HomeMy WebLinkAbout08 - Solid Waste Consultant ServicesMay 9, 2017
Agenda Item No. 8
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mike Pisani, Municipal Operations Director - 949-644-3055,
mpisani@newportbeachca.gov
PREPARED BY: Shelby Morgan, Management Assistant
smorgan@newportbeachca.gov
PHONE: 949-644-3013
TITLE: Approval and Award of Agreement to EcoNomics, Inc. for Solid
Waste Consultant Services
ABSTRACT:
The City conducted a request for qualifications process to find a consultant to assist City
staff with development of the new solid waste franchise system, to assist in the data
collection required by CalRecycle, and to perform community and business outreach in
order to meet mandatory commercial and organics recycling goals.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Authorize an agreement with EcoNomics, Inc., for solid waste consultant services for
a three-year period, not to exceed $300,000.00; and
c) Approve Budget Amendment No. 17BA-033 appropriating $25,000.00 from the
Environmental Liability Fund unappropriated fund balance to Account 16003-811008.
FUNDING REQUIREMENTS:
The Environmental Liability Fund is funded by a franchise fee of 5.5% of the revenues of
solid waste haulers generated in Newport Beach. Expenditures for compliance with solid
waste regulations is an authorized use of these funds. Consequently, a budget
amendment for $25,000 from unappropriated Environmental Liability Fund reserves is
requested to fund these services for the remainder of Fiscal Year 2016-17. Additional
funding will be included in the FY 2017-18 Budget.
8-1
Approval and Award of Agreement to EcoNomics, Inc.
for Solid Waste Consultant Services
May 9, 2017
Page 2
DISCUSSION:
The Department of Resources Recycling and Recovery (CalRecycle) sets standards for
solid waste diversion in California. To succeed in their mission, CalRecycle requires local
jurisdictions to implement programs that reduce the amount of solid waste going to
landfills. The state legislature has passed bills to mandate commercial recycling and the
diversion of organic materials from the waste stream by businesses throughout the state;
each city is responsible for insuring these programs are in place and to complete
significant reports and documentation to CalRecycle on an annual basis.
Newport Beach uses regulations included in our non-exclusive solid waste franchise
system to help us achieve these goals. In the current agreements, haulers are required
to recycle 55% of the material collected and maintain a recycling program at each
account. Additionally, haulers pay a 16% franchise fee on all revenues collected from
City accounts; 10.5% goes into the General Fund, and 5.5% goes into the Environmental
Liability Fund. The 10 -year franchise agreements had an expiration date of March 1,
2017; however, at its January 24, 2017 meeting, the City Council extended the
agreements with the same terms through November 8, 2017.
This is a time of significant change for solid waste management in California. AB1826,
which passed in 2014, requires businesses generating organic waste to have a recycling
program in place. The primary targeted businesses include golf courses, hotels, full
service restaurants, grocery stores, and hospitals. The law took effect in April 2016 for
the largest generators (those generating 8 cubic yards or more per week) and on
January 1, 2017 for smaller generators (generating 4 cubic yards or more per week). The
majority of the targeted businesses in the City are now under this mandate.
Further, the 2016 California Green Building Code update included new regulations for
construction and demolition waste disposal as of January 1, 2017.
Consequently, we have a number of tasks to complete. First, the Municipal Operations
and the City Attorney staffs need to design new franchise agreements that take into
account current regulations and include reporting requirements showing CalRecycle the
City's compliance with the law. Second, we need to update our Municipal Code to contain
an enforcement tool for cases of non-compliance by waste haulers, businesses, or
property owners. Finally, we need to be able to provide outreach to assist business
owners in achieving compliance.
Staff determined the need to utilize a consultant to assist with management of our solid
waste program for a number of reasons. While the City Attorney's Office will be preparing
the new franchise documents and Municipal Code revisions, a consultant has knowledge
about the different conditions placed on haulers in franchise agreements, verifiable
reporting systems, and other items that help gain compliance with waste goals. Secondly,
the City has a responsibility to be business -friendly and provide assistance to meet these
mandates. Our current staffing level does not provide for this important service to the
business community.
8-2
Approval and Award of Agreement to EcoNomics, Inc.
for Solid Waste Consultant Services
May 9, 2017
Page 3
On March 14, 2017, staff circulated a Request for Qualifications (RFQ) to firms performing
these services. The RFQs were due on April 4, 2017, and six responses were received
by the deadline. A panel of staff from the City Manager's Office and Municipal Operations
evaluated the proposals based on qualifications, experience, and project approach. The
results of the evaluation were as follows:
Firm
Average Score
(Max. 100)
Ranking
EcoNomics, Inc.
92.00
1
HF&H
77.50
2
SCS Engineers
75.75
3
MuniEnvironmental
73.00
4
Sloan Vasquez McAfee
60.50
5
Global Disposal
40.50
6
The evaluation panel felt EcoNomics' proposal was the strongest due to their recent
experience, the detail with which they described their work plan, and their strength in
providing technical assistance and the business outreach portion of the program.
EcoNomics provides similar services for other Orange County cities such as Laguna Hills,
Anaheim, Tustin, and Mission Viejo.
Following the selection of EcoNomics, staff requested that an estimate of costs to perform
the expected work over the next 12 months. This estimate is attached (Attachment A)
and shows that initially we will incur expenses by their senior staff in assisting City staff
with the development of the franchises while concurrently using more staff hours in
community and business outreach.
An agreement with EcoNomics and associated budget amendment is provided for
approval (Attachments B and C). We propose a three-year term, which will allow technical
assistance for the development of new franchises, a reporting structure that accounts for
the active programs in the city, and business assistance to gain greater compliance with
state and city solid waste regulations. The Budget Amendment will fund these services
for the remainder of Fiscal Year 2016-17.
8-3
Approval and Award of Agreement to EcoNomics, Inc.
for Solid Waste Consultant Services
May 9, 2017
Page 4
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — EcoNomics First Year Budget Estimate
Attachment B — Agreement with EcoNomics, Inc. for Solid Waste Consultant Services
Attachment C — Budget Amendment
ATTACHMENT A
O'Toole
St. John
Blythe, MBA
Goulart, MA
Bevan, MBA
Lau
Total
President
Technical
vice
Project
Project
Assoc.
NEWPORT BEACH BUDGET
%fPro'ect
J
Year 1 Budget Estimate
President
Manager
Analyst
Analyst
Hours
Budget
Resources
$205.00
$205.00
$135.00
$100.00
$90.00
$65.00
Task 1— Assist the City in developing
new solid waste franchise documents
48
88
16
4
4
4
164
$ 31,060.00
25%
Task 2 — Assist in the collection of data
16
4
24
40
24
12
120
$ 14,280.00
12%
from current franchises
Task 3 — Analyze Community
Development Department Practices for
8
4
8
16
8
4
48
$ 6,120.00
5%
Compliance with Green Building Code
Task 4 - Assist with City's Interaction
16
4
16
16
40
8
100
$ 11,980.00
10%
with CalRecycle
Task 5 — Community and Business
16
4
32
200
80
160
492
$ 46,020.00
37%
Outreach
Task 6 — Miscellaneous Optional Tasks
8
4
20
24
40
40
136
$ 13,760.00
11%
TOTAL PROJECT HOURS
112
108
116
300
196
228
1060
100%
Average Hours per Month per
6.2
6.0
6.4
16.7
10.9
12.7
58.9
Employee (12 months)
TOTAL NOT TO EXCEED (Cost per
$22,960.00
$22,140.00
$15,660.00
$30,000.00
$17,640.00
$14,820.00
$123,220.00
Person &Grand Total)
ATTACHMENT B
ON-CALL PROFESSIONAL SERVICES AGREEMENT
WITH ECO/NOMICS, INC., WHICH WILL DO BUSINESS
IN CALIFORNIA AS ECAL/NOMICS, INC. FOR
SOLID WASTE CONSULTING
THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement') is
made and entered into as of this 9th day of May, 2017 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and ECO/NOMICS, INC., WHICH WILL DO BUSINESS IN CALIFORNIA AS
ECAL/NOMICS, INC., a Colorado Corporation ("Consultant"), whose address is Post
Office Box 2790, Del Mar, California 92014, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to perform Solid Waste consulting ("Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on May 8, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
and
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Three Hundred Thousand Dollars and 00/100 ($300,000.00), without prior written
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authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal or specifically approved
in writing in advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B and the Letter Proposal.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated William O'Toole to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit B or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Municipal Operations Department. The
Municipal Operations Department Director or his/her designee shall be the Project
Administrator and shall have the authority to act for City under this Agreement. The
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Project Administrator shall represent City in all matters pertaining to the Services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
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the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
10.1 It is understood that City retains Consultant on an independent contractor
basis and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
10.2 Consultant agrees and acknowledges that no individual performing
Services pursuant to this Agreement shall: work full-time for more than six (6) months;
work regular part-time service of at least twenty (20) hours per week for one year or
longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CaIPERS
member.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
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13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and, any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
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employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents the
Consultant's judgment as a design professional and is supplied for the general guidance
of City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the accuracy of
such opinions as compared to Consultant or contractor bids or actual cost to City.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
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Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
25.2 If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Consultant shall indemnify and hold harmless City for any and
all claims for damages resulting from Consultant's violation of this Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
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business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Mike Pisani, Municipal Operation Director — General Services
Municipal Operations Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: William O'Toole
Eco/Nomics Inc., Which Will do Business in California as
Ecal/Nomics, Inc.
P.O. Box 2790
Del Mar, CA 92014
27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
28. TERMINATION
28.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page 9
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28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
-- understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page 10
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29.9 Controllinq Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page 11
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: (!,�nl 7n �r%> V1
By:
A r n C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
441-ki Kevin Muldoon
Mayor
CONSULTANT: ECO/NOMICS, INC.,
WHICH WILL DO BUSINESS IN
CALIFORNIA AS ECRL/NOMICS, INC., a
Colorado Corporation
Date:
By:
William O'Toole
President
[END OF SIGNATURES
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page 12
8-97
EXHIBIT A
SCOPE OF SERVICES
ON-CALL SOLID WASTE CONSULTING
The following is a list of services required for solid waste consulting:
• Provide technical expertise to assist the City in developing new solid waste
franchise documents.
• Develop reporting processes for a multi -hauler system to hold haulers
accountable and for the City to remain in compliance with CalRecycle.
• Provide technical expertise to assist City staff in updating Municipal Code
definitions and enforcement mechanisms.
• Propose alternate system(s) for solid waste franchises that could be considered
for implementation.
• Assist in the collection of data from current franchises.
• Analyze City's Community Development Department practices for compliance
with CalRecycle and Green Building Code.
• Assist with City's interaction with CalRecycle, including preparation of
CalRecycle reports and annual report.
• Participate in conference calls and annual tours with CalRecycle as scheduled.
• Assist the City with community and business outreach, including generator
identification and notification, technical assistance, AB 1826 and 341 Program
monitoring, and resolving conflicts between franchisees and customers as
related to City and State solid waste regulations.
• Assist City with implementing or expanding existing waste diversion programs.
• Technical support on residential collection agreements.
The scope and work schedule for each task will be set by the City on a project -by -
project basis. The City will request from Consultant a written Letter Proposal for each
Project.
No services shall be provided until the Project Administrator or his/her designee has
provided written acceptance of the Letter Proposal.
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page A-1
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EXHIBIT B
SCHEDULE OF BILLING RATES
Person
Title
Hourly Rates
William O'Toole
President
$205
Cerene St. John, JD
Technical Consulting
$205
Trevor S. Blythe, MBA
Vice President
$135
Geiza Goulart da Silva, MF
Project Manager
$100
Ian Bevan, MBA
Project Analyst
$90
Yvonne Lau
Associate Analyst
$65
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page B-1
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page C-1
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C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Aqreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Eco/Nomics, Inc. dba Ecal/Nomics, Inc. Page C-2
8-21
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
EcofNomics, Inc. dba Ecal/Nomics, Inc. Page C-3
8-22
City of Newport Beach
BUDGET AMENDMENT
2016-17
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations AND
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
X from unappropriated fund balance
EXPLANATION:
ATTACHMENT C
NO. BA- 17BA-033
AMOUNT:J $25,000.00
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from the Environmental Liability Fund unappropriated fund balance for a contract
with EcoNomics for solid waste consultant services.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
160 300000
REVENUE ESTIMATES
Description
Environmental Liability Fund - Fund Balance
Org Object Description
EXPENDITURE APPROPRIATIONS
Description
Org Number 16003 Environmental Liability
Object Number 811008 Professional Services
Signed:
Financial Appro al: Finance i
Signed
Signed
Adminis%tj�e Approval: City Ma
City Council Approval: City Clerk
Amount
Debit Credit
$25,000.00
* Automatic
$25,000.00
Date
S`
Date
Date 8-23
Increase in Budgetary Fund Balance
X
Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
ONE-TIME?
FAI
Yes
No
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from the Environmental Liability Fund unappropriated fund balance for a contract
with EcoNomics for solid waste consultant services.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
160 300000
REVENUE ESTIMATES
Description
Environmental Liability Fund - Fund Balance
Org Object Description
EXPENDITURE APPROPRIATIONS
Description
Org Number 16003 Environmental Liability
Object Number 811008 Professional Services
Signed:
Financial Appro al: Finance i
Signed
Signed
Adminis%tj�e Approval: City Ma
City Council Approval: City Clerk
Amount
Debit Credit
$25,000.00
* Automatic
$25,000.00
Date
S`
Date
Date 8-23