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Resolution No. 2017-048RESOLUTION NO. 2017-48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING THE GENERAL FORM OF A THREE PARTY CITY -DEVELOPER -CONSULTANT PROFESSIONAL SERVICES AGREEMENT PURSUANT TO ARTICLE IV OF CHAPTER 2, SECTION 2.17.34 OF THE VERNON MUNICIPAL CODE WHEREAS, the City of Vernon (the "City"), is a municipal corporation and a chartered city of the State of California organized and existing under its Charter and the Constitution of the State of California; and WHEREAS, ensuring the continuance of an open and transparent purchasing and contracting process serves the interests of all of Vernon's stakeholders and constituencies, including its individual, corporate and business residents, as well as labor organizations and workers within Vernon, all of whom deserve the highest quality of municipal services; and WHEREAS, on December 18, 2012, the City Council of the City of Vernon adopted Ordinance No. 1200, as amended by Ordinance No. 1221 on May 20, 2014, amending Article IV of Chapter 2, Sections 2.17 through 2.31, to make necessary changes to the City's purchasing system in order to create the foundation for an open and transparent, competitive bidding and purchasing process; and WHEREAS, Article IV of Chapter 2, Section 2.17.34 provides that the City Council shall approve, by Resolution, the general forms of agreements, purchase order/contract, terms and conditions for goods and services, notice inviting bids and request for proposals for use in City purchasing; and WHEREAS, on June 20, 2017, the City Council of the City of Vernon adopted Resolution No. 2017-31, approving general form documents, as well as the addition of several new forms, in order to update changes in current law or procedure and for use in City contracting; and WHEREAS, by memorandum dated September 19, 2017, the City Attorney has recommended the approval of the general form of a Three Party City -Developer -Consultant Professional Services Agreement, in order to expedite the processing of such multi -party arrangements where, specifically, the Consultant performs services for the direct benefit of the City and for the indirect benefit of the Developer, the City retains authority and discretion to evaluate the Consultant's work, and Developer pays for the Consultant's services by depositing funds with the City for the City to make payment to the Consultant; and WHEREAS, the City Council of the City of Vernon desires to approve the general form of a Three Party City -Developer -Consultant Professional Services 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 above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), because it is a continuing administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378. SECTION 3: The City Council of the City of Vernon hereby approves and adopts the general form of a Three Party City -Developer - Consultant Professional Services Agreement for use by the City as - 2 - attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes and empowers the City Attorney to make whatever administrative and non -material changes to the approved documents, as are necessary from time -to -time in order to carry out the intent of this Resolution. SECTION 5: All resolutions or parts of resolutions, not consistent with or in conflict with this resolution are hereby repealed. SECTION 6: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 19th day of September, 2017. Nam : Meli a A. Ybarra ATTEST: Ma is E . A ala City Clerk / Depu�Y APPROVED AS TO FORM: VCity Attorney Title: Mayor / - 3 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Maria E . Ayala City Clerk the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2017-48, 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 Tuesday, September 19, 2017, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this ,Z7r`day of September, 2017, at Vernon, California. (SEAL) - 4 - Maria Ayala City Clerk / EXHIBIT A THREE -PARTY CITY -DEVELOPER -CONSULTANT PROFESSIONAL SERVICES AGREEMENT This Three -Party City -Developer -Consultant Professional Services Agreement (the "Agreement") is entered into, as of [EFFECTIVE DATE] (the "Effective Date"), by and among the City of Vernon, a California charter City and California municipal corporation (the "City"), [DEVELOPER], a [STATE AND ENTITY TYPE] ("Developer" and together with the City and Consultant, the "Parties"), and [CONSULTANT], a [STATE AND ENTITY TYPE] ("Consultant"). RECITALS A. The City has received a proposal from Developer for development of [DESCRIPTION OF PROPOSED DEVELOPMENT], which requires issuance of [DESCRIPTION OF PERMITS AND APPROVALS] by the City (the "Project"). B. The City has determined that an environmental review is required prior to issuance of the Conditional Use Permit, under the California Environmental Quality Act (Cal. Pub. Res. Code §§ 21000-21189) ("CEQA") and the State CEQA Guidelines (14 C.C.R. §§ 15000 et seq.) ("Guidelines"). C. Developer has agreed to pay for the preparation, review and processing of any necessary environmental review documents and entitlements for the Project, as set forth herein. D. The City is authorized to execute this Agreement with Consultant if the total costs of the services performed pursuant to the Agreement are paid by Developer. E. The City desires to contract with Consultant for the preparation, review and processing of any necessary environmental review documents and entitlements, as described in the Consultant's proposal attached hereto as Exhibit A and incorporated herein by reference (the "Proposal"), and the Developer desires to join in this Agreement to agree to pay Consultant and City for such services. F. The parties to this Agreement understand that this Agreement does not commit City to approve the Project, and City retains full authority and discretion to review and approve, conditionally approve or deny the Project. NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Performance of Services. Consultant agrees to perform professional services and provide deliverables to the City and Developer with respect to the Project, in accordance with the terms and conditions of this Agreement (collectively, the "Services"). 2. Standard of Performance. Consultant represents and warrants that each staff person to be assigned to perform the Services is fully qualified to conduct the work required hereunder. Consultant shall be responsible, to the level of competency presently maintained by other practicing professionals performing the same type of work in the State of California, for the Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 2 of 9 professional and technical soundness, accuracy and adequacy of all work and materials furnished under this Agreement. 3. Scope of Services and Deliverables. The Scope of Services to be undertaken by Consultant and the deliverables to be provided to the City and Developer are set forth in the Scope of Work in the Proposal attached hereto as Exhibit A and incorporated herein by reference (the "Scope of Services"). 4. Changes. The Parties may at any time, by written agreement, change the Scope of Services to be provided by Consultant hereunder. Consultant, however, shall not commence implementation of such changes unless and until they are first approved by the City and Developer in writing. The City and Developer shall have no obligation to pay Consultant for any work not previously approved by the City and Developer in writing. Scheduled work may, however, be delayed by time needed to obtain written authorization of any change. 5. Time of Performance. Consultant agrees that it shall regularly and diligently perform the Services in the time and sequence specified in Exhibit A, unless otherwise terminated or extended consistent with the provisions of this Agreement (the "Term"). The City and Developer warrant their understanding that the Services that Consultant is to undertake are in part dependent on information, decisions and activities by others, including the City and Developer, which Consultant does not and cannot control, and that to the extent that delays occur due to such circumstances beyond Consultant's control, the time of performance cited in Exhibit A may be extended for a reasonable period of time not to exceed the length of the delay, unless agreed to by all Parties in writing. After consultation with Developer, the Term may be extended by letter in the reasonable discretion of City's Public Works Director or his/her designee, or by formal amendment to this Agreement executed by the Parties. 6. Compensation and Developer's Financial Obligation. For all labor, materials and services provided by Consultant, including all expenses, based on the fee schedule set forth in the Scope of Services, Consultant shall receive a total contract compensation not to exceed the amount set forth in Exhibit A, unless subsequently modified and approved by the City and Developer in writing (the "Not -To -Exceed Fee"). Developer shall pay all costs for Consultant's performance of the work set forth in Exhibit A. Within five (5) calendar days of the effective date of this Agreement, Developer shall submit the Not -To -Exceed Fee, PLUS an additional payment in the amount of [INSERT AMOUNT] dollars ($[INSERT AMOUNT]) for the City's contract administrative costs in undertaking the environmental review and permit issuance process (the "Minimum Administrative Oversight Fee") or 25% of Consultant's total cost if Consultant exceeds the Not -To -Exceed Fee ("Exceeded Administrative Oversight Fee"). Consultant's right to compensation shall not be dependent upon the City's approval or disapproval of the Project, or upon the result of any City action relating to Developer. City, however, shall have no obligation to pay Consultant to the extent City has not received from Developer the full contract price of the Not -To -Exceed Fee and the Minimum Administrative Oversight Fee (together, the "Contract Price"). In the event the Consultant's total fee exceeds the Not -To -Exceed Fee ("Exceeded Fee"), Developer shall pay to City the difference between the Not -To -Exceed Fee and the Exceeded Fee, PLUS the difference between the Minimum Administrative Oversight Fee and the Exceeded Administrative Oversight Fee. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 3 of 9 7. Method and Time of Payment. 7.1. Developer shall pay to City, within five (5) days of the Effective Date of this Agreement, the Not -To -Exceed Fee. Developer acknowledges that City will not authorize Consultant to proceed under this Agreement under Developer has paid City the Not -To -Exceed Fee. 7.2. Consultant shall submit monthly invoices for all labor, materials and services including out-of-pocket expenses and reimbursables to City, with a copy to the Developer. The invoices shall contain a reasonably detailed statement of each task performed, the number of hours expended on each task, the professional who performed the task, his or her hourly rate, and the cost of materials.. 7.3. Prior to paying Consultant on account of any invoice, City shall deliver to Developer a copy of each invoice for its review. Developer may object to the payment of all or a portion of any invoice by written notice to City's Public Works Director delivered within ten (10) calendar days of the subject invoice transmittal date to Developer. The Public Works Director shall, at his or her sole discretion determine if such objection is warranted or not and give notice to Developer of his or her decision. Those invoices or portions thereof to which Developer has not objected within ten (10) days after delivery of the subject invoice shall be deemed approved by Developer and may be paid by the City, subject to section 7.5 below. 7.4. City may independent from Developer dispute any part of an invoice sent by Consultant by providing written notice of such dispute within ten (10) calendar days of the subject invoice transmittal date. Should the Developer or City itself dispute any part of an invoice sent by Consultant, the basis of such dispute shall be delivered to Consultant in writing within fifteen (15) calendar days of the subject invoice transmittal date. If a notice of dispute is received by Consultant from the City, Consultant reserves the right to reasonably modify the time of performance as set forth in the Scope of Services pending resolution of the dispute. 7.5. City shall pay Consultant for the services rendered, including any direct costs incurred, subject to any amounts disputed in good faith as described above, within thirty (30) days after approval by the City, provided the Parties to this Agreement understand and agree City shall have no obligation to pay Consultant unless City has received from Developer sufficient funds to make any payment to Consultant, including but not limited to the Not - To -Exceed Fee. 8. Additional Financial Obligations by Developer. 8.1. In the event that the City determines that CEQA requires additional environmental analysis or document preparation not covered in the Services to be provided by Consultant, including but not limited to preparation of a Mitigated Negative Declaration or an Environmental Impact Report, and upon approval by the City and Developer of an amendment to the Scope of Services, then Developer shall transmit additional monies to the City for payment of these additional services and additional City administrative costs, within ten (10) calendar days of any such amendment to the Scope of Services. In addition to the above, Developer shall pay, within ten (10) calendar days of the request, any additional amounts required to compensate the City for its administrative costs Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 4 of 9 related to the Project, as such additional amounts are agreed to by the City and Developer. 8.2. If at any time, the review process for the Project is terminated, or if the review process is completed, any unencumbered funds previously deposited by Developer shall remain in the possession of the City and, within thirty (30) days after the City's final payment to Consultant, the City shall refund all such remaining unencumbered funds to Developer. 9. Ownership of Report. Without prior written approval from the City and Developer, unless required by law or order of a court of competent jurisdiction, Consultant shall not provide, or disclose any of the contents of the report, data, and exhibits prepared or assembled by Consultant in connection with the performance of the Services to any person other than the City and Developer. All such reports, data, and exhibits shall be the separate property of each of the City and Developer, and the original shall be delivered to the City and Developer upon demand and without additional cost or expense to the City or Developer. Consultant shall have the right to retain copies of all of its work upon completion of the Services, subject to the non -disclosure requirement provided herein. 10. Sharing of Information. It is the intent of the parties that the report, data, exhibits or study results prepared, developed or assembled by Consultant are to be shared equally and concurrently with both the City and Developer. Consultant agrees that that no report, data, exhibits or study results shall be provided to either the City or Developer, unless those same materials have previously or simultaneously been provided to the other. Notwithstanding the foregoing, Consultant may, as it deems necessary, consult with either the City or Developer individually for the purpose of obtaining information required for the preparation of the report, data, exhibits or study results. 11. Insurance. Consultant shall maintain insurance in the minimum amounts set forth below before beginning work on the Project, and, upon the City's or Developer's request, provide the City or Developer with certificates evidencing full compliance with the requirements of this provision: [The below minimum amounts should be vetted by Finance on a case by case basis] Minimum Required Insurance a. Workers Compensation Statutory Employer's Liability ............ b. Comprehensive General and Contractual Liability: Bodily injury or property damage ..... Personal injury, with employee exclusion deleted Comprehensive Automobile Liability for all owned, hired and non -owned vehicles: Per Aggregate Occurrence $1,000,000 $2,000,000 $1,000,000 $2,000,000 $1,000,000 Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 5 of 9 Bodily injury and property damage.......... $1,000,000 $2,000,000 d. Professional Liability ...................................... $2,000,000 $2,000,000 12. Indemnification. 12.1 Consultant agrees to indemnify, hold harmless and defend the City, Developer, and their respective affiliates, employees and agents from and against any liability, claim, demand or cause of action in which Consultant is named as a party thereto, and which action arises as a result of Consultant's negligent performance of the Services or breach of its obligations under this Agreement. The amount payable by Consultant with respect to such indemnification shall, however, be limited to the greater of (1) the amount paid by the proceeds of insurance identified herein and carried by Consultant, or (2) the amount of compensation actually paid to Consultant hereunder by Developer; provided such limitation shall not apply to any liability, claim, demand or cause of action based on Consultant's grossly negligent, intentional or willful misconduct or fraudulent actions. 12.2 Developer, independent of the indemnity obligation of Consultant above, agrees to defend, indemnify, hold harmless and defend the City, its elected officials and its employees from and against any liability, claim, demand or cause of action arising from any third party action brought against the City or its elected officials challenging the adequacy of the environmental review or the issuance of any permits or approvals for the Project. 13. Independent Contractor. Consultant shall perform the Services hereunder as an independent contractor, and no employee, partnership, joint venture or other joint or fiduciary relationship between Consultant, the City and Developer shall be implied hereby. This Agreement shall not be construed to authorize Consultant, or any of its employees or authorized agents, to act as the representative of the City or Developer, unless otherwise provided for in the Scope of Services. Consultant shall, at its own expense, secure and be responsible for any and all payments of income taxes, Social Security, State disability insurance compensation, unemployment compensation, and all other payroll deductions required by law, on behalf of itself, its officers, agents and employees, as well as any penalties assessed for the non-payment of the same. 14. Nondiscrimination. Consultant shall not discriminate against any employee or any applicant for employment because of race, religion, color, sex, sexual orientation, national origin, or disability, in accordance with all requirements of local, state and federal law. 15. Successors and Assigns. This Agreement shall be binding upon the successors, assigns and legal representatives of all Parties. 16. Assignment. Consultant agrees that it shall not assign or subcontract the Services described herein or any part thereof without the prior written approval of the City and Developer, which approval shall not be unreasonably withheld. Assignment in violation of this provision shall be voidable and shall, at the option of City and Developer, terminate this Agreement. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 6 of 9 17. Notice. Written notice under this Agreement shall be deemed to have been duly given if delivered in person or sent by (a) certified mail, return receipt requested, (b) a nationally recognized overnight courier, or (c) a facsimile transmission with automatic answer back, to the addresses set forth on the execution page of this Agreement. 18. Attorneys' Fees. In the event that litigation is necessary to enforce the provisions of this Agreement, the prevailing party in said litigation shall be entitled to recover reasonable attorneys' fees and costs from the opposing party in an amount determined by the court to be reasonable. 19. References. Any reference to the approval, consent, authorization or other action by "the City and Developer" in this Agreement shall mean the joint approval, consent, authorization or action of both parties. 20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. 21. Suspension and Termination. 21.1 The City or Developer may suspend or terminate this Agreement at any time by written notice to Consultant, whether or not Consultant is in default. Upon receipt of a termination notice, Consultant shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing Services authorized hereunder, whether completed or in progress. 21.2 If the City or Developer seeks to resume Consultant's services on the Project within three (3) months following a notification of suspension, there shall be no change in Consultant's compensation. In the event the City or Developer seeks to resume Consultant's services on the Project after being suspended for more than three (3) months, Consultant's compensation shall be equitably adjusted. 21.3 Consultant may terminate this Agreement as a result of the City's or Developer's breach of their obligations under this Agreement, upon ten (10) days' written notice to the City and Developer if City and/or Developer fail to cure such breach within such period of time. Upon delivery of a termination notice, Consultant shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing Services authorized hereunder, whether completed or in progress. 21.4 In the event that the termination of this Agreement is for any reason other than the fault of Consultant, then Consultant shall be compensated in accordance with the provisions of the Scope of Services for the Services performed and expenses incurred to the date of such suspension or termination, plus any reasonable costs and expenses which are reasonably incurred by Consultant to effect such suspension or termination. 22. Contract Term. The Term of this Agreement shall commence beginning on the date of execution by all the Parties and expire on the close of business on [INSERT END DATE], or Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 7 of 9 the completion of the Services, whichever occurs earlier, unless extended by mutual written agreement of the parties. 23. Severability. If any clause, provision or section of this Agreement shall be ruled invalid by any court of competent jurisdiction, then the invalidity of such clause, provision or section shall not affect any of the remaining provisions hereof. 24. Waiver. Waiver by the City or Developer of any breach of any term, covenant, or condition herein contained shall not be deemed a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant, or condition herein contained. 25. Entire Agreement. This Agreement represents the entire agreement by and among the Parties and supersedes all prior negotiations, representations or agreements. This Agreement may be amended only by a written instrument signed by an authorized representative of Consultant, the City and Developer. 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. [Signatures Begin on Next Page]. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 8 of 9 IN WITNESS WHEREOF, the Parties hereto, each of whom warrants that they are authorized to execute agreements on behalf of their respective party, have executed this Agreement on the date set forth below. City: City of Vernon Date: Melissa Ybarra, Mayor ATTEST: APPROVED AS TO FORM: Maria E. Ayala, City Clerk [CONSULTANT], a [STATE & FORM OF COMPANY] [ADDRESS] By: Print Name: Title: Date: By: Print Name: Title: Date: Hema Patel, City Attorney [DEVELOPER], a [STATE & FORM OF COMPANY] [ADDRESS] By: Print Name: Title: Date: By: Print Name: Title: Date: Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 9 of 9 EXHIBIT A PROPOSAL STAFF REPORT RECEIVED SEP 14 Z017 CITY CLERK'S OFFICE RECEIVED tr tNOv� SEP 11 2017 STAFF REPORT CITY ATTORNEY'S OFFICE DATE: September 19, 2017 TO: Honorable Mayor and City Council FROM: Hema Patel, City Attorney o 06 1 CITY ADMINISTRAT10�� jp I RE: A Resolution approving the general form of a Three Party City -Developer - Consultant Professional Services Agreement pursuant to Article IV of Chapter 2, Section 2.17.34 of the Vernon Municipal Code. Recommendation A. Find that approval of the forms of contract and of related documents in this staff report is exempt from California Environmental Quality Act ("CEQA") review, because it is a continuing administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378; and B. Adopt the attached Resolution approving the general form of a Three Party City - Developer -Consultant Professional Services Agreement pursuant to Article IV of Chapter 2, Section 2.17.34 of the Vernon Municipal Code. Background Pursuant to Article IV of Chapter 2, Section 2.17.34, the City Council shall approve, by resolution, among other things, general forms of agreements to be used by the City to do business with outside third parties. Such form agreements provide consistency, predictability, and efficiency to the business community and ensure the City's continued commitment to an open and transparent procurement process. The proposed form agreement here — a Three Party City -Developer -Consultant Professional Services Agreement — will serve to expedite the processing of certain multi -party arrangements where, specifically, a Consultant performs services for the direct benefit of the City and for the indirect benefit of a Developer, the City retains authority and discretion to evaluate the Consultant's work, and the Developer pays for the Consultant's services by depositing funds with the City for the City to make payment to the Consultant. Fiscal Impact There is no direct fiscal impact as a result of adopting the general form document. Standardizing documents and processes will sustain efficiencies and provide consistency and predictability that work to the financial benefit of Vernon and its business constituents over time. Attachment(s) 1. Proposed Resolution -2- RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING THE GENERAL FORM OF A THREE PARTY CITY -DEVELOPER -CONSULTANT PROFESSIONAL SERVICES AGREEMENT PURSUANT TO ARTICLE IV OF CHAPTER 2, SECTION 2.17.34 OF THE VERNON MUNICIPAL CODE WHEREAS, the City of Vernon (the "City"), is a municipal corporation and a chartered city of the State of California organized and existing under its Charter and the Constitution of the State of California; and WHEREAS, ensuring the continuance of an open and transparent purchasing and contracting process serves the interests of all of Vernon's stakeholders and constituencies, including its individual, corporate and business residents, as well as labor organizations and workers within Vernon, all of whom deserve the highest quality of municipal services; and WHEREAS, on December 18, 2012, the City Council of the City of Vernon adopted Ordinance No. 1200, as amended by Ordinance No. 1221 on May 20, 2014, amending Article IV of Chapter 2, Sections 2.17 through 2.31, to make necessary changes to the City's purchasing system in order to create the foundation for an open and transparent, competitive bidding and purchasing process; and WHEREAS, Article IV of Chapter 2, Section 2.17.34 provides that the City Council shall approve, by Resolution, the general forms of agreements, purchase order/contract, terms and conditions for goods and services, notice inviting bids and request for proposals for use in City purchasing; and WHEREAS, on June 20, 2017, the City Council of the City of Vernon adopted Resolution No. 2017-31, approving general form documents, as well as the addition of several new forms, in order to update changes in current law or procedure and for use in City contracting; and WHEREAS, by memorandum dated September 19, 2017, the City Attorney has recommended the approval of the general form of a Three Party City -Developer -Consultant Professional Services Agreement, in order to expedite the processing of such multi -party arrangements where, specifically, the Consultant performs services for the direct benefit of the City and for the indirect benefit of the Developer, the City retains authority and discretion to evaluate the Consultant's work, and Developer pays for the Consultant's services by depositing funds with the City for the City to make payment to the Consultant; and WHEREAS, the City Council of the City of Vernon desires to approve the general form of a Three Party City -Developer -Consultant Professional Services 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 above recitals are true and correct. SECTION 2: The City Council of the City of Vernon finds that this action is exempt under the California Environmental Quality Act (CEQA), because it is a continuing administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378. SECTION 3: The City Council of the City of Vernon hereby approves and adopts the general form of a Three Party City -Developer - Consultant Professional Services Agreement for use by the City as - 2 - attached hereto as Exhibit A. SECTION 4: The City Council of the City of Vernon hereby authorizes and empowers the City Attorney to make whatever administrative and non -material changes to the approved documents, as are necessary from time -to -time in order to carry out the intent of this Resolution. SECTION 5: All resolutions or parts of resolutions, not consistent with or in conflict with this resolution are hereby repealed. SECTION 6: The City Clerk, or Deputy City Clerk, of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk, or Deputy City Clerk, of the City of Vernon shall cause this resolution and the City Clerk's, or Deputy City Clerk's, certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 19th day of September, 2017. ATTEST: City Clerk / Deputy City Clerk APPROVED AS TO FORM: VSeniDueputy _�� City Attorney Name: Title: Mayor / Mayor Pro-Tem - 3 - STATE OF CALIFORNIA COUNTY OF LOS ANGELES I, ss City Clerk / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. , 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 Tuesday, September 19, 2017, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of September, 2017, at Vernon, California. (SEAL) City Clerk / Deputy City Clerk - 4 - EXHIBIT A THREE -PARTY CITY -DEVELOPER -CONSULTANT PROFESSIONAL SERVICES AGREEMENT This Three -Party City -Developer -Consultant Professional Services Agreement (the "Agreement") is entered into, as of [EFFECTIVE DATE] (the "Effective Date"), by and among the City of Vernon, a California charter City and California municipal corporation (the "City"), [DEVELOPER], a [STATE AND ENTITY TYPE] ("Developer" and together with the City and Consultant, the "Parties"), and [CONSULTANT], a [STATE AND ENTITY TYPE] ("Consultant"). RECITALS A. The City has received a proposal from Developer for development of [DESCRIPTION OF PROPOSED DEVELOPMENT], which requires issuance of [DESCRIPTION OF PERMITS AND APPROVALS] by the City (the "Project"). B. The City has determined that an environmental review is required prior to issuance of the Conditional Use Permit, under the California Environmental Quality Act (Cal. Pub. Res. Code §§ 21000-21189) ("CEQA") and the State CEQA Guidelines (14 C.C.R. §§ 15000 et seq.) ("Guidelines"). C. Developer has agreed to pay for the preparation, review and processing of any necessary environmental review documents and entitlements for the Project, as set forth herein. D. The City is authorized to execute this Agreement with Consultant if the total costs of the services performed pursuant to the Agreement are paid by Developer. E. The City desires to contract with Consultant for the preparation, review and processing of any necessary environmental review documents and entitlements, as described in the Consultant's proposal attached hereto as Exhibit A and incorporated herein by reference (the "Proposal"), and the Developer desires to join in this Agreement to agree to pay Consultant and City for such services. F. The parties to this Agreement understand that this Agreement does not commit City to approve the Project, and City retains full authority and discretion to review and approve, conditionally approve or deny the Project. NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: l . Performance of Services. Consultant agrees to perform professional services and provide deliverables to the City and Developer with respect to the Project, in accordance with the terms and conditions of this Agreement (collectively, the "Services"). 2. Standard of Performance. Consultant represents and warrants that each staff person to be assigned to perform the Services is fully qualified to conduct the work required hereunder. Consultant shall be responsible, to the level of competency presently maintained by other practicing professionals performing the same type of work in the State of California, for the Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 2 of 9 professional and technical soundness, accuracy and adequacy of all work and materials furnished under this Agreement. 3. Scope of Services and Deliverables. The Scope of Services to be undertaken by Consultant and the deliverables to be provided to the City and Developer are set forth in the Scope of Work in the Proposal attached hereto as Exhibit A and incorporated herein by reference (the "Scope of Services"). 4. Changes. The Parties may at any time, by written agreement, change the Scope of Services to be provided by Consultant hereunder. Consultant, however, shall not commence implementation of such changes unless and until they are first approved by the City and Developer in writing. The City and Developer shall have no obligation to pay Consultant for any work not previously approved by the City and Developer in writing. Scheduled work may, however, be delayed by time needed to obtain written authorization of any change. 5. Time of Performance. Consultant agrees that it shall regularly and diligently perform the Services in the time and sequence specified in Exhibit A, unless otherwise terminated or extended consistent with the provisions of this Agreement (the "Term"). The City and Developer warrant their understanding that the Services that Consultant is to undertake are in part dependent on information, decisions and activities by others, including the City and Developer, which Consultant does not and cannot control, and that to the extent that delays occur due to such circumstances beyond Consultant's control, the time of performance cited in Exhibit A may be extended for a reasonable period of time not to exceed the length of the delay, unless agreed to by all Parties in writing. After consultation with Developer, the Term may be extended by letter in the reasonable discretion of City's Public Works Director or his/her designee, or by formal amendment to this Agreement executed by the Parties. 6. Compensation and Developer's Financial Obligation. For all labor, materials and services provided by Consultant, including all expenses, based on the fee schedule set forth in the Scope of Services, Consultant shall receive a total contract compensation not to exceed the amount set forth in Exhibit A, unless subsequently modified and approved by the City and Developer in writing (the "Not -To -Exceed Fee"). Developer shall pay all costs for Consultant's performance of the work set forth in Exhibit A. Within five (5) calendar days of the effective date of this Agreement, Developer shall submit the Not -To -Exceed Fee, PLUS an additional payment in the amount of [INSERT AMOUNT] dollars ($[INSERT AMOUNT]) for the City's contract administrative costs in undertaking the environmental review and permit issuance process (the "Minimum Administrative Oversight Fee") or 25% of Consultant's total cost if Consultant exceeds the Not -To -Exceed Fee ("Exceeded Administrative Oversight Fee"). Consultant's right to compensation shall not be dependent upon the City's approval or disapproval of the Project, or upon the result of any City action relating to Developer. City, however, shall have no obligation to pay Consultant to the extent City has not received from Developer the full contract price of the Not -To -Exceed Fee and the Minimum Administrative Oversight Fee (together, the "Contract Price"). In the event the Consultant's total fee exceeds the Not -To -Exceed Fee ("Exceeded Fee"), Developer shall pay to City the difference between the Not -To -Exceed Fee and the Exceeded Fee, PLUS the difference between the Minimum Administrative Oversight Fee and the Exceeded Administrative Oversight Fee. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 3 of 9 7. Method and Time of Payment. 7.1. Developer shall pay to City, within five (5) days of the Effective Date of this Agreement, the Not -To -Exceed Fee. Developer acknowledges that City will not authorize Consultant to proceed under this Agreement under Developer has paid City the Not -To -Exceed Fee. 7.2. Consultant shall submit monthly invoices for all labor, materials and services including out-of-pocket expenses and reimbursables to City, with a copy to the Developer. The invoices shall contain a reasonably detailed statement of each task performed, the number of hours expended on each task, the professional who performed the task, his or her hourly rate, and the cost of materials.. 7.3. Prior to paying Consultant on account of any invoice, City shall deliver to Developer a copy of each invoice for its review. Developer may object to the payment of all or a portion of any invoice by written notice to City's Public Works Director delivered within ten (10) calendar days of the subject invoice transmittal date to Developer. The Public Works Director shall, at his or her sole discretion determine if such objection is warranted or not and give notice to Developer of his or her decision. Those invoices or portions thereof to which Developer has not objected within ten (10) days after delivery of the subject invoice shall be deemed approved by Developer and may be paid by the City, subject to section 7.5 below. 7.4. City may independent from Developer dispute any part of an invoice sent by Consultant by providing written notice of such dispute within ten (10) calendar days of the subject invoice transmittal date. Should the Developer or City itself dispute any part of an invoice sent by Consultant, the basis of such dispute shall be delivered to Consultant in writing within fifteen (15) calendar days of the subject invoice transmittal date. If a notice of dispute is received by Consultant from the City, Consultant reserves the right to reasonably modify the time of performance as set forth in the Scope of Services pending resolution of the dispute. 7.5. City shall pay Consultant for the services rendered, including any direct costs incurred, subject to any amounts disputed in good faith as described above, within thirty (30) days after approval by the City, provided the Parties to this Agreement understand and agree City shall have no obligation to pay Consultant unless City has received from Developer sufficient funds to make any payment to Consultant, including but not limited to the Not - To -Exceed Fee. 8. Additional Financial Obligations by Developer. 8.1. In the event that the City determines that CEQA requires additional environmental analysis or document preparation not covered in the Services to be provided by Consultant, including but not limited to preparation of a Mitigated Negative Declaration or an Environmental Impact Report, and upon approval by the City and Developer of an amendment to the Scope of Services, then Developer shall transmit additional monies to the City for payment of these additional services and additional City administrative costs, within ten (10) calendar days of any such amendment to the Scope of Services. In addition to the above, Developer shall pay, within ten (10) calendar days of the request, any additional amounts required to compensate the City for its administrative costs Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 4 of 9 related to the Project, as such additional amounts are agreed to by the City and Developer. 8.2. If at any time, the review process for the Project is terminated, or if the review process is completed, any unencumbered funds previously deposited by Developer shall remain in the possession of the City and, within thirty (30) days after the City's final payment to Consultant, the City shall refund all such remaining unencumbered funds to Developer. 9. Ownership of Report. Without prior written approval from the City and Developer, unless required by law or order of a court of competent jurisdiction, Consultant shall not provide, or disclose any of the contents of the report, data, and exhibits prepared or assembled by Consultant in connection with the performance of the Services to any person other than the City and Developer. All such reports, data, and exhibits shall be the separate property of each of the City and Developer, and the original shall be delivered to the City and Developer upon demand and without additional cost or expense to the City or Developer. Consultant shall have the right to retain copies of all of its work upon completion of the Services, subject to the non -disclosure requirement provided herein. 10. Sharing of Information. It is the intent of the parties that the report, data, exhibits or study results prepared, developed or assembled by Consultant are to be shared equally and concurrently with both the City and Developer. Consultant agrees that that no report, data, exhibits or study results shall be provided to either the City or Developer, unless those same materials have previously or simultaneously been provided to the other. Notwithstanding the foregoing, Consultant may, as it deems necessary, consult with either the City or Developer individually for the purpose of obtaining information required for the preparation of the report, data, exhibits or study results. 11. Insurance. Consultant shall maintain insurance in the minimum amounts set forth below before beginning work on the Project, and, upon the City's or Developer's request, provide the City or Developer with certificates evidencing full compliance with the requirements of this provision: [The below minimum amounts should be vetted by Finance on a case by case basis] Minimum Required Insurance a. Workers Compensation Statutory Employer's Liability ............ b. Comprehensive General and Contractual Liability: Bodily injury or property damage ....... Personal injury, with employee exclusion deleted c. Comprehensive Automobile Liability for all owned, hired and non -owned vehicles: Per Aggregate Occurrence $1,000,000 $2,000,000 $1,000,000 $2,000,000 $1,000,000 Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 5 of 9 Bodily injury and property damage .......... $1,000,000 $2,000,000 d. Professional Liability ...................................... $2,000,000 $2,000,000 12. Indemnification. 12.1 Consultant agrees to indemnify, hold harmless and defend the City, Developer, and their respective affiliates, employees and agents from and against any liability, claim, demand or cause of action in which Consultant is named as a party thereto, and which action arises as a result of Consultant's negligent performance of the Services or breach of its obligations under this Agreement. The amount payable by Consultant with respect to such indemnification shall, however, be limited to the greater of (1) the amount paid by the proceeds of insurance identified herein and carried by Consultant, or (2) the amount of compensation actually paid to Consultant hereunder by Developer; provided such limitation shall not apply to any liability, claim, demand or cause of action based on Consultant's grossly negligent, intentional or willful misconduct or fraudulent actions. 12.2 Developer, independent of the indemnity obligation of Consultant above, agrees to defend, indemnify, hold harmless and defend the City, its elected officials and its employees from and against any liability, claim, demand or cause of action arising from any third party action brought against the City or its elected officials challenging the adequacy of the environmental review or the issuance of any permits or approvals for the Project. 13. Independent Contractor. Consultant shall perform the Services hereunder as an independent contractor, and no employee, partnership, joint venture or other joint or fiduciary relationship between Consultant, the City and Developer shall be implied hereby. This Agreement shall not be construed to authorize Consultant, or any of its employees or authorized agents, to act as the representative of the City or Developer, unless otherwise provided for in the Scope of Services. Consultant shall, at its own expense, secure and be responsible for any and all payments of income taxes, Social Security, State disability insurance compensation, unemployment compensation, and all other payroll deductions required by law, on behalf of itself, its officers, agents and employees, as well as any penalties assessed for the non-payment of the same. 14. Nondiscrimination. Consultant shall not discriminate against any employee or any applicant for employment because of race, religion, color, sex, sexual orientation, national origin, or disability, in accordance with all requirements of local, state and federal law. 15. Successors and Assigns. This Agreement shall be binding upon the successors, assigns and legal representatives of all Parties. 16. Assignment. Consultant agrees that it shall not assign or subcontract the Services described herein or any part thereof without the prior written approval of the City and Developer, which approval shall not be unreasonably withheld. Assignment in violation of this provision shall be voidable and shall, at the option of City and Developer, terminate this Agreement. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 6 of 9 17. Notice. Written notice under this Agreement shall be deemed to have been duly given if delivered in person or sent by (a) certified mail, return receipt requested, (b) a nationally recognized overnight courier, or (c) a facsimile transmission with automatic answer back, to the addresses set forth on the execution page of this Agreement. 18. Attorneys' Fees. In the event that litigation is necessary to enforce the provisions of this Agreement, the prevailing party in said litigation shall be entitled to recover reasonable attorneys' fees and costs from the opposing party in an amount determined by the court to be reasonable. 19. References. Any reference to the approval, consent, authorization or other action by "the City and Developer" in this Agreement shall mean the joint approval, consent, authorization or action of both parties. 20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. 21. Suspension and Termination. 21.1 The City or Developer may suspend or terminate this Agreement at any time by written notice to Consultant, whether or not Consultant is in default. Upon receipt of a termination notice, Consultant shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing Services authorized hereunder, whether completed or in progress. 21.2 If the City or Developer seeks to resume Consultant's services on the Project within three (3) months following a notification of suspension, there shall be no change in Consultant's compensation. In the event the City or Developer seeks to resume Consultant's services on the Project after being suspended for more than three (3) months, Consultant's compensation shall be equitably adjusted. 21.3 Consultant may terminate this Agreement as a result of the City's or Developer's breach of their obligations under this Agreement, upon ten (10) days' written notice to the City and Developer if City and/or Developer fail to cure such breach within such period of time. Upon delivery of a termination notice, Consultant shall (a) promptly discontinue all Services affected (unless the notice directs otherwise), and (b) deliver, or otherwise make available to the City and Developer, all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing Services authorized hereunder, whether completed or in progress. 21.4 In the event that the termination of this Agreement is for any reason other than the fault of Consultant, then Consultant shall be compensated in accordance with the provisions of the Scope of Services for the Services performed and expenses incurred to the date of such suspension or termination, plus any reasonable costs and expenses which are reasonably incurred by Consultant to effect such suspension or termination. 22. Contract Term. The Term of this Agreement shall commence beginning on the date of execution by all the Parties and expire on the close of business on [INSERT END DATE], or Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 7 of 9 the completion of the Services, whichever occurs earlier, unless extended by mutual written agreement of the parties. 23. Severability. If any clause, provision or section of this Agreement shall be ruled invalid by any court of competent jurisdiction, then the invalidity of such clause, provision or section shall not affect any of the remaining provisions hereof. 24. Waiver. Waiver by the City or Developer of any breach of any term, covenant, or condition herein contained shall not be deemed a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant, or condition herein contained. 25. Entire Agreement. This Agreement represents the entire agreement by and among the Parties and supersedes all prior negotiations, representations or agreements. This Agreement may be amended only by a written instrument signed by an authorized representative of Consultant, the City and Developer. 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. [Signatures Begin on Next Page]. Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 8 of 9 IN WITNESS WHEREOF, the Parties hereto, each of whom warrants that they are authorized to execute agreements on behalf of their respective party, have executed this Agreement on the date set forth below. City: City of Vernon Date: Melissa Ybarra, Mayor ATTEST: APPROVED AS TO FORM: Maria E. Ayala, City Clerk [CONSULTANT], a [STATE & FORM OF COMPANY] [ADDRESS] By: Print Name: Title: Date: By: Print Name: Title: Date: Hema Patel, City Attorney [DEVELOPER], a [STATE & FORM OF COMPANY] [ADDRESS] By: Print Name: Title: Date: By: Print Name: Title: Date: Agreement between [CONSULTANT], the City of Vernon and [DEVELOPER] Page 9 of 9 EXHIBIT A PROPOSAL