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HomeMy WebLinkAbout2019-12-17; City Council; ; Authorize Execution of a Cooperative Agreement with HF&H Consultants, LLC for Solid Waste, Recycling and Organics Consulting Services, and Appropriation of Funds to the SDiscussion On Aug. 20, 2019, City Council approved the City of Carlsbad SMM Plan . This plan identifies policies, ordinances, programs, services, service provider contractual requirements and facility capacity that will ensure the city's compliance with solid waste regulatory requirements and allow the city to emerge as a leader in sustainability. Additionally, the City of Carlsbad received a letter of concern from Cal Recycle on March 12, 2019. In this letter, CalRecycle indicated that the city has not demonstrated active planning or provided organics recycling, including food waste and collection services, to regulated businesses. On Oct. 2, 2019, Cal Recycle requested that the city submit a follow-up plan to start recycling food waste. City contracts for solid waste management with Coast Waste Management, Inc. (residential/business collection) and Republic Services, Inc. (Palomar Transfer Station operations) are scheduled to expire in 2022. These multi-year contracts do not include language that requires the contractors to automatically meet new solid waste regulations that have been promulgated since the contracts were executed, including food waste recycling. These contracts need to be amended to fully support the SMM Plan goals, or the city could choose to issue a Request for Proposals (RFP) for these services. HF&H is a full service-consulting firm, which specializes in assisting municipalities with recycling and solid waste materials management with additional services in water, wastewater and stormwater. HF&H has assisted more than 180 jurisdictions in the State of California in procuring recycling and solid waste related services, evaluating proposals to provide solid waste related services, and negotiation of new or revised contracts for the provision of those services. On July 12, 2018, the City of Oceanside released a Request for Proposal (RFP) for Miscellaneous Solid Waste, Recycling and Organics Consulting Services to provide as needed solid waste, recycling, and organics consulting services. On Aug. 10, 2018, the City of Oceanside received two complete proposals from professional consulting firms. HF&H received the highest score from proposals received. On Oct. 3, 2018, the City of Oceanside executed a contract not to exceed $800,000 for a four-year term for as needed solid waste, recycling, and organics consulting services. In order to most efficiently and effectively comply with solid waste regulations and direction from CalRecycle, the City of Carlsbad may enter into a cooperative Agreement with HF&F based on the pricing and scope described in their existing contract with the City of Oceanside. A cooperative Agreement is permissible under CMC Section 3.28.100 where the other agency's contract was competitively bid, as was the case with the City of Oceanside's HF&H contract, and the purchasing pfficer determines that the cooperative Agreement is in the city's best interest (Exhibit 2). HF&H will assist city staff with the following duties: Dec. 17, 2019 Item #8 Page 2 of 27 • Review current city agreements and policies (franchise agreement, lease agreements, and operational procedures) and make recommendations to staff regarding contract negotiations and extensions • Evaluate customer rates and service fees including new commercial organics services • Support staff in negotiating contract extensions with service provider(s) • Draft collection and processing agreements for city staff • Evaluate the value, competitiveness and reasonableness of cost and technical proposals from solid waste, recycling and organics service providers • Prepare draft city ordinances related to solid waste, recycling and organics services • Additional as-needed services will be assigned and approved through task orders By allowing the Environmental Management Department to contract with HF&H, the city will expeditiously acquire the additional specialized help necessary to advance the goals of the SMM Plan and address the areas of concern Cal Recycle identified in the letter sent to the city on March 12, 2019. Fiscal Analysis Staff recommends an appropriation of $800,000 from the Solid Waste Enterprise Fund to fund this Agreement. Sufficient funds are available to meet this request. Next Steps Once the Agreement is fully executed, city staff will direct HF&H to help the city reach the goals of the adopted SMM Plan and to address the areas of concern Cal Recycle identified in their · March 12, 2019, letter. Environmental Evaluation (CEQA) Pursuant to Public Resources Code Section 21065, this action does not constitute a "project" within the meaning of the California Environmental Quality Act (CEQA) in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. Public Notification and Outreach This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the scheduled meeting date. Exhibits 1. City Council Resolution 2. Cooperative Agreement Justification approved by the purchasing officer 3. City of Oceanside HF&H Agreement Dec. 17, 2019 Item #8 Page 3 of 27 RESOLUTION NO. 2019-261 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING EXECUTION OF A COOPERATIVE PROFESSIONAL SERVICES AGREEMENT (AGREEMENT) WITH HF&H CONSULTANTS, LLC, (HF&H) FOR SOLID WASTE, RECYCLING AND ORGANICS CONSULTING SERVICES IN AN AMOUNT NOT TO EXCEED $800,000 AND AUTHORIZING APPROPRIATION OF FUNDS FROM THE SOLID WASTE ENTERPRISE FUND IN AN AMOUNT NOT TO EXCEED $800,000 TO FUND THE AGREEMENT. WHEREAS, the City Council ofthe City of Carlsbad, California has determined that it is necessary, desirable and, in the public interest to enter into a cooperative Professional Services Agreement with HF&H; and WHEREAS, on Aug. 20, 2019, City Council adopted Resolution No. 2019-145, approving the city's Sustainable Materials Management (SMM) Plan; and WHEREAS, the SMM Plan Phases 1 and 2 are specific to ensuring the city's compliance with the State of California's solid waste regulations including management of organics recycling; and WHEREAS, the City of Carlsbad received a letter of concern from the California Department of Resources Recycling and Recovery (CalRecycle) on March 12, 2019, in which CalRecycle indicated that the city has not demonstrated active planning or provided organics recycling, including food waste and collection services to regulated businesses; and WHEREAS, on Oct. 2, 2019, CalRecycle requested that the city submit a follow-up plan to start recycling food waste; and WHEREAS, HF&H has assisted more than 180 jurisdictions in the State of California in procuring recycling and solid waste related services, evaluating proposals to provide solid waste related services, and negotiation of new or revised contracts for the provision of those services; and WHEREAS, in order to most efficiently and effectively comply with solid waste regulations and direction from CalRecycle, staff recommends that the City of Carlsbad utilize an existing cooperative agreement between the City of Oceanside and HF&H, which was awarded through the public bidding process; and WHEREAS, the existing cooperative agreement between the City of Oceanside and HF&H has a term of four years, expiring in October 2022, and it provides for solid waste, recycling and organics consulting services that are now required by the City of Carlsbad; and Dec. 17, 2019 Item #8 Page 4 of 27 WHEREAS, a cooperative purchase arrangement outside the city's ordinary competitive bidding process is permissible under the terms of Carlsbad Municipal Code (CMC) Section 3.28.100; and WHEREAS, in accordance with CMC Section 3.28.100, the purchasing officer has considered the cooperative purchase arrangement and determined it to be in the city's best interest; and WHEREAS, staff recommends that the City of Carlsbad enter into a cooperative Agreement with HF&H for a term of four years, in an amount not to exceed $800,000, so that the Environmental Management Department will expeditiously acquire the additional specialized assistance necessary to advance the goals of the SMM Plan and address the areas of concern CalRecycle identified in their March 12, 2019, letter. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the deputy city manager, administrative services, is authorized and directed to appropriate funds from the Solid Waste Enterprise Fund, in an amount of $800,000, to fund the cooperative Agreement with HF&H. 3. That the mayor of the City of Carlsbad is hereby authorized and directed to sign the cooperative Agreement with HF&H, attached hereto as Attachment A, for solid waste, recycling and organics consulting services in an amount not to exceed $800,000. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 17th day of December 2019, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Schumacher. NAYS: None. ABSENT: None. Dec. 17, 2019 Item #8 Page 5 of 27 performance of similar work, ability to provide services, quality of proposal and previous work history for the City. Final scoring results demonstrate the highest score was received by HF&H Consultants, LCC (Exhibit A). ANALYSIS HF&H is a full service-consulting firni, which specializes in recycling and solid waste materials management with additional services in water, wastewater, and stormwater. HF&H provides environmentally responsible economic, financial, strategic planning, and management consulting services. HF&H will assist City staff with the following duties: • Reviewing current City assets (franchise agreement, lease agreements, and operational procedures) and making recommendations to· staff regarding contract negotiations ~nd extensions; • Evaluating customer rates and service fees including new commercial organics services; • Supporting staff in negotiating contract extensions with service provider(s); • Drafting collection and processing agreements for City staff; • Evaluating the value, competitiveness and reasonableness of cost and technical proposals from sol.id waste, recycling a.nd organics service providers; and • Preparing draft City ordinances related to solid waste, recycling and organics services. Additional tasks will be assigned and approved through task orders. FISCAL IMPACT The project will be charged to the Solid Waste and Recycling Administrative account 700010731.5305, which has an available balance of $209,805; therefore sufficient funds are available. Years two through four will be included in the annual budget request for the Solid Waste _ and Recycling operating budget. Funding is provided by the Solid Waste fund, primarily funded by ratepayer fees. INSURANCE REQUIREMENTS ., The City's standard insurance requirements will be met. COMMISSION OR COMMITTEE REPORT The Utilities Commission approved staff's recommendation at its regularly scheduled · meeting on September 18, 2018. 2 Dec. 17, 2019 Item #8 Page 9 of 27 CITY OF OCEANSIDE PROFESSIONAL SERVICES AGREEMENT EXHIBIT B EXHIBIT 3 PROJECT: MISCE,LLANEOUSSOLJ]) WASTE, RECYCLING, AND ORGANICS CONSULTANT SERVICES 700010731.5305 -- __ TIIIS-AGREEMENT,:.dated ..... , .. , . _. , 201~ for identqication.pµi:poses, is mack and entered into by and between th.e CITY OF OCE~SIDE, a mqnicipal · corporati611, hereinafter designated as "Cr:rY'', ;mg HF &H CONSlJLTAifl'S; i:LC, hereinafter designated as ''CONSULTANT.( -. . . -. 1. 2. 3. NQW TilE~FORE, TiIE P~TIES MUTUALLY AGRE:E: AS FOLLOWS: SCOPE OF WORK. The CONSULTANT desires to provide miscellaneous solid waste, recycling and organics co~ulting servi~¢s: Services include but are not _ limited to contract administration/negotiations, pqllectiqn sertjces, progtain -development and implelllentation of solid. waste, recycling and. organics s~rvices as is more P¥ticajcirly described in the CONSJJI/I'Ai'IT'S prnposal dat~d August 9, 2ois atta~~ed h~r~tq and -incorpor~,~4.: per,ei11 .as,;E~hlbit A. ··J ::: .. - . . . ;1It21ifi~1~~iii!1El~\i~;. CONSULTANT shall be s61ely respohsibl{{ fodhi performance of any of its employees; agents, or subcontractqrs under this ~greerrient, inqlu,djng the training of each _employe_e reganling the rights an~lresp~:msi.bilitiesQ( an erilployer and employee , for any potenti~J cljscrimination o.r,harai:;~nient claim under sta~e:9r federal law. CONSl:fJ/f:ANT sµ~il report tq th~ G~TY any and all yIIlploye~~, agynts,, and -.• COJ.1.§Ult~Jlts::p~rfqfqtjng work µ1 COI1llec#911 w,Jtli this project, anµ iAI shall be subject Jo tij(! ~pp(ov~l 9fth~, .. ~;tfY; · · · · · · · --· WOI{KERS': COMPENSA.'tlON~ P~suan{ td Labor Code secti6rrlS.61, the ~~if :i~t~~ilifiii!~Ji~:st~i!J~1Jf tons . accorqanc~ with. the provisi9ns of thaLCode, a:11.d the ·coNSlJLT AN.T wpf 6omply with such provisioq$, and provide certification of such co,npliance as apart of this Agreem~~t. -_ --- Dec. 17, 2019 Item #8 Page 12 of 27 SOLID WASTE, RECYCLING, AND ORGANICS CONSULTANT SERVICES 700010731.5305 The CONSULTANT shall be responsible for complying with all local, state, and federal laws whether or not said laws are expressly stated or referred to herein. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such provision, and all other provisions, which are otherwise lawful, shall remain in full force and effect, and to this end the provisions . of this Agreement are severable. 11. AGREEMENT MODIFICATION. Tpis Agreement way not ,be modified orally or in any)naniier oth~r thart by an agreement in writing signed by the parties. ].:1ereto. . -. 12. TERMINATION OF-AGREEJVIENT. Either party m~y terminate th.is Agreement byprovid.mg thirty (30) days written notice to the other party. If any portion of the work is terminated or abandoned by the CITY, then the CITY shall pay CONSUL TANT for any work completed up to and including the date of termination or abandonment ofthis Agreement. The CITY shall be required to compensate CONSUL TANT only for work performed in accordance with the Agreement up to and. including the date of termination. 13.. SIGNATURES. The m:dividuals executing this Agreement represent arid warrant tliat they have the right, power, legal cap~city and authority to enter into-anq to execute thIS Agfeem.ent on ~ehalf of the respective legal eptities of the . CON'SULTANT ?J1d the CITY. · l • IN WITNESS WHEREOF, the parties p.ereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Professional Services Agreement to be . executed by setting hereunto their signatures on the dates set forth below. BY: 1~tft NSUL:;::L2~0,4 By: .. CITY OF OCEANSIDE , .·.· • · Name T1t e ·. .. · · .· . City Ma.nag et . . By; ~~g,i£~MaNq51,,k, ~.~~..:~ . .. 1", -"'. ""3 O q 1" '2 '-I "2--. · .. ·• . . . · ~½mcrrney · . ·. · · · · ·, Empfoyer ID'No. · · · . • ·. . NOTARY ACKNOWLEDGMENTS OF CONSULTANT MUST BE ATTACHED. 5 (Revi~ed 12-2017) Dec. 17, 2019 Item #8 Page 16 of 27 AGREEMENT FOR SOLID WASTE, RECYCLING, AND ORGANICS MANAGEMENT SERVICES HF&H CONSULTANTS, LLC PSA20-931 ENV THIS AGREEMENT is made and entered into as of the 18.fh, day of Decero be ( , 2019, by and between the City of Carlsbad, a municipal corporation, ("City"), and HF&H Consultants, LLC, a limited liability company, ("Contractor"). RECITALS A. City requires the professional services of a consultant that is experienced in solid waste, recycling, and organics management. B. Contractor has the necessary experience in providing professional services and advice related to solid waste, recycling, and organics management. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of four (4) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be eight hundred thousand dollars ($800,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed two hundred thousand dollars ($200,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 6/12/18 Dec. 17, 2019 Item #8 Page 18 of 27 PSA20-931 ENV 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 6/12/18 2 Dec. 17, 2019 Item #8 Page 19 of 27 PSA20-931 ENV in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or City Attorney Approved Version 6/12/18 3 Dec. 17, 2019 Item #8 Page 20 of 27 PSA20-931 ENV maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Avecita Jones Title Senior Program Manager Department Public Works City of Carlsbad Address 1635 Faraday Ave. Carlsbad, CA 92008 Phone No. 760-602-7542 For Contractor Name Rob Hilton Title President Address 201 N. Civic Drive, Suite 230 Walnut Creek, CA 94596 Phone No. 925-977-6959 Email rob@hfh-consultants.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 6/12/18 4 Dec. 17, 2019 Item #8 Page 21 of 27 PSA20-931 ENV 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes~ No D 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 6/12/18 5 Dec. 17, 2019 Item #8 Page 22 of 27 PSA20-931 ENV under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 6/12/18 6 Dec. 17, 2019 Item #8 Page 23 of 27 PSA20-931 ENV 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR HF&H CONSULTANTS, LLC, a limited liability company B~-- (sign here) ~ ( /Z,-1 1/tc~ ,µ, f?z (~ I /j [ /Jf (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: &-"-~£___ -7 ,.......,-c~gn here) ATTEST: ~ -~-----F--~#<--'-:_~:-:__:--=-~--'-----~-------l--_,_H___,__,e_c.,,....i'--"-'01._~6vmez1 ~r Barbara Engleson, City Clerk Dtpvfj l(IC,ff,ltt(}> ..::r: sLJI\ o ..1 s • .J CF-o (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney City Attorney Approved Version 6/12/18 7 Cl~ CJNIC Dec. 17, 2019 Item #8 Page 24 of 27 CERTIFICATE OF ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA County of ~,J ~ } ss. On Q~NR ~A't:f-f before me, Thomas F. Noon, Jr., a Notary Public, personally appeared 6dl#8C /TJJ.'liw MD lfK/HRP .:C 5L71wSoA) , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is i@ subscribed to the within instrument and acknowledged to me that he/ she~ executed the same in his/ her /~authorized capacity(ies), and that by his/ her ~ignature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) a~xecuted the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Commission Number:2275816 My Commission Expires February 13, 2023 Contra Costa County, California Dec. 17, 2019 Item #8 Page 25 of 27 SCOPE OF SERVICES & METHODOLOGY Project Understanding and Methodology PSA20-929ENV Exhibit A Task 1. Review of current City assets (franchise agreement, lease agreements, and operational procedures) and make recommendations to staff regarding contract negotiations and extensions Task 1 will provide a baseline analysis and tactical recommendations to the City for how to approach the negotiation of new services. This step is critical to getting a common understanding among the City's team of what the opportunities and risks are during the negotiation, how to leverage opportunities and mitigate risks, and to identify critical issues that must be addressed to succeed in the City's goals. Task 2. Setting customer rates/service fees including new commercial organics services Customer rates must be set to cover the costs of service for the new organics program. While that may seem fairly straight-forward, there are multiple approaches to rate-setting. Those approaches include consideration of how much of the cost will be covered by separate charges for organics service, how much will be included in the base service fee, and what policy approach the City wishes to take with regard to using rates to encourage behavior change. Task 3. Support City staff in negotiating contract extensions with service provider(s) HF&H understands that the City will negotiate for collection and processing services. This negotiation will include determining: 1) the approach to providing service, including all programmatic and operational considerations; 2) the cost of providing the service and the method for conveying that cost to users (Task 2); and, 3) the business terms that define the risk allocation, rate/cost adjustment approach, and assurances of performance. Task 4. Drafting collection and processing agreements for City staff The contract that governs these services will be the most important output of this process. It documents the programmatic and operating requirements as well as the manner of interaction between the service provider(s) and customers. The contract defines the nature and length of the relationship between the City, customers, and the service provider. The contract defines the cost of service, how it is conveyed to customers, and how that cost gets adjusted over time. Getting this right is critical. Task 5. Evaluating the value, competitiveness and reasonableness of cost and technical proposals from solid waste, recycling, and organics service providers During the negotiations, one of the most critical roles of the consultant is to evaluate the competitiveness, reasonableness, and appropriateness of the costs proposed by the service provider(s). This task will be conducted continuously during the negotiations process as each revised cost proposal is submitted to the City. Task 6. Drafting City ordinances related to solid waste, recycling, and organics services With the significant changes to City programs through this negotiation, as well as the significant regulatory and legislative changes at the state level, it is important to modify the City's municipal code to ensure that it is consistent with and supportive of those changes. Dec. 17, 2019 Item #8 Page 26 of 27 Additional As-Needed Se1Vice PSA20-929ENV Exhibit A (continued) HF&H understands that the City may also request that the selected consultant provide additional as- needed services in the following areas: 1. Provide ongoing technical assistance and expertise on solid waste, recycling, and Organics State mandates with particular emphasis on SB 1383 mandated servicing, processing, programming, reporting, and enforcement requirements. 2. Assistance in developing, evaluating and selecting diversion programs, and drafting long-range implementation plans. 3. Researching and analyzing potential solid waste, recycling, and organics programs and outreach initiatives, and evaluating staffing needs for implementation of programs. 4. Benchmarking existing and proposed City programs with those in other jurisdictions. 5. Obtaining stakeholder input on program alternatives from Oceanside residents, businesses, and service providers. Dec. 17, 2019 Item #8 Page 27 of 27