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PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is dated January 17, 2023 (“Effective Date”) and is between the City of Manhattan Beach, a Califor nia municipal corporation (“City”) and HF&H Consultants, LLC, a California limited liability company (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City desires to utilize the servic es of Consultant as an independent contractor to provide solid waste franchise agreement compliance audit services.
B. Consultant represents that it is fully qualified to per form such ser vices by virtue of its ex perience and t he training, educ ation and expe rtise of its principals and employees.
C. City desires to retain Consultant and Consultant desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant’s Services.
A. Scope of Services. Consultant shall perform the services described in the Scope of Services (the “Services”) for solid waste franchise agreement compliance audit services, attached as Exhibit A. City may request, in writi ng, changes in the Scope of Services to be performed. Any changes mu tually agreed upon by the Parties, and any increase or decrease in compensation, shal l be incorporated by written amendments to this Agreement.
B. Party Representatives. For the purposes of this Agreement, the City Representative shall be the City Manager, or such other person designated in writing by the City Manager (the “City Representative”). For the pur poses of this Agreement, the Consultant Representative shall be Laith Ezzet, Senior Vice President (the “Consultant Representative”). The Consultant Repres entative shall directly manage Consultant’s Services under this Agreement. Consul tant shall not cha nge the Consultant Representative without City’s prior written consent.
C. Time for Performance. Consultant shall commence the Services on the Effective Date and shall perform all Servic es by the deadline est ablished by the City Representative or, if no deadline is established, with reasonable diligence.
D. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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professionals under similar ci rcumstances and in a manner r easonably satisfactory to City.
E. Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such Services.
F. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
G. Permits and Licenses. Consultant shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates requi red by law for the provision of Services under this Agreement, including a business license.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date through December 31, 2028, unless sooner terminat ed as provided in Section 12 of this Agreement or extended.
3. Compensation.
A. Compensation. As full compensation for Services satisfactorily rendered, City shall pay Consultant at the rates set forth in the Approved Fee Schedule attached hereto as Exhibit A. In no event shall Consultant’s compensation exceed the total sum that City is to be reimbursed fr om its solid waste franchisee pursuant to Section 7.2.6 of the Franchise Agreement for Integrated Solid Waste Management Services dated July 1, 2020, which is incorporated herein by reference, plus an additional $20,000 for each audit performed under this Agreement (the “Maximum Compensation”).
B. Expenses. The amount set fort h in paragraph 3.A. above includes reimbursement for all expenditures incurred in the performance of this Agreement.
C. Unauthorized Services and Unantici pated Expenses. City will not pay for any services not specified in the Scope of Services, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such services in writing prior to Consultant’s performance of those services or incurrence of additional expenses. Any additional services authorized by the City Council, or (where authorized) the City Manager shall be compensat ed at the rates set forth in Exhibit A , or, if not specified, at a rate mutually agreed to by t he Parties. At the request of the Consultant, the City Council may, in writing, reimburse Consultant for an unanticipated expense at its actual cost. City shall make payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
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A. Invoices. Consultant shall submit to City an invoice, on a monthly basis, for the Services performed pursuant to this Agreement. Invoic es must be submitted to [email protected]. Each invoice shall itemize the Services rendered during the billing period, hourly rates charged, if applic able, and the amount due. City shall review each invoice and notify Consultant in writing within ten Busi ness days of receipt of any disputed invoice amounts.
B. Payment. City shall pay all undis puted invoice amounts within 30 calendar days after receipt up to the Maximum Com pensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. Cit y shall not withhold federal payroll, state payroll or other taxes, or other similar dedu ctions, from payments made to Consultant. Notwithstanding the pr eceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxati on Code Section 18662 and applicable regulations.
C. Audit of Records. Consultant shall make all records, invoices, time cards, cost control sheets and other records mainta ined by Consultant in connection with this Agreement available during Consultant’s r egular working hours to City for review and audit by City.
5. Independent contractor. Consultant is, and shall at all times remain as to City, a wholly independent cont ractor. Consultant shall hav e no power to incur any debt, obligation, or liability on behalf of City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Cons ultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
6. Information and Documents.
A. Consultant covenants that all data, reports, documents, discussion, or other information (collectively “Data”) developed or received by C onsultant or provided for performance of this Agreem ent are deemed confidential and shall not be disclosed or released by Consultant without prior written aut horization by City. City shall grant such authorization if applicable law r equires disclosure. Consult ant, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a s ubpoena or court order shall not be considered “voluntary,” provided Consultant gives City notice of such court order or subpoena.
B. Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request fo r documents, interrogatories, request for admissions or DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with res pect to any project or property located within the City. City may, 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, City’s right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.
C. All Data required to be furnished to City in connection with this Agreement shall become City’s property, and City may use all or any portion of the Data submitted by Consultant as City deems appropriate. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files containing data generated for the Services, surveys, notes, and other documents prepared in the course of providing the Services shall become City’s sole property and may be used, reused or otherwise dispos ed of by City without Consultant’s permission. Consultant may take and retain copies of the written products as desired, but the written products shall not be the subject of a copyright application by Consultant.
D. Consultant’s covenants under this Se ction shall survive the expiration or termination of this Agreement.
7. Conflicts of Interest. Consultant and its officers , employees, associates and subcontractors, if any, shall comply with all c onflict of interest stat utes of the State of California applicable to Consultant’s Serv ices under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consult ant may perform similar Services for other clients, but Consultant and its officers, empl oyees, associates and subcontractors shall not, without the City Representat ive’s prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
8. Indemnification, Hold Ha rmless, and Duty to Defend.
A. Indemnities.
1) To the fullest extent permitted by law, Consultant s hall, at its sole cost and expense, defend, hol d harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, des ignated volunteers, successors, assigns and those City agents serving as i ndependent contractors in t he role of City officials (collectively “Indemnitees”), from and agai nst any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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penalties, liens, and losses of any nature what soever, including fees of accountants, attorneys, or other professi onals and all costs associated t herewith and the payment of all consequential damages (collect ively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the negligent acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual t hat Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the so le negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemni tees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consult ant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith. 2) Consultant shall pay all r equired taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted agains t City by reason of the independent contractor relations hip created by this Agreemen t. Consultant shall fully comply with the workers’ compensation la w regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable worker s’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s fa ilure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2). 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Sect ion from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s subcontractor , its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreem ent, including the Indemnitees’ active or passive negligence, except for Liabilities ar ising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limi ting. Consultant’s indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ co mpensation act or similar act. Consultant DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applic able to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant’s i ndemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
A. Minimum Scope and Limits of Insuranc e. Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insu rance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or loca tion. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its m anagers, affiliates, employ ees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insuranc e for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $2,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehi cles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy required under subparagraph A.1) of this Section. 3) Workers’ Compensation Insuranc e as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required, but Consultant shall execute a declaration that it has no employees. 4) Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insu rance policies required under this Section shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self- DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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insurance shall not be considered to comply with the insurance requirements under this Section.
C. Additional Insured. The commercia l general and automobile liability policies shall contain an endorsement naming City and its elected and appointed officials, officers, employees, agents and volunteers as additional insureds. This provision shall also apply to any excess/umbrella liability policies.
D. Primary and Non-Contributing. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self -insurance maintained by City, its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
E. Consultant’s Waiver of Subrogation. The insurance policies required under this Section shall not prohibit Consult ant and Consultant’s employees, agents or subcontractors from waiving t he right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
F. Deductibles and Self-Insured Retenti ons. Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Co verage. Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be e ndorsed to state that should the issuing insurer cancel the policy before the expirati on date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Section is canceled or reduced in coverage or limits, Consultant shall, within two Business Days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
H. City Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Section in full force and effect during the term of this Agreement, or in the event any of C onsultant’s policies do not comply with the requirements under this Section, City may ei ther immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consul tant’s expense, the premium thereon.
Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
I. Evidence of Insurance. Prior to the performance of Services under this Agreement, Consultant shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original endorsement s evidencing and effecting the coverages DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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required under this Section. The endorsements are subject to City’s approval. Consultant may provide complete, certified copies of all required insurance policies to City.
Consultant shall maintain current endorse ments on file with City’s Risk Manager.
Consultant shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have be en renewed or replaced with other policies providing at least the same coverage. Consul tant shall furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirement s not Limiting. Procurement of insurance by Consultant shall not be construed as a limitati on of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 8 of this Agreement.
K. Broader Coverage/Hig her Limits. If Consultant maintains broader coverage and/or higher limits than the minimums required above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
L. Subcontractor Insurance Requirements. Consultant shall require each of its subcontractors that perform Services u nder this Agreement to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
A. City’s Cooperation. Cit y shall provide Consultant with all pertinent Data, documents and other requested in formation as is reasonably available for Consultant’s proper performance of the Services required under this Agreement.
B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
11. Records and Inspections. Consultant shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the performance of the Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to City, its designees and r epresentatives at reasonable times, and shall allow City to examine and audit the books and records, to ma ke transcripts therefrom as necessary, and to inspect all work, data, documents, pr oceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three years after receipt of final payment.
12. Termination of Agreement.
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A. Right to Terminate. Ci ty may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least five calendar days before the termination is to be effective. Consultant may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to City at least 60 calendar days before the termination is to be effective.
B. Obligations upon Termination. Consul tant shall cease all work under this Agreement on or before the ef fective date of termination specified in the notice of termination. In the event of City’s termination of this Agreement due to no fault or failure of performance by Consultant, City shall pay Consultant based on the percentage of work satisfactorily performed up to the effective date of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the Services required by this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation.
13. Force Majeure. Consultant shall not be liabl e for any failure to perform its obligations under this Agreement if Consultant presents a cceptable evidence, in City’s sole judgment, that such failure was due to acts of God, em bargoes, inability to obtain labor or materials or reasonable substitute s for labor or materials, governmental restrictions, governmental regulations, governm ental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
14. Default.
A. Consultant’s failure to comply with the provisions of this Agreement shall constitute a default. In the ev ent that Consultant is in def ault for cause under the terms of this Agreement, City shall have no ob ligation or duty to continue compensating Consultant for any work performed after the date of default.
B. In addition to the right to termi nate pursuant to Sect ion 12, if the City Manager determines that Consultant is in def ault in the performance of any of the terms or conditions of this Agreement, City shall se rve Consultant with written notice of the default. Consultant shall have ten calendar da ys after service upon it of the notice in which to cure the default by rendering a sati sfactory performance. In the event that Consultant fails to cure its default within su ch period of time, Cit y may, notwithstanding any other provision of this Agreement, term inate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
15. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on pers onal delivery, (b) on confirmed delivery by courier service during Consultant’s and City ’s regular business hours, or (c) three DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
TO CITY: TO CONSULTANT:
City of Manhattan Beach HF&H Consultants, LLC
Attn: Erick Lee, Public Works Attn: Laith Ezzet, Senior VP 1400 Highland Avenue 2081 Business C enter Drive, Ste. 265 Manhattan Beach, California 90266 Irvine, CA 92612
[email protected] [email protected]
[email protected]
COPY TO CITY ATTORNEY:
City of Manhattan Beach
Attn: City Attorney
1400 Highland Avenue
Manhattan Beach, CA 90266
16. Non-Discrimination and E qual Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical conditi on, genetic information, se xual orientation or other basis prohibited by law. Consultant will take affirma tive action to ensure that subcontractors and applicants are employed, and that employee s are treated during employment, without regard to their race, color, religious cr eed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation.
17. Prohibition of Assi gnment and Delegation. Consultant shall not assign any of its rights or delegate any of it s duties under this Agreement, ei ther in whole or in part, without City’s prior written consent. City’s consent to an assignment of rights under this Agreement shall not rel ease Consultant from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obl igations, or liabilities in or arising from this Agreement to any person or entity, whet her by operation of law or other wise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
18. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
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19. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20. Final Payment Accepta nce Constitutes Release. The acceptance by Consultant of the final pay ment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s work or services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a re lease of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work perfo rmed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
21. Corrections. In addition to the above indemnification obligations, Consultant shall correct, at its expense, all errors in the work which may be disclosed during City’s review of Consultant’s report or pl ans. Should Consultant fail to make such correction in a reasonably timely manner, such correction ma y be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction from any retention amount held by City or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction.
22. Non-Appropriation of Funds. Payments to be made to Consultant by City for services performed within the current fiscal y ear are within the current fiscal budget and within an available, unexhaust ed fund. In the event t hat City does not appropriate sufficient funds for payment of Consultant’s services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s services only to the conclusion of the last fiscal year in which City appropriate s sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
23. Exhibits. Exhibit A constitutes a part of this Agreement and is incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of this Agreement and a provision of C onsultant’s proposal, the provisions of this Agreement shall control.
24. Entire Agreement and Modification of Agreement. This Agreement and all exhibits referred to in this Agreement c onstitute the final, co mplete and exclusive DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
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statement of the terms of the agreement between the Partie s pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreem ent. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by both Parties.
25. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect the interpreta tion of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
26. Word Usage. Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
27. Time of the Essence. Time is of the essence in re spect to all provisions of this Agreement that specify a time for performance; provided, ho wever, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
28. Business Days. “Business days” means days Manhattan Beach City Hall is open for business.
29. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed in accordance with the laws of the St ate of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agr eement. Any dispute th at arises under or relates to this Agreement (whether contract, to rt or both) shall be resolved in a superior court with geographic jurisdiction over the City of Manhattan Beach.
30. Attorneys’ Fees. In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract , tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys’ fees, experts’ fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
31. Severability. If a court of competent jurisd iction holds any provision of this Agreement to be illegal, invalid or unenforc eable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
32. Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
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33. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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The Parties, through thei r duly authorized representat ives are signing this Agreement on the date stated in the introductory clause.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL IMPACT:
By:
Name: Steve S. Charelian
Title: Finance Director
APPROVED AS TO CONTENT:
By:
Name: Erick Lee
Title: Public Works Director
Consultant:
HF&H Consultants, LLC,
a California limited liability company
By:
Name: Laith Ezzet
Title: Senior Vice President
PROOF OF AUTHORITY TO BIND
CONTRACTING PARTY REQUIRED
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627 12/21/2022
12/21/2022
12100-0001\2171848v8.doc
EXHIBIT A
SCOPE OF SERVICES AND APPROVED FEE SCHEDULE
Exhibit A begins on the next page
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627 Ma naging Tomorrow’s Resources Today
2081 Business Center Drive, Suite 265 Robert D. Hilton, CMC, Emeritus Irvine, California 92612 John W. Farnkopf, PE
Telephone: 949/251-8628 Laith B. Ezzet, CMC
www.hfh-consultants.com Richard J. Simonson, CMC
Marva M. Sheehan, CPA
Robert C. Hilton
October 3, 2022
An
na Luke-Jones
Public Works Senior Management Analyst
City of Manhattan Beach
3621 Bell Avenue
Manhattan Beach, CA 90266
Int
egrated Solid Waste Management Services Agreement Compliance Audit For the Year Ended June 30, 2021
Dear Anna:
Enc
losed please find our scope of work and fee to perform an integrated solid waste management services agreement compliance audit of USA Waste of California, Inc., DBA Waste Management of Los Angeles (WM) in accordance with Section 7.2.6 of the franchise agreement.
We a
ppreciate the opportunity and look forward to assisting the City of Manhattan Beach with this project. If you have any questions about this scope of work, please call Laith at (949) 251-8902 or Lindsey at (949) 251-0231.
Very truly yours,
La
ith Ezzet, CMC Lindsey Lagos, CPA
Senior Vice President Senior Associate
Atta
chment – Scope of Work
Exhibit A: Scope of Services and Fee Schedule
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
CITY OF MANHATTAN BEACH
INTEGRATED SOLID WASTE MANAGEMENT SERVICES CONTRACT COMPLIANCE AUDIT
SCOPE OF WORK
City of Manhattan Beach Compliance Audit A-1 October 3, 2022
AUDIT OBJECTIVES
Confirm WM:
1) a ccurately billed customers in accordance with the City’s approved rate schedule for the period from July 1, 2020 – June 30, 2021.
2) d iverted a minimum 50% of hauler-collected waste during calendar year 2021. The franchise agreement includes an option to assess liquidated damages related to diversion efforts under Section 10.4.B.7.
3) maintained and provided the City its complaint documentation summary on a monthly basis, as required by Section 4.2.3, for the period from July 1, 2020 –June 30, 2021, and responded to complaints within one business day of receipt. The franchise agreement includes an option to assess liquidated damages related to customer responsiveness under Section 10.4.B.3.
4) made quarterly distributions to customers for rebates from sales of recyclable materials for the period from July 1, 2020 –June 30, 2021, if applicable, based on the methodology included in Section 3.2.7.
5) accurately remitted the City Recovery Cost fee for the period from July 1, 2020 – June 30, 2021, to the City prior to July 1, 2021.
6) reported commercial customer participation data related to MCR and MORe programs in its 2021 annual report, in line with Section 7.3.4.
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
CITY OF MANHATTAN BEACH
INTEGRATED SOLID WASTE MANAGEMENT SERVICES CONTRACT COMPLIANCE AUDIT
SCOPE OF WORK
City of Manhattan Beach Compliance Audit A-2 October 3, 2022
PROJECT TASKS
O
ur scope of work shall consist of the following tasks:
1) W
e will review relevant background documents, such as the franchise agreement, current rate schedule, payment receipts, and WM’s periodic reports to the City. 2) W
e will prepare a data and document request for information to be submitted by WM and the City in advance of testing.
3) W
e will develop and execute a test plan to sample transactions to determine the accuracy of WM’s customer base rates billed, recycling rebate distributions, and contract compliance. 4) W
e will perform an electronic comparison of the billing schedules obtained to the rate schedule to determine systemic variances in what is billed versus what is allowed per the rate schedule. 5) W
e will review source documents provided by WM in order to verify WM’s compliance with requirements as stated in Objectives above.
6) W
e will receive documents electronically and participate in a virtual screen-sharing meeting in which we will validate certain support records maintained in WM’s system to corroborate in
formation reported to the City.
7) W
e will review and summarize information provided by the City and Company regarding complaints, with specific focus on the Company’s procedures for recording and resolving requests related to missed pick-ups.
8) W
e will prepare a draft report summarizing the study findings. 9) W
e will review written comments submitted by the City and WM regarding the draft report. 10) W
e will prepare a final report after reviewing the comments from the City and WM. 11) W
e will discuss the report’s findings with City staff.
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
CITY OF MANHATTAN BEACH
INTEGRATED SOLID WASTE MANAGEMENT SERVICES CONTRACT COMPLIANCE AUDIT
SCOPE OF WORK
City of Manhattan Beach Compliance Audit A-3 October 3, 2022
PROJECTED COSTS
We will perform the scope of work for a fixed fee amount of $80,000 billed as follows:
R
eview of background documents and submittal of data request $ 6 ,000 Completion of initial data analysis and virtual review of submitted data $ 39,1 50 Documentation of findings and submittal of draft report $ 27,250 Submittal of final report $ 7,6 00
To tal $ 80,000
SCHEDULE
Th
e project is estimated to be conducted over a period of approximately six months, assuming timely receipt of all required data in the format requested.
CONTRACTOR REIMBURSEMENT OF AUDIT COSTS
T
he franchise agreement requires WM to reimburse the City’s audit costs. The first audit under the new franchise agreement is for the period from July 1, 2020 to June 30, 2021, and the cost to be reimbursed under Section 7.2.6 of the franchise agreement is $80,000.
T
he franchise agreement indicates audits will be performed every other year following the initial audit.
Future audit periods may cover July 1, 2022–June 30, 2023, July 1, 2024–June 30, 2025, and July 1, 2026–June 30, 2027. The franchise agreement expires on June 30, 2027, with an extension of up to 36- months at City’s option; if extended, the franchise agreement would expire no later than June 30, 2030.
In the event of a term extension, one more audit would be performed for the period from July 1, 2028– June 30, 2029.
F
uture audit fees are to be reimbursed to the City by WM in the amount of $50,000, in 2020 dollars, increased annually by the change in Consumer Price Index for Trash and Garbage Collection (CUUR0000SEHG02), U.S. City average (CPI) from June 2020 to the June CPI index preceding the audit.
Th
e scope will be determined by the Public Works Director prior to each future audit.
Exhibit B
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627
CITY OF MANHATTAN BEACH
INTEGRATED SOLID WASTE MANAGEMENT SERVICES CONTRACT COMPLIANCE AUDIT
WORKPLAN
City of Manhattan Beach Compliance Audit A-4 October 3, 2022 TASK Sr. Vice
President
Project
Manager Sr. Associate Associate
Analyst
Total Hours/
Fees
TASK 1:
Budgeted time 4 6 8 6 24 TASK 2:
Objective 1: Confirm WM accurately billed customers in accordance with the City’s approved rate schedule. 2 6 18 35 61
Objective 2: Confirm WM diverted 50% of waste it collected. The franchise agreement includes an option to assess liquidated damages related to di
version efforts under Section 10.4.B.7.
1 4 6 6 17
Objective 3: Confirm WM maintains and provided the City its complaint documentation summary on a monthly basis, as required by Section 4.2.3, an
d responds to complaints within one business day of receipt. The franchise agreement includes an option to assess liquidated damages related to customer responsiveness under Section 10.4.B.3.
2 4 10 16 32
Objective 4: Confirm WM made quarterly distributions to customers for rebates from sales of recyclable materials, if applicable, based on the me
thodology included in Section 3.2.7.
2 4 16 18 40
Objective 5: Confirm WM accurately remitted the City Recovery Cost fee for the period from July 1, 2020 – June 30, 2021 to the City prior to July 1, 2021 1 1 2 8 12 Objective 6: Confirm WM reported commercial customer participation data related to MCR and MORe programs in its annual report, in line with Section
7.3. 4.
1 2 4 8 15
Budgeted time 9 21 56 91 177 TASK 4:
Budgeted time 12 16 46 42.4 116 TASK 5:
Budgeted time 6 8 10 6 30 Total Hours 31 51 120 145 347
DESCRIPTION
DRAFT REPORT
Review of background documents and submittal of data request Completion of initial data analysis and virtual review of submitted data
FINAL REPORT
DocuSign Envelope ID: BB107293-68D4-4695-B673-9475BBBD9627