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- REQUEST FOR COUNCIL ACTION
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CITY OF SAN BERNARDINO
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From: :lanu2-j P. i,',or~n0, tlr.
Subject:
Resolution of the City of San
Bernardino amending the Source
Reduction & Recycling Planning
Agreement Memorandum of Under-
standing,
Dept: Publ i c Servi ces
Date: 08/14/92
Synopsis of Previous Council action:
1) Adopted the original Source reduction and Recycling Planning
Agreement Memorandum of Understanding on August 7, 1990,
2) Adopted Resolution No. 91-455 on November 6, 1991, amending
the Source Reduction and Recycling Planning Agreement Memorandum
of Understanding to allow the City of Rialto to amend the pro-
fessional services contract with EMCON Associates to cover
additional services required by the East Valley Coalition and
to meet the require~ents of state law.
Recommended motion:
Adopt ~esol uti on
ffl~r:~t
Contact person:
i\ e vi n Bar n e s, Ref use Superintendent
Phone:
3R4-~nq
Supporting data attached: S t a f f R e p 0 r t, Res 01 uti 0 n
Ward: All
FUNDING REQUIREMENTS:
Amount: Nod ire c t co s t s fro m G e n era 1 Fun d
Source: (Acct. No.1
(Aeet. DescriPtion)
Finance:
Council Notes:
Aaenda Item No.
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CITY OF SAN BERNARDINO -
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REQUEST FOR COUNCIL ACTION
STAFF REPORT
This resolution is to make final amendment to the East Valley
Coalition's Source Reduction and Recycling planning Agreement
M.O,U, The M.O,U. is to be amended to add $28,000 as final payment
for contractual services and to close the contract.
The East Valley Coalition's consultant, EMCON and Associates,
originally based the contract cost on one CEQA document to be used
for each of the nine agencies in adoption of their SRREs. Due to
changes in the state law during the project, however, individual
CEQA documents were required. The $28,000 increase is to cover
additional work so created,
The cost of the contract, and this increase, is paid for through
the City of Rialto as lead agency, from a $1,00 per ton landfill
tipping fee surcharge collected by the County Solid Waste
Management Department from July 1990 to July 1992,
Approval of this resolution is recommended in order to complete the
project.
c
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C I T Y 0 F SAN B ERN A R DIN 0
INTEROFFICE MEMORANDUM
TO:
Mayor and Council Members
FROM:
James F. Penman, City Attorney
DATE:
September 3, 1992
RE:
Resolution Amending the Source Reduction
and Recycling Planning Agreement Between
Rialto (Lead Agency) and EMCON
I request that this item go on the Agenda without the approval
of this office as to form and content because this item may violate
Article XI, Section lO(a), of the State Constitution. That section
bars payment to a contractor of extra compensation after service
has been rendered and a contract entered into and performed.
It appears that EM CON may have "low-balled" the bid, saying
they were going to do the EIR's for all ten cities as one EIR when
they knew, or should have known, that such an EIRWould not
suffice, and a separate one would be needed for each city.
Moreover, EMCON was obligated to do the work by the terms of
the contract for the amount agreed upon, and the contract does not
allow for additional compensation.
The County and all other cities have approved the Amendment,
and I do not wish to hold it up. However, I cannot in good
conscience sign off on this without some facts being presented that
demonstrate that it was an unforeseen error and that EMCON did not
simply put in a bid for less than they knew it would cost to
perform the services, planning to ask later for additional
compensation in violation of Article XI, Section lO(a) of the State
Constitution.
We will try to get a response from the City of Rialto on this
issue prior to the September 8, 1992, Council Meeting,
I have attached a copy of Mr. Morillo's memorandum further
explaining the issue for your review,
Respectfully,
'1
JFP/bg [EMCON.Mem]
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C I T Y
o F SAN B ERN A R DIN 0
INTEROFFICE MEMORANDUM
TO:
James F. Penman
City Attorney
FROM:
Richard J, Morillo
Sr. A~sistant City Attorney
DATE:
August 31, 1992
RE:
Proposed Amendment to MOU Between City of Ria1to
(acting for the "East Valley Coalition") and
EMCON Associates
EMCON Associates is an environmental engineering company which
contracted with the Cities of San Bernardino, Rial to, Colton,
Fontana, Grand Terrace, Highland, Lorna Linda, Red1ands and Yucaipa
and the County to perform the waste stream reduction studies
required by AB 939. The City of Rial to agreed to act as lead
agency and formally entered into a written agreement with EMCON for
these services in August, 1990. All funds for the agreement came
from a $1.00 per ton surcharge collected by the County on landfill
tipping charges.
The original contract called for payment to EMCON in an amount
not to exceed $220,000,00. This consisted of three "tasks," as
follows:
Task
Amount
1.
Waste Generation Study and
Preparation of SRRE
Total
$177,000
37,000
6,000
$220,000
2,
Additional Services
3.
Environmental Document
(Note: "SRRE" stands for Source Reduction and Recycling Element,
the key planning document required by AB 939.)
The "additional services" task appears to have been intended
as a contingency fund to cover additional services not contemplated
in the scope of services. Under "environmental document," EMCON
anticipated doing an initial study for $5,000 and a single negative
declaration for $1,000,00,
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TO:
FROM:
DATE:
RE:
James F, Penman, City Attorney
Richard J. Morillo, Sr, Assistant City Attorney
August 31, 1992
Proposed Amendment to MOU Between City of Rialto
(acting for the "East Valley Coalition") and
EMCON Associates Page 2
In November, 1991, the Mayor and Council approved (by
Resolution No. 91-445) an amendment to the MOU which provided for
payment of an additional $71,200 to EMCON, This was justified by
the adoption of state regulations which required preparation of a
separate Household Hazardous Waste Element ("HHWE") in addition to
the SRRE, and because the consultant believed the Cities' requests
for meetings had exhausted the "additional services" budget in the
original MOU.
In January of this year, EMCON approached Rialto and asked for
an additional $28,000 to complete the contract. This time, EMCON
justified the request by noting that it had to prepare separate
environmental documents for each city rather than the single
negative declaration it originally thought would suffice, EMCON
also said that it spent more time than anticipated responding to
the state's comments to the SRRE's,
Rialto, not wanting to risk missing a state-mandated deadline
for completing the SRRE's, has paid EMCON the additional $28,000
and is seeking reimbursement out of the County-held fund,
According to Michelle Bancroft, the Rialto employee who has
coordinated the project, all of the other cities and the County
have approved the MOU amendment, but the County will not release
the funds unless all cities approve.
My concern about this request is that it comes perilously
close to violating Article XI, ~lO(a) of the state constitution,
which provides:
"A local government body may not grant extra
compensation or extra allowance to a public officer,
public employee, or contractor after service has been
rendered and a contract has been entered into and
performed in whole or in part, or pay a claim under an
agreement made without authority of the law,"
Here, EMCON had pretty much completed performance of its
contract when it sought additional compensation because the amount
of work turned out to be more than it bargained for. While there
could have been a provision in the MOU requiring the cities to pay
for additional services not mentioned in the scope of work, no such
provision is to be found in the EMCON MOU, Similarly, EMCON could
have come to the cities before doing the additional CEQA work and
requested an amendment expanding the scope of work, By waiting
until after it had completed the additional work to request more
money, EMCON has placed its public agency clients in a difficult
1__<.-1-
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TO:
FROM:
DATE:
RE:
James F. Penman, City Attorney
Richard J. Morillo, Sr. Assistant City Attorney
August 31, 1992
Proposed Amendment to MOU Between City of Rialto
(acting for the "East Valley Coalition") and
EMCON Associates Page 3
position.
deadlines
exception
Perhaps the pressure to
made this infeasible, but
to Article XI, ~lO(a),
meet
there
the
is
state-mandated
no II emergency"
An argument might be made that EMCON should not bear a loss
caused by necessary charges in the scope of work that resulted from
new legal requirements coming out of Sacramento, The cities, as
much as EMCON, should have known that a single negative declaration
would not be legally adequate, and hence the cities should be able
to compensate EMCON for all work that was legally required to
satisfy CEQA. It also seems wrong not to reimburse Rialto for the
$28,000 it has paid to EMCON, when it appears the payment was made
only to ensure all work would be completed in time to meet a state-
mandated deadline.
This concludes my comments.
any questions.
Please let me know if you have
RJM:ms[emcon,mem)
cc: Dennis A. Barlow
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RESOLUTION NO.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
1 BERNARDINO, CALIFORNIA, AMENDING THE SOURCE REDUCTION AND RECYCLING
2 PLANNING AGREEMENT MEMORANDUM OF UNDERSTANDING ALLOWING THE CITY OF
RIALTO TO AMEND THE PROFESSIONAL SERVICES CONTRACT WITH EMCON
3 ASSOCIATES TO COVER ADDITIONAL SERVICES REQUIRED BY THE EAST VALLEY
COALITION AND TO MEET THE REQUIREMENTS OF STATE LAW.
4
5 mandated by Assembly Bill 939
6
WHEREAS,
jurisdictions within the
state of
California
are
(Chapter 1095)
and the state of
California to prepare
a Source
Reduction and Recycling Element
7 (SRRE) and a Household Hazardous Waste Element (HHWE); and,
8 WHEREAS, the city of San Bernardino has joined together with
9 other jurisdictions in the East San Bernardino Valley area to form
10 the East Valley Coalition with the city of Rialto acting as lead
11 agency on its behalf; and,
12 WHEREAS, the East Valley Coalition, through the competitive bid
13 process, chose EMCON Associates as the consultant to prepare the
14 SRRE and HHWE for the participating jurisdictions; and,
15 WHEREAS, there have been significant changes in the laws and
16 regulations governing the SRRE and HHWE which have affected the time
17 line and costs for the planning and preparation of these elements;
18 and,
19 WHEREAS, EMCON Associates has submitted a closing statement to
20 the City of Rialto for $28,000 after completing the project; and,
21 WHEREAS, the funding for this project has already been
22 collected by the county of San Bernardino Solid Waste Management
23 Department as a $1,00 per ton surcharge on landfill tipping fees,
24 NOW, THEREFORE, the Mayor and Common Council of the City of San
25 Bernardino does hereby pass, approve and adopt this resolution
26 amending the Source Reduction and Recycling Planning Agreement
27
August 14, 1992
1
28
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Memorandum of Understanding by adding an additional $28,000 to the
1 professional
2 requested by
3 requirements
4 1111
5 II I I
6 II I I
7 I II I
8 II I I
9 I II I
10 1111
11 I II I
12 II I I
13 I II I
14 1111
15 IIII
16 I II I
17 II I I
18 II I I
19 I II I
20 I I II
21 IIII
22 I I II
23 I I II
24 1111
25 II I I
26 1111
services contract to cover consulting services
the East Valley Coalition and to meet the additional
of state law and to close the contract.
27
28
August 18, 1992
2
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1
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN'
BERNARDINO, CALIFORNIA, AMENDING THE SOURCE REDUCTION AND RECYCLING
1 PLANNING AGREEMENT MEMORANDUM OF UNDERSTANDING ALLOWING THE CITY OF
RIALTO TO AMEND THE PROFESSIONAL SERVICES CONTRACT WITH EMCON
2 ASSOCIATES TO COVER ADDITIONAL SERVICES REQUIRED BY THE EAST VALLEY
COALITION AND TO MEET THE REQUIREMENTS OF STATE LAW.
,
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3
I HEREBY CERTIFY that the foregoing resolution was duly adopted
4 by the Mayor and Common Council of the City of San Bernardino at a
5 meeting thereof, held on the day of
6 1992, by the following vote, to wit:
7 Council Members: Aves Navs Abstain Absent
8 ESTRADA
9 REILLY
10 HERNANDEZ
11 MAUDSLEY
12 MINOR
13 POPE-LUDLAM
14 MILLER
15
16
17
18
city Clerk
The foregoing resolution is hereby approved this
, 1992,
day of
19
20
21 Approved as to form and
22 legal content:
James F. Penman,
23 City Attorney
24
25 By:
26
27 3
August 14, 1992
28
w. R. Holcomb, Mayor
City of San Bernardino