HomeMy WebLinkAboutC-4195(A) - PSA for Franchised Hauler Audits and Quarterly Monitoring�n
PROFESSIONAL SERVICES AGREEMENT WITH
MICHAEL BALLIET CONSULTING FOR
V
FRANCHISED HAULER AUDITS AND QUARTERLY MONITORING
THIS AGREEMENT is made and entered into as of this LV" day of 2009, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporat n ("City"), and
MICHAEL BALLIET, a sole proprietor, doing business as MICHAEL BALLIET
CONSULTING, whose address is 26351 Tarrasa Lane, Mission Viejo, California, 92691
( "Consultant"), 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 is planning to perform quarterly reviews and annual audits of franchise fee
payments by its franchised haulers.
C. City desires to engage Consultant to perform franchised hauler audit services
( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Michael
Balliet.
F. 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:
TERM
The term of this ARreement shall commence on the above written date, and shall
terminate on the 1 day of April, 2012, 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. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
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 to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator 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.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery and /or mail.
4. COMPENSATION TO CONSULTANT
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not
exceed Fifty Thousand Dollars and no/100 ($50,000.00) 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.
4.1 Flat Rate Tasks: City shall pay Consultant for the services identified as
Annual Audit and Quarterly Monitoring Program outlined and defined in
the Scope of Services, attached hereto as Exhibit A and incorporated
herein by reference, on a flat rate, not to exceed basis in accordance with
this Section and Exhibits A and B. Consultant shall submit progress
payment invoices in the manner outlined in Exhibit B to City with a brief
description of the services performed and /or the specific task in the Scope of
Services to which it relates. City shall pay Consultant no later than thirty (30)
days after approval of the invoice by City staff.
4.2 Additional Consulting Services: City shall pay Consultant for the service
identified as General Solid Waste Consulting, outlined and defined on the
Scope of Services attached hereto as Exhibit A and incorporated herein
by reference, on a time and expense basis, at a not to exceed rate in
accordance with the provisions of this Section and Exhibit A. Consultant
shall submit monthly invoices to City describing the work performed the
proceeding month for tasks completed on a time and expense basis.
Consultant's bills shall include the name of the person who performed the
work, a brief description of the services performed and /or the speck task in
2
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) days after approval of the invoice by City
staff.
4.3 City shall reimburse Consultant only for those costs, materials or
expenses specifically approved in this Agreement, or specifically approved
in writing in advance by City. Unless otherwise approved, such costs shall
be limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
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 A.
4.5 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
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.
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.
3
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Revenue Department. GLEN
EVERROAD shall be the Project Administrator and shall have the authority to act
for City under this Agreement. The Project Administrator or his/her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. 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. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City. By delivery of completed
work, Consultant certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in 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, or 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
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, attorney's 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 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).
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 the Consultant.
10. INDEPENDENT CONTRACTOR
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. 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 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.
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.
5
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 and /or his/her
duly authorized designee 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, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. 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.
D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the 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 three hundred thousand dollars ($300,000) combined
single limit for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
the services to be performed in connection with this Agreement in
the minimum amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
M. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
7
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional 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.
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 cotenancy,
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 parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (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. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
This section was intentionally omitted.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
This section was intentionally omitted.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work 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
E.
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. 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 his/her 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.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be bome by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals 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
10
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn: Glen Everroad
Revenue Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3144
Fax: 949 -644 -3144
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Michael Balliet
26351 Tarrasa Lane
Mission Viejo, CA 92691
Phone: 949 - 837 -3618
Fax: 949 - 837 -3618
28. TERMINATION
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.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. 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,
11
30.
31
32.
33.
34.
35.
36.
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
NU17411
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.
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 vernal
agreement or implied covenant shall be held to vary the provisions herein.
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.
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.
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.
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.
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.
12
37. 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 of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFI E OF THE CITY ATTORNEY
Aaron C. Harp, Asst. City Attorney
for the City of Newport Beach
ATTEST:
Leilani (.Brown,
City Clerk
Attachments
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
omer BludXu, City Manager
for the City of Newport Beach
CONSULTANT:
MICHAEL BALLIET CONSULTING
By: X
ichael Balliet
Sole Propr're r
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
13
EXHIBIT A — SCOPE OF SERVICES
Michael Balliet Consulting
March 25, 2009
Glen Everroad
Revenue Manager
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Mr. Everroad:
I look forward to working with the City of Newport Beach again. As you know I performed the 1996-
1998 audit for the City (subcontracted with MRC) and also your 2003 through 2006 audit. I believe the
proposal contained herein will provide the same quality of service in a cost- effective manner.
Audit Prop-ram
I worked with the City to develop current franchise fee reporting procedures and also provided technical
assistance to the majority of your current haulers. I can effectively analyze quarterly report submissions
received in both 2007 and 2008 in a two -year audit program.
The first step of my proposed program is to receive and review all quarterly franchise fee submissions
from your franchised waste haulers for both calendar years 2007 and 2008. As part of this process I will
also review tonnage data provided by the haulers to the City's General Services Department. Where
available I will also review third -party tonnage records. Finally I will receive and review historical hauler
revenue and tonnage information from the audit period 2003 -2005 and the 2006 audit performed by City
staff. This data will provide the basis for my initial revenue -to -ton based audit. This initial audit is used as
a reasonableness test to determine if haulers have made accurate franchise fee payments throughout the
audit period. The deliverable work product for this step will be a database which will calculate what
accurate franchise fee submissions should have been for each hauler for both 2007 and 2008. This
database will be accompanied by a report discussing each hauler and in instances where haulers are
believed to have under- reported 1 will provide an acceptable payment figure to resolve each hauler's
franchise fee audit. I will also prepare an audit finding letter based upon this figure for City review. Upon
approval the City will mail this letter to the hauler. If this figure is acceptable to the hauler then that audit
is concluded once prescribed payment has been received by the City.
If the hauler does not accept the proposed finding figure or it is determined that additional information is
needed to project a finding, a full financial audit will be performed. The on -site audit is the second step in
Michael Balliet Consulting 26351 Tarrasa Lane Mission Viejo, CA 92691
(949)837 -3618 (PhonelFax) mballiet @cox.net
the two -year audit program. I will prepare a draft letter for the City's review and submission to the hauler
targeted for audit. This letter will detail the information that must be made available. The City will be the
first line of contact and will coordinate the on -site audit schedule with me. If requested I can handle the
audit scheduling. In most instances I recommend that the City's auditor accompany me and also utilize
the City's proprietary address software to assist in the audit review. Typically this on -site review should
take no more that 5 hours. However I will expend up to 10 hours on -site for each hauler audited under this
program budget. If haulers are failing to provide requested information, are believed to be withholding
readily available data, or otherwise delaying the audit process I will immediately inform the City of the
problem and request help in resolving the issue. In those instances I believe the City has the ability to
charge the hauler for any additional audit expenses which will limit my out -of- pocket expenses as well as
the City's.
At the conclusion of the on -site audit for each hauler I will prepare an audit finding notice for City review.
I will participate in meetings as directed by the City to reach audit resolution with each hauler audited.
It is projected that the Audit Program can be completed within 100 days of contract execution. Within 5-
days of contract execution I would like to hold a meeting with City staff to obtain all reports listed herein
and to have a general discussion on the audit process and upcoming activities. Within 30 days of contract
execution, assuming I have obtained all reports listed herein, I will conclude my reasonableness test audit
and deliver the work product described above. Within a week of delivery of this work product a second
meeting with City staff is recommended to discuss findings and the status of hauler notices. It is further
recommended that these notices go out to the target haulers within two weeks of initial work product
deliver and that the haulers be given ho more than 14 days to pay the projected finding or request an on-
site audit. On -site audits, if requested, must then be scheduled by the hauler within a 30 day time period.
This will ensure that on -site audits are completed within 75 days of contract execution. Since on -site audit
finding notices are issued upon completion of the audit days 50 through 75 of the contract should include
some hauler meetings and negotiations to resolve audit findings. The final 25 days of the contract are
dedicated to resolving the final on -site audits and audits with more protracted negotiations.
I will bill for the Audit Program in progress billing increments. The first billing will be for 35% of the
project budget and will accompany the initial work product delivery to the City. The second progress
billing will be for 35% of the project budget and will accompany audit notices to all franchised haulers
and a report detailing and confirming that 50% of the hauler audits have been resolved. The final billing
will be for 30% of the project budget and will accompany a final report detailing resolution to 100% of
the hauler audits.
Ouarterly Monitoring Program
To maintain ongoing accuracy in hauler reporting, ensure timely remittance of forms and fees, introduce
new haulers into the City's franchise system, and provide the City with the ability to address franchise fee
submission issues in a timely manner I will provide a quarterly monitoring program for calendar year
2009 submissions at the conclusion of the Annual Audit. A similar review of hauler reports will be
performed on a quarterly basis to help the City establish the veracity of fi-anchise fee payments. This
process will also allow me the ability to notify and advise the City on instances of illegal hauling and
assist in incorporating these firms into the fi-anchise system. The quarterly monitoring program will also
keep me in close contact with you and your staff so I can provide immediate assistance to franchise issues
as they arise.
Michael Balliet Consulting 26351 Tanusa Lane Mission Viejo, CA 92691
(949 )837 -3618 (Phone/Fax) mballiet@cox.net
The quarterly monitoring program will provide a reasonableness test audit and on -site audits as needed
following the same methodology used for the Audit Program described above. The quarterly monitoring
program can be performed more efficiently since it follows the annual audit and maintains the accurate
reporting established by that process. The quarterly monitoring program will be performed for all four
quarters of 2009, 2010, and 2011.
Additional Services
In the process of performing the quarterly monitoring program incidents of illegal hauling, potential AB
939 compliance issues and opportunities, or general solid waste management issues may develop. As a
value added service I will make the City aware of these issues and opportunities as they arise. Under the
quarterly monitoring program I can provide two hours of general consulting service as directed by the
City.
In the event that the City requires addition consulting services they will be provided at the hourly rate
listed in the Fee for Services (Attachment B) portion of the agreement or under a retainer basis also listed
in Attachment B.
Thanks for the opportunity to present this proposal. I look forward to working with you again.
Sincerely,
Mike Balliet
MBC
Michael Balliet Consulting 26351 Tamasa Lane Mission Viejo, CA 92691
(949)837 -3618 (Phone/Fax) mballiet@cox.net
EXHIBIT B — SCHEDULE OF BILLING RATES
Michael Balliet Consulting
Fee for Services
The proposed three (3) year agreement establishes fees at a not -to- exceed $50,000 for services divided
into the following three sections: (1) Audit Program, (2) Quarterly Monitoring Service, and (3) General
Solid Waste Consulting. The Audit Program will be performed at a flat fee of $10,000. The Quarterly
Monitoring Program will be performed for an annual flat fee of $5,000 for calendar years 2009, 2010, and
2011 ($1,250 per quarter). Additional consulting services for out -of -scope activity or in instances where
project work exceed hours reasonably projected and listed herein, the hourly billing rate is $100.
Listed below are the specific programs and compensation schedules
Annual Audit: Flat Fee of $10,000 for audit of calendar year 2007 and 2008 hauler
franchise fee payments. First progress billing of $3,500 due and payable
upon delivery of reasonableness test audit results and all projected audit
finding letters. Second progress billing of $3,500 due and payable upon
resolution of projected audit findings and completion of 25% of the total
on -site audits required. Completion with respect to the second progress
billing is defined as completion of the on -site records review and
delivery to the City of the on -site audit finding notice. Final project
billing is due and payable after the consultant completes all on -site
audits, has prepared all on -site audit finding notices, and has attended an
initial meeting between the City and any haulers refusing to pay the full
audit finding amount. The consultant will provide up to two (2) hours of
negotiation assistance per hauler.
Quarterly Monitoring Program: Flat Fee of $5,000 per year. Project is billed in quarterly increments of
$1,250. A progress billing of $1,250 will be due and payable upon
delivered to the City of each quarter's reasonableness test audit results
and report, and after all projected finding notices have been reviewed by
the City and mailed to the haulers. Additional consulting hours will be
expended on an as needed basis to perform on -site audits, hauler
negotiations, preparation of additional letters or reports, and in a general
consulting capacity as required. Additional consulting hours after
delivery of the quarterly work product is capped at 10 hours per quarter.
Any additional hours required will be at the contracted billing rate listed
below.
Michael Balliet Consulting 26351 Tafrasa Lane Mission Viejo, CA 92691
(949)837 -3618 (Phone/Fax) mballiet@cox.net
Billing Rate: $100 per hour
General Solid Waste Consulting: Two (2) hours of general solid waste consulting services will be
provided under the flat fee structure of the Quarterly Monitoring
Program. Should the City require additional solid waste consulting
services they will be performed at the contracted billing rate listed
below.
Billing Rate: $100 per hour
General Soli to Consulting: Should e City elect I can orm general solid waste consul ' g under
a monthl retainer ct. This structure would p 'de easier
scheduling
Bill' g Rate:
basis rate. The
contract execm
($9,600 ann
hourly rate
my p ctice and as a ult I would o a discounted
t ' er contract would be a one y period from the
ate and would be billed at of $800 per month
co �itment by City). This w be based upon an
(discount) and wou cover 10 hours of
s services pe month. The nsultant v
y at this level. )
retainer would be
1=4
hours Or an above the 10 hours per
id atKe discounted rate ($80).
Postage. Travel, Phone. Fax and Copyine
Billed at cost plus 10 %. Note that travel to and from my office to the City and to any franchised hauler
office or other location designated by the City within Los Angeles, Orange, and Riverside counties is
covered by my hourly billing rate.
Michael Balliet Consulting 26351 Tarrasa Lane Mission Viejo, CA 92691
(949)837 -3618 (Phone/Fax) mballiet@cox.net