travel expenses related to providing Services, including required meetings. B. Travel expenses shall be at cost, with no mark-up. 3. Other Reimbursable Expenses A. City shall reimburse Contractor for reasonable non -travel expenses incurred in the performance of the Agreement. 10 12720-0001\1249929v1.doc OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 August 4, 2010 Donal O'Callaghan Tara Energy Inc. 1705 Sierra Madre Villa Avenue Pasadena, CA 91107 Re: Energy Consulting Services Agreement Dear Mr. O'CaKaghan7P01--e-V Transmitted herewith are two partially executed original Services Agreements approved by City Council on August 2, 2010, through Resolution No. 2010-105. Please ensure that a fully executed original agreement is returned to the attention of the undersigned. i yours,G.U WGY:dj Attachment c: Carlos Fandino Purchasing Department Resolution No. 2010-105 Agreement File No. 10-053 Exclusively industriaf PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND TARA ENERGY INC.. FOR ENERGY CONSULTING SERVICES RELATED TO CITY'S UTILITY AND ENERGY SYSTEMS COVER PAGE Contractor: Tara Energy Inc. Responsible Principal of Contractor: Donal O'Callaghan Notice Information - Contractor:. Tara Energy Inc. 1705 Sierra Madre Villa Avenue Pasadena, CA 91107 Attention: Donal O'Callaghan Phone: (323) 806-3836 Notice Information - City: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth Interim City Administrator Telephone: (323) 583-8811 ext. 398 Facsimile: (323) 826-1408 Commencement Date: August 1, 2010 Termination Date: As described in Section 1 Consideration: As described in Exhibit B 12720-0001\1249929v1.doc PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND TARA ENERGY INC. FOR ENERGY CONSULTING SERVICES RELATED TO CITY'S UTILITY AND ENERGY SYSTEMS THIS AGREEMENT is made and entered into as of _a„g„Gt- 2 , 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Tara Energy Inc., a California corporation ("Contractor"). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain energy consulting services related to the City's utility and energy systems 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 the 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. (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. 2 12720-0001\1249929v1.doc 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. (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. 12720-000111249929v1.doc 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. A party shall give thirty (30) days written notice of termination prior to terminating this Agreement. (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 case exceed the amount that is owed to Contractor for the performance of the Services that have been requested pursuant to 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. 4 12720-0001\1249929v1.doc 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 discloseit 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 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, 12720-0001\1249929v1.doc 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 integrated agreement and understanding between the Parties, and supersedes all prior or contemporaneous negotiations, representations, agreements, understandings and statements, written or oral. This Agreement may only be modified by a writing signed by both Parties. Section 19. Prior Agreements. (a) City, Contractor and Donal O'Callaghan ("O'Callaghan"), individually and collectively, agree that the Employment Agreement between City and O'Callaghan entered into as of May 7, 2007, and subsequently amended on March 16, 2009 and May 15, 2009, is terminated and superseded by this Agreement as of the Commencement Date of this Agreement. (b) City, Contractor and O'Callaghan agree that any and all prior agreements between the City and Contractor, City and O'Callaghan, or City, Contractor and O'Callaghan, not listed in (a) of this Section 19, are hereby terminated and superseded by this agreement to the extent those agreements have not been previously terminated. (c) City and O'Callaghan agree that O'Callaghan's employment with the City is terminated as of the Commencement Date of this Agreement. (d) The only provision of this Agreement that applies to O'Callaghan as an individual is this Section 19, and any amendments to the remaining provisions of this Agreement do not require O'Callaghan's agreement or his signature as an individual to be effective. 6 12720-0001\1249929v1.doc 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 convenience and ease of reference only and shall not affect the interpretation of the 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. 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 be affected, impaired or invalidated. I 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 7 12720-0001\1249929v1.doc 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 Tara Energy Inc., a California corporation and California municipal corporation n / By: By: V Name: HILARIO GONZALE Mayor Title: --� Lw By: Name: Title: Donal O'Callaghan, as an individual By: Name: Title: 8 12720-0001\1249929v1.doc EXHIBIT A EXHIBIT A SCOPE OF SERVICES Section 1. Scope of Services to be performed by Contractor Contractor shall perform energy consulting services for City regarding City's utility and energy systems as requested by the City Council or the City Council's designee ("Services"). Section 2. Responsible Principal of Contractor The responsible principal of Contractor is Mr. Donal O'Callaghan ("Responsible Principal"), who shall perform all Services under this Agreement unless otherwise agreed to in writing by City. 9 12720-000111249929v1".doc EXHIBIT B HOURLY RATE AND EXPENSES Consideration In consideration for the Services provided by Contractor under this Agreement, City shall pay Contractor at the rate of Three Hundred Dollars ($300.00) per hour of Services rendered. 2. Travel Expenses A. During the term of this Agreement, City will reimburse Contractor for reasonable travel expenses related to providing Services, including required meetings. B. Travel expenses shall be at cost, with no mark-up. 3. Other Reimbursable Expenses A. City shall reimburse Contractor.for reasonable non -travel expenses incurred in the performance of the Agreement. 10 12720-0001\1249929v1.doc �i �7 /p• STAFF REPORT ADMINISTRATION DATE: July 29, 2010 TO: Honorable Mayor and City Council / FROM: Mark Whitworth, Interim City Administrator ' V RE: Approval of a Consulting Agreement with Tara Energy Inc. for certain energy consulting services related to the City's utility and energy systems Donal O'Callaghan has requested that the City of Vernon enter into a professional services agreement under which Tara Energy Inc. would provide energy consulting services related to the City's utility and energy system. As Tara Energy Inc.'s responsible principal, Mr. O'Callaghan would perform the services described in the agreement. The professional services agreement would supersede Mr. O'Callaghan's employment agreement. Recommendation: am recommending that the City Council adopt a resolution approving a professional services agreement with Tara Energy Inc.