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HomeMy WebLinkAboutMendocino Solid Waste Management Authority 2023-06-01 COU No. 2223-190 SERVICE AGREEMENT BETWEEN MENDOCINO SOLID WASTE MANAGEMENT AUTHORITY AND CITY OF UKIAH This Agreement is made and entered in Ukiah, California on June 1 , 2023 ("Effective Date")by and between the Mendocino Solid Waste Management Authority ("MSWMA") and City of Ukiah("City"). MSWMA and City may be referred to hereafter individually as "Party" and collectively as "Parties." RECITALS: 1. MSWMA is a joint powers agency currently organized and operating under an Amended and Restated Joint Powers Agreement among the Cities of Fort Bragg, Ukiah, Willits and the County of Mendocino, dated November 19, 2019 ("JPA"). Under the JPA MSWMA was formed for various purposes,including: (1)making reasonable efforts to increase recycling and diversion of materials in order to reduce landfill deposits and achieve the waste diversion goals of a Reduction and Recycling Plan; (2)providing for the proper handling, reuse or disposal of household hazardous wastes; (3) providing educational outreach to encourage recycling, diversion and proper disposal of solid and household hazardous waste; (4)providing for the cleanup of sites where solid waste has been illegally disposed; and(5) removing graffiti. 2. City is a California general law municipal corporation in Mendocino County, California and a signatory of the JPA. 3. MSWMA entered or will enter a Lease and an HHW Services Agreement with an independent contractor to operate MSWMA's HHW program. 4. Pursuant to Section 7(a) of the JPA, the MSWMA Board of Directors has determined to contract with the City to perform the services of MSWMA's General Manager, including the General Manager performing as the MSWMA Treasurer pursuant to Section 6 of the JPA, and to provide other clerical and accounting services. 1 AGREEMENT: Based on the foregoing recitals which are incorporated into this Agreement, the terms and conditions stated hereafter and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. DEFINITIONS: The following capitalized terms shall have the meaning specified in this Section 1: a. "Commission" shall mean the five-member governing body of MSWMA established under Section 2 of the JPA. b. "Commencement Date" shall mean the date when City is required to begin providing services under this Agreement as specified in Section 2 below. C. "County" shall mean Mendocino County. d. "Facility" shall mean household hazardous waste disposal facility at the MSWMA Site. e. "Fiscal year" means July 1 to June 30. f. "Haulers' Advisory Committee" shall mean a group composed of at least one representative from each company holding an exclusive curbside collection franchise contract in the incorporated and unincorporated territory of the County and a representative of the County Department of Transportation. g. "Household Hazardous Waste or "HHW" shall mean leftover household products that can catch fire,react, or explode under certain circumstances, or that are corrosive or toxic, including products, such as paints, cleaners, oils,batteries, pesticides and other products specified by MSWMA as accepted at the Facility. h. "HHW Services Agreement"means the Agreement, an unexecuted draft of which is attached hereto as Attachment 1. i. "Lease"shall mean the lease between MSWMA and Ukiah Waste Solutions for the MSWMA Site, substantially in the form of the attached Attachment 2. j. "MSWMA"has the meaning provided in Recital 1, above. k. "MSWMA Site" shall mean the real property located at 3200 Taylor Drive, Ukiah, CA as depicted and described in the Lease. 2 2. GENERAL MANAGER AND TREASURER SERVICES: Commencing on Tune 1 , 2023, using its own employees and/or independent contractors City shall perform the duties of the General Manager and Treasurer of MSWMA in accordance with Sections 6 and 7 of the JPA. In keeping with sections 5, 7,13 and 15 of the JPA, the Commission will appoint the City of Ukiah Director of Public Works as General Manager. The holder of that position will remain the General Manager until the Commission, with the agreement of the City's City Manager, makes a different appointment. In keeping with the provisions of section 6 of the JPA, the Commission will appoint the Finance Director of the City of Ukiah as Treasurer. The Treasurer shall perform appropriate accounting,reporting, audit management, and other regular and customary financial services functions necessary for the prudent financial management of MSWMA. The holder of that position will remain the Treasurer until the Commission, with the mutual agreement of the City's City Manager, makes a different appointment. A. In its capacity as General Manager,the City shall: (1) act as MSWMA's representative in managing the HHW Services Agreement and the Lease to determine if the services required by those agreements are being performed in compliance with their terms; (2) prior to the commencement of each Fiscal Year,present a preliminary budget to the Commission for consideration and by no later than June 15, submit a final budget for Commission approval. The Parties may agree to alter this schedule; (3) call meetings of and consult with a standing committee formed by the Commission pursuant to Section 4(b) of the JPA, to provide guidance and clarify issues in an advisory role between Commission meetings. The Commission may elect to create and appoint as members of such committee one Commissioner who represents an area that includes the coastal area and one Commissioner who represents an area that includes an inland area of Mendocino County. (4) call and chair meetings of the Haulers Advisory Committee as and when determined necessary by the General Manager; (5) Maintain the MSWMA(Mendo Recycle)website; 3 (6) Understanding that each member of MSWMA has sole responsibility to comply with California law including, but not limited to, SB 1383, when requested by the Commission, advise and assist MSWMA members to comply with California statutes and regulations governing waste reduction and recycling; provided, however, that the following services will be provided by non-City entities: i. The County of Mendocino, Department of Transportation ("DOT"), possessing all the necessary resources,has committed to provide all required updates of the MSWMA Source Reduction and Recycling Element (Plan). MSWMA will reimburse DOT for its cost to provide the Plan updates at the rate DOT pays or charges for similar services. ii. The County of Mendocino, Department of Transportation, possessing all the necessary resources,has committed to provide all required updates of the MSWMA Household Hazardous Waste Element (Plan).MSWMA will reimburse DOT for its cost to provide the Plan updates at the rate DOT pays or charges for similar services. iii. (7) perform the duties of Secretary to the Commission responsible for(1) the preparation of meeting notices and agendas in compliance with the Brown Act, (2) minutes of meetings and other documents requiring Commission approval and (3) act as the custodian of Commission records created after the Effective Date and secure documents existing prior to the Effective Date that can be reasonably located at the Facility. Preparation of minutes is contingent on the Commission adopting a Resolution Providing for Action Minutes, substantially in the form of the attached Attachment 3; (8) oversee the application for and administration of all routinely available CalRecycle Grants and other grants that will advance the MSWMA's purposes as stated in Section 1 of the JPA. (9) Within thirty(30) days of the Commencement Date in consultation with Contractor, City shall oversee the preparation of an inventory of all personal property, including equipment and vehicles owned by MSWMA and located at the Facility which shall be acknowledged in writing by City and Contractor to be complete. Within said thirty(30) days, the inventory shall be delivered to the Clerk of the Commission for presentation to the Commission at a regular or special meeting. The Commission shall review the inventory and the recommendations of the City and the Contractor and determine which items on the 4 inventory the Contractor is authorized to use in providing services under the services agreement between MSWMA and the Contractor and which items shall be declared surplus property and disposed of at the Direction of the General Manager. B. In its capacity as Treasurer, the City shall perform the duties of the Treasurer as set forth in Section 6 of the JPA. The Treasurer shall perform appropriate accounting, reporting, audit management, and other regular and customary financial services functions necessary for the prudent financial management of MSWMA. In the performance of those services,the City shall: (1) maintain appropriate accounting procedures and practices, in accordance with City of Ukiah Policy Resolution No. 39, Establishing Financial Management Policies for the City of Ukiah, Generally Accepted Accounting Principles (GAAP) and the policies of the Government Accounting Standards Board ("GASB"), including,but not limited to, budgeting, accounting, and treasury management (receipts, deposits, investments, and disbursements); (2) maintain records for all MSWMA transactions and accounts,which may include MSWMA fiduciary accounts established as part of the City's financial management system, and separately account for all funds received, disbursed or invested by the City in its capacity as Treasurer; (3) provide regular budgetary and financial reports to MSWMA and upon request of the Commission; (4) be the custodian of all MSWMA funds and perform custodial functions, including the deposit of MSWMA funds in and disbursement of such funds from bank accounts maintained by the City and invest surplus funds until needed in accordance with City Policy Resolution No. 39, crediting MSWMA with the return on those investments, whether positive or negative; (5) each Fiscal Year engage the same independent certified public accountant who audits the financial statements of the City,to perform an audit and report directly to the Commission on the financial statements of MSWMA. 5 C. City is a service provider. MSWMA shall be responsible for and for understanding the financial and other activities and information performed or related to the services provided by the City under this Agreement. The City is not performing these services as the MSWMA's agent but as a service provider and MSWMA agrees that the City does not assume a fiduciary duty to MSWMA in the performance of these financial and general services. 3. OTHER SERVICES. When mutually agreed by the Parties as documented in the minutes of the Commission, City will provide Other Services to MSWMA including, but not limited to, legal and other professional services. 4. COMPENSATION FOR SERVICES PROVIDED UNDER THIS AGREEMENT. A. Annual Compensation: The annual MSWMA budget proposed by the City and approved by the Commission shall include compensation to the City for the services provided under Section 2 of this Agreement. Within thirty (30) days after the end of each quarter of the Fiscal Year, MSWMA will remit twenty-five (25%) percent of the annual budgeted Compensation to the City and any additional amount needed if the budgeted amount is amended. B. Payment for Other Services: Unless a different rate is stipulated at the time Other Services are requested by the MSWMA, the City will charge MSWMA for staff services according to the City's Charge Out Rate Schedule which is updated annually, or at the same rate that it pays for such services to outside third parties. The City will bill for these services on a quarterly basis and payment for the services provided in that quarter is due no later than thirty (30) days after presentation of the invoice to MSWMA. The City will also be eligible for any dedicated administration reimbursements from awarded grants that are allowable expenses in the administration of activity delivery for the corresponding grant. 5. TERM. This Agreement shall commence on the Effective Date and remain in effect until terminated by either the Commission or the City. Termination shall occur not sooner than ninety (90) days after either Party gives written notice of termination. A different termination date may be established by agreement of the Parties. Upon termination of the Agreement by either Party, the City shall cooperate in the transition to another means of performing the services provided by 6 City under this Agreement. Upon the termination of this Agreement the City shall have no authority,responsibility or liability for MSWMA's continued operations. 6. NOTICES. Whenever notice or other communication is permitted or required by this agreement, it shall be deemed given when personally delivered or when received, if delivered by overnight courier or email, if receipt is acknowledged in writing, or 48 hours after it is deposited in the United States mail with proper first- class postage affixed thereto and addressed as follows: To City: City of Ukiah Attention: Sage Sangiacomo, City Manager 300 Seminary Ave. Ukiah,CA 95482 Email: Attention: City Manager To MSWMA: Mendocino Solid Waste Management Authority Attention: Chairperson of the Board 3200 Taylor Dr,Ukiah, CA Ukiah, CA 95482 Email: Attention: Commission Chair A Party may change the address and email address to which notices shall be sent by giving notice of the change as provided herein. 7. SEVERABILITY. Should any part, term, portion, or provision of this Agreement or the application thereof of any person or circumstances,be in conflict with any State or Federal law, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms, portions or provisions, or the application thereof to other persons or circumstances, shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to continue to constitute the Agreement that the parties intended to enter into in the first instance. 8. HOLD HARMLESS AND INDEMNITY. MSWMA agrees to defend, indemnify, and save the City harmless from and against any and all claims, liability, damages or costs arising out of the decisions or directives of the Commission. The City agrees to indemnify and defend MSWMA from and against 7 any claims, liability, damages or costs caused by the grossly negligent acts, errors, omissions or willful misconduct of its officers or employees in performing pursuant to this Agreement,but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by the City's officers, employees, or agents. Each Party hereby agrees to defend itself from any claim, action or proceeding by third parties arising out of the acts or omissions of its officers or employees. In such cases, each Party agrees to retain its own legal counsel,bear its own defense costs, and waive its right to seek reimbursement of such costs. Notwithstanding the above, where a trial verdict or arbitration award allocates or determines the comparative fault of the Parties, the Parties may seek reimbursement and/or reallocation of defense costs, settlement payments,judgments and awards, consistent with said comparative fault. As required by Section 9 herein, the Parties are responsible to provide workers compensation insurance for injuries sustained in the normal course and scope of their respective employees' performance of services. The Parties waive any right of subrogation against each other for any and all losses sustained by the Parties, subject to such workers compensation coverage. For purposes of this section,the terms "employee" or"employees" shall refer to and include employees, officers, agents, representatives, subcontractors or volunteers. Notwithstanding the foregoing, no employee, officer, agent, representative, subcontractor or volunteer of any Party shall be considered an"employee"of the other Party for purposes of indemnification. 9. INSURANCE Each Party shall be responsible for maintaining a program of insurance that shall cover each Party's indemnification obligations. Without in any way affecting the indemnity herein provided and in addition thereto, each Party shall secure and maintain throughout the Agreement the following types of insurance, including coverage through a pooled risk joint powers agency with limits as shown. A. Workers' Compensation: If the Party has employees, a program of Workers' Compensation Insurance or a state- approved self-insurance program in an amount and form to meet all 8 applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons providing services on behalf of each Party and all risks to such persons under this Agreement. B. Comprehensive General and Automobile Liability Insurance: This coverage is to include contractual coverage and automobile liability coverage for owned, hired, and non-owned vehicles. The policy or self-insurance shall have combined single limits for bodily injury and property damage of not less than two million dollars ($2,000,000.00). C. Additional Named Insured: All policies, and/or memoranda of coverage, except Workers' Compensation, shall contain additional endorsements naming each Party and its officers, employees, agents and volunteers as additional named insured with respect to liabilities arising out of each Party's performance hereunder. D. Policies Primary and non-Contributory: All policies required above are to be the primary and non-contributory with any insurance or self-insurance carried or administered by each Party. 10. INDEPENDENT CONTRACTOR. It is the express intention of the Parties that City is an independent contractor and not an employee,joint venturer, or partner of MSWMA for any purpose whatsoever. MSWMA shall have no right to and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by City under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. Those provisions of this Agreement that reserve ultimate authority in MSWMA have been inserted solely to achieve compliance with federal and state laws,rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between City and MSWMA. City shall pay all estimated and actual federal and state taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance,unemployment insurance and any other benefits required by law for its 9 employees. City agrees to indemnify and hold MSWMA and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due but not paid by City, including the legal costs associated with defending against any audit, claim, demand or lawsuit. 11. MEDIATION. Should any dispute arise out of this Agreement, any Party may request that it be submitted to mediation. The Parties shall meet in mediation within 30 days of a request, unless they mutually agree to a longer period. The mediator shall be agreed to by the Parties; in the absence of an agreement, the Parties shall each submit one name from mediators listed by an agreed-upon service or the Parties themselves. The mediator shall be selected by a mutually agreed random selection process. The cost of mediation shall be borne equally by the Parties. No Party shall be deemed the prevailing party. No Party shall be permitted to file a legal action without first meeting in mediation and making a good-faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall not last more than 60 days, unless the 60-day period is extended in writing by the Parties. If a dispute is not resolved by mediation, a Party may pursue litigation in California state courts in compliance with all applicable state laws. 12. ASSIGNMENUDELEGATION. Neither party hereto shall assign, sublet,or transfer any interest in this Agreement or any duty hereunder without written consent of the other, and no assignment shall be of any force or effect whatsoever unless and until the other party shall have so consented. 13. NO THIRD-PARTY BENEFICIARIES. This Agreement is only for the benefit of the Parties as local governmental entities and shall not be construed as or deemed to operate as an agreement for the benefit of any third party or parties, and no third party or parties shall have any standing or right to interpret, enforce or state any cause of action arising under or pertaining to this Agreement, or obtain any right to benefits or position of any kind under the terms of this Agreement. 14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 15. ENTIRE AGREEMENT. This document is intended both as the final expression of the Agreement between the parties hereto with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. This Agreement may be transmitted electronically and executed in 10 counterparts, each such executed electronic copy of which shall constitute an original admissible for any purpose and in any judicial or administrative proceeding as evidence of the agreement between the Parities. . 16. AMENDMENTS. This Agreement may be amended from time to time only by written agreement between the parties signed by an authorized representative of each party. Either party may at any time request that the service or other provisions in this Agreement be modified by delivering written notice of its requested modifications to the other party. Within thirty(30) days after receipt of any such request, the parties shall meet and negotiate in good faith on adopting such requested modifications, including, without limitation, any change to the Rates necessitated by such modifications, provided that nothing herein shall obligate either party to agree on any such requested modifications. 17. WAIVER. Failure of any Party to insist upon strict performance of any of the terms, conditions or covenants in this Agreement will not be deemed a waiver of any right or remedy that Party may have and will not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions or covenants contained in this Agreement, nor will it constitute a precedent for interpretation of this Agreement. 18. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent,by any court of competent jurisdiction, the remainder to this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. MENDOCINO SOLID WASTE MANAGEMENT AUTHORITY By. -l= hairperson, Board of Commissioners CITY OF UKIAH Sage Sangiacomo, City Manager 11 ATTEST: .�_�.�. Kristine Lawler(Jun 29,202313:25 PDT) Kristine Lawler, City Clerk 12