MSW Consultants Inc (Feb 2017) CONTRACT SERVICES AGREEMENT
By and Between
CITY OF RANCHO PALOS VERDES
and
MSW CONSULTANTS,INC.
for
PROFESSIONAL CONSULTING SERVICES FOR
PERFORMANCE AUDIT OF EDCO DISPOSAL CORPORATION
AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
MSW CONSULTANTS,INC.
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and
entered into this 2g day of February, 2017 by and between the City of Rancho Palos Verdes, a
California municipal corporation ("City") and MSW Consultants, Inc., a California corporation
("Consultant"). City and Consultant are sometimes hereinafter individually referred to as "Party"
and hereinafter collectively referred to as the "Parties".
RECITALS
A. Consultant, following submission of a proposal or bid for the performance of the
services defined and described particularly in Article 1 of this Agreement,was selected by the City
to perform those services.
B. Pursuant to the City of Rancho Palos Verdes' Municipal Code, City has authority
to enter into and execute this Agreement.
C. The Parties desire to formalize the selection of Consultant for performance of those
services defined and described particularly in Article 1 of this Agreement and desire that the terms
of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the
Parties and contained herein and other consideration, the value and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement,the Consultant shall provide
those services specified in the"Scope of Services"attached hereto as Exhibit"A"and incorporated
herein by this reference, which may be referred to herein as the "services" or"work" hereunder.
As a material inducement to the City entering into this Agreement, Consultant represents and
warrants that it has the qualifications, experience, and facilities necessary to properly perform the
services required under this Agreement in a thorough, competent, and professional manner, and is
experienced in performing the work and services contemplated herein. Consultant shall at all times
faithfully, competently and to the best of its ability, experience and talent, perform all services
described herein. Consultant covenants that it shall follow the highest professional standards in
performing the work and services required hereunder and that all materials will be both of good
quality as well as fit for the purpose intended. For purposes of this Agreement,the phrase"highest
professional standards" shall mean those standards of practice recognized by one or more first-
class firms performing similar work under similar circumstances.
1.2 Consultant's Proposal.
The Scope of Service shall include the Consultant's scope of work or bid which shall be
incorporated herein by this reference as though fully set forth herein. In the event of any
inconsistency between the terms of such proposal and this Agreement,the terms of this Agreement
shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in
accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any
Federal, State or local governmental entity having jurisdiction in effect at the time service is
rendered.
1.4 Licenses, Permits, Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses,permits and approvals as
may be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes,plus applicable penalties
and interest, which may be imposed by law and arise from or are necessary for the Consultant's
performance of the services required by this Agreement, and shall indemnify, defend and hold
harmless City,its officers, employees or agents of City, against any such fees, assessments, taxes,
penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly
investigated and considered the scope of services to be performed, (ii) has carefully considered
how the services should be performed, and (iii) fully understands the facilities, difficulties and
restrictions attending performance of the services under this Agreement. If the services involve
work upon any site, Consultant warrants that Consultant has or will investigate the site and is or
will be fully acquainted with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any latent or unknown conditions, which will
materially affect the performance of the services hereunder, Consultant shall immediately inform
the City of such fact and shall not proceed except at Consultant's risk until written instructions are
received from the Contract Officer.
1.6 Care of Work.
The Consultant shall adopt reasonable methods during the life of the Agreement to furnish
continuous protection to the work, and the equipment,materials,papers,documents,plans, studies
and/or other components thereof to prevent losses or damages, and shall be responsible for all such
damages, to persons or property, until acceptance of the work by City, except such losses or
damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to carry out the purposes
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of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of
the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without
invalidating this Agreement,to order extra work beyond that specified in the Scope of Services or
make changes by altering, adding to or deducting from said work. No such extra work may be
undertaken unless a written order is first given by the Contract Officer to the Consultant,
incorporating therein any adjustment in(i)the Contract Sum for the actual costs of the extra work,
and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written
approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the
Contract Sum or$25,000,whichever is less; or, in the time to perform of up to one hundred eighty
(180) days, may be approved by the Contract Officer. Any greater increases, taken either
separately or cumulatively, must be approved by the City Council. It is expressly understood by
Consultant that the provisions of this Section shall not apply to services specifically set forth in
the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to
be provided pursuant to the Scope of Services may be more costly or time consuming than
Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
City may in its sole and absolute discretion have similar work done by other contractors. No claims
for an increase in the Contract Sum or time for performance shall be valid unless the procedures
established in this Section are followed.
1.9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof
are set forth in the"Special Requirements"attached hereto as Exhibit"B"and incorporated herein
by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other
provisions of this Agreement,the provisions of Exhibit"B" shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the
amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and
incorporated herein by this reference. The total compensation,including reimbursement for actual
expenses, shall not exceed TWENTY-FOUR THOUSAND FIVE HUNDRED THIRTY
DOLLARS($24,530)(the"Contract Sum"),unless additional compensation is approved pursuant
to Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii)
payment in accordance with specified tasks or the percentage of completion of the services, less
contract retention; (iii) payment for time and materials based upon the Consultant's rates as
specified in the Schedule of Compensation, provided that (a) time estimates are provided for the
performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not
exceeded; or(iv) such other methods as may be specified in the Schedule of Compensation.
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2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in
advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Consultant is required to attend additional meetings to facilitate such coordination, Consultant
shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and
expenses incurred during the preceding month in a form approved by City's Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance
with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual
expenses by the following categories: labor (by sub-category), travel, materials, equipment,
supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such
categories. Consultant shall not invoice City for any duplicate services performed by more than
one person.
City shall independently review each invoice submitted by the Consultant to determine
whether the work performed and expenses incurred are in compliance with the provisions of this
Agreement. Except as to any charges for work performed or expenses incurred by Consultant
which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause
Consultant to be paid within forty-five (45)days of receipt of Consultant's correct and undisputed
invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures,
the City cannot guarantee that payment will occur within this time period. In the event any charges
or expenses are disputed by City, the original invoice shall be returned by City to Consultant for
correction and resubmission. Review and payment by City for any invoice provided by the
Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable
law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed
to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a
written notice to proceed and shall perform all services within the time period(s) established in the
"Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this
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reference. When requested by the Consultant, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty(180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Consultant,
including,but not restricted to,acts of God or of the public enemy,unusually severe weather,fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing of
the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the enforced delay when and if in the
judgment of the Contract Officer such delay is justified. The Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be
entitled to recover damages against the City for any delay in the performance of this Agreement,
however caused, Consultant's sole remedy being extension of the Agreement pursuant to this
Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement
shall continue in full force and effect until completion of the services but not exceeding one (1)
years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant ("Principals") are hereby designated as being the
principals and representatives of Consultant authorized to act in its behalf with respect to the work
specified herein and make all decisions in connection therewith:
David L. Davis President
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be
under the exclusive direction and control of the Principals. For purposes of this Agreement, the
foregoing Principals may not be replaced nor may their responsibilities be substantially reduced
by Consultant without the express written approval of City. Additionally, Consultant shall utilize
only competent personnel to perform services pursuant to this Agreement. Consultant shall make
every reasonable effort to maintain the stability and continuity of Consultant's staff and
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subcontractors,if any,assigned to perform the services required under this Agreement. Consultant
shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to
perform the services required under this Agreement,prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation,
debt or liability of any kind on behalf of or against City,whether by contract or otherwise,unless
such authority is expressly conferred under this Agreement or is otherwise expressly conferred in
writing by City. Consultant shall not at any time or in any manner represent that Consultant or
any of Consultant's officers, employees, or agents are in any manner officials, officers,employees
or agents of City. Neither Consultant,nor any of Consultant's officers,employees or agents, shall
obtain any rights to retirement, health care or any other benefits which may otherwise accrue to
City's employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be Lauren Ramezani, Senior Administrative Analyst, or Michael
Throne,Director of Public Works,or such person as may be designated by the City Manager. It shall
be the Consultant's responsibility to assure that the Contract Officer is kept informed of the
progress of the performance of the services and the Consultant shall refer any decisions which
must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of
City required hereunder shall mean the approval of the Contract Officer. The Contract Officer
shall have authority, if specified in writing by the City Manager, to sign all documents on behalf
of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or
means by which Consultant, its agents or employees,perform the services required herein, except
as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or
control of Consultant's employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. Consultant shall perform all services required herein as an
independent contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Consultant shall not at any
time or in any manner represent that it or any of its agents or employees are agents or employees
of City. City shall not in any way or for any purpose become or be deemed to be a partner of
Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with
Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and
employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither this
Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or
encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise,
without the prior written approval of City. Transfers restricted hereunder shall include the transfer
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to any person or group of persons acting in concert of more than twenty five percent(25%) of the
present ownership and/or control of Consultant, taking all transfers into account on a cumulative
basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release the Consultant or any surety of
Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and
content satisfactory to City, during the entire term of this Agreement including any extension
thereof, the following policies of insurance which shall cover all elected and appointed officers,
employees and agents of City:
(a) Commercial General Liability Insurance (Occurrence Form CG0001 or
equivalent). A policy of comprehensive general liability insurance written on a per occurrence
basis for bodily injury, personal injury and property damage. The policy of insurance shall be in
an amount not less than$1,000,000.00 per occurrence or if a general aggregate limit is used, then
the general aggregate limit shall be twice the occurrence limit.
(b) Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of California and which
shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or
damage arising from any injuries or occupational diseases occurring to any worker employed by
or any persons retained by the Consultant in the course of carrying out the work or services
contemplated in this Agreement.
(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including "any auto" and
endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance
written on a per occurrence for bodily injury and property damage in an amount not less than
$1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any
automobile.
(d) Professional Liability. Professional liability insurance appropriate to the
Consultant's profession. This coverage may be written on a"claims made"basis,and must include
coverage for contractual liability. The professional liability insurance required by this Agreement
must be endorsed to be applicable to claims based upon, arising out of or related to services
performed under this Agreement. The insurance must be maintained for at least 5 consecutive
years following the completion of Consultant's services or the termination of this Agreement.
During this additional 5-year period,Consultant shall annually and upon request of the City submit
written evidence of this continuous coverage.
(e) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit"B".
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5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City,
its elected and appointed officers, employees and agents as additional insureds and any insurance
maintained by City or its officers, employees or agents may apply in excess of,and not contribute
with Consultant's insurance. The insurer is deemed hereof to waive all rights of subrogation and
contribution it may have against the City, its officers, employees and agents and their respective
insurers. Moreover, the insurance policy must specify that where the primary insured does not
satisfy the self-insured retention, any additional insured may satisfy the self-insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or
cancelled by the insurer or any party hereto without providing thirty(30) days prior written notice
by certified mail return receipt requested to the City. In the event any of said policies of insurance
are cancelled,the Consultant shall,prior to the cancellation date,submit new evidence of insurance
in conformance with Section 5.1 to the Contract Officer.
No work or services under this Agreement shall commence until the Consultant has
provided the City with Certificates of Insurance, additional insured endorsement forms or
appropriate insurance binders evidencing the above insurance coverages and said Certificates of
Insurance or binders are approved by the City. City reserves the right to inspect complete,certified
copies of and endorsements to all required insurance policies at any time. Any failure to comply
with the reporting or other provisions of the policies including breaches or warranties shall not
affect coverage provided to City.
All certificates shall name the City as additional insured (providing the appropriate
endorsement) and shall conform to the following"cancellation"notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
[to be initialed]
Consultant Initials
City, its respective elected and appointed officers, directors, officials, employees, agents
and volunteers are to be covered as additional insureds as respects: liability arising out of activities
Consultant performs;products and completed operations of Consultant;premises owned,occupied
or used by Consultant; or any automobiles owned, leased, hired or borrowed by Consultant. The
coverage shall contain no special limitations on the scope of protection afforded to City, and their
respective elected and appointed officers, officials, employees or volunteers. Consultant's
insurance shall apply separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At
the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City or its respective elected or appointed officers, officials, employees and
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volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related
investigations,claim administration, defense expenses and claims. The Consultant agrees that the
requirement to provide insurance shall not be construed as limiting in any way the extent to which
the Consultant may be held responsible for the payment of damages to any persons or property
resulting from the Consultant's activities or the activities of any person or persons for which the
Consultant is otherwise responsible nor shall it limit the Consultant's indemnification liabilities as
provided in Section 5.3.
In the event the Consultant subcontracts any portion of the work in compliance with
Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall
require the subcontractor to maintain the same policies of insurance that the Consultant is required
to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to
City.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold
harmless the City, its officers,employees and agents("Indemnified Parties")against,and will hold
and save them and each of them harmless from, any and all actions, either judicial, administrative,
arbitration or regulatory claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or
liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein of
Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity
for which Consultant is legally liable("indemnitors"),or arising from Consultant's or indemnitors'
reckless or willful misconduct,or arising from Consultant's or indemnitors'negligent performance
of or failure to perform any term, provision, covenant or condition of this Agreement, and in
connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of
said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys'
fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in connection with
the negligent performance of or failure to perform such work,operations or activities of Consultant
hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees
harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to
any action or proceeding filed or prosecuted against Consultant for such damages or other claims
arising out of or in connection with the negligent performance of or failure to perform the work,
operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers,
agents or employees, any and all costs and expenses incurred by the City, its officers, agents or
employees in such action or proceeding, including but not limited to, legal costs and attorneys'
fees.
Consultant shall incorporate similar indemnity agreements with its subcontractors and if it
fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and
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failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Consultant in the performance of professional
services hereunder. The provisions of this Section do not apply to claims or liabilities occurring
as a result of City's sole negligence or willful acts or omissions,but,to the fullest extent permitted
by law, shall apply to claims and liabilities resulting in part from City's negligence, except that
design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of
the negligence, recklessness or willful misconduct of the design professional. The indemnity
obligation shall be binding on successors and assigns of Consultant and shall survive termination
of this Agreement.
5.4 Sufficiency of Insurer.
Insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California,rated"A"or better in the most recent edition of Best Rating
Guide,The Key Rating Guide or in the Federal Register,and only if they are of a financial category
Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk
Manager") due to unique circumstances. If this Agreement continues for more than 3 years
duration, or in the event the risk manager determines that the work or services to be performed
under this Agreement creates an increased or decreased risk of loss to the City, the Consultant
agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt
of written notice from the Risk Manager.
ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep,and require subcontractors to keep, such ledgers,books of accounts,
invoices, vouchers, canceled checks, reports, studies or other documents relating to the
disbursements charged to City and services performed hereunder (the "books and records"), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete and
detailed. The Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit and make records
and transcripts from such records. Such records shall be maintained for a period of three(3) years
following completion of the services hereunder, and the City shall have access to such records in
the event any audit is required. In the event of dissolution of Consultant's business,custody of the
books and records may be given to City, and access shall be provided by Consultant's successor
in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in
providing access to the books and records if a public records request is made and disclosure is
required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports
concerning the performance of the services required by this Agreement as the Contract Officer
shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of
work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees
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that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or
will materially increase or decrease the cost of the work or services contemplated herein or, if
Consultant is providing design services, the cost of the project being designed, Consultant shall
promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Consultant is providing design
services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes,
computer files, reports, records, documents and other materials (the "documents and materials")
prepared by Consultant, its employees, subcontractors and agents in the performance of this
Agreement shall be the property of City and shall be delivered to City upon request of the Contract
Officer or upon the termination of this Agreement, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership use, reuse, or assignment of the documents and materials hereunder. Any use,reuse or
assignment of such completed documents for other projects and/or use of uncompleted documents
without specific written authorization by the Consultant will be at the City's sole risk and without
liability to Consultant, and Consultant's guarantee and warranties shall not extend to such use,
reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant
shall have the right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared by them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages resulting
therefrom. Moreover,Consultant with respect to any documents and materials that may qualify as
"works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby
deemed"works made for hire" for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant
in performance of this Agreement shall be considered confidential, unless such information is in
the public domain or already known to Consultant. Consultant shall not release or disclose any
such information or work product to persons or entities other than City without prior written
authorization from the Contract Officer.
(b) Consultant,its officers,employees, agents or subcontractors, shall
not, without prior written authorization from the Contract Officer or unless requested by the City
Attorney,voluntarily provide documents,declarations, letters of support,testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided
Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of
Consultant, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Consultant for any damages, costs and
fees, including attorneys fees, caused by or incurred as a result of Consultant's conduct.
(d) Consultant shall promptly notify City should Consultant, its
officers, employees, agents or subcontractors be served with any summons, complaint, subpoena,
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notice of deposition, request for documents, interrogatories, request for admissions or other
discovery request, court order or subpoena from any party regarding this Agreement and the work
performed there under. City retains the right, but has no obligation, to represent Consultant or be
present at any deposition,hearing or similar proceeding. Consultant agrees to cooperate fully with
City and to provide City with the opportunity to review any response to discovery requests
provided by Consultant. However,this right to review any such response does not imply or mean
the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Los Angeles, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District
Court, venue shall lie exclusively in the Central District of California, in the County of Los
Angeles, State of California.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall
not have any obligation or duty to continue compensating Consultant for any work performed after
the date of default. Instead, the City may give notice to Consultant of the default and the reasons
for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if
circumstances warrant. During the period of time that Consultant is in default,the City shall hold
all invoices and shall, when the default is cured, proceed with payment on the invoices. In the
alternative,the City may, in its sole discretion, elect to pay some or all of the outstanding invoices
during the period of default. If Consultant does not cure the default, the City may take necessary
steps to terminate this Agreement under this Article. Any failure on the part of the City to give
notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights
or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by
reason of Consultant's acts or omissions in performing or failing to perform Consultant's
obligation under this Agreement. In the event that any claim is made by a third party, the amount
or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without liability for
interest because of such withholding,an amount sufficient to cover such claim. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of the
Consultant to insure, indemnify, and protect City as elsewhere provided herein.
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7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of
the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in
equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement,to obtain declaratory or injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary
provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections
905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided
in the following Section for termination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant,
except that where termination is due to the fault of the Consultant, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition, the Consultant
reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60)
days' written notice to City, except that where termination is due to the fault of the City,the period
of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice
of termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Except where the Consultant has initiated
termination, the Consultant shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated
termination, the Consultant shall be entitled to compensation only for the reasonable value of the
work product actually produced hereunder. In the event of termination without cause pursuant to
this Section,the terminating party need not provide the non-terminating party with the opportunity
to cure pursuant to Section 7.2.
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7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this
Agreement, City may, after compliance with the provisions of Section 7.2,take over the work and
prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to
the extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated(provided that the City shall use reasonable efforts to mitigate such
damages), and City may withhold any payments to the Consultant for the purpose of set-off or
partial payment of the amounts owed the City as previously stated.
7.9 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement,the prevailing party in such action
or proceeding, in addition to any other relief which may be granted, whether legal or equitable,
shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any
appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and discovery and all other necessary costs
the court allows which are incurred in such litigation. All such fees shall be deemed to have
accrued on commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any
successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Consultant or to its successor, or for breach of any obligation of the terms
of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall
acquire any interest, directly or indirectly, which would conflict in any manner with the interests
of City or which would in any way hinder Consultant's performance of services under this
Agreement. Consultant further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by it as an officer, employee, agent or subcontractor
without the express written consent of the Contract Officer. Consultant agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which affects her/his financial interest or the financial interest of any corporation,
partnership or association in which (s)he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Consultant warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
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8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, gender, sexual
orientation, marital status, national origin, ancestry or other protected class in the performance of
this Agreement. Consultant shall take affirmative action to insure that applicants are employed
and that employees are treated during employment without regard to their race, color, creed,
religion, sex, gender, sexual orientation,marital status,national origin, ancestry or other protected
class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal
Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection
therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ
such unauthorized aliens for the performance of work and/or services covered by this Agreement,
and should any liability or sanctions be imposed against City for such use of unauthorized aliens,
Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions
imposed,together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand,request, document, consent, approval, or communication either party
desires or is required to give to the other party or any other person shall be in writing and either
served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager
and to the attention of the Contract Officer(with her/his name and City title), City of Rancho Palos
Verdes, 30940 Hawthorne Blvd., California 90275 and in the case of the Consultant, to the
person(s) at the address designated on the execution page of this Agreement. Either party may
change its address by notifying the other party of the change of address in writing. Notice shall be
deemed communicated at the time personally delivered or in seventy-two(72)hours from the time
of mailing if mailed as provided in this Section.
9.2 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
this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive
expression of the understanding of the parties. It is understood that there are no oral agreements
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between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. No amendment to or modification
of this Agreement shall be valid unless made in writing and approved by the Consultant and by
the City Council. The parties agree that this requirement for written modifications cannot be
waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses,paragraphs,or sections
contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or
decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any
of the remaining phrases, sentences, clauses,paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder
unless the invalid provision is so material that its invalidity deprives either party of the basic benefit
of their bargain or renders this Agreement meaningless.
9.6 Warranty&Representation of Non-Collusion.
No official,officer, or employee of City has any financial interest, direct or indirect,in this
Agreement, nor shall any official, officer, or employee of City participate in any decision relating
to this Agreement which may affect his/her financial interest or the financial interest of any
corporation, partnership, or association in which (s)he is directly or indirectly interested, or in
violation of any corporation, partnership, or association in which (s)he is directly or indirectly
interested, or in violation of any State or municipal statute or regulation. The determination of
"financial interest" shall be consistent with State law and shall not include interests found to be
"remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Consultant
warrants and represents that it has not paid or given, and will not pay or give, to any third party
including,but not limited to, any City official, officer, or employee, any money, consideration, or
other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that(s)he/it has not engaged in any act(s),omission(s),
or other conduct or collusion that would result in the payment of any money, consideration, or
other thing of value to any third party including, but not limited to, any City official, officer, or
employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is
aware of and understands that any such act(s), omission(s) or other conduct resulting in such
payment of money, consideration, or other thing of value will render this Agreement void and of
no force or effect.
Consultant's Authorized Initials
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that(i) such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This Agreement shall
be binding upon the heirs, executors, administrators, successors and assigns of the parties.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
Doug Willmore,City Manager Zio
ATTEST: ''-
c?...)3,_____
City Clerk
APPROVED AS TO FORM:
ALESHIRE &WYNDER, LLP
David J. Ales • e, City Attorn y
CONSULTANT:
MSW Consultants, Inc., a California
corporation
i.........2.1.„
By:
Name: "Dookv' (I. L . .40,,Nt i 5
Title: '?x. A-e•A
c5�
By:
Name:C_DZ4A..,-4- 45t-4-4----e'
C-4 r 15)1 el et . 16av''s
Title: e--/-ri`c-,L ,72QNG:QI f)()CA.r
Address: 27393 Ynez Road, Suite 259
Temecula,CA 92591
Two corporate officer signatures required when Consultant is a corporation,with one signature required from
each of the following groups: 1)Chairman of the Board,President or any Vice President;and 2)Secretary,any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
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•
•
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` California All-Purpose Certificate of Acknowledgment
. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. ?
,
State of California .
County of Riverside . ss. • ;
On r . 22 t O/7 before me, Marla L.Olson,Notary Public ,
Name of Notary Pub., 'Noe • F
personally appeared D 7`-62_- L. , i 44,-,-g.
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Name or Signer(11
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Alamo of Signer(2)• ;
• who proved to me on the basis of satisfactory evidence to be the person( whose name(y) .
is/ace subscribed to the within instrument and acknowledged to me that person!
/she/t
g hvtfy executed
the same in I $/her/th ir.authorized capacity(it , and that by h/her/their signature(')on the
instrument the person(, or the entity upon behalf of which the person() acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is 3- .� MARIAL.OLSON ;,
. true and correct. - comm.*2175464
Vim.-I•".�.� rn
u) 1t•., !-, a NOTARY PUBLIC-CALIFORNIA VJ
RIVERSIDE COUNTY
WITNESS my hand and official seal. %,..7,1s; MY CONN.EXP.JAN.10,2021 -
•
• Srl3r.oti re r•Notary PublicSe;1i _ '
OPTIONAL INFORMATION
• Although the information in this section is not required by law,it could prevent fraudulent removal and reattachment of r
: this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document Additional Information
The preceding Certificate of Acknowledgment is attached to a Method of Signer Identification
document titled/for the purpose of - Proved to me on the basis of satisfactory evidence:
0 form(s)of identification ❑credible witness(es) •
containing /r7 pages,and dated X — A. A — 0 /7 Notarial event is detailed in notary Journal on:
,! Page# Entry#
.
The signer(s)capacity or authority is/are as:
aIndividual(s) Notary contact:
0 Attomey-in-fad _
❑ Corporate Officer(s) ,Other_ _______
Tlusl' ❑ additional Signer ❑ Signer(s)Thumbprints(s)
• 0 Guardian/Conservator 0
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• ' ❑ Partner-Limited/General
0 Trustee(s) • $
❑ Other: •
representing: .
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u 2009-2015 Notary Learning Center-At Rights Reserved You can f tirohese copies of this torn from our web site at nawi.TheNotarysStore.com
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California }
County of R:1�Q-r 1 I }
OnA3 ribtDV7- before me, W:c.. k- F.>-.11 / 1.b
(Here insert name and title of the officer) •
personally appeared C 1nr.r 0Q,'11
who proved to me on the basis of satisfactory evidence to be the persons}whose
name(s) is/ace subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in ibis/her/the+Fauthorized capacity(ies), and that by
• his/her/their signature($on the instrument the person(s), or the entity upon behalf of
which the person(s)-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
4411b"-TN, NICK FULLER
WITNESS my hand and official seal. — CoMM,# 2117358 rrAA
NOTARY PUBLIC-CALIFORNIA w
RtUIra31DE CouNTY
/44.-
,,/, F _ �! MY COMM, EXP_JUNE 2T,!!1_1116
Notary Public Signature (Notary Public Seal)
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
This form complies with current California statutes regarding notary wording and,
DESCRIPTION OF THE ATTACHED DOCUMENT if needed,should be completed and attached to the document.Acknowledgments
from other states may be completed for documents being sent to that state so long
as the wording does not require the California notary to violate California notary
law.
(Title or description of attached document) • State and County information must be the State and County where the document
signer(s)personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s)personally appeared which
(Title or description of attached document continued) must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
Number of Pages Document Date commission followed by a comma and then your title(notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e.
he/she/:is/ere)or circling the correct forms.Failure to correctly indicate this
❑ Individual (s) information may lead to rejection of document recording.
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Impression must not cover text or lines. If seal impression smudges, re-seal if a
(Title) sufficient area permits,otherwise complete a different acknowledgment form.
❑ Partner(s) • Signature of the notary public must match the signature on file with the office of
the county clerk.
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❑ Trustee(s) acknowledgment is not misused or attached to a different document.
Other Indicate title or type of attached document,number of pages and date.
❑ . Indicate the capacity claimed by the signer. If the claimed capacity is a
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On ,2017 before me, ,personally appeared ,proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
El INDIVIDUAL
El CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) El LIMITED
El GENERAL NUMBER OF PAGES
El ATTORNEY-IN-FACT
❑ TRUSTEE(S)
El GUARDIAN/CONSERVATOR
El OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On ,2017 before me, ,personally appeared ,proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
El CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) El LIMITED
❑ GENERAL NUMBER OF PAGES
❑ ATTORNEY-IN-FACT
El TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE
EXHIBIT "A"
SCOPE OF SERVICES
01203.0006/351679.1
I. Brief description of work to be performed: Consultant will provide professional
consulting services to conduct a Performance Audit of EDCO Disposal Corporation for
calendar years 2014, 2015 and 2016. These services will include preparing a preliminary
followed by a final report of said audit.
II. The Services will include the following Tasks:
Task 1 —Initiate Project
Consultant will conduct an initial meeting with City staff and representatives from EDCO. At this
meeting, Consultant will review the project scope, and discuss any key issues. Consultant will
provide EDCO with a list of information Consultant will need to conduct the audit. Consultant
will also confirm the project schedule.
Task 2—Review Operations
Consultant will audit EDCO's residential routes in the City. The audit will include both fieldwork
and work conducted in EDCO's offices. Consultant will work with EDCO to identify a
representative sample of EDCO's regular routes in the City, and will undertake the following as
part of the audit:
Labor Hours/Hours of Operation
The Agreement between the City and EDCO stipulates the hours of operation for residential
collection in the City to minimize noise in residential neighborhoods. Consultant will physically
observe a representative sample of the start and end times of EDCO's service routes, as well as
observe the hours of operation within the City for EDCO's regular routes. Consultant will also
review a sample of driver timecards and note the start and end times. Consultant will also review
EDCO's complaint logs to identify any complaints related to hours of operation(e.g.operating too
early or too late in the day).
Disposal Activities
EDCO is required to dispose of waste collected in the City at permitted disposal or transfer
facilities. In conjunction with Consultant's review of EDCO's quarterly and annual reports
(described further below), Consultant will review EDCO's tonnage tracking system to verify
delivery of each specified waste stream handled by the company, including:
• Refuse
• Recyclables
• Greenwaste
• Bulky waste
• Used oil and filters
• Electronic waste
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Consultant will do this by comparing the tons reported by EDCO to the tons shown in disposal
reports obtained from various disposal and processing facilities.
Dedicated Routes
The Agreement requires EDCO to collect waste and recyclables in the City using dedicated routes.
To verify that EDCO has operated dedicated routes in the City, Consultant will follow a
representative sampling of trucks during their regular collection routes. Consultant will also
compare this disposal information from EDCO to the reports from disposal facilities to verify that
the waste collected in the City was not commingled with tons from other jurisdictions.
Vehicle Evaluation
Consultant will review the fleet of trucks that EDCO uses in the City. Consultant will note the
quantity, body type, fuel type, year, and condition of each vehicle used in the City. Consultant
will verify that the fleet meets the requirements of the Agreement between the City and EDCO.
Consultant will obtain from EDCO downloads of all landfill and processing facility transactions.
Consultant will sort these by total weight and compare the total weight to each vehicle's Gross
Vehicle Weight Rating(GVWR). Consultant will prepare a list of any vehicle loads over the legal
weight limit.
State law requires all fleet operators to undergo a Biennial Inspection of Terminals (BIT
inspection) every two years. Consultant will review EDCO's BIT inspection reports to confirm
that the company has obtained a `Satisfactory' rating. Further, Consultant will review the CI-IP
inspector's comments, and obtain explanations for any significant comments.
Quarterly and Annual Reports
EDCO is required to submit to the City quarterly and annual reports on the quantities of materials
collected in the City, including refuse, recycling, green waste, electronic waste, oil, oil filters and
bulky items. The reports indicate the final destination of the disposed waste stream, and include a
breakdown of the types and quantities of recyclables collected. City facilities collection is also
included, as well as recycling from special events. The report also includes a breakdown of the
residential disposal rate.
Consultant will review EDCO's quarterly and annual reports, and verify them for accuracy.
Consultant will accomplish this by performing detailed testing of EDCO's tonnage tracking
system. Consultant will also calculate standard industry ratios (lbs. per home, lbs. per cubic yard,
etc.), and compare them to industry averages. Consultant will also corroborate the tonnage
amounts by comparing them to reports independently obtained from landfill and processing
facilities.
Diversion
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EDCO is responsible to divert certain materials to enable the City to meet its state-mandated
diversion requirement. EDCO includes this information in their quarterly and annual reports. By
reviewing the reports from destination facilities, Consultant will verify the following:
• Diversion of items from City facilities and special events, including paper shredding
events, City Hall and Parks recycling, and beverage container recycling from the 4th of
July festival, Whale of a Day, and other City events.
• Diversion of greenwaste for ADC, composting, conversion or other beneficial use to
evaluate if EDCO is achieving the maximum level of diversion.
• Diversion of commingled recyclables, and the quantity of residuals, to evaluate if
EDCO is achieving the maximum level of diversion.
• Diversion of green waste and mixed recyclables to diversion facilities to evaluate if
EDCO is achieving the maximum level of diversion.
Compliance with AB 341 and AB 1826
Consultant will review EDCO's performance regarding compliance with AB 341 and AB 1826.
Consultant will review a list of EDCO's multi-family customers in the City. Consultant will
identify which multi-family residential customers are subject to AB 341 and mandated to
participate in recycling service (i.e., customers with either four(4) or more cubic yards per week
or five (5) or more dwelling units). Consultant will determine which of these customers are
recycling, and which are not in compliance with AB 341. Consultant will review documents that
support EDCO's efforts to reach out to these customers.
Consultant will also review EDCO's multi-family customers to determine which customers are
subject to AB 1826 (mandatory organics recycling). Consultant will review correspondence
between the City and EDCO regarding AB 1826 compliance. Consultant will discuss with EDCO
how it determined which of its multi-family customers generate more than eight(8) cubic yards of
organics per week. Based on Consultant's industry knowledge and Consultant's observations of
these customers, Consultant will assess the reasonableness of EDCO's determination.
Task 3—Review Customer Service
The City's objective is to provide the highest quality of service to its residents. Over the years,the
City has implemented a variety of policies and contractual requirements in their service
Agreements with the residential haulers in order to meet this objective. To review EDCO's
customer service, Consultant will perform the following procedures:
Review Complaints and Resolutions Documentation
Consultant will review a representative sample of complaints from EDCO's complaint logs. The
review will include the nature of the complaint, frequency of and type of complaint, timing of
resolution, and customer satisfaction with resolution method.
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Review Public Outreach and Education Effort
EDCO is required to provide Public Outreach and Education to its customers regarding services,
changes to service (holidays, new programs, etc.) as well as other communications. Consultant
will review copies of materials that are developed and distributed to residents, and evaluate them
for timeliness, completeness of information, aesthetics, and ease of understanding.
Task 4—Review Financial Requirements
The purpose of this task is to verify that EDCO is fulfilling the financial terms of its Agreement
with City. Consultant will perform the following procedures:
Customer Billing Records
The Agreement allows EDCO to bill its customers up to the maximum rates set forth in the
Agreement (including amendments to the Agreement). The rates are based on the level and type
of services and in some cases the location of the residence. Consultant will confirm that EDCO
has billed only up to the maximum rates allowed in the Agreement. Consultant will obtain a
download of the company's entire list of single-family and multi-family customers. This list will
include each customer's name,service address,number and sizes of containers,and type of service.
Consultant will sort and analyze this information. Consultant will also review a representative
sample of historical billing information. Consultant will identify any inconsistencies in the data,
and obtain any needed explanations from each company.
Fees Paid to the City
Consultant will review the calculation of the amounts due to the City for the Collector Fee and the
Environmental Fee. Consultant will obtain information from the City's finance department to
confirm the payments received by the City. Consultant will evaluate those payments to ensure that
they comply with the Agreement(and the amendment to the Agreement).
Customer Recycling Credits
In January 2013,the recycling rebate was transitioned to a customer recycling credit. These credits
are incorporated into the amounts billed to customers. Consultant will review the billing download
and reports from EDCO's billing system to verify that all customers are receiving the correct
recycling credit.
Insurances, Bonds and Letters of Credit
EDCO is required to obtain and maintain insurance, bonds, and letters of credit in relation to the
services they provide to the City. Consultant will request copies of the most recent renewals of
these documents, and verify they meet the requirements in the Agreement.
Task 5 -Review Previous Rate Adjustments
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Consultant will review the rate adjustments that became effective on July 1, 2014 and January 1,
2017. Consultant will review them for accuracy and completeness. Consultant will confirm the
external data (e.g., CPI, PPI, disposal tip fees, etc.) on which the rate adjustments were based.
Consultant will ensure that EDCO followed the methodology outlined in Exhibit 5A of the
Agreement. Consultant will share the results of Consultant's review with EDCO and the City. If
needed, Consultant will recalculate the rate adjustments. Consultant will also include the results
of Consultant's review in Consultant's report.
Task 6—Conduct Closing Conference
After Consultant has completed its procedures,Consultant will meet with representatives of EDCO
to discuss Consultant's findings and seek to resolve any outstanding issues. Consultant will then
meet with City staff to review Consultant's preliminary findings, and report on any outstanding
issues.
Task 7—Prepare Draft and Final Report
Consultant will prepare a draft report that describes the project background, objectives, and
Consultant's findings. Consultant will provide a copy of the report to EDCO and to the City for
review. City staff and EDCO will review the draft report, and provide written feedback.
Consultant will incorporate this feedback into the final report. Consultant will be available to
present Consultant's findings to the City Council.
III. As part of the Services, Consultant will prepare and deliver the following tangible
work products to the City:
A. Preliminary Audit Report
B. Final Audit Report
IV. In addition to the requirements of Section 6.2, during performance of the Services,
Consultant will keep the City appraised of the status of performance by delivering
the following status reports:
A. Project Status Report—March 15th
B. Project Status Report—March 31'
C. Project Status Report—April 15th
D. Project Status Report—April 30th
E. V. All work product is subject to review and acceptance by the City, and must be
revised by the Consultant without additional charge to the City until found
satisfactory and accepted by City.
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VI. Consultant will utilize the following personnel to accomplish the Services:
A. David L. Davis, CMA
B. Craig D. Stroud, CPA
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EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
None
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
Consultant shall perform the following tasks at the following rates:
Task Description Davis Stroud Total
Hours
1 Initiate project 8 10 18
2 Review operations 8 24 32
3 Review customer service 4 24 28
4 Review financial requirements 4 24 28
5 Review previous rate adjustments 4 0 4
6 Conduct closing conference 4 4 8
7 Prepare draft and final report 12 12 24
Total Hours 44 98 142
Hourly Rate $190 $165
Total Fees $8,360 $16,170 $24,530
II. Within the budgeted amounts for each Task, and with the approval of the Contract
Officer, funds may be shifted from one Task subbudget to another so long as the
Contract Sum is not exceeded per Section 2.1, unless Additional Services are
approved per Section 1.8.
III. The City will compensate Consultant for the Services performed upon submission of
a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours
worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed,with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment,materials, and
travel properly charged to the Services.
IV. The total compensation for the Services shall not exceed $24,530 as provided in
Section 2.1 of this Agreement.
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services, including delivery of tangible work products to the
City, in accordance with the following schedule,which will begin on the day the City issues
the Notice to Proceed.
A. Consultant will have a preliminary report ready for presentation to staff and/or the
Solid Waste Subcommittee by April 3, 2017.
B. Consultant will have a final report ready for presentation to City Council for the 2nd
City Council meeting in May 2017, which will take place on Tuesday, May 16,
2017.
C. Any delays due to unforeseen circumstances shall be discussed with the City.
II. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
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41111
MEMORANDUM RANCHO PALOS VERDES
DATE: March 1, 2017
TO: Doug Willmore, City Manager
FROM: Michael Throne, Director of Public Works 4.fr.
Lauren Ramezani, Senior Administrative Analyst '
SUBJECT: Sole Source Vendor Request for Professional Consulting Services to
conduct a performance audit of EDCO Disposal Corporation for
calendar years 2014, 2015 and 2016
The Public Works Department is requesting an informal bid exemption by the City
Manager in accordance with the Municipal Code Chapter 2.44, sub-section 2.44.140 —
Exceptions.
This request is being made to utilize MSW Consultants, Inc. as the sole source authorized
professional consulting services provider to conduct a performance audit of EDCO
Disposal Corporation (EDCO) for calendar years 2014, 2015 and 2016. The Senior
Administrative Analyst is requesting authorization to open a Purchase Order, not to
exceed $24,530 to MSW Consultants, Inc. This will allow the performance audit to be
conducted by the same consultant who successfully completed a comprehensive and
detailed performance audit of EDCO in 2014. MSW Consultants, Inc. is a well-known
and respected consulting firm specializing in solid waste matters and has performed many
performance audits of haulers including EDCO in the southern California area.
The City' franchise agreement with EDCO allows the City to perform a compliance audit
of EDCO every three years. EDCO is required to reimburse the City for the compliance
audit for an amount up to$25,000 (See Section 8.2.6 of the franchise agreement). Based
on the schedule of the previous compliance audit, the next audit would cover 2014, 2015
and 2016. The funds currently available in the FY 2016-17 Public Works Waste
Reduction budget (Account 213-3013-431-32-00) will initially pay for this expenditure,
followed by a reimbursement by EDCO shortly after that.
Staff plans to present the results of the audit, and EDCO's request for a rate adjustment
to the Council Solid Waste Subcommittee in April followed by a public hearing in May
2017. This deadline can be met due to the familiarity of MSW Consultants with the City's
agreement with EDCO, and EDCO's services, routes and operations.
Approved:
Doug Willmore, City Manager
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