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HomeMy WebLinkAbout12/19/2001 - STAFF REPORTS (18) DATE: December 19, 2001 TO: City Council FROM: Recycling Coordinator VIA Redevelopment Director APPROVAL OF CONTRACT WITH HILTON FARNKOPF & HOBSON, LLC, OF NEWPORT BEACH, FOR AUDIT SERVICES ON CURRENT SOLID WASTE FRANCHISE HAULER. RECOMMENDATION: That the City Council approve contract with Hilton Farnkopf & Hobson, LLC for audit services on current solid waste franchise hauler at a cost not to exceed $69,500. SUMMARY, The City of Palm Springs' franchise agreement with Palm Springs Disposal Services (P.S.D.S.) expires September 2002. P.S.D.S. has requested a 10-year extension of its franchise, in order to complete the conversion of its fleet to CNG, as requested by Council. City Council, after several months of deliberations and meetings with P.S.D.S. and City staff, agreed to request an audit of P.S.D.S. service and rates. Upon completion of this audit, Council will decide whether to continue negotiations with Palm Springs Disposal Services or go out for RFP for solid waste services. This contract is for those audit services. BACKGROUND: The City of Palm Springs has had a long-term relationship with the current solid waste hauler, Palm Springs Disposal Services (P.S.D.S.) However, with the Franchise Agreement expiring in September 2002, City Council has directed staff to seek proposals for an audit that would assist the City in determining the optimal set of rates and services for a future negotiated franchise with P.S.D.S. or to help prepare an RFP to seek a new hauler. The Request for Proposal for audit services resulted in only one submittal. After reviewing that one proposal, staff recommends accepting the proposal and awarding the contract to Hilton Farnkopf & Hobson, LLC. This firm has considerable experience in the Coachella Valley, having performed similar services for the cities of Palm Desert, Indian Wells, La Quinta and CVAG. In addition, because Hilton Farnkopf & Hobson, LLC only works for public agencies and not haulers, the potential for a conflict between P.S.D.S. and another client is eliminated. The cost for this audit is not to exceed $69,500, and the auditor's findings and recommendations will be brought to Council at a Study Session no later than April 30, 2002, for direction on whether to pursue a negotiated franchise or prepare an RFP. 14 J Funds are available in the Recycling Program Fund alance.. 7/' Elaine Wedekind John . Raymg1h Recycling Coordinator Redd elopment Director App�raved: - - "r� City Manager Attachment: Minute Order Contract Budget Amendment REVIEWED BY DEPT. OF FINANCE /�� z CONTRACT SERVICES AGREEMENT WITH HILTON FARNKOPF & HOBSON, LLC FOR SOLID WASTE AUDIT SERVICES THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 121h day of December, 2001, by and between THE CITY OF PALM SPRINGS, (herein "City"), a body, corporate and politic and HILTON FARNKOPF & HOBSON, LLC (herein "Contractor"). The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. Contractor warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry, and all materials will be of good quality, fit for the purpose intended. 1.2 Contractor's Proposal. The Scope of Services shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions 1 / �A 3 Contract services HFH Waste Audit there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of five percent (5%) or less of the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" 2 IR4V Contract services HFH Waste Audit attached hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum contract amount of SIXTY-NINE THOUSAND FIVE HUNDRED AND NO/100 ($69,500) DOLLARS (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation (Exhibit C), in any month in which Contractor wishes to receive payment, no later than the first (1 st) working day of such month. Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the l� A �- Contract services HFH Waste Audit services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect through April 2002, or sooner, except as otherwise provided in the Schedule of Performance. 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Laith Ezzet Sr. Vice President It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City, 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer, The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered 4 /�.A 6 Contract services HFH Waste Audit voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. If the Contract Sum is $25,000.00 or less, the policy of insurance shall be written in an amount not less than either (i) a combined single limit of $500,000.00 or (it) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of $100,000 00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater than $25,000.00 but less than or equal to $100,000.00, the policy of insurance shall be in an amount not less than either (i) a combined single limit of $1,000,000.00 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of $500,000.00 per occurrence and $500,000.00 in the aggregate. If the Contract Sum is greater than $100,000.00, the policy of insurance shall be in an amount not less than $5,000,000.00 combined single limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Contractor and the City against 5 / ae7 Contract Services HFH Waste Audit any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of $100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined single limit liability of $500,000.00. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. The Contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to 6 Contract Services HFH Waste Audit perform any term, provision covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith- (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Risk Manager of City ("Risk Manager") determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that the Contractor shall have the right to 7 / 20 Contract services HFH Waste Audit appeal a determination of increased coverage by the Risk Manager to the City Council of City within 10 days of receipt of notice from the Risk Manager. 6.0 RECORDS AND REPORTS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of 8 Contract Services HFH Waste Audit California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action In addition to any other rights or remedies, either party 9 /ao4 // Contract Services HFH Waste Audit may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of 0 Dollars ($ 0 ) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation (Exhibit "C") or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event of termination without cause pursuant to this Section, the terminating party need not provide non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be 10 /42 414 Contract Services HFH Waste Audit granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against 11 :./4 ` r' Contract services HFH Waste Audit either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not effect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. 12 / :L4 /V Contract Services HFH Waste Audit ATTEST: THE CITY OF PALM SPRINGS By: City Clerk City Manager APPROVED AS TO FORM BY COUNSEL City Attorney CONTRACTOR: By: Signature Title NOTARY STATEMENT FORM ATTACHED By: Signature Title 13 4 Is CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ,..,i c^: ^.. ^c-�'��y^.,urvr_.u .. t-v: u^tr_,c^er��.^� .t .�.;u =uruC ,c ��;-c;. ;-t;^�,^; ^u^✓, State of 3 County of I ; ck On before me, Data Nam ande officer e A Name THf O ( g,"Jena Doe,Notary Publ;c") ` personally appeared If>', Neuritis)of Signer(s)C( r�l ❑personally known to me-OR-❑ proved to me on the basis of satisfactory evidence to be the person(s) J; whose name(s) is/are subscribed to the within instrument < and acknowledged to me that he/she/they executed the Of same in his/her/their authorized capacity(ies), and that by I his/her/their signature(s) on the instrument the person(s), �i or the entity upon behalf of which the person(s) acted, executed the instrument. i (: WITNESS my hand and official seal. (( S;9nelum of Notary Public OPTIONAL <� Though the information below 1s not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. g; Description of Attached Document I Title or Type of Document: ' Document Date: Number of Pages: f18 Signer(s) Other Than Named Above: > Capacity(ies) Claimed by Signer(s) i` Signer's Name: Signer's Name: i(�I ❑ Individual El Individual II<<I ❑ Corporate Officer ❑ Corporate Officer n c Title(s): Title(s): El Partner—El Limited ❑ General El Partner—El Limited El General << ❑ Attorney-in-Fact ❑ Attorney-in-Fact ; ❑ Trustee ❑ Trustee �( ❑ Guardian or Conservator '• ❑ Guardian or Conservator >> ❑ Other: Top of thumb here ❑ Other: Top of thumb here P;I I' 1� II Signer Is Representing: Signer Is Representing: 1995 National Notary Association•8236 Remmet Ave,PO Box 7184•Canoga Park,CA 91 3 09-71 84 Prod No 5907 Reorder:Call Toll-Free 1-800-876-6827 /a 4 AV CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 'c;�-,�.:,^:=_^:_,^,:-cn;c �.�=��r, r��^e�M:�cv<;v,���aS=��-r�r.,�^ .�^;�^;�c��<;�:�,_:���:�:��u;erg��y_s•^,..;.,,�^, State of � County of 31 �I On before me, Dale Name and The of Officer e I�I ( g.,"Jane Doe,Notary Public") 3,? personally appeared t)I Names)of Signer(s) f ❑personally known to me-OR-❑ proved to me on the basis of satisfactory evidence to be the person(s) ),I whose name(s) is/are subscribed to the within instrumentI and acknowledged to me that he/she/they executed the ; t' same in his/her/their authorized capacity(ies), and that by <' his/her/their signature(s) on the instrument the person(s), I or the entity upon behalf of which the person(s) acted, C executed the instrument. 3 fi WITNESS my hand and official seal. 31 �i 101 >I �l Sgnalure of Notary Public �I OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 1�4 Document Date: Number of Pages: Ali Signers) Other Than Named Above: 2l Capacity(ies) Claimed by Signer(s) I I Signer's Name: Signer's Name: C� ❑ Individual ❑ Individuals ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ GeneralI ❑ Attorney-in-Fact ❑ Attorney-in-Fact s<� ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator Ifi ❑ Other: Top of thumb here ❑ Other: Top of thumb here <� jl �I (C I Signer Is Representing: Signer Is Representing: �I K I `11..`=(;w�L�;:� �_��-=.. c.w�=ti'=�.w--< 2>�c.-�.--viz;���=�,�-���•,�(;�`,c�:.�c.•c(,^ ,�tiw.�;��'�-c.--c,•-�:.=(,�e. �-(,�vu;��a ©1995 National Notary Association•8236 Remmet Ave PO Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder Call Toll-Free 1-800-876-6827 /a*¢/? Contract services HFH Waste Audit EXHIBIT "A" SCOPE OF SERVICES Task 1: Initiate Project 1.1 Contractor will obtain and review relevant background documents, including but not limited to the solid waste franchise agreement and amendments, relevant communications between the City and the Hauler, and the monthly, quarterly and/or annual reports submitted by the Hauler to the City. 1.2 After reviewing the documents: Contractor will prepare for and conduct two kick-off meetings; one with City staff and one with City staff and the Hauler to confirm the objectives, scope of work, availability of Hauler records and schedule. 1.3 Based upon the information obtained in the review of background documents and in the kick-off meetings, Contractor will finalize the workplan and prepare a document request for the Hauler, identifying the records and documents required to be available for review during their site visit. Task 2: Review of Refuse Tonnage Collected 2.1 Contractor will obtain and review the tonnage reported to the City by the Hauler for mathematical accuracy and reasonableness. 2.2 Contractor will compare the tonnage reported to the City to the Hauler's supporting documentation and obtain explanations for exceptions. 2.3 Contractor will compare the tonnage reported by the Hauler to the tonnage contained in the City's Annual Report from the Disposal Reporting System and obtain an explanation for material differences. Task 3: Review Reimbursement for Recyclables 3.1 Contractor will obtain a schedule of reimbursements for recyclables from the City and compare the reimbursements to the Hauler's supporting documentation. 3.2 Contractor will review the Hauler's records and supporting documentation for the recyclable materials revenue for mathematical accuracy and reasonableness. 3.3 Contractor will document and evaluate the Hauler's procedures for obtaining the best available prices for the recyclable materials. 3.4 Contractor will select a sample of recyclable sales transactions throughout the period of review and compare the prices received to available published recyclable material price trends data. 14 Z.Of/9 Contract services HFH Waste Audit Task 4: Review of Residential and Commercial Rates Charged 4.1 Contractor will select a sample of commercial and residential customers and compare the rates charged by the Hauler in each quarter of the review period to the City- approved rates in effect throughout the year. 4.2 Contractor will obtain the residential and commercial subscription levels and recalculate the annual residential and commercial revenue and compare to the actual recorded revenues for reasonableness. Task 5: Gather Residential and Commercial Customer Feedback 5.1 Contractor will obtain complete lists of residential and commercial customers, including mailing addresses. 5.2 Contractor will prepare for and conduct two workshops on the same day (one residential and one commercial) with various groups, such as local business associations, apartment and condominium associations and residential forums to discuss current service levels and alternative services available. 5.3 Based on the information obtained in the workshops, Contractor will prepare and conduct two surveys by mail (one residential and one commercial) that will determine customer satisfaction with the current service and the current hauler, alternative services or additional programs, and the existing rate structure. 5.4 Contractor will summarize and document the results of the residential and commercial surveys and identify the residents'/businesses' service needs and desires. Task 6: Review of Residential and Commercial Rate Structures 6.1 Contractor will obtain the Hauler's cost and operational data for its residential and commercial operations in the City and review for reasonableness. 6.2 Contractor will review the allocation of costs between the residential and commercial operations and review the related rate structures to determine if the current rate structures reflect the residential and commercial cost distribution. 6.3 Contractor will obtain the Hauler's results of operations for the one-year review period (to be determined by Contractor) for company-wide operations and for its operations in the City and compare its pre-tax profit as a percent of revenues to industry averages, including profitability information from the Robert Morris Associates Annual Statement Studies, and from California cities that regulate hauler profits. 15 lQwtoillf /0 Contract Services HFH Waste Audit Task 7: Analysis of Cost-Effectiveness and Recommendations 7.1 Contractor will utilize the customer matrix in Palm Springs to calculate and compare rate revenues in two other desert cities with similar services and competitive rates. Contractor has previously surveyed the services in all cities in the region, and are in the process of completing a comprehensive survey of the region for rates and services as of October 2001. Contractor will discuss the cities to be compared with City staff at the start of the engagement. 7.2 Contractor will analyze and discuss the Hauler's overall cost-effectiveness of the service provided and provide recommendations for service changes and cost-savings that could be passed through to the ratepayers. Task 8: Document Procedures and Findings 8.1 Contractor will document the procedures Hauler performs as well as Contractor's findings. Task 9: Prepare Report 9.1 Contractor will prepare a draft report with recommendations and submit to the City and the Hauler for review and comment. 9.2 After incorporating written comments from the City and the Hauler's staff, Contractor will prepare a final report. 16 /oLA �o Contract services HFH Waste Audit EXHIBIT "B" SPECIAL REQUIREMENTS 1. Waive Section 5.3. Performance Bond. 2. Section 2.0 COMPENSATION last sentence shall read: 'The Contract Sum shall include the attendance of Contractor at all project meetings identified in the workplan in Scope of Services, Exhibit W; Contractor shall not be entitled to any additional compensation for attending said meetings." 3. Section 6 4 Release of Documents shall read: 'The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer, except for materials that are part of the public record." 4. Section 7.9 Termination for Default of Contractor shall read: "If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated up to a maximum of 100% of the amount paid to the Contractor." 17 /ah401 Contract Services HFH Waste Audit EXHIBIT "C" SCHEDULE OF COMPENSATION Contractor may submit invoices monthly, based on the number of hours worked multiplied by the contractor's hourly billing rates, plus out of pocket expenses incurred. Hourly rates to be billed by the Contractor are as follows: Senior Vice President $205 Senior Associate $160 Associate $140 Professional Assistant $75 The Contractor will bill expenses as follows: Automobile travel $0.345/mile or IRS limit Document reproduction (over 25 pages/run) $0.15 per page Postage, couriers, and other client out-of-pocket costs Actual The estimated cost by workplan task is shown below. Hours and costs may be shifted among tasks, but the total shall not exceed $69,500. Task 1: $3,980 Task 2: $4,485 Task 3: $7,300 Task 4: $5,855 Task 5: $8,450 Task 6: $5,380 Task 7: $5,610 Task 8: $4,530 Task 9: $7 680 Total Fees $67,990 Expenses $1,510 Total Fees and Expenses $69,500 The Contractor may bill the City based on time and materials, and City will make progress payments. However, the City may withhold payment of the last 25% of the budgeted total costs, equal to $17,375 (25% x $69,500), until the Contractor delivers to the City the report required in Task 9 transmitting the study results. 18 Contract Services HFH Waste Audit EXHIBIT "D" SCHEDULE OF PERFORMANCE A. Approve consulting agreement 12/19/01 B. Review background documents from City 12/31/01 C. Prepare for and conduct kickoff meeting with City 1/07/02 D. Conduct kickoff meeting with waste hauler 1/11/02 E. Prepare detailed data request 1/16/02 F. Receive detailed data from city and hauler` 1/31/01 G. Audit and verify hauler information 2/28/02 H. Gather customer feedback 3/15/02 I. Analyze data, calculate results and develop findings 3/31/02 J. Develop client report 4/30/02 Any delays in receipt of data will affect the project completion data. 19 atoll a MINUTE ORDER NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,CALIFORNIA,APPROVING A CONTRACT WITH HILTON, FARNKOPF & HOBSON, LLC FOR AUDIT SERVICES ON CURRENT SOLID WASTE FRANCHISE WASTE HAULER. ----------------------------------- I HEREBY CERTIFY that this Minute Order approving a contract with Hilton Farnkopf & Hobson, LLC, in an amount not to exceed $ 69,500.00, for audit services on current solid waste franchise hauler, in a form acceptable to the City Attorney, was adopted by the City Council of the City of Palm Springs, California at a meeting held on this 19th day of December, 2001. PATRICIA A. SANDERS City Clerk RESOLUTION NO. OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR THE 2001-02 FISCAL YEAR. WHEREAS Resolution 20062 approving the budget for the fiscal year 2001-02 was adopted on June 6, 2001; and WHEREAS the City Manager has recommended, and the City Council desires to approve, certain amendments to said budget; NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record inter-fund cash transfers as required in accordance with this Resolution, and that Resolution 20062, adopting the budget for the 2001-02 fiscal year is hereby amended as follows: SECTION 1. ADDITIONS Fund Activity Account Amount 125 1280 43250 $69,500 Recycling Recvclina Program Auditing Purpose To fund Solid Waste Audit to be performed by Hilton Farnkopf& Hobson LLC on P.S.D.S. SECTION 2. SOURCE FUND Activity Account Amount 125 29301 $69,500 Recycling Fund Balance Adopted this day of 12001. AYES: NOES: ABSENT: ATTEST: CITY OF PALM SPRINGS, CALIFORNIA By City Clerk City Manager REVIEWED AND APPROVED /,Z