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Agreement - Michael Balliet Consulting LLC - 2021-07-01 AGREEMENT FOR SOLID WASTE CONSULTING SERVICES This Agreement is made and effective as of July 1, 2021, between the Costa Mesa Sanitary District, a sanitary district ("District") and Michael Balliet Consulting, LLC, a Limited Liability Company ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, District released a Solid Waste Performance Audit, SB 1383 Compliance Analysis, and Implementation Plan Development Request for Proposal (RFP) in October 2020 WHEREAS, Consultant was the only firm to submit a bid for the RFP and completed the proposal in February 2021 WHEREAS, Consultant is knowledgeable about solid waste services and requirements and the Board of Directors has decided to sole source this agreement to consultant NOW, THEREFORE, the parties hereto do hereby agree as follows: 1. TERM in This Agreement shall commence on July 1, 2021 and shall remain and continue in effect unless sooner terminated pursuant to the provisions of this Agreement. This Agreement shall be for a period of two-years from July 1, 2021 to June 30, 2023. 2. SERVICES Consultant shall provide services to assist District with franchise hauler compliance, SB 1383 compliance and conduct quarterly waste composition studies covering all eight mixed waste routes annually. Consultant shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. 3. PERFORMANCE Consultant shall at all times faithfully, competently and to the best of its ability, experience, and talent perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. 4. PAYMENT The District agrees to pay Consultant a sum not to exceed $68,000 for the total term of the Agreement to assist District with franchise hauler compliance, SB 1383 compliance and conduct quarterly waste composition studies covering all eight mixed waste routes annually and such other tasks as set forth in Exhibit A. The payment shall identify the tasks performed and deliverables and shall correspond to the scope of work. 5. SUSPENSION OR TERMINATION OF AGREEMENT (a) Either party may terminate the Agreement without cause by giving 30 days notice. In the event of such termination, Consultant shall be entitled to be paid for work performed up until the time of termination provided the work product is produced for District's use. (b) In the event of default, no compensation shall be paid and the Agreement may daysprovidedopportunity be terminated in 5 an o ortunit to cure is provided in that time period. 6. OWNERSHIP OF DOCUMENTS (a) Consultant shall maintain complete and accurate records with respect to the project and such other information required by District that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of District or its designees at reasonable times to such books and records; shall give District the right to examine and audit said books and records; shall permit District to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion, termination or suspension of this Agreement all other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used, reused or otherwise disposed of by the District without the permission of the Consultant. 7. INDEMNIFICATION (a) Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless District and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs 2 to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless District, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, loses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subconsultants of Consultant. 8. INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit "B" attached to and part of this Agreement. Such insurance shall include commercial general liability, and current automotive and worker's compensation. A certificate of insurance shall be submitted. 9. INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the District a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, District shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. In addition to the indemnity provisions in Paragraph 7, Consultant shall indemnify District for any claims that any officer, agent or employee of Consultant is eligible for pension or other fringe benefits provided to District's employees. 3 10. LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of State and Federal laws and regulations, which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 11. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure has been ni used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including an y method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity. 12. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to any project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceed thereof, for work to be performed in connection with the project performed under this Agreement. 13. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization. Consultant, its officers, employees, agents or subconsultants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives District notice of such court order or subpoena. (b) Consultant shall promptly notify District should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party 4 regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Consultant. However, District's right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. 14. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To District: Costa Mesa Sanitary District 290 Paularino Avenue Costa Mesa, California 92626 Attn: General Manager To Consultant: Michael Balliet Consulting, LLC 30181 Outpost Road San Juan , Ca istrano CA 92675 Capistrano, Attn: Michael L. Balliet 15. ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the District. 16. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 17. GOVERNING LAW The District and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning 5 this Agreement shall take place in the municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 18. ENTIRE AGREEMENT • This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each partyis r9 9 entering into this Agreement based solely upon the representations ns set forth hereinrein and upon eachparty's own independent investigation of any and all facts suchparty deems material. 19. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. 20. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. I.N WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. COSTA MESA SANITARY DISTRICT CONSULTANT . Michael Balliet Consulting, LLC General Manager %resident APPROVED AS TO FORM: District Counsel 6 EXHIBIT A IRABc MICHAEL BALLIET CONSULTING February 24, 2021 Nabila Guzman I Management Analyst Costa Mesa Sanitary District 290 Paularino Avenue Costa Mesa, CA 92626 VIA ELECTRONIC MAIL Re: Proposal—Annual Compliance Consulting Services Nabila: Due to ongoing challenges with franchise service, in combination with the paradigm shift in contracting, collection, contamination monitoring, and reporting established by new SB 1383 regulations, I believe the Costa Mesa Sanitary District (CMSD) would benefit from year-round consulting assistance in both FY 2021-2022 and 2022-2023. My suggested annual budget amount is $34,000 which includes a contingency cushion. The three distinct areas of ongoing assistance would include: 1) franchise hauler compliance, including revised monitoring/reporting and contract renegotiation assistance; 2) SB 1383 and related regulatory compliance consulting to help the CMSD deal with an expanding regulatory burden;and 3)quarterly waste composition studies covering all eight (8) mixed waste routes annually. Franchise Hauler Monitoring • Develop revised reporting procedures and incorporate a quarterly review process of key annual review areas such as routing, processing facility contamination, contamination by routes, waste composition and characterization reviews, and monitoring customer service issues/resolution. 4th Quarter would include a summary report that would supplant the current annual review making it unnecessary as a separate scope of work. • Perform an annual detailed rate review of CR&R customers, and Countywide survey,to establish true value of rates. • Review and advise on contract revisions to address both cited concerns and deficiencies,as well as ensure effective SB 1383 compliance measures are in place and appropriately handled by CR&R. • Assist with and/or advise on hauler negotiations. In particular reconciling rate guarantees with scheduled rate increases. 1 I Annual Compliance Assistance Project Proposal • Attendance at scheduled quarterly hauler meetings (recommend transitioning the annual compliance structure to quarterly). This is suggested due to CalRecycle's "at any time" inspections and the observed drop in reporting quality by CR&R. • On call assistance to CMSD management and staff on all hauling and regulatory issues. SB 1383 and other Regulatory Compliance Consulting • Assist with implementation of recommended SB 1383 measures from our annual review report. • Provide reports and advice on legislative changes related to solid waste. • Assist in preparing required notices and coordinate contamination monitoring protocol. • Oversee"high diversion rate" facility studies and related activities should the two- cart system remain in place. • Assist the CMSD staff in developing and executing an overall compliance strategy. • Assist in report preparation and attend CMSD Board meetings as needed. • On call assistance to CMSD staff for any compliance or franchise question/issue. Quarterly Waste Composition Studies • Coordinate load selection and sorting assistance procedures with CR&R. • Schedule and conduct random samplings of two different mixed waste collection loads each quarter. Over the course of the contract year each of the eight(8) routes will have load samples examined. • Oversee sorting, weighing and categorizing each load into general trash, recoverable recyclables, and organic waste fractions. Within the organic waste fraction we will segregate and measure both food waste and green waste to help identify where expanding outreach/education is needed. In general, these are the activities we believe will be required to ensure effective and compliant performance by CR&R as they transition to new SB 1383 requirements and expanding CMSD monitoring and reporting procedures to incorporate new SB 1383 measures. Given the ramping-up of service required in the latter half of 2021 (e.g.effective route and sorting facility inspection protocols), for full-compliance achievement in 2022, we believe this scope of work should start in July of 2021. Given the uncertainty of performance results, and the number of new protocols required, we believe a second year of similar activity should be planned for. This is also advantageous for planned waste composition studies as we can stagger them so seasonal variations are reviewable in year two. The annual project budget we propose is based upon a projected average of 15 hours per- month in general consulting service(focused on a quarterly review process)at a discounted billing rate of$105 per-hour($18,900 per-year),plus $1,100 to cover contingencies which could include; unforeseen resident issues prompting presentations on State mandates, resolving increased hauler service/compliance issues,and/or providing technical assistance to CMSD staff to deal with new and/or expanded State requirements. To that total we add quarterly waste composition studies at a flat fee of$3,500 each ($14,000 total). 2 I Annual Compliance Assistance Project Proposal Thank you for the continued opportunity to provide consulting work for the Costa Mesa Sanitary District and let me know if you require revisions to the proposed scope of work to work within your upcoming budgets. Sincerely, Submitted via email on 2/24/2021 Michael L. Balliet Michael Balliet Consulting, LLC 3 I Annual Compliance Assistance Project Proposal Exhibit B - Insurance Requirements (1). Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2)Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (2). Minimum Limits of Insurance. Applicants shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of$1,000,000 per accident for bodily injury or disease. (3) Insurance Endorsements. The insurance policies shall contain the following provisions, or Applicant shall provide endorsements on forms supplied or approved by the District to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the District, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Applicant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the District, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Applicant's scheduled underlying coverage. Any insurance or self-insurance maintained by the District, its directors, officials, officers, employees, agents and volunteers shall be excess of the Applicant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the District, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Applicant or for which the Applicant is responsible; and (2) the insurance coverage shall be primary insurance as respects the District, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Applicant's scheduled underlying coverage. Any insurance or self-insurance maintained by the District, its directors, officials, officers, employees, agents and volunteers shall be excess of the Applicant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the District, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Applicant (D) All Coverages. Each insurance policy required shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except it after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the District; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the District, its directors, officials, officers, employees, agents and volunteers. (4) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A- or better, licensed to do business in California, and satisfactory to the District.