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HomeMy WebLinkAboutC-7911-1 - PSA for Solid Waste Franchise Hauler Audit ServicesI PROFESSIONAL SERVICES AGREEMENT r WITH MICHAEL BALLIET CONSULTING, LLC FOR V SOLID WASTE FRANCHISE HAULER AUDIT SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 1st day of August, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MICHAEL BALLIET CONSULTING, LLC, a California limited liability company ("Consultant'), whose address is 30181 Outpost Road, San Juan Capistrano, CA 92675, 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 provide Solid Waste Franchise Hauler Audit Services ("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 July 31, 2023, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 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. 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, 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 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 Fifty Nine Thousand Three Hundred Seventy Five Dollars and 00/100 ($59,375.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. Additionally, the City has allocated a contingency amount of Two Thousand Seven Hundred Fifty Dollars and 00/100 ($2,750.00), for unexpected costs, for a total not to exceed of Sixty Two Thousand One Hundred Twenty Five Dollars and 00/100 ($62,125.00). No portion of the contingency shall be expended without prior written approval of City's Project Administrator. 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 or specifically approved in writing in advance by City. Michael Balliet Consulting, LLC Page 2 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. 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 Michael Balliet to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A 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 Finance Department. City's Revenue Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The 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 Michael Balliet Consulting, LLC Page 3 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 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. Michael Balliet Consulting, LLC Page 4 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 or Work pursuant to this Agreement shall: work full-time for more than six (6) months; work regular part-time service of at least an average of twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS 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. 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. Michael Balliet Consulting, LLC Page 5 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. 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, 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 Michael Balliet Consulting, LLC Page 6 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. 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. 19. 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. 20. 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. 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. 21. 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. 22. 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 Michael Balliet Consulting, LLC Page 7 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. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant shall conform to all requirements therein. 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. 25. NOTICES 25.1 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 business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Revenue Manager Finance Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Michael Balliet Michael Balliet Consulting, LLC 30181 Outpost Road Michael Balliet Consulting, LLC Page 8 San Juan Capistrano, CA 92675 26. 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.). 27. TERMINATION 27.1 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. 27.2 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. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 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. Michael Balliet Consulting, LLC Page 9 28.3 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. 28.4 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. 28.5 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. 28.6 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. 28.7 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. 28.8 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. 28.9 Controlling 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. 28.10 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. 28.11 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. 28.12 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] Michael Balliet Consulting, LLC Page 10 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:*! 3/ Z407o By: Ak A -C - -Por Aaron C. Harp City Attorney ATTEST: ''nn Date: '0,(VZOM Leilani 1. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, a California municipal corporation Date:_ Q - -As -01 o By: Dan Matusi"&�' � ewicz Finance Director Z�:::7 CONSULTANT: MICHAEL BALLIET CONSULTING, LLC, a California limited liability company Signed in Counterpart By: Michael Lawrence Balliet Chief Executive Officer/Member Date: Signed in Counterpart By: Matthew William Balliet Member [END OF SIGNATURES] Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Michael Balliet Consulting, LLC Page 11 EXHIBIT A SCOPE OF SERVICES Michael Balliet Consulting, LLC Page A-1 EXHIBIT A SCOPE OF SERVICES 1. PROJECT OVERVIEW The City of Newport Beach non-exclusive franchise consists of both traditional trash haulers and firms that provide for -hire hauling for temporary construction and deconstruction projects. Consultant shall complete the audit of all thirty (30) haulers during the first eighteen (18) months of this project, allowing the City the option to implement an ongoing monitoring/auditing service. If City selects the option to implement an ongoing monitoring/auditing services, Consultant shall provide City with an audit of fiscal year 2019-2020. 2. HAULER GROUPINGS In California, State mandates place the thirty (30) haulers in two (2) distinct groups: 1) recurring service providers, and 2) temporary service providers. Recurring Service Provider Reviews Consultant's review of recurring service providers shall establish correct customer counts, classifications by mandatory -recycling compliance tiers, and quantify compliance -level percentages for both California Assembly Bills 341 and 1826. Incorporated within Consultant's pre -audit review service includes an assessment of any third -party diversion activity quantified and reported by the City's haulers. In such instances Consultant establishes whether a State review would support reported diversion and when a new review of this activity is required. A customer list review also provides Consultant with an initial reasonableness test on both tonnage and gross receipts reporting, as the customer records Consultant obtains from haulers and use provides both service and recurring billing levels. Finally, this initial review provides a detailed tool for the City's evaluation of its ability to reach 100% compliance with organic waste recycling mandates by January 1, 2022. Should the City select the optional monitoring and auditing service, Consultant shall provide quarterly updates to this customer list. If not, it shall solely be a per -audit review activity. Temporary Service Provider Reviews The new CalGreen code expanded the number of projects cities must track and increased waste diversion requirements to 65% for all covered projects. The majority, if not all of the projects serviced by City's temporary haulers, involves construction and deconstruction waste materials. Consultant's review of this group of haulers shall incorporate CalGreen project identification and diversion rate achievement in the required per -project format. Depending upon the City's determination on monitoring services for months 19 through 36 of the project, new tracking and reporting measures may be implemented. Regardless, this organization and presentation of data shall be incorporated into Consultant's audits of all construction/deconstruction material haulers. 3. SERVICES PERFORMED 3.1 Task 1: Pre -Audit Procedures City documents that are required to begin the review process include: 1) franchise agreements; 2) financial reports and payment records for each hauler; 3) reported compliance levels; 4) any formal communication between the hauler and City related to gross receipts reporting, tonnage, service, or any other issue related to this review EXHIBIT A SCOPE OF SERVICES where a problem area has been identified; and 4) any other informal communication (documents and/or emails) resident/business complaints to City, and/or other records the City believes would be helpful to Consultant's review process. In addition to the "recurring" and "temporary' service provider actions discussed above, Consultant's pre -audit process includes a detailed review of the City's franchise agreement and relevant ordinances. This is done to establish compliance requirements and the basis for proper reporting and fee payments. From this document review Consultant shall prepare specific field auditing guidelines (including a standardized checklist) for City staff review and approval. Consultant shall prepare draft audit notification letters that cite relevant agreement and City Code sections. Pre -audit reports shall be prepared for each hauler and shall include areas of concern and note potential reporting issues and inconsistencies. Consultant shall work closely with City staff to finalize audit notices, then immediately begin contacting haulers and scheduling onsite reviews. Consultant anticipates pre -audit procedures shall take no more than 60 -days to complete. Therefore onsite reviews, encompassing tasks 2 through 4 below, shall commence by month three (3) of the project. 3.2 Task 2: Financial Review Consultant shall request multiple invoices for each of the service types that each hauler provides. Consultant shall then follow each line -item charge on the invoice to the various accounting system reports the hauler utilizes to record gross receipts. Consultant shall then work with the hauler to identify the universe of service and charge codes within their accounting system, as well as the City -franchise identification codes they employ. This process also identifies how they record national -account activity, and any service to governmental entities they consider to be either excluded or included in the City's franchise. Consultant shall then run reports from various periods and compare the totals to the gross receipts reported to the City. Any discrepancies are investigated to determine if they are outliers or systemic accounting/reporting issues. Consultant shall then work from a service address basis to determine what accounts have been miscategorized or otherwise improperly excluded from gross receipts reporting. Consultant shall also verify and separate gross receipts that have properly been excluded in order to provide the City with a full accounting of all hauling activity on customer -based compliance reporting lists (CalRecycle requires local jurisdictions to track compliance at State entities, regardless of their status in your waste hauling franchise). Most of the City's larger recurring -service haulers perform internal audits annually, to validate local profit center accounting as part of their corporate financial reporting process. In Consultant's experience, these reviews uncover a number of input and coding errors. Therefore it is extremely rare that City -reported gross receipts would remain unchanged after this process. For these larger firms (e.g. Waste Management and Republic Services) Consultant shall work with their designated accountant to identify the "true -up" errors this process uncovered. EXHIBIT A SCOPE OF SERVICES For private recurring service haulers Consultant shall follow gross receipts and revenues to their financial statements. This process has yielded substantial findings in a few instances. Typically when a hauler, who also owns a transfer or material recovery facility, wishes to improperly categorize a portion of their customer receipts as a separate transaction with that transfer/processing facility directly. For temporary service haulers Consultant shall review both customer and project records to identify the adequacy of billing/revenues attributed to their hauling services. For all haulers Consultant's review shall note any deviations from reasonable accounting procedures encountered. In such instances Consultant shall formulate corrective actions needed to ensure generally accepted accounting principles are fully employed in the future. With a complete understanding of each hauler's accounting system, and after taking the measures discussed above, Consultant shall establish its audit findings for the two-year review period. If these findings establish that additional franchise fees are owed to the City, and include late fees and administrative penalties, Consultant's audit report shall provide both the substantiation of the finding and all related calculations used to arrive at the amount due. Consultant's common practice is to review these findings with the hauler, providing technical assistance on how they can correct the issues encountered going forward. The financial component of the review process shall be a stand-alone section within the audit report for that hauler. The other two sections of that report shall be tonnage reporting and agreement compliance. 3.3 Task 3: Tonnage Review & Reporting For each group (recurring and temporary) Consultant's review of tonnage records shall establish figures for each general service type (e.g. roll -off, affixed container, etc.) and the destination facility where such materials were "tipped". This is useful in determining reasonable revenue assumptions and in establishing whether reported diversion claims are accurate. Depending upon the City's current tonnage reporting requirements, Consultant may develop new procedures to assist in its quarterly monitoring. Consultant's onsite review for each hauler shall include a detailed examination of weight tickets for two (2) calendar quarters. This process shall reconcile each collection vehicle with the facility where their load was initially "tipped". The process includes attributing tonnage to the various collection activity types (i.e. bin service, roll -off, etc.) and organizing by facility type (e.g. landfill and transfer to disposal, separation facilities, clean -material or end-user facilities). Consultant shall examine procedures that are in place to properly allocate collections to multiple jurisdictions (if the City does not have a "no -commingling" ordinance), and how reported diversion rates for that facility are established and verified. EXHIBIT A SCOPE OF SERVICES If tonnage -reporting issues are encountered, Consultant shall take appropriate action in each calendar quarter of the review period to arrive at an audited tons figure that is accurate and reconciles to their weight tickets. For each hauler's audit report, a tonnage -reporting section therein shall reconcile tons to the appropriate facility and establish a reasonable diversion rate for each. In instances where improper reporting is found, Consultant shall detail the issue encountered and formulate the true and correct figure/allocation. If this results in diversion rates below franchise agreement or CalGreen standards, Consultant shall recommend alternatives for City -action. 3.4 Task 4: Compliance Review Under this task Consultant incorporates the specific hauler -type steps discussed above, developing appropriate State -compliance measurements for both recurring and temporary service hauling. With respect to customer -based compliance tracking, Consultant shall segregate the recurring hauling at businesses from multi- family properties. This is necessary since CalRecycle has different mandates for each. In addition, California's Senate Bill 1383 shall significantly alter requirements for multi -family properties in 2022. Therefore, it is important that the City be able to specifically track compliance levels at multi -family properties now. Consultant's review of the franchise agreement and City ordinances shall provide a checklist of all other compliance actions required. Generally these are believed to incorporate standards of service, general operation, and compliant reporting requirements. Typically this review looks at compliant logs, vehicle and equipment maintenance, personnel requirements and training, and agreement -specific guidelines and mandated best practices. Consultant's review shall establish a level of compliance with each agreement requirement, and provide recommended corrective actions for areas found to be deficient or non-compliant. 3.5 Task 5: Audit Report Once Consultant has completed its onsite review, Consultant shall prepare a report detailing each of the three major review areas (financial, tonnage and compliance). Therein Consultant shall list and substantiate each finding, providing the corrective action(s) necessary to resolve the audit. To support this report Consultant shall separately prepare a draft "notice of finding" letter for the City to finalize and send to the respective hauler. During this time Consultant shall work with City staff to finalize both the audit report and letter to ensure they are completed in a timely manner. 3.6 Task 6: Post -Audit Support Consultant shall attend meetings with City staff and each hauler, resolving any disagreements or disputes related to the audit findings Consultant has established. 3.7 Task 7: Project Administration Consultant shall prepare a narrative report to accompany each project invoice submitted to the City. This report shall detail Consultant's project activity for each calendar month during the project term. Consultant shall attend regular meetings EXHIBIT A SCOPE OF SERVICES with City staff, assist in preparing reports for City- management and/or elected officials, and attend/present project results as requested. EXHIBIT B SCHEDULE OF BILLING RATES Michael Balliet Consulting, LLC Page B-1 EXHIBIT B SCHEDULE OF BILLING RATES Year 1 Project Budget Michael Balliet 215 hours @ $125.00 = $26,875.00 Matthew Balliet 35 hours @ $ 75.00 = $ 2,625.00 Totals 250 hours — $29,500.00 Year 2 Project Budget — Complete 30 hauler audit by Project Month 18 Michael Balliet 55 hours @ $125.00 = $ 6,875.00 Matthew Balliet 10 hours @ $ 75.00 = $ 750.00 Totals 65 hours = $ 7,625.00 Year 2 (Optic Michael Balliet Matthew Balliet Totals 75 hours Year 3 (Option Michael Balliet Matthew Balliet Totals 125 hours — Active ✓lonitoring & Audit of FY 2019/2020) Months 19 th 55 hours @ $125.00 = $ 6,875.00 20 hours @ $ 75.00 = $ 1,500.00 = $ 8,375.00 24 — Active Monitoring & Audit of FY 2019/2020) Months 25 through 36 Breakdown of Budget 90 hours @ $125.00 = $11,250.00 35 hours @ $ 75.00 = $ 2,625.00 _ $13,875.00 30 Hauler Audit = $37,125.00 Optional Active Monitoring & FY 2019/2020 Audit (Year 2) = $ 8,375.00 Optional Active Monitoring & FY 2019/2020 Audit (Year 3) = $13,875.0 Contract Contingency = $ 2,750.00 Total = $62,125.00 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. 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 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). 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. Michael Balliet Consulting, LLC Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 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. Additional Agreements 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. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least Michael Balliet Consulting, LLC Page C-2 fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 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. Michael Balliet Consulting, LLC Page C-3 G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, 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. Michael Balliet Consulting, LLC Page C-4 Mulvey, Jennifer From: Customer Service <customerservice@ebix.com> Sent: Wednesday, October 14, 2020 5:37 PM To: Kessler, Joanne; Insurance Cc: sagar@ebix.com Subject: Compliance Alert -Vendor Number FV00000231 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate of insurance requirements. FV00000231 Michael Balliet Consulting, LLC Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.