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HomeMy WebLinkAbout22-Public Services _1_________ . ,~ , -- - REQUEST FOR COUNCIL ACTION C CITY OF SAN BERNARDINO ~ 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. <II>> .~ "-' CITY OF SAN BERNARDINO - ........., - 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 ........ , 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] f"""'" V ~ 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, t"""\ V '-, 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- - ("""\ V .-, 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 ,.___-J_ -- ( \..,..I - RESOLUTION NO. . 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 ~ ~ ......... -", ,~ 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 . " " '"' 1 o 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. , .... 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