PROFESSIONAL SERVICES AGREEMENT
between
The City of San Marino
2200 Huntington Drive
San Marino, CA 91108
&
ECONOMICS, INC.
832 CAMINO DEL MAR, SUllE 2
DEL MAR, CA 92014
This Professional Service Agreement ("the Agreement") is made as of May 22, 2023 (the "Effective Date"), by and between ECONOMICS, INC. ("Consultant"), and the City of San Marino ("City"), a California municipal corporation, (collectively, "the Parties"). 1 of 17
RECITALS
A. City desires certain professional services as specified in this Agreement.
B. Consultant represents that it is qualified and able to provide City with such services.
promises, co rats, and conditions statera herein, the ariese ete are a fold the
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those services ("Services") set forth in the attached Exhibit A
Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local laws, ordinances, codes, and regulations.
Consultant shall not be compensated for any work performed unless it is specified in Exhibit A or City authorizes such work in advance and in writing. Any work so authorized by City shall become part of the Services for purposes of this Agreement.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall continue through December 31, 2024 unless sooner terminated as provided in Section
5.0 of this Agreement.
3.0 Consultant's Compensation
City will pay Consultant in accordance with the fee schedule set forth in Exhibit B but in no event will the City pay more than $30,000.00. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit B, unless otherwise approved by City in writing. Pursuant to Section 02.06.05 of the San Marino City Code, this Agreement shall not be effective unless previously approved by the City Council if it is for professional services of greater than thirty thousand dollars ($30,000.00).
4.0 Method of Payment
Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end 2 of 17
of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant all undisputed charges within 30 days of receiving Consultant's invoice.
City will not withhold any applicable federal or state payroll and other required taxes, or other required or authorized deductions from payments made to Consultant
4.2. Upon 24-hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the expiration or earlier termination of this Agreement.
5.0 Termination
10 reason, afer man ermine this meat ya if alrea
before the termination is to be effective.
5.2. Consultant may terminate this Agreement for cause in the event City fails to cure a default under this Agreement within thirty (30) days after Consultant has given City notice of such default.
5.3. Upon termination of this Agreement, Consultant shall cease all work under this Agreement and deliver to City all materials, reports, documents, notes or other written materials compiled through the last working day this Agreement is in effect. City shall pay Consultant for all services satisfactorily rendered through the last working day this Agreement is in effect; provided that in no event, including but not limited to termination, shall Consultant be entitled to receive more than the maximum compensation set forth in Section 3. Neither party shall have any other claim against the other party by reason of termination pursuant to this Section 5.0.
6.0 Reports, Information, and Work Product
6.1. Consultant shall deliver to City: (1) any reports on the status of the Services upon City's request and in such time and in such form as City may require; and (2) all material furnished to Consultant by City upon City's request and/or upon the expiration or termination of this Agreement.
6.2. Unless the Parties agree in writing, all draft and final reports, documents, and other written material, and any and all images, ideas, concepts, designs including without limitation any website designs, source code, object code, electronic data and files, and/or other media whatsoever created or developed by Consultant in the performance of this Agreement (collectively, "Work Product") shall be considered to be "works made for hire" for the benefit of City. All Work Product and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City without restriction or limitation upon their use, duplication or dissemination by City upon final 3 of 17
payment being made. Consultant shall not obtain or attempt to obtain copyright protection as to any of the Work Product. Consultant hereby assigns to City all rights of ownership to the Work Product, including but not limited to any and all related intellectual property and proprietary rights that are not otherwise vested in the City pursuant to this paragraph.
6.3. Consultant warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, City shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product for any purpose.
Consultant shall defend, indemnify, and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city officials, harmless from any loss, claim, or Habity in any way related to a claim that any use by the City of any of the Work Product violates federal, state, or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents, or other means of protecting intellectual property rights, and/or interests in products, ideas, or inventions.
Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret, or trademarked documents, materials, equipment, devices, or processes in connection with its provision of the Work Product produced under this Agreement. If any use by city of any of the Work Product or other deliverables is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using such Work Product and/or other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (b) modify the Work Product and other deliverables so that they become non- infringing while remaining in compliance with the requirements of this Agreement.
6.4. Consultant's obligations under this Section 6.0 shall survive the expiration or termination of this Agreement.
7.0 Party Representatives
7.1. City's representative for purposes of this Agreement is the City Manager or the person designated in writing by the City Manager. The City Manager's designee may exercise the authority of the City Manager provided in this Agreement excepting approval of any expenditure that would exceed a total compensation allowed under the Agreement.
7.2. William O'Toole is Consultant's representative for purposes of this Agreement.
8.0 Notices
All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses:
4 of 17
To City: City of San Marino
2200 Huntington Drive
San Marino, California 91108
Attn: City Manager
To Consultant: Economics, Inc.
832 Camino del Mar, Suite 2
Del Mar, CA 92014
Attn: William O'Toole
8.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
9.0 Independent Consultant
9.1. Consultant is an independent contractor and not an employee of City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
9.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs, and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to 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 failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section
9.2 shall survive termination of this Agreement.
In the event that Consultant provides any of the Services by or through any employee or any person whose work under this Agreement becomes cause for an! ayment or contribution required by law, including but not limited to the California Publi Employees' Pension Reform Act (PEPRA), to the Public Employee Retirement System, Consultant shall be solely responsible for all such payments or contributions.
Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs, and expenses of any nature to the extent arising from Consultant's failure to make any such payment or contribution. City shall have the right to offset against the amount o 5 of 17
any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section
9.3 shall survive termination of this Agreement.
10.0 Subcontractors
Unless otherwise specified in Exhibit A, no portion of this Agreement shall be subcontracted without the prior written approval of the City Manager. Consultant is fully responsible to City for the performance of any and all subcontractors, if any.
11.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City Manager. Any purported assignment without such consent shall be void and without effect.
12.0 Insurance
12.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements, including but not limited to additional insured endorsements, effecting coverage required by this Agreement on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City, if requested. All certificates and endorsements shall be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.2. General liability insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted
12.3 Automobile liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
12. 4 Professional liability (errors & omissions) insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in 6 of 17
the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
12.5 Workers' compensation insurance. Consultant shall maintain Workers' Compensation Insurance (statutory limits) and Employer's Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
12.6 Umbrella or excess liability insurance. Consultant shall obtain and maintain an umbrella liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage, including commercial general liability, automobile liability, and employer's liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer; • "Pay on behalf of' wording as opposed to "reimbursement"; • Concurrency of effective dates with primary policies.
Should Consultant obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer's liability policies. Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies.
Other provisions or requirements
12.7. Proof of insurance. Consultant shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by Agency's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Agency for the contract period and any additional length of time required thereafter. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.8 Duration of coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Consultant, their agents, representatives, employees, or sub-consultants. 7 of 17
12.9 Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbreila or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency's own insurance or self- insurance shall be called upon to protect it as a named insured
12.10 Agency's rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Agency has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by Agency will be promptly reimbursed by Consultant or Agency will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Agency may cancel this Agreement.
12.11 Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the Agency's Risk Manager.
12.12 Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants.
12.13 Enforcement of contract provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Consultant of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
12.14 Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency. 8 of 17
12.15 Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the Agency with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant's insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the Agency immediately in the event of Consultant's failure to renew any of the required insurance coverages, or insurer's cancellation or non-renewal.
12.16 Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that Agency and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
12.17 Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
12.18 Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross- liability exclusions.
12.19 Pass through clause. Consultant agrees to ensure that its sub- consultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively "Subcontractor"), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant's Subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor's scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant's requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor.
Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to Agency for review. 9 of 17
12.20 Agency's right to revise specifications. The Agency reserves the ight at any time during the term of the contract to change the amounts and types o nsurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the Agency and Consultant may renegotiate Consultant's compensation.
12.21 Self-insured retentions. Any self-insured retentions must be declared to and approved by Agency. Agency reserves the right to require that selt-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
12.22 Timely notice of claims. Consultant shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
12.23 Additional insurance. Consultant shall also procure and maintain, at Its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 10 of 17
13.0 Indemnification, Hold Harmless, and Duty to Defend
13.1. To the maximum extent permitted by law, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, its agents, or its subcontractors in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, , City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement.
13.2. Consultant must obtain executed indemnity agreements with provisions identical to those in Section 13.1 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of the Services. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless, and defend the Indemnitees from and against any and all Claims in law or equity, whether actual, alleged, or threatened, arising or claimed to arise out of, pertaining to, or relating to the acts or omissions of Consultant's subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors, or their respective 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 Agreement, including the Indemnitees' active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties.
14.0 Equal Opportunity
Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 11 of 17
15.0 Labor Certification
By its signature hereunder, Consultant certifies it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code. Consultant shall provide evidence of such coverage before commencing the performance of the Services.
15.2. Consultant certifies that in the performance of the Services, Consultant shall not, in any manner, employ any person or contract with any person so that any Services so pertormed by such person would be subject to the workers' compensation laws of the State of California unless and until Consultant gives City a certificate of consent to self-insure or a certificate of Workers' Compensation Insurance Coverage.
15.3. In the event Consultant hires a subcontractor who has employees to perform the Services or any part thereof, then Consultant shall either require the subcontractor to obtain Workers' Compensation Insurance Coverage, or must obtain Workers' Compensation Insurance Coverage for the subcontractor's employees.
15.4. Any Workers' Compensation Insurance Coverage required by or for this Agreement shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, its agents, and its subcontractors.
16.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.
17.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
18.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
19.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement.
20.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or 12 of 17
service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
21.0 Headings
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
22.0 Force Majeure
Consultant shall not be liable for any failure to perform any obligation under this Agreement if Consultant presents that City in its sole judgment deems acceptable that such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, governmental restrictions, governmental regulations, governmental 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.
23.0 Final Payment Acceptance Constitutes Release
Consultant's acceptance of City's final payment under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for the Services or anything done or furnished relating thereto. Neither City's payment to Consultant nor approval of payment constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such or payment or approval 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.
24.0 Prohibited Interests; Conflict of Interest
24.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.
Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.
24.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent 13 of 17
upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.
24.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection.
25.0 Attorneys' Fees
If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith.
26.0 Exhibits
Each exhibit referenced in this Agreement is hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control.
27.0 Corporate Authority
27.1. Each person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of Consultant and that by his or her execution, Consultant is formally bound to the provisions of this Agreement.
27.2. Consultant certifies it is aware of the requirements of Sections 313 of the California Corporations Code. If Consultant is a corporate entity, it shall either:
(a) provide City written proof that each person executing this Agreement on Consultant's behalf is duly authorized to bind Consultant; or (b) provide two signatories to this Agreement, of whom the first must be Consultant's chairman of the board, president, or a vice president and the second must be Consultant's secretary, an assistant secretary, its chief financial officer, or an assistant treasurer.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the Effective Date. 14 of 17
CONSULTANT
or. 480) By:
Mario D. Rueda (Sign)
Acting City Manager O' Toole
Name: Will emit)
Attest:
Title: President
City Clerk
Approved as to Form: (Sign)
Name: Trevor S Bluthe
(Print)
oseph Monte
Title: Secretary
City Attorney (Frint)
15 of 17
Exhibit A
Scope of Services
Scope of Services found on following page
16 of 17
Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
F. PROJECT SCOPE OF WORK
PHASE ONE
TASK 1- WORK WITH STAFF TO NEGOTIATE A SHORT-TERM EXTENSION OF
CURRENT FRANCHISE AGREEMENT & CUSTOMIZE ORDINANCE
TASK 1A. WORK WITH STAFF TO SECURE A SHORT-TERM 1-2 YEAR EXTENSION OF CURRENT
FRANCHISE AGREEMENT
As the City's current franchise agreement term is set to expire on October 31, 2023, the first task will be to secure a short-term 1 to 2 year extension to allow the City more time to prepare for, and negotiate, a longer-term extension of the agreement incorporating new program requirements and contract terms. It would also provide the City with the flexibility to pursue other procurement methods should the negotiations with the current hauler be unsuccessful.
TASK 1B. ASSIST CITY STAFF IN THE UPDATE OF MUNICIPAL CODE DEFINITIONS THAT WILL BE CONSISTENT WITH NEWLY NEGOTIATED FRANCHISE AGREEMENT AND SB 1383 REQUIREMENTS The City's current Mandatory Recycling Ordinance was adopted in a form of the CalRecycle Model Ordinance provided by the San Gabriel Valley Council of Governments (SGVCOG). The language of the Model Ordinance needs to be conformed to the specific programs and conditions that will be contained in the negotiated Franchise Agreement.
The City is entering the process of negotiating a new contract with Athens Disposal that will include new definitions and a detailed scope of work reflecting the current SB 1383 state requirements for recycling and diversion of municipal solid waste. The goal of the code revision will be to dovetail and conform the definitions and requirements contained in the new contract and in state law, to those in the revised code.
Subtasks are as follows:
A. Revise Definitions. As noted above, several new definitions must be added to the codes.
As noted above, the existing definitions will be reviewed and revised to be consistent with the City's new contract with Athens and also consistent with state-required diversion B. Delete Non-Applicable Code Sections Pertaining to SB 1383 programs in the Model Ordinance that are not included in San Marino residential and commercial program.
Revisions for Consistency with SB 1383 Diversion Requirements and allowable processing facilities.
D. Other Conforming Changes. We will review and revise all other sections in the solid waste and recycling code as needed to conform to the City's current and future solid waste and recycling system, state law requirements and the new collection contract.
E. Prepare First Draft of Code Revisions for Review. A draft will be prepared and submitted to City staff for technical review. We will hold a meeting with City staff to discuss comments and changes needed. We will incorporate the results of the discussion into a second draft that will be submitted to City staff and to the City Attorney for review and comment.
EcoNomics, Inc. | Page 13
EcoNomics
Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
Prepare Final Draft of Code Revisions. We will prepare a final draft of the code revisions (including recitals) incorporating comments from the City Attorney and any final technical comments from City staff.
PHASE TWO
TASK 1 - WORK WITH STAFF TO ESTABLISH NEGOTIATION GOALS AND
PREPARE NEGOTIATION TERM SHEETS
TASK 1A. WORK WITH STAFF TO DEVELOP NEGOTIATION GOALS
In this task, EcoNomics will conduct a more thorough review of the City's franchise agreements and amendments. After this review, EcoNomics will meet with City staff to confirm EcoNomics' assessment of what is working well with the current contract and what needs improvement with respect to terms, performance standards, monitoring, and reporting. In discussions with staff, EcoNomics will develop a list of specific program changes, enhancements, and contract terms that will benefit the City. The list will address SB 1383 requirements that are required during the term of the new contract. These requirements will form the basis of articulating the goals of the negotiation. A table of specific compliance programs that will need to be incorporated into the Agreement is shown below.
Compliance Programs for Inclusion in RFP
Core Compliance Program Driving Legislation Performance Metrics Residential co-collected 100% participation; less than 10% contamination in recycling organics and recycling AB 939, SB 1383 and organics streams; less than 10% recoverable organics and programs recyclables in MSW stream.
Multi-family organics Full participation; less than 10% contamination in recycling and SB 1383 organics streams; less than 10% recoverable organics and programs mandated
recyclables in MSW stream.
Commercial organics and AB 939, AB 827, AB Full participation; less than 10% contamination in recycling and dry recycling programs 341, AB 1826, and SB organics streams; less than 10% recoverable organics and 1383 recyclables in MSW stream.
Characterization studies Hauler-conducted waste characterizations for MSW and/or container recyclables, and organics 2x/year for commercial and contamination SB 1383
residential streams; lid flipping to monitor containers on 5% of monitoring programs households
required by SB 1383
Outreach and education Social media content for the City to post on social media programs AB 939, AB 827, AB channels, bill inserts, website updates, training video 341, AB 1826, and SB production, site assessments, one dedicated FTE field 1383 coordinators, outreach toolkits, provision of kitchen pails to residents and internal containers to business.
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Proposal: Development and an Motion of sue st for Propract TASK 1B. WORK WITH STAFF TO WRITE NEGOTIATION TERM SHEET A comprehensive term sheet shall be developed with City Staff as a basis for preparing the topics/agendas for a series of eight to ten negotiation meetings.
Summary of Term Sheet
A high level summary of the developed term sheet is provided below that contains the key items that all need to be negotiated with Athens Disposal:
• Identification of all programs that are needed to achieve compliance with state diversion requirements including: organics programs to comply with AB 1826 and SB 1383 and expanded source-separated programs to comply with AB 341; and a program to comply with AB 1594 which disallows using green waste for diversion if used as Alternative Daily Cover (ADC); Identification of cost parameters for rates to be charged for continuing, new and/or enhanced programs;
• Establish enhanced program performance metrics (i.e. diversion rate, tonnage diversion targets, program implementation targets, schedules, etc.), as needed; • Establish requirements for additional equipment needed to implement expanded diversion programs (i.e. plastic 2-yard bins for organics, split 4-yard recycling/trash bins for space constrained properties, etc.);
• Establish legal concepts (and language that will be negotiated) that keeps the City in control of state mandated program implementation costs
Draft Negotiation Term Sheet Categories
1) Facilities
a) Obtain more information from Athens on the designation of their MRF with respect to conformance with SB 1383 regulations on processing single streams.
b) Determine what processing facilities will be used for City's Recyclable Materials during the term.
Public Education Fee - monthly status of revenue and expenditures submitted to City. City directs use of funds. (R)
d) Submittal of provided protocols for: Periodic Progress Audits of Actual Diversion Achieved at Clean MRF, Dirty MRF, and Food Scraps, Green Waste and wood Processing Facility(ies) plus route audits of any SSC-MRF routes and other routes.
e) Scrap Food Program Cost Report
2) Mandatory/Requirements
a) Identification and confirmation of all programs implemented required in Scope of Work. b) Require 1 Coordinator. Liquidated damages of $500 per day that either Recycling Coordinator is not provided.
c) Adherence to all contract terms and requirements.
3) Contract Term Issues
a) New equipment - establish timeline when trucks (equipped with video cameras and GPS devices) carts, bins, boxes will be replaced.
b) Establish detailed baseline cost reference points at beginning of contract term. City will use these to ratchet down and otherwise adjust costs for changes it makes to scope of work over the term of Agreement ("change of scope clause of negotiated franchise agreement). Baseline costs need to include detail for labor, equipment, fuel, variable costs, overhead and profit broken down by both service line and program for all collection services: residential, commercial and roll off for collection of MSW, all recyclable materials, food scraps, yard trimmings/wood and C&D.
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Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
c) City establishes full discretionary control to direct what changes will be required, to respond to regulatory requirements and evaluation of cost impact(s) shall be in the city's sole discretion. 4) Services to City
a) Identification of services to City
b) Bulky item pickup at SF Residential: 3 collections per year of up to 4 items per collection per home.
At Multi-Family, roll off box 3 times per year (for a period of 5 consecutive days including 2 weekend days) at each complex per year.
c) Holiday greenery/Christmas tree collection at all SF. Holiday Greenery/Christmas Tree drop offs at 2 locations in City from Dec 26-Jan 20; plus one roll off box staffed for minimum of 6 hrs. on a weekend day during that same period at all MF complexes in City. 5) Cost Analysis
a) TBD from negotiated cost items and rate model analysis 6) Rates
a) Rates for collection of commercial and residential trash b) Rate structure to provide for all SB 1383 mandated diversion programs as required by CalRecycle Revision of rate language provisions in Athens proposed Amendment 4 7) Drafting of Legal Language for Inclusion in Contract a) Contract Articles
b) Write and Conform Attachments to Appropriate Contract Articles c) Inclusion of Performance Protocols in appropriate Contract Articles and Attachments
PHASE TWO
TASK 2- ASSIST THE CITY IN DEVELOPING NEW SOLID WASTE FRANCHISE DOCUMENTS INCLUDING WRITING A SB 1383 COMPLIANT SCOPE OF WORK
OVERVIEW
In the past, the documents to oversee a solid waste franchise were fairly straightforward. The provisions mainly dealt with collection and disposal of MSW. How would the MSW be collected and how much did it cost to operate the collection fleet and staff the operation? Once MSW was collected, there would be transportation to a disposal site and a concurrent tipping fee. Standards on transportation, landfilling, and liabilities would be incorporated into the document. Lastly, based on collection and disposal costs, price points were established. Add the two costs together and the total price was determined. Done! Today, it's not so simple. Franchise documents no longer just cover collection and disposal of solid waste.
They are now a compilation of contract provisions that, in addition to basic MSW services, must also: 1) address the collection and processing of a wide variety of diversion streams; 2) spell out complex reporting requirements; 3) greatly expand performance standards for interaction with the commercial generators to explain diversion programs, train generators in the process of recycling, and monitor the diversion program effectiveness; 4) incorporate the design standards of overall management systems for cost effective coordination of the new services offered; 5) incorporate contract language that provides flexibility for adjustment to changes in regulation with concurrent detailed descriptions of the methodology used to effect changes in Scope of Services and how the new/revised service will be priced; 6) have the ability to add new processing options; and 7) continue to maintain an effective business model that can adapt to the diverse level of services that are now required by law, specifically SB 1383.
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EcoNomics
Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
All of the increased complexity has rendered many old forms of a franchise somewhat obsolete. The old agreements were never intended to govern a switch from a disposal-based franchise to a diversion-based document. How did this switch happen and what are the ramifications? The "how" part of the sea change to the new way franchises need to be written, springs from the environmentally driven complexity of redefining "waste". The "waste stream" used to be considered trash, garbage, and the leftover detritus that needed to be carted away and buried out of sight. Fast-forward to now, and the drive is to divert 75% of what used to be considered 100% garbage. The "ramification" of the change is the emergence of multiple cost and revenue centers in what used to be considered the disposal industry.
This project is centered in writing for San Marino a SB 1383 compliant agreement that will successfully handle the changing details of the structure and economics of the newly emerging diversion industry. The revised franchise document will address the changes emerging from the interactions of SB 1383 policy, legal cases, industry business models, and diversion economics as described in the above paragraphs.
TASK 2. WRITE SB 1383 COMPLIANT SCOPE OF WORK TO UTILIZE IN NEGOTIATION EcoNomics will prepare a detailed Scope of Work for the new collection Agreement that describes all diversion programs; the specific performance requirements for each program and/or service; and the corresponding equipment and types of containers needed for each program. The Scope of Work will become an attachment to the draft collection Agreement.
The City's objective is to provide efficient collection services to residents and businesses at competitive prices while also staying in compliance with SB 1383. Ratepayers also expect the City to provide cost- effective compliance options for current and pending diversion legislation (i.e. reduced-price food scrap diversion programs in the commercial sector). In discussions with staff, EcoNomics will develop a detailed Scope of Work that Athens will implement.
Based on a review of the City's current contract agreement, specific items identified for discussion include:
• Development of contract provisions that ensures the city receives the hauler staffing, equipment, focus and resources required to fully implement all required programs on schedule as prescribed • Examination of what large-scale diversion (i.e. full organics program participation as mandated by SB 1383) will do to impact the existing rate structure. If less waste hauling is required, there needs to be a contract mechanism that allows the City to reduce the number of refuse trucks and efficiently shift costs to diversion.
Organics (food scrap) diversion could be expensive unless the method (composting vs. anaerobic digestion) and facility siting (Los Angeles County versus long hauls of over 50 miles) are anticipated in the contract. The City's ability to direct the flow of organics and to change to the most cost- effective manner of processing will be critical. As such, a review of organics diversion programs and organics processing options that provide cost-incentives to the rate payers will need to be coordinated with processing options.
. Identification of the optimal rate for non-residential organics recycling to provide an incentive for the remaining properties in the City to implement cost-effective recycling programs to be in compliance with SB 1383.
• Establishment of hauler staffing of one dedicated hauler employed FTE recycling coordinators) working solely in the City of San Marino.
• Review any issues of tonnage origin verification, tracking and reporting from the MRF's, compost facilities and any transfer stations used for the City's wastes and recyclables. Determine whether EcoNomics, Inc. | Page 17
Miomice
Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
added contract language is needed concerning the accuracy of tonnage data and to document the allocation methodology that will be used to calculate and report the City's diversion tonnages.
Determine the City's desire for new collection vehicles, equipment, carts and bins. This equipment item is rapidly expanding in scope with the introduction of the "internet of things". Technological advancements now allow bins, trucks, material types, and on-demand servicing to be implemented in ways that could reduce traditional collection costs between 10 to 25%.
Establish the Term of the new contract with respect to capital cost commitments by hauler. • Discuss the City's funding needs for State-mandated diversion program implementation and staff time to administer the contract, and other expenses.
• Discuss incentives and disincentives to ensure that the hauler meets or exceeds diversion requirements.
For programs that are critical to the City's attainment of SB 1383, such as the full implementation of residential, commercial, and multi-family organics, the City may consider linking the hauler's success or failure in implementing these programs to contract extension opportunities to align the need to comply with state mandates with the hauler's profit incentive.
PHASE TWO
TASK 3 - CONSTRUCT RATE MODEL/REVIEW RATE LANGUAGE
TASK 3A. CONSTRUCT RATE MODEL
EcoNomics has reviewed Athens' proposed rates and believes the structure and the amount proposed to be charged would benefit from a more transparent and detailed analysis. EcoNomics will assist the City in reviewing and analyzing the reasonableness of Athens' proposed cost structure through the utilization of an Excel rate model. We will use a rate model that was developed by EcoNomics for Rancho Mirage in July 2022 to calculate its SB 1383 rates. Rancho Mirage has backyard and highly developed residential service that is comparable to San Marino and many of the model's features will be adaptable to San Marino.
TASK 3B. REVIEW RATE LANGUAGE ITEMS
Several of the terms of the rate language Athens submitted are detrimental and act at a disadvantage to the City. For example, Amendment 4, Attachment 2, Exhibit C, Section B5, Service Changes, states that Athens may reduce or increase Organics Waste service levels based on inspection, audit or review at any time, subject to the City Manager's right to review and disapprove. Athens may also assess additional charges for Organic Waste services above the default service level and/or above the minimum collection frequency for a given Subscriber. We suggest that:
i. This section needs to be re-written as the language proposed by Athens allows the company to change a subscriber's service and to charge the subscriber more for service without the subscriber's knowledge, input or approval. ii. Steps should be included in this section requiring Athens to analyze the subscriber's waste and divertible materials' streams and develop a service plan. This plan, including costs, is discussed with, and approved by the subscriber and City before implementation occurs.
iii. If Athens determines that service levels should be reduced or increased, Athens should present its analysis along with an updated plan, including costs, to the subscriber and City for review and approval before the service level and costs for service are changed.
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Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
iv. The section should also include steps on how Athens should work with a "difficult" subscriber, including but not limited to phone calls, in-person contact, and ultimately City referral if needed.
v. Language to the effect that the City Manager is the ultimate authority on whether service levels and rates for a Subscriber will be modified so that the provisions are part of the Agreement language and not in a separate rate section.
Another problematical rate item is Section 24.D of proposed Amendment 4 which allows for a Special Rate Adjustment. It is recommended that instead of this section, the City includes a Change of Scope provision in the Agreement which only is used when the City directs a change of scope. At that time, the City and Athens discuss the change of scope and the City and Athens then negotiate the cost for additional/or reduction of services, which changes are then included in the rate schedule. This provision is only activated at the direction of the City.
EcoNomics has identified several additional items for discussion with the City during the development of negotiation goals in Phase TWO Task 1A.
PHASE TWO
TASK 4 - NEGOTIATION SCHEDULE AND PROCEDURE
TASK 4A. PREPARE A NEGOTIATION SCHEDULE AND PROCEDURE
Before the first negotiation meeting, a schedule will be constructed driven by a prioritization of the term sheets developed in Task 1B. The order of topics will begin with Attachment B (Scope of Work) that was developed in Task 2, as this is likely to be one of the most critical items of the negotiation. It may also take several meetings to arrive at agreement on the final legal language so, starting with this item, we create the best chance of maintaining our schedule.
The next major area of negotiation will be agreement on the protocols for reporting and the metrics of measurement of the agreement's performance standards.
As the scope (what needs to be done), is matched to the metrics of the performance standards (how is it determined if the scope is being performed), the rates (cost of implementing), maintaining, and reporting will combine in a dynamic that will drive the final cost negotiations.
Once all the factors above have been negotiated to mutual satisfaction, the rate structure will need to be constructed that: a) provides the revenues to the hauler; b) the incentives to the generators; and c) | presents a low exposure to Proposition 218 and other challenges.
TASK 4B. CONFORM AGREEMENT TO NEGOTIATION OUTCOME
EcoNomics suggests using the template of the City of Rancho Mirage's SB 1383 compliant 2022 Agreement.
This Agreement was sent to your offices for review as both San Marino and Rancho Mirage have similar demographics and levels of services.
Concurrent with each negotiation item resolution, EcoNomics will prepare a draft of the new contract as part of this task. EcoNomics can either update the existing contract, leaving intact the general numbering and flow of the document and adding all the provisions, or utilize a newer, post- SB 1383 template, such as the 2022 contract that EcoNomics prepared for the City of Rancho Mirage.
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EcoNomics
Proposal: Development and Negotiation of SB 1383 Contract City of San Marino's Request for Proposal
TASK 4C. FINALIZE CONTRACT AND RATES
Once an agreement is reached between the City and Athens, EcoNomics will assist the City in drafting a revised and updated Franchise Agreement and Rate Table to memorialize the terms and rates.
EcoNomics' Director, Cerene St. John, is an active member of the State Bar of California and will craft all the language the new Agreement. She will complete the anticipated key components of the negotiated revision of the entire Franchise document as follows:
• Draft changes to contract language to incorporate new diversion programs, performance metrics, and other terms from negotiation.
• Develop language to identify processing facilities and a system for notifying/seeking approval from City if new processing facility is selected
• Develop trigger language if Athens' mixed waste processing facility does not meet high performance MRF standards being promulgated by CalRecycle per AB 341 and SB 1383. If the high performance metrics are not met then there will be a requirement for more source-separated recycling at businesses and multi-family complexes
Develop new contract definitions which agree with the City's mandatory ordinance and SB 1383 requirements
• Develop scope of work language to include new diversion programs, equipment requirements, collection standards, etc.
• Using the rate model of Task 3A, develop rate tables and update rate adjustment methodology, as needed; revise compensation section of contract, if needed EcoNomics will also assist staff with reviewing and/or enhancing the staff report to council, as needed. This task may also include an informational presentation to council, explaining the policy drivers behind the new Franchise Agreement, a description of the new programs available as a result of the updated Franchise, and the impact on the ratepayers.
PHASE THREE
TASK 1 - CONFIRMATION OF IMPLEMENTATION/CALRECYCLE ASSITANCE TASK 1.
Given the desirability of expeditiously fully implementing the SB 1383 compliant programs and the potential for CalRecycle site visit(s) EcoNomics may, if directed, assist City staff in overseeing the diversion implementation provisions of the new agreement. This could include assisting the City with preparation of its EAR report to CalRecycle and to respond to CalRecycle questions and annual site visits of the newly implemented programs.
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PenNamies
Exhibit B
Fee Schedule
Fee Schedule found on following page
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roposal: Development and Negotiation of SB 1383 Contrac ity of San Marino's Request for Proposa
G. HOURLY RATES AND BUDGET TEMPLATE
Hourly
Name Position Areas of Expertise
Rate
Conduct negotiation; Assist staff with
development of negotiation strategy;
William O'Toole President $235
Franchise Agreement development, council
presentations, CalRecycle compliance
Attorney
Write all
franchise Write all language for Franchise Agreement
Agreement and Ordinance; Conform all documents to
Cerene St. John $290 outcomes of negotiation results; Provide documents and
interface with City legal strategy to assure documents comply Attorney as with SB 1383 regulations
directed
Development of rate models that identify
actual cost components of the new required
Trevor S. Blythe, SB 1383 programs; Create detailed rate Vice President $195
MBA sheets that will reflect the outcomes of
negotiated cost and program details;
Verification of program operational costs.
Assist in contract research, Reference
inclusion of all SB 1383 requirements
throughout all documents; Compile lists of
Linda Furbee Director $165
all negotiation outcomes and create
summaries for briefings and inclusion in
documents.
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EcoNomics