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.
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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
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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.
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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.
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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
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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
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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.
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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.