Loading...
HomeMy WebLinkAboutContracts & Agreements_90-2023PROFESSIONAL SERVICES AGREEMENT FOR CONSULTANT SERVICES (Colantuono, Highsmith & Whatley, P.C. / City of Redlands / R3 Consulting Group, Inc) 1. IDENTIFICATION THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into by and among Colantuono, Highsmith & Whatley, PC, a California professional corporation ("Attorney"), the City of Redlands, a California municipal corporation ("City"), and R3 Consulting Group, Inc., a California corporation ("Consultant"). 2. RECITALS 2.1 Attorney represents City, which has determined that it requires the following professional services from a consultant: review of the current solid waste rate structure and feasibility study for City. Although these consulting services are to be paid for by City, it is appropriate that such services be contracted through Attorney so that the City's attorney -client privileges may be retained and the Attorney's work -product may be protected. 2.2 Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility to perform such services in accordance with this Agreement. 2.3. Consultant represents that it has no known relationships with third parties, City council members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant opportunity for the disclosure of confidential information NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, Attorney, City, and Consultant agree as follows: 3. DEFINITIONS 3.1 "Scope of Services": Such professional services as are set forth in Exhibit A attached hereto and incorporated herein by this reference. 3.2 "Agreement Administrator": The Agreement Administrator for this project is Chis Boatman, Assistant City Manager. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for completion of services 1 I:\emo\Agreements\R3 Rate Structure FY22-0165.docx - AR and any interim milestones. Attorney and City reserve the right to change this designation upon written notice to Consultant. 3.3 "Approved Fee Schedule": Consultant's compensation rates are set forth in Exhibit B, attached hereto and incorporated by reference herein. This fee schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties. 3.4 "Maximum Amount": The highest total compensation and costs payable to Consultant by City under this Agreement. The Maximum Amount under this Agreement is $89,375. 3.5 "Commencement Date": June 6, 2023. 3.6 "Expiration Date": June 6, 2024 4. TERM The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Expiration Date unless extended by written agreement of the parties or terminated earlier in accordance with Section 16 ("Termination") below. Consultant may request extensions of time to perform the services required hereunder. Such extensions shall be effective if authorized in advance by Attorney and City in writing and incorporated in written amendments to this Agreement. 5. CONSULTANT'S DUTIES 5.1 Services. Consultant shall perform the services identified in the Scope of Services. Attorney and City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement and signed by all parties. 5.2 Coordination with Attorney and City. In performing services under this Agreement, Consultant shall coordinate all contact with Attorney and City. 5.3 Budgetary Notification. Consultant shall notify the Agreement Administrator, in writing, when fees and expenses incurred under this Agreement have reached eighty percent (80%) of the Maximum Amount. Consultant shall concurrently inform the Agreement Administrator, in writing, of Consultant's estimate of total expenditures required to complete its current assignments before proceeding, when the remaining work on such assignments would exceed the Maximum Amount. 5.4 [Reserved]. 5.5 Professional Standards. Consultant shall perform all work to the highest standards of Consultant's profession. Consultant shall comply with all applicable federal, state, and local laws and regulations. Consultant shall keep itself fully informed of 2 I:\cmo\Agreements\R3 Rate Structure FY22-0165.doex - AL and in compliance with all local, state, and federal laws, rules, and regulations in any manner affecting the performance of this Agreement, including all Cal/OSHA requirements, the conflict -of -interest provisions of Government Code § 1090 and the Political Reform Act (Government Code § 81000 et seq.). 5.6. Avoid Conflicts. During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if such work would present a conflict interfering with performance under this Agreement. However, Attorney and City may consent in writing to Consultant's performance of such work. 5.7. Appropriate Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Garth Schultz shall be Consultant's project administrator and shall have direct responsibility for management of Consultant's performance under this Agreement. No change shall be made in Consultant's project administrator without Attorney's and City's prior written consent. 5.8. Substitution of Personnel. Any persons named in the proposal or Scope of Services constitutes a promise to the Attorney and City that those persons will perform and coordinate their respective services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of Attorney and City. If the parties cannot agree as to the substitution of key personnel, Attorney may terminate this Agreement for cause. 5.9. Permits and Approvals. Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant's performance of this Agreement. This includes, but shall not be limited to, professional licenses. 5.10. Notification of Organizational Changes. Consultant shall notify the City, with copy to Attorney, in writing, of any change in name, ownership or control of Consultant's firm or of any subcontractor. Change of ownership or control of Consultant's firm may require an amendment to this Agreement. 5.11. Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to Attorney and/or City under this Agreement for a minimum of three years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of Attorney. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000, all such documents and this Agreement shall be subject to the examination and audit 3 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AR of the State Auditor, at the request of Attorney or as part of any audit of City, for a period of three years after final payment under this Agreement. 6. SUBCONTRACTING 6.1. General Prohibition. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without amending this Agreement. 6.2. Consultant Responsible. Consultant shall be responsible to Attorney and City for all services to be performed under this Agreement. 6.3. Identification in Fee Schedule. Any subcontractors shall be specifically listed and their billing rates identified in Exhibit B. Any changes must be approved by Attorney and City in writing as an amendment to this Agreement. 6.4. Compensation for Subcontractors. Consultant shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subcontractors performing services under this Agreement. Attorney and City shall not be liable for any payment, compensation, or federal and state taxes for any subcontractors. 7. COMPENSATION 7.1. General. City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Scope of Services in full satisfaction for such services. Compensation shall not exceed the Maximum Amount for the Scope of Services specified in Exhibit A. Consultant shall be reimbursed for only those expenses as set forth in Exhibit B. 7.2. Invoices. Consultant shall submit to City, with a copy to Attorney, an invoice, on a monthly basis or as otherwise agreed to by the Attorney, for services performed pursuant to this Agreement. Each invoice shall identify the Maximum Amount, the services rendered during the billing period, the amount due for the invoice, and the total amount previously invoiced. All labor charges shall be itemized by employee name and classification/position with the firm, the corresponding hourly rate, the hours worked, a description of each labor charge, and the total amount due for labor charges. 7.3. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall be solely responsible for calculating, withholding, and paying all taxes. 7.4. Disputes. The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts reflected on an invoice submitted by Consultant. 4 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE 7.5. Additional Work. Consultant shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services except as set forth in Exhibit B. Consultant shall not be reimbursed for any additional expenses unless prior written approval is given by the Attorney and City through a fully executed written amendment. Consultant shall not undertake any such work without prior written approval of the Attorney and City. 7.6. Attorney and City Precondition to Payment. Notwithstanding any other terms of this Agreement, no payments shall be made to Consultant until Attorney and City conclude the services satisfy Section 5.5. 7.7. Right to Withhold Payments. If Consultant fails to provide a deposit or promptly satisfy an indemnity obligation described in Section 11, City shall have the right to withhold payments under this Agreement to offset that amount. 8. [Reserved.] 9. OWNERSHIP OF WRITTEN PRODUCTS All reports, documents or other written material, and all electronic files, including computer -aided design files, developed by Consultant in the performance of this Agreement (such written material and electronic files are collectively known as "written products") shall be and remain the property of City without restriction or limitation upon its use or dissemination by City except as provided by law. Consultant may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by Consultant. Notwithstanding anything the contrary, proprietary models used by or belonging to Consultant shall remain the sole property of Consultant and neither City nor Attorney shall disseminate the proprietary models or use the proprietary models other than for purposes of using the services provided by Consultant unless otherwise required by law. If City or Attorney conclude that disclosure is legally required, they shall provide Consultant as much notice as is feasible to allow Consultant to seek judicial assistance in preventing the disclosure, but nothing shall require City or Attorney to seek that assistance, to resist any lawful order of a court, or otherwise fail in their legal obligations with respect to access to information of the City. 10. RELATIONSHIP OF PARTIES 10.1. General. Consultant is, and shall at all times remain as to Attorney and City, a wholly independent contractor. 10.2. No Agent Authority. Consultant shall have no power to incur any debt, obligation, or liability on behalf of Attorney or City or otherwise to act on behalf of Attorney or City as an agent. Neither Attorney, City, nor any of its agents, shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City. 5 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE 10.3. Independent Contractor Status. Under no circumstances shall Consultant or its employees look to Attorney or the City as an employer. Consultant shall not be entitled to any benefits. Attorney and City make no representation as to the effect of this independent contractor relationship on Consultant's previously earned California Public Employees Retirement System ("CaIPERS") retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation, and other applicable federal and state taxes. 10.4. Indemnification of CaIPERS Determination. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless Attorney and City for the payment of any employee and/or employer contributions for Ca1PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. 11. INDEMNIFICATION 11.1 Definitions. For purposes of this Section 11, "Consultant" shall include Consultant, its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement. "City" shall include City, its officers, agents, employees and volunteers. "Attorney" shall include Colantuono, Highsmith & Whatley, P.C., its shareholders, agents, employees, and volunteers. 11.2 The parties agree that City, Attorney, and their respective officers, agents, employees and volunteers should, to the extent permitted by law, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys' fees, litigation costs, or any other cost arising out of Consultant's negligent performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to City and to Attorney. Consultant acknowledges that City and Attorney would not enter into this Agreement in the absence of Consultant's commitment to indemnify and protect City and Attorney as set forth herein. 11.3 Consultant to Indemnify City and Attorney. To the full extent permitted by law, Consultant shall indemnify, hold harmless and defend City and Attorney, and their respective officers, agents, employees and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any intentional, reckless, or negligent acts, errors or omissions of Consultant or any of its officers, employees, 6 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AL servants, agents, or subcontractors in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys' fees incurred by counsel of Attorney's choice. 11.4 Subcontractor to Indemnify City and Attorney. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant is unable to secure the executed indemnity agreement from subcontractors, either party may terminate this Agreement with no further liability to the other party. 11.5 Scope of Indemnity. Personal injury shall include injury or damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, Property damage shall include injury to any personal or real property. Consultant shall not be required to indemnify City for such loss or damage as is caused by the sole active negligence or willful misconduct of the City. 11.6 Attorney Fees. Such costs and expenses shall include reasonable attorney fees for counsel of Attorney's choice, expert fees and all other costs and fees of litigation. Consultant shall not be entitled to any refund of attorney fees, defense costs or expenses if it is adjudicated to have been non -negligent. 11.7 Defense Deposit. The Attorney may request a deposit for defense costs from Consultant with respect to a claim. If the Attorney requests a defense deposit, Consultant shall provide it within 15 days of the request. 11.8 Waiver of Statutory Immunity. The obligations of Consultant under this Section 11 are not limited by the provisions of any workers' compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to Attorney and City. 11.9 Insurance Not a Substitute. Neither City nor Attorney waives any rights that either or both may possess against Consultant because of the acceptance by City or Attorney, or the deposit with either of them, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense. 12. INSURANCE 12.1 Insurance Required. The following insurance coverage required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant. Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance 7 I:\cmo\Agreements\R3 Rate Structure FY22-0165.doex - AE policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self -insured or exempt from the workers' compensation laws of the State of California. Consultant shall execute and provide City with Exhibit C, titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C. Consultant shall secure and maintain professional liability insurance throughout the term of this Agreement in the amount of One Million Dollars ($1,000,000) per claim made. D. Business Auto Liability coverage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Consultant owned vehicles used in connection with Consultant's provision of the Services, hired and non -owned vehicles, and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self- insurance maintained by City. 12.2. Documentation of Insurance. Attorney will not execute this Agreement until it has received a complete set of all required documentation of insurance coverage. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. 12.3. Claims -Made Policies. If Attorney allows any of the required policies to provide coverage on a claims -made basis, the Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. Claims -Made Insurance must be maintained, and evidence of insurance must be provided for at least five years after completion of the work. If coverage is canceled or non - renewed, and not replaced with another claims -made policy form with a Retroactive Date before the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five years after completion of contract work. 12.4. Additional Insured Endorsements. Attorney, the City, its City Board, officers, and employees of the City must be endorsed as additional insureds for each policy required herein, other than Professional Errors and Omissions and Worker's Compensation, for liability arising out of ongoing and completed operations by or 8 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AB on behalf of the Consultant. Consultant's insurance policies shall be primary as respects any claims related to or as the result of the Consultant's work. Any insurance, pooled coverage or self-insurance maintained by Attorney or the City, its elected or appointed officials, directors, officers, agents, employees, volunteers, or consultants shall be non-contributory. All endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. General liability coverage can be provided using an endorsement to the Consultant's insurance at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37. 12.5. Failure to Maintain Coverage. Consultant agrees that, if it does not keep the required insurance in full force and effect, Attorney or City may either (i) immediately terminate this Agreement; or (ii) take out the necessary insurance and pay the premium thereon at Consultant's expense. 12.6. Maintenance of Certificates. During the term of this Agreement, Consultant shall maintain on file with City and Attorney a certificate or certificates of insurance showing that the required policies are in effect. Consultant shall file such certificate(s) with City and Attorney before commencing work under this Agreement. 12.7. Proof of Renewed Insurance. Consultant shall provide proof that the required policies of insurance expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks before expiration of the coverages. 12.8. Notices. Consultant shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self -insured retention is increased. Consultant shall provide no less than 30 days' notice of any cancellation or material change to policies required by this Agreement. Consultant shall provide proof that cancelled or expired policies of insurance have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks before expiration of the coverages. The name and address for Additional Insured Endorsements, Certificates of Insurance and Notices of Cancellation is City of Redlands, Attn: City Clerk, 35 Cajon Street, Redlands, CA 92373; and Colantuono, Highsmith & Whatley, P.C., Attn: Michael G. Colantuono, 420 Sierra College Drive, Suite 140, Grass Valley, CA 95945. 12.9. Consultant's Insurance Primary. The insurance provided by Consultant, including all endorsements, shall be primary to any coverage available to Attorney and City. Any insurance or self-insurance maintained by Attorney or City and/or its officers, employees, agents or volunteers, shall be in excess of Consultant's insurance and shall not contribute with it. 12.10. Waiver of Subrogation. Consultant hereby waives all rights of subrogation against the City and Attorney except with respect to Workers' Compensation coverage. 9 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AR Consultant shall additionally waive such rights either by endorsement to each policy or provide proof of such waiver in the policy itself. 12.11. Report of Claims to City. Consultant shall report to the City, with a copy to Attorney, in addition to the Consultant's insurer, any and all insurance claims submitted to Consultant's insurer in connection with the services under this Agreement. 12.12. Premium Payments and Deductibles. Any deductibles or self -insured retentions must be declared to and approved by Attorney and City. At Attorney's and City's option, Consultant shall either reduce or eliminate the deductibles or self -insured retentions with respect to City and Attorney, or Consultant shall procure a bond guaranteeing payment of losses and expenses. Attorney and/or City have no obligation to pay any premiums, assessments, or deductibles under any policy required by this Agreement. Consultant shall be responsible for all premiums and deductibles as to all of Consultant's insurance policies. 12.13. Duty to Defend and Indemnify. Consultant's duties to defend and indemnify City and Attorney under this Agreement shall not be limited by the foregoing insurance requirements and shall survive the expiration of this Agreement as well as expiration or early termination of this Agreement. 13. MUTUAL COOPERATION 13.1 Cooperation in Performance. Attorney and/or City shall provide Consultant with all pertinent data, documents and other requested information as are reasonably available for the proper performance of Consultant's services under this Agreement. 13.2 Consultant Cooperation in Defense of Claims. If any claim or action is brought relating to Consultant's performance in connection with this Agreement, Consultant shall render any reasonable assistance that Attorney and / or City may require. 14. NOTICES Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during City's, Consultant's, and Attorney's regular" business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below, or electronic methods such as emails with confirmation of receipt. (or to such other addresses as the parties may, from time to time, designate in writing). 10 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE CITY: City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 Phone: (909) 798-7510 ATTORNEY: Michael G. Colantuono, Esq. Colantuono, Highsmith & Whatley, P.C. 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945 Telephone: (530) 432-7357 Facsimile: (530) 432-7356 15. SURVIVING COVENANTS CONSULTANT: Garth Schultz, President R3 Consulting Group, Inc. 1512 Eureka Road, Suite 220 Roseville, CA 95661 Phone: (916) 782-7821 The parties agree that the covenants contained in Section 5.11 (Records), Section 10.4 (Indemnification of Ca1PERS Determination), Section 11 (Indemnification), Section 12.8 (Claims -Made Policies), Section 13.2 (Consultant Cooperation in Defense of Claims), and Section 18.1 (Confidentiality) of this Agreement shall survive the expiration or termination of this Agreement, subject to the provisions and limitations of this Agreement and all otherwise applicable statutes of limitations and repose. 16. TERMINATION 16.1. Attorney or City Termination. Attorney or City shall have the right to terminate this Agreement for any reason on five calendar days' written notice to Consultant. Consultant shall have the right to terminate this Agreement for any reason on 30 calendar days' written notice to Attorney. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. Consultant shall return to City or Attorney all City's or Attorney's data, documents, objects, materials or other tangible things upon the termination or expiration of this Agreement. 16.2 Compensation Following Termination. If Attorney or City terminates this Agreement due to no fault or failure of performance by Consultant, then Consultant shall be paid based on the work performed at the time of termination that satisfies Section 5.5. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. 16.3 Consultant Termination. Consultant may terminate this Agreement for a material breach upon 30 days' notice. 11 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE 17. INTERPRETATION OF AGREEMENT 17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 17.2. Integration of Exhibits. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the provisions of this Agreement and its exhibits, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between Attorney, City, and Consultant with respect to the transactions contemplated herein. No other oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed by Attorney, City, and Consultant. 17.3. Headings. The headings and captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are for convenience in reference to this Agreement. Such headings shall not govern construction of this Agreement. 17.4. Pronouns. Masculine or feminine pronouns shall be substituted for the neuter and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s). 17.5. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and shall be enforceable in its amended form. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 17.6. No Presumption Against Drafter. Each party had an opportunity to consult with counsel in negotiating this agreement. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party. 18. GENERAL PROVISIONS 18.1 Confidentiality. All data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are confidential and shall not be disclosed by Consultant without Attorney's prior written consent. Attorney shall grant such consent if disclosure is legally required. Upon request, all data of City or of Attorney shall be returned to Attorney or City, as the case may be, upon the termination or expiration of this Agreement. 18.2. Conflicts of Interest. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other 12 I:\cmo\Agreements\R3 Rate Structure FY22-0165,docx - AL than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subcontractor to file, a Statement of Economic Interest with the City's Filing Officer if required under state law in the performance of the services. For breach or violation of this warranty Attorney shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 18.3 Non -assignment. Except as otherwise permitted by this Agreement, Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City's or Attorney's prior written consent, and any attempt to do so shall be void and of no effect. Neither City nor Attorney shall be obligated or liable under this Agreement to any party other than Consultant. 18.4. Binding on Successors. This Agreement shall be binding on the successors and assigns of the parties. 18.5. No Third -Party Beneficiaries. Except as expressly stated herein, no third person is the intended beneficiary of any right or obligation assumed by the Parties hereunder. 18.6. Time of the Essence. Time is of the essence for each and every provision of this Agreement. 18.7. Non -Discrimination. Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer -related), marital status, ancestry, or sexual orientation. Employment actions to which this provision applies shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause. 18.8 Waiver. The waiver by Attorney and City, on the one hand, or Consultant, on the other hand, of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by Attorney and City, on the one hand, or by Consultant on the other hand, unless in writing. 13 L\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE 18.9 Excused Failure to Perform. Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in Attorney and City's reasonable judgment, that such failure was due to causes beyond the control and without the fault or negligence of Consultant. Notwithstanding anything herein to the contrary, in the event that Attorney or City allege any breach of this Agreement by Consultant, Attorney and City shall provide Consultant written notice specifying the alleged breach, and a thirty (30) day opportunity to cure. Attorney and City shall provide reasonable and timely cooperation when requested by Consultant with providing additional details and documents that support the basis of the alleged breach. 18.10 Remedies Non -Exclusive. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other such right, power, or remedy. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies. 18.11. Attorneys' Fees. If legal action is necessary to enforce any term, covenant or condition contained in this Agreement, the prevailing party shall be entitled to an award of reasonable and actual attorney fees and costs expended in the action. 18.12. Venue. The venue for any litigation shall be San Bernardino County, California and Consultant hereby consents to jurisdiction there for purposes of resolving any dispute or enforcing any obligation arising under this Agreement. 18.13. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument. [Signatures on next page] 14 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AR TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. CITY: City oPedland Printed: Eddie Tejeda Title: Mayor Date: 1a3 ATTORNEY: Colantuono, Highsmith & Whatley, P.C. By: Printed: Michael G, Colantuono Title: President Date: 15 1:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE CONSUL ANT: R3 C.onsu ting Group, Inc. B Printed: Garth Schultz Title: President Date: v' 1 7/07_,D1 TO EFFECTUATE TIIIS AGIMENIENT, the have caused their duly authorized representatives to execute this Ageer. ent t f1 the dates Set'ifottt below, ,'T ; City,OrRedlatviS CONSULTANT: TO Cgnsu�tinGroup, Inc. By; Printed: Eddie Tejeda Printed: Garth Schultz Title: Mayor ATTORNEY; Colantuono, Highsmith & Whatley, P.C. By: Printed: Michael G, Coiantuono Title: President Bate: 6( 42i IN no4Agret;mm eflt R3 t titti$tructuro 1Y22-0165.dnsx -,&13 Title: President Date, 61 7E107-3 Exhibit A Scope of Services Task 1- Kick-off Meeting, Information Request, and Check -in Meetings Deliverables: - One (1) virtual kick-off meeting with R3's Co -Project Managers and City staff - One (1) initial request for information (other requests are likely and are included within our approach to all subsequent tasks). - Approximately six (6) virtual check -in meetings with City staff, which will occur as needed during the project. Task 2- Estimate Costs of Legislative Compliance Deliverables: - One (1) review of prior and current City expenses to determine what amounts of current expenses are directed towards new regulatory compliance requirements. - One (1) analysis and estimated forecast of the amounts of new expenses needed to fulfill the requirements over the course of the corning (5) years. - One (1) review of the legislative compliance estimated cost forecast with City staff to identify adjustments and establish concurrence with the forecast. Task 3- Review and Update Financial Plan Projections Deliverables: - One (1) complete review and update to the solid waste enterprise fund financial plan projections for the coming five (5) years. - One (1) review of financial plan projections with City staff to identify adjustments and establish concurrence with the forecast. - Up to three (3) fee and rate adjustment scenarios to meet the cost -of -service and variable fund balance reserve targets over the five-year planning horizon. Task 4- Identify Modifications / Alternatives to Rate Structure Deliverables: - One (1) review of the current rate structure and identification of necessary or desirable modifications or alternatives to the structure to meet the City's objectives and/or the requirements of Proposition 218. - One (1) review of recommendations for revisions to the rate structure with City staff to identify adjustments and establish concurrence with recommended alternatives. - One (1) final set of recommended revisions to the rate structure incorporating City feedback. Task 5- Calculate Cost -of -Services Rates Deliverables: - One (1) set of calculated cost -of -service rates by year for up to three (3) alternative rate adjustment scenarios. 16 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AR - One (1) review of calculated cost -of -services rates with City staff to identify adjustments and establish concurrence. - One (1) final set of recommended revisions to the calculated cost -of -service rates incorporating City feedback. Task 6- Survey and Comparison of Surrounding Rates Deliverables: - One (1) survey and comparison of rates in up to fifteen (15) communities. - One (1) review of comparative results City staff to identify adjustments and establish concurrence. - One final rate comparison for use in reporting and presentations. Task 7- Draft and Final Reports Deliverables: - One (1) draft report of methodology, outcomes, findings, and recommendations provided electronically to City staff for review and comment. - One (1) electronic final report with revisions made in response to one (1) round of consolidated comments from the City. Task 8- Draft and Final Prop 218 Notice Deliverables: - One (1) draft Proposition 218 solid waste rate notice prepared for mailing to the City's solid waste ratepayers. - Up to three (3) rounds of revisions to the draft notice based on City feedback, leading to delivery of a final notice for the City's use in printing and mailing to solid waste ratepayers. Task 9- Presentation to the Public Utilities Commission Deliverables: - Development of one (1) draft and one (1) final PPT presentation for use during Public Utilities Commission Meeting, in collaboration with City staff. - Attendance and presentation of study results at one (1) Commission meeting, virtually or in person inclusive of travel expenses. Task 10- Presentation to the City Council Deliverables: - Development of one (1) draft and one (1) final PPT presentation for use during Council presentation in collaboration with City staff. - Attendance and presentation of study results at one (1) Council meeting, virtually or in person inclusive of travel expenses. 17 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE Exhibit B Approved Fee Schedule Task D. .0 c a Sr. Project flirPrtor Sr. Project Director Sr. Project Analyst Project Analyst Sr. Designer Billable Hours Billable Cost Travel Expenses Total Cost $ 28 5 $ 285 $ 285 $ 190 $ 170 $ 170 1 Kick-off, Information Request, and Check -in Meetings 5 5 10 $ 2,850 $ - $ 2,850 2 Estimate Costs of Legislative Compliance 10 20 0 $ 6,650 $ - $ 6,650 3 Review and Update Financial Plan Projections 5 20 15 75 115 $ 25,650 $ - $ 25,650 4 Identify Modifications / Alternatives to Rates Structure 5 10 15 $ 3,325 $ - $ 3,325 5 Calculate Cost -of- Services Rates 10 5 25 40 $ 9,025 $ - $ 9,025 6 Survey and Comparison of Surrounding Rates 5 5 15 5 30 $ 6,250 $ - $ 6,250 7 Draft and Final Reports 5 10 10 25 5 55 $ 12,725 $ - $ 12,725 8 Draft and Final Prop 218 Notice 10 45 55 $ 10,500 $ - $ 10,500 9 Presentation to the Public Utilities Commission 5 5 5 15 $ 3,700 $ 2,500 $ 3,700 10 Presentation to the City Council 5 5 5 15 $ 3,700 $ 2,500 $ 3,700 TOTAL 15 65 65 155 15 65 380 $ 84,375 $ 5,000 $ 89,375 18 I:\cmo\Agreements\R3 Rate Structure PY22-0165.docx - AR Exhibit C Workers Compensation Insurance Certificate Every employer, except the State, shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State. (b) By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. CHECK ONE I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required or permitted under this Agreement. (Labor Code §1861). I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California. However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. R3 Cons ItiA Grout , Inc. By: Garth Sc 4 tz, President 19 I:\cmo\Agreements\R3 Rate Structure FY22-0165.docx - AE Date: /7/(NB