10-20-2020 - AGENDA ITEM 15 CONSIDERATION OF RESOLUTION 2020-104 CONFIRMING A WASTE MANAGEMENT AGENCY AND DESIGNATING A LOCAL ENFORCEMENT AGENCY FOR ENFORCEMENT OF A SOLID WASTE1/25/2021
Print Staff Report
AGENDA ITEM NO. 15
DATE: October 20, 2020
TO: Mayor and City Council
FROM: David Carmany
City Manager
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
SUBJECT: CONSIDERATION OF RESOLUTION 2020-104 CONFIRMING A WASTE
MANAGEMENT AGENCY AND DESIGNATING A LOCAL ENFORCEMENT AGENCY
FOR ENFORCEMENT OF A SOLID WASTE MANAGEMENT PROGRAM
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Adopt a resolution confirming a Waste Management Enforcement Agency and designating a Local
Enforcement Agency (Attachment No. 1):
RESOLUTION NO.2020-104 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA, CONFIRMING A WASTE MANAGEMENT ENFORCEMENT
AGENCY AS A DIVISION OF THE FIRE DEPARTMENT AND DESIGNATING A LOCAL
ENFORCEMENT AGENCY FOR ENFORCEMENT OF A SOLID WASTE MANAGEMENT
PROGRAM IN THE CITY OF WEST COVINA, and
2. Authorize the City Manager to negotiate and execute a Professional Services Agreement between the
City of West Covina and Rincon Environmental, LLC for Local Enforcement Agency (LEA) services.
BACKGROUND:
On April 7, 1992, the City Council adopted Resolution No. 8807 creating a Waste Management Enforcement
Agency (WMEA) and designating the City as the Local Enforcement Agency (LEA). On July 29, 1992, the
California Integrated Waste Management Board (predecessor agency to the Department of Resources
Recycling and Recovery - CalRecycle) approved the City of West Covina Enforcement Program Plan and the
City's designation as the LEA. Over the following decades the City undertook a series of reorganizations and
the WMEA responsibilities were shifted, but the original resolution was not correspondingly amended.
On February 27, 2020, the City received a Notice of Intent to Decertify the LEA for the City of West Covina
from CalRecycle (Attachment No. 2). The Notice cited three primary concerns:
The LEAS failure to exercise appropriate oversight of BKK regarding the Post Closure Maintenance
Plan;
2. The LEAS failure to maintain proper certifications; and
3. The LEAS conflict -of -interest due to a departmental reorganization.
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Landfill's closure: "The difference between the historic permit boundary for the
583-acre site and the current BKK parcel ownership of 424 acres is an
administrative issue ... [and] BKK does not propose to allocate postclosure funds
to address the administrative issue of the permit boundary." (Emphasis added.)
These statements suggest that, according to BKK, the permit's inclusion of the
parcels outside of the waste footprint but within the permitted boundary are an
"administrative issue" and thus'not worthy of pursuit. CalRecycle thereafter
advised BKK in the March 25, 2019, PCMP Update Comment letter (which, as
all such letters, was copied to the LEA) that CalRecycle rejected this argument.
These statements by BKK took on critical significance to CalRecycle when the
LEA made the following assertion: "The LEA agrees with BKK that the boundary
issue between the historic 583-acre permit boundary and the current 424-acre
BKK ownership boundary is an administrative issue." (Letter from LEA
contractor TRC Solutions to BKK, Nov. 30, 2018.) While it is not clear what BKK
or the LEA means by "administrative issue," it appears from the LEA's statement
that the LEA has adopted the position that the LEA's jurisdictional authority to
enforce solid waste law over portions of the permitted boundary of the Landfill
outside of the waste footprint was vitiated upon the Landfill's closure. Such a
position is a serious abrogation of the LEA's obligations and undercuts state
solid waste law.
At the October 16, 2019, meeting, CalRecycle staff impressed this point upon
the City representatives. CalRecycle staff explained the basic tenets of the
permitting structure that forms the foundation of solid waste law in California.
Particularly relevant here are the requirements that solid waste facilities have a
long-term "buffer zone" between the edge of the waste footprint and the facility
boundary delineated in the permit, and also that owners and operators of solid
waste facilities bear the burden of maintaining the facility during its postclosure
period. These requirements are critical for the continued protection of public
health, safety, and the environment.
In the case of the BKK Sanitary Landfill, the owners/operators are responsible
for the ongoing maintenance of the Landfill during its postclosure period. The
Landfill consists of the waste footprint as well as the "buffer zone," which, when
combined, forms the 583-acre permitted boundary of the Landfill. As you should
be aware, the existence of this "buffer zone' is critical because it is meant to
ensure that any explosive methane gases being generated as the waste
decomposes can be controlled prior to reaching the Landfill boundary. And, in
addition to the operator, all parties that own parcels within the permitted
boundary of the Landfill are subject to the jurisdiction of the LEA so that the LEA
can oversee the institutional controls for landfill gas and enforce against any
such parties if there is noncompliance with the permit and solid waste laws.
Accordingly, unless and until the permitted boundary of the Landfill is revised, all
parties that own parcels with the 583-acre permitted boundary are subject to the
enforcement jurisdiction of the LEA. And, as discussed above, the Landfill
boundary cannot be changed until it is clear that the boundary change will not
compromise the effectiveness of the landfill gas subsurface migration system.
This means the operator must be able to demonstrate the monitoring system
can be fully effective and functional. As this has not happened, the 583-acre
landfill boundary continues to constitute the boundary of the Landfill subject to
enforcement oversight by the LEA.
After the foregoing was explained to City representatives at the October 16,
2019, meeting, CalRecycle staff and the City representatives agreed to a
schedule whereby, among other things, the City would clarify its position on the
issue of the LEA's jurisdictional authority to enforce solid waste law over the
portions of the Landfill's permitted boundary outside of the waste footprint during
postclosure.
However, when the City submitted documents to CalRecycle on December 31,
2019 and February 26, 2020, to address the deficiencies discussed at the
October 16, 2019 meeting, those documents included the following statement:
The BKK Sanitary Landfill Solid Waste Facility Permit (SWFP) No.
19-AF-0001 dated April 27, 1979 expired as of the landfill closure to
receipt of waste on September 14, 1996. (Emphasis added.)
By this statement, it appears that the City has nevertheless determined to
maintain the position that the LEA's jurisdictional authority to enforce solid waste
law over the portions of the Landfill's permitted boundary out of the waste
footprint vitiated upon closure. For the forestated reasons, such a position
cannot stand.
The City's Failure to Maintain its LEA Certification
The secondary reason for the October 16, 2019, meeting was to address the
ongoing failure of the City to maintain its LEA certification requirements. Most
recently, the LEA has failed to demonstrate that there is no conflict of interest
between LEA oversight and BKK operational activities. In addition, the LEA has
not been meeting other certification requirements and benchmarks required by
the LEA's October 4, 2018 Evaluation Workplan.
In response to the October 16, 2019, meeting with CalRecycle, the City
requested the option to submit a Designation Information Package (DIP) and an
updated Enforcement Program Plan (EPP). CalRecycle provided task
milestones and a due date of November 21, 2019 (this date was based on the
LEA's next EPP due date). This date was extended to December 31, 2019, and
again to February 26, 2020. The City submitted documents on November 27,
2019, December 31, 2019, and February 26, 2020. These documents were
intended to update the LEA's EPP and bring the LEA into compliance with its
certification requirements. Nevertheless, and even after back and forth
communications with CalRecycle staff, the City was not able to demonstrate that
it has resolved its outstanding certification requirements.
Conflict of Interest
Where a local jurisdiction has a department that is the "operating unit" 2 for a
solid waste facility, whether currently operating or closed, it must house its
enforcement agency in a separate department in order to avoid a conflict of
interest:
No local governmental department or agency, or any employee
thereof; which is the operating unit for a solid waste handling or
disposal operation shall be the enforcement agency, or an
employee thereof, for the types of solid waste handling or disposal
operation it conducts unless authorized by the board to act in that
capacity.
(Pub. Resource Code, § 43207.)
This provision is meant to ensure the same department responsible for
operations or contracts for operations over a solid waste facility is not also
responsible for enforcement activities over its actions as operator. Typically, this
provision is satisfied with an organizational chart in the EPP that clearly shows
the separation between operations and enforcement.
In the documents the City submitted to CalRecycle on December 31, 2019 and
February 26, 2020, the City states that it has designated the Community
Development Division as the LEA and the Community Development Director,
Jeff Anderson, will be the LEA Program Manager and oversee the contract with
TRC Solutions, the contractor providing the LEA services (TRC Contract).
Nevertheless, the TRC Contract states that TRC Solutions will meet the
following needs:
The City took over remedial operations from BKK Corporation in
October 2004 providing oversight on remediation and closure
activities. Under the City and the Successor Agency to the
Redevelopment Agency oversight, the former landfill is being
transformed to support 360,000 square feet of commercial property,
2 ""Operating unit" means a local agency within the jurisdiction of the designating local governing body
that operates, causes to operate, or administers contracts or agreements for any portion of a facility or
solid waste handling and disposal system." (Cal. Code Regs., tit. 14, § 18011, subd. (a)(17).)
an 18-hole golf course, and a 47-acre natural habitat preserve....
The City and Successor Agency are seeking professional services
in support of monitoring on -going operation and maintenance
(O&M) activity at the landfill to insure [sic] human health and safety
as development and expansion of new public use continues.
The contract goes on to state that TRC Solutions will serve both as LEA and as
consultant to the Successor Agency in its development oversight of the BKK
Sanitary Landfill site. According to the City's public webpage, the Successor
Agency is also housed in the Community Development Division under Jeff
Anderson.
The documents submitted by the City on December 31, 2019, also included a
contract with Rincon Environmental, LLC and the Successor Agency (Rincon
Contract) for "LEA environmental consulting and oversight inspection services to
the [Successor] Agency with respect to the BKK landfill Site." Publicly available
information also suggests that the Successor Agency manage or administers
contracts or agreements relative to parcels within the Landfill boundary. The
February 26, 2020 document submittal did not include the Rincon Contract and
included a notation on the DIP checklist that "Steve Samaniego & Rincon do not
perform LEA duties for the City of West Covina." Nevertheless, CalRecycle has
received no information to suggest that the Rincon Contract has been amended
or voided. Merely removing it from the document submittal does not change the
contract's terms. And, as shown herein, cancelation or amendment of the
Rincon Contract alone does not alleviate the LEA's apparent conflict of interest
issues.
The documents submitted on February 26, 2020, also amend the City's
organizational chart to move Landfill Operations (under Mitch Kaplan of BKK)
into the Community Development Department under Community Development
Director, Jeff Anderson, who, as the organization charts states, is also the LEA
Program Manager. This appears to mean that the LEA, the Successor Agency,
and Landfill Operations are not only all housed in the same department, but also
report to the same person. The accompanying draft resolution does not repair
this apparent conflict of interest. As stated above, the department responsible
for operations cannot also be responsible for enforcement.
In addition to the documents submitted to CalRecycle by the City, CalRecycle
has received additional information that suggest a conflict of interest. Inspection
reports submitted to CalRecycle include statements that make it appear the LEA
is acting on behalf of the BKK owner/operator by taking actions related to
recommendations from CalRecycle's May 2017 investigation report.3 Further, in
the EA30 grant application submitted to CalRecycle, the grant application
stated: "As the Local Enforcement Agency (LEA) for the BKK Class III Landfill,
the City of West Covina intends to use the FY 2019-2020 funds to conduct
vapor probe inspections, evaluate conditions of existing perimeter vapor probes,
replace existing vapor probes with new probes, and install additional fencing for
site security to prevent trespassers from entering landfill without approval."
Actions like installing probes and security fencing appear to be related to site
maintenance rather than LEA oversight activities, and LEA grant funds are only
available for LEA activities.
As discussed in the previous 'section, the LEA has jurisdictional authority over all
owners and operators of the BKK Sanitary Landfill, including those who own
property within the "buffer zone" of the permitted boundary. The Community
Development Department houses the Successor Agency, the LEA, and Landfill
Operations, as well as the TRC Contract and Rincon Contract, both of which
appear to contain scopes of work related to the maintenance and development
of the BKK Sanitary Landfill site as well as LEA oversight activities. The
contracts and agreements for development of the Landfill site as well as Landfill
maintenance activities appear to make the Community Development
Department the operating unit for the Landfill, which means the LEA cannot also
be housed in the Community Development Department. Further, the contractor
providing LEA services cannot also perform maintenance and operational duties
for the Landfill the LEA is overseeing, which is what is stated in the TRC
Contract and suggested in the EA30 grant and inspection reports prepared by
TRC Solutions.
Failure to Meet Other Reauirements
In addition to the foregoing, the LEA has a history of noncompliance with
certification requirements. The LEA has failed to provide the formal
documentation necessary to meet EPP certification in 2018 and 2019. As a
result of findings in the City s last LEA Evaluation, a formal Evaluation Workplan
to correct deficiencies was approved in October 2018. The LEA has missed
several key milestones required by the Workplan. Specifically, the LEA has not
compelled the owner/operator of the BKK Sanitary Landfill to take actions
related to landfill gas monitoring probe investigation statuses; the LEA continues
to cite "areas of concern" without increasing those citations to "violations" when
the areas of concern are repeatedly not corrected; and the LEA has not
consistently cited site security violations.
3 Viability and Integrity Assessment of Landfill Gas Compliance Wells BKK Landfill City of West Covina,
Los Angeles County Facility No. 19-AF-0001. Prepared by Gino Yekta, PE, REHS, Senior Waste
Management Engineer on May 31, 2017.
Additionally, in the documents submitted to CalRecycle on December 31, 2019
and February 26, 2020, the City states in the LEA time task analysis that the
total staff for the LEA constitute 0.23 FTE. LEAs are required to maintain at least
one or more full time staff members dedicated solely to solid waste and one of
these dedicated staff must be a registered environmental health specialist
(REHS). (Cal. Code Regs., tit. 14, § 18072, subd. (a).) The City's time task
analysis states that the contract REHS will work 20 hours per week if needed
and "will be hired on an as need [sic] basis depending on workload." As such,
the time task analysis does not meet LEA certification requirements for technical
resources.
Conclusion
Based on the foregoing, CalRecycle has determined that proceeding with
decertification of the LEA for the City is necessary for the protection of public
health, safety, and the environment.
If the City would like to avoid a decertification action, it may withdraw its LEA
designation by issuing a notice to CalRecycle as required by Title 14, section 18056 of
the CCR. CalRecycle must receive this notice by Monday, March 30, 2020. If
CalRecycle does not receive such notice by that date, it will begin decertification
proceedings, as required by Article 2.3, Chapter 5, Division 7 of Title 14 of the CCR.
This letter does not constitute a complete list of grounds for action over the LEA
as permitted by Article 2.3, Chapter 5, Division 7 of Title 14 of the CCR.
CalRecycle reserves the right to add any and all applicable grounds should it
pursue an action over the LEA.
Should you have any questions, you may contact Kate Nitta at (916) 341-6067.
Sincerely,
pv(�— vft'�
Kathleen Nitta
Senior Staff Counsel
CC: Jeff Anderson
Community Development Director & LEA Program Manager,
City of West Covina
Michael Ackerman
City Engineer, City of West Covina
Kris Kazarian
BKK Corporation
Kelly P. McGregor
President, Tetra Tech BAS, agent for BKK Corporation
ATTACHMENT NO. 3
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A. HARLLEE BRANCH (SBN 215842)
Acting Chief Counsel
KATHLEEN NITTA (SBN 288606)
Senior Staff Counsel
DEPARTMENT OF RESOURCES RECYCLING & RECOVERY
1001 1 Street, 24th Floor
P.O. Box 4025
Sacramento, CA 95812-4025
Telephone: (916) 341-6067
Facsimile: (916) 319-7765
Email: kathleen.nitta@calrecycle.ca.gov
Attorneys for the DEPARTMENT OF RESOURCES RECYCLING & RECOVERY
ELIZABETH MARTYN (SBN 100856)
COLE HUBER
6401 Centerlake Drive, Suite 670
Ontario, CA 91761
Telephone: (949) 636-9737
Email: matrynlaw2000@aol.com
Special Counsel for CITY OF WEST COVINA
STATE OF CALIFORNIA
DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY
In the matter of: ) STIPULATION FOR CONTINUANCE OF
HEARING AND VROPOSIM ORDER
The Decertification of the Local
Enforcement Agency for the City of West)
Covina ) HEARING DATE: September 30, 2020
)
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As agreed with Hearing Officer Douglas Jensen by telephone conference on Monday,
September 14, 2020, the briefs in this matter will be due on September 23, 2020 by 5:00 p.m.
with the hearing on September 30, 2020, unless the Parties otherwise agree in a written
STIPULATION FOR CONTINUANCE OF HEARING AND [PROPOSED] ORDER
stipulation. After significant and ongoing discussions between the Parties, the Parties hereby
request that the September 30, 2020 hearing date be postponed, under the following terms
and timelines to which the parties hereby stipulate and agree:
With regard to Local Enforcement Agency (LEA) designation:
1. The City of West Covina will bring to its City Council a proposed Resolution, and
schedule that Resolution to be considered at the October 20, 2020 City Council meeting. That
Resolution shall properly designate a City department as LEA, and the Parties shall agree on
Resolution language prior to October 6, 2020. The designated department shall not be
affiliated with the Community Development Department, which currently houses, among other
divisions, the Community and Economic Division, which houses the West Covina Successor
Agency.
2. If the City Council passes the Resolution, the City will:
A. If a new division of the designated department is to carry out LEA
responsibilities, fully establish and staff the division, so that it is operational and
appears on public -facing documents and the City's official website; and
B. Update its Designation Information Package (DIP) and Enforcement
Program Plan (EPP) to make those documents compliant and consistent with the
aforementioned Resolution and submit these updates to the Department of
Resources Recycling and Recovery (Department) on or before October 26, 2020.
Specifically, the City will:
L Submit an organizational chart showing non -conflict of interest (i.e.,
no affiliation with the aforementioned department housing the West
Covina Successor Agency); and
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STIPULATION FOR CONTINUANCE OF HEARING AND [PROPOSED] ORDER
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ii. Submit a time task analysis showing at least one full time staff
person, one of which is an REHS.
3. The Department agrees to work with the City prior to its submittal of the updated
DIP and EPP and shall approve the updates by November 10, 2020, provided they meet
applicable statutory and regulatory requirements. This will allow the City to continue to
maintain a LEA through the pendency of these proceedings.
With regard to issues of LEA performance obligations:
1. The Parties shall diligently work to agree upon and resolve remaining issues
regarding LEA performance obligations. As of the date of this stipulation, the Parties have
identified the following issues for careful identification and potential resolution:
A. The Department's assertion that the LEA has yet to comply with the LEA.
Final Evaluation Workplan of October 4, 2018, with respect to compelling the
operator of the BKK landfill to address deficiencies in the landfill gas monitoring
system;
B. The Department's assertion that the LEA is not exercising its authority and
carrying out its obligation with respect to enforcement of violations of site security
standards, as set forth in the closure and postclosuremaintenance regulations;
and
C. The Department's assertion that the Closure Permit issued for the BKK
Landfill on June 15, 2020, was improperly issued, as it impermissibly includes
substantive change to aspects of the permit, which necessitated the permit
undergoing the permit modification process prior to issuance.
2. Any issues not identified here will be identified in writing prior to October 20,
2020 and agreed upon by the Parties.
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STIPULATION FOR CONTINUANCE OF HEARING AND [PROPOSED] ORDER
1 /25/2021
Print Staff Report
On March 4, 2020, the City terminated the contract with the LEA, and retained the services of Rincon
Environmental LLC and its President, Steve Samaniego as the new LEA. Mr. Samaniego is a former City
employee who served as LEA and helped oversee post -closure maintenance. He has over twenty years of
knowledge regarding BKK, and possesses the professional certification required to meet State standards.
On March 9, 2020, the City entered into a Legal Services Agreement with Cole Huber because one of the
partners, Elizabeth Martyn, served as the City Attorney for West Covina during the late 1980s until
2000 and participated in the City's efforts to close the BKK Landfill.
DISCUSSION:
Protecting public safety is one of the City's major goals. Regulatory compliance and positive intergovernmental
relations are essential and integral parts in achieving that goal. Since being retained in March, Mr. Samaniego
and Ms. Martyn have traveled to Sacramento with City staff to meet with CalRecycle to address the issues
raised in their February 27, 2020 Notice of Intent. Over the past six months Mr. Samaniego has worked to
update the Enforcement Program Plan (EPP), the Designated Information Plan (DIP). Concurrently, Ms.
Martyn worked with counsel for CalRecycle to reach a "Stipulation for Continuance of Hearing and Order"
(Attachment No. 3) to confirm the LEA and enter an 18-month probationary period provided the City meets the
following requirements:
1. Adopt a resolution clarifying the reporting structure for the LEA, and move the LEA under the Fire
Department, which is addressed by the resolution before the City Council (Attachment 3);
2. Update the EPP and DIP; and
3. Address other issues.
The Stipulation represents a significant step forward for the City and it assures local control over the former
Class III Landfill. The Resolution the City Council is being asked to adopt has been reviewed and approved by
CalRecycle staff and reaffirms the City's desire to serve as the Local Enforcement Agency. The duties of the
LEA will be carried out under a contract with Rincon Environmental and the LEA will be housed within the
Fire Department. This reporting structure addresses an issue identified by CalRecycle. Steve Samaniego is a
Registered Environmental Health Specialist (REHS #4589) as mandated by State law. Upon approval of the
Resolution by the City Council, the EPP and DIP will be amended accordingly.
Through the stipulation agreement, the City and CalRecycle have identified and agreed to mutually work
toward resolution of the issues regarding the Class III Landfill. The Stipulation confirms cooperation between
the City and CalRecycle. The City appreciates CalRecycle's willingness to address mutual issues of concern.
To effectuate the LEA Resolution and reach a cooperative agreement with CalRecycle, the existing
Professional Services Agreements with Rincon Environmental and Cole Huber need to be amended to extend
the term and increase the budget. Rincon's current Agreement is for $64,990 and extends through June 30,
2021. Cole Huber's current Agreement is for $29,990 with no term. Staff is recommending that the City enter
into a new Professional Services Agreement with Rincon Environmental at a total cost not to exceed $120,000
and a term through June 30, 2022, and terminate the existing Agreement (Attachment No. 4). Staff is also
recommending that the budget for Cole Huber be increased by $35,000 with no term. Funding has been
identified in the General Fund to pay these expenses.
Staff is also seeking approval to install a section of fence on City property that was removed several years ago
when the commercial pads were graded for Big League Dreams and the Heights Shopping Center. Staff is in
the process of securing three bids, and it is anticipated that the lowest bidder will be an amount not to exceed
$35,000. This expense will also be paid from the City's General Fund budget.
LEGAL REVIEW:
The City Attorney's Office has reviewed and approved the Professional Services Agreement as to form.
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3. The Parties shall make diligent efforts to identify and resolve all LEA
performance issues on or before November 10, 2020.
4. In the event the Parties are able to agree on a resolution of all issues the hearing
shall be postponed for a period of 18 months during which the LEA and Department will have
regular meetings to monitor the LEXs compliance with its LEA duties and obligations. The
Parties shall agree to the terms of this monitoring period on or before November 13, 2020.
5. As all conditions of this Stipulation shall be completed by November 13, 2020
(through resolution of issues and/or identification of unresolved issues), the Parties hereby
request that the Hearing Officer schedule a further pre -hearing conference within fourteen
days thereafter so that the Parties may provide an update and a new hearing date may be set
accordingly.
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STIPULATION FOR CONTINUANCE OF HEARING AND [PROPOSED] ORDER
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In accordance with the foregoing, if all deadlines are met and all issues have been
resolved to the Parties satisfaction, by November 13, 2020, the parties shall so stipulate
at the upcoming pre -hearing conference and request that the hearing be postponed for
a date to be set approximately 18 months thereafter. The Parties do hereby stipulate and
agree to the foregoing.
Date: 61 1 22 I U 2y
Kathleen Nitta
Attorney for the Department of
Resources Recycling and Recovery
Date: I �- a
Elizabe#Wartyn
Special Counsel for
City of West Covina
IT IS SO ORDERED. A prehearing conference is scheduled for December 2, 2020 at 10:00
am.
Date: 1 12 2- ) Za Z 0
Douglas Jensal
Hearing Officer
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STIPULATION FOR CONTINUANCE OF HEARING AND [PROPOSED] ORDER
ATTACHMENT NO. 4
CITY OF WEST COVINA
PROFESSIONAL SERVICES AGREEMENT
WITH
RINCON ENVIRONMENTAL LLC
FOR
LOCAL ENFORCEMENT AGENCY REGULATORY COMPLIANCE SERVICES
THIS AGREEMENT is made and entered into this 20th day of October, 2020 ("Effective
Date'), by and between the CITY OF WEST COVINA, a municipal corporation ("City"), and
RINCON ENVIRONMENTAL LLC, a California limited liability company.
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent
contractor to City to provide advice to the Waste Management Enforcement Agency (WMEA) as
the Local Enforcement Agency (LEA) as a division of the Fire Department, as more fully described
herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise
contemplated within California Government Code Section 37103, the provisions of the Pubic
Resources Code and 14 CCR, Division 7, Chapter 5, Article 2.2, and is certified as Registered
Environmental Health Specialist and holds all necessary licenses to practice and perform the
services herein contemplated, except that if Consultant is required to but does not yet hold a City
business license, it will promptly obtain a business license and will not provide services to the City
until it has done so. Furthermore, Consultant shall maintain all required licenses and certifications
for the duration of this Agreement; and
C. WHEREAS, City and Consultant desire to contract for the specific services
described in Exhibit "A" and desire to set forth their rights, duties and liabilities in connection with
the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the
provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described
in the Scope of Services attached hereto as Exhibit "A," incorporated herein by this reference.
Such services shall be available on a full-time basis.
1.2. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by
professional consultants in similar fields and circumstances in accordance with sound
professional practices. Consultant also warrants that it is familiar with all laws that may affect its
performance of this Agreement and shall advise City of any changes in any laws that may affect
Rincon Environmental LLC
Form Revised April 2020
Consultant's performance of this Agreement. Consultant shall keep itself informed of State and
Federal laws and regulations which in any manner affect those employed by it or in any way affect
the performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations. City officers and employees shall not be
liable at law or in equity for any claims or damages occurring as a result of failure of the Consultant
to comply with this section.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to
the reasonable satisfaction of the WMEA as the LEA as a division Fire Department in its
independent capacity. Evaluations of the work will be conducted by the Fire Chief or his/her
designee. If the quality of work is not satisfactory, the Fire Chief in his discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the
matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws, including,
but not limited to, those laws related to minimum hours and wages; occupational health and
safety; fair employment and employment practices; workers' compensation; and all other Federal,
State and local laws and ordinances applicable to the services required under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in,
nor permit its agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, age, physical or mental disability, medical condition,
genetic information, pregnancy, marital status, sex, gender, gender identity, gender expression,
sexual orientation, or military or veteran status, except as permitted pursuant to Section 12940 of
the Government Code.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services
contemplated by this Agreement.
1.7. Confidentiality. Employees of Consultant in the course of their duties may have
access to financial, accounting, statistical, and personnel data of private individuals and
employees of City. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data shall be
returned to City upon the termination of this Agreement. Consultant's covenant under this Section
shall survive the termination of this Agreement.
1.8. Public Records Act Disclosure. Consultant has been advised and is aware that
this Agreement and all reports, documents, information and data, including, but not limited to,
computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors,
pursuant to this Agreement and provided to City may be subject to public disclosure as required
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by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade
secrets, as that term is defined in California Government Code Section 6254.7, and of which
Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all
information obtained by it that is designated as a trade secret. The City shall not, in any way, be
liable or responsible for the disclosure of any trade secret including, without limitation, those
records so marked if disclosure is deemed to be required by law or by order of the court.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid a rate of One Hundred Sixty -Five Dollars
($165.00) per hour. Consultant's total compensation shall not exceed One Hundred Thousand
Dollars ($120,000.00).
2.2. Additional Services. Consultant shall not receive compensation for any services
provided outside the Scope of Services unless the City, prior to Consultant performing the
additional services, approves such additional services in writing. It is specifically understood that
oral requests and/or approvals of such additional services or additional compensation shall be
barred and are unenforceable. Should the City request in writing additional services that increase
the Scope of Services, an additional fee based upon the Consultant's standard hourly rates shall
be paid to the Consultant for such additional services. Such increase in additional fees shall be
limited to 25% of the total contract sum or to the maximum total contract amount of $25,000,
whichever is greater. The Department Head or City Manager is authorized to approve a Change
Order for such additional services.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a
progress basis, but no more often than once a month. Said invoice shall be based on the total of
all Consultant's services which have been completed to City's sole satisfaction. City shall pay
Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each
invoice shall describe in detail the services performed, the date of performance, and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City for inspection and/or audit at mutually convenient times from the Effective
Date until three (3) years after the termination or expiration of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. Unless otherwise agreed to by the
parties, the professional services to be performed pursuant to this Agreement shall commence
within five (5) days from the Effective Date of this Agreement. Failure to commence work in a
timely manner and/or diligently pursue work to completion may be grounds for termination of this
Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God, fire, strikes, pandemic or epidemic, material
shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond
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the reasonable control of a party. If a delay beyond the control of the Consultant is encountered,
a time extension may be mutually agreed upon in writing by the City and the Consultant. The
Consultant shall present documentation satisfactory to the City to substantiate any request for a
time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue
through June 30, 2022, unless previously terminated as provided herein or as otherwise agreed
to in writing by the parties.
a. Termination of Existing Agreement. The existing Professional Services
Agreement between the City of West Covina and Rincon Environmental LLC
entered into on March 4, 2020 and the First Amendmnet to the Agreement
dated July 31, 2020 are hereby terminated effective upon execution of this
Agreement.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing at least fifteen (15) days prior
written notice to Consultant. In the event of such termination, Consultant shall immediately stop
rendering services under this Agreement unless directed otherwise by the City. If the City
suspends, terminates or abandons a portion of this Agreement such suspension, termination or
abandonment shall not make void or invalidate the remainder of this Agreement.
If the Consultant defaults in the performance of any of the terms or conditions of this
Agreement, it shall have ten (10) days after service upon it of written notice of such default in
which to cure the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement, to terminate this Agreement without further notice and
without prejudice to any other remedy to which it may be entitled to at law, in equity, or under this
Agreement.
The City also shall have the right, notwithstanding any other provisions of this Agreement,
to terminate this Agreement, at its option and without prejudice to any other remedy to which it
may be entitled to at law, in equity, or under this Agreement, immediately upon service of written
notice of termination on the Consultant, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed
because of insolvency;
C. Make a general assignment for the benefit of creditors;
d. Default in the performance of any obligation or payment of any
indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record
for thirty (30) days or longer; or
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Institute or suffer to be instituted any procedures for reorganization or
rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and including
the effective date of the City's written notice of termination, within forty-five (45) days after the
effective date of the notice of termination or the final invoice of the Consultant, whichever occurs
last. Compensation for work in progress shall be prorated based on the percentage of work
completed as of the effective date of termination in accordance with the fees set forth herein.
4.4. Documents. In the event of termination of this Agreement, all documents prepared
by Consultant in its performance of this Agreement including, but not limited to, finished or
unfinished design, development and construction documents, data studies, drawings, maps and
reports, shall be delivered to the City within ten (10) days of the effective date of the notice of
termination, at no cost to City.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum scope
of insurance coverages with an insurance company authorized to do business in California, with
a current A.M. Best's rating of no less than A:VII, and approved by City:
(a) Broad -form commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than Two Million Dollars ($2,000,000.00),
combined single limits, per occurrence. If such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or shall
be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non -owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per accident for bodily injury and
property damage.
(c) As applicable, workers' compensation insurance as required by the State
of California, with Statutory Limits, and Employer's Liability Insurance with
a limit of no less than One Million Dollars ($1,000,000.00) per accident for
bodily injury or disease. Consultant agrees to waive, and to obtain
endorsements from its workers' compensation insurer waiving subrogation
rights under its workers' compensation insurance policy against the City,
its officers, agents, employees, and volunteers for losses arising from work
performed by Consultant for the City and to require each of its
subcontractors, if any, to do likewise under their workers' compensation
insurance policies.
By execution of this Agreement, the Consultant certifies as follows:
I am aware of, and will comply with, Section 3700 of the Labor
Code, requiring every employer to be insured against liability of
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Workers' Compensation or to undertake self-insurance before
commencing any of the work.
The Consultant shall also comply with Section 3800 of the Labor Code by
securing, paying for and maintaining in full force and effect for the duration
of this Agreement, complete Workers' Compensation Insurance, and shall
furnish a Certificate of Insurance to the City before execution of this
Agreement by the City. The City, its officers and employees shall not be
responsible for any claims in law or equity occasioned by failure of the
consultant to comply with this section. In the event the Consultant does not
have employees, Consultant shall provide a certification that so states.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence or claim, and Two Million Dollars ($2,000,000.00)
aggregate. Architects' and engineers' coverage shall be endorsed to
include contractual liability. If the policy is written as a "claims made" policy,
the retroactivity date shall be prior to the start of the work set forth herein.
Consultant shall obtain and maintain said E&O liability insurance during the
life of this Agreement and for five (5) years after completion of the work
hereunder. If coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the
effective date of this Agreement, Consultant shall purchase "extended
reporting" coverage for a minimum of five (5) years after completion of the
work.
If the Consultant maintains higher limits or has broader coverage than the minimums
shown above, the City requires and shall be entitled to all coverage, and to the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
5.2. Endorsements. The insurance policies are to contain, or be endorsed to contain,
the following provisions:
(a) Additional Insureds: The City of West Covina and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the Consultant pursuant to its contract with the City; products and
completed operations of the Consultant; premises owned, occupied or
used by the Consultant; automobiles owned, leased, hired, or borrowed by
the Consultant.
(b) Notice of Cancellation: Each insurance policy required above shall provide
that coverage shall not be canceled, except with notice to the City.
(c) Primary Coverage: The Consultant's insurance coverage shall be primary
insurance as respects the City of West Covina, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
West Covina shall be excess and not contributing with the insurance
provided by this policy.
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(d) Waiver of Subrogation: Consultant hereby grants to City a waiver of any
right to subrogation which any insurer of said Consultant may acquire
against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of
whether or not the City has received a waiver of subrogation endorsement
from the insurer.
(a) Coverage Not Affected: Any failure to comply with the reporting provisions
of the policies shall not affect coverage provided to the City of West Covina,
its officers, officials, agents, employees, and volunteers.
(f) Coverage Applies Separately: The Consultant's insurance shall apply
separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a
deductible or self -insured retention to provide such coverage, the amount of such deductible or
self -insured retention shall be approved in advance by City. The City may require the Consultant
to purchase coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention. The policy
language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied
by either the named insured or City.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and
content approved by City, prior to performing any services under this Agreement. The City
reserves the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way the
indemnification provision contained in this Agreement.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations, including, but not limited to, the Professional Services Agreement
between City and Consultant, dated March 4, 2020, as amended by the First Amendment to
Professional Services Agreement, dated July 31, 2020. This Agreement may be modified only in
writing, and signed by the parties in interest at the time of such modification.
6.2. Representatives. The City Manager or his or her designee shall be the
representative of City for purposes of this Agreement and may issue all consents, approvals,
directives and agreements on behalf of the City, called for by this Agreement, except as otherwise
expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Consultant called for by this Agreement, except as otherwise expressly provided in this
Agreement.
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6.3. Key Personnel. It is the intent of both parties to this Agreement that Consultant
shall make available the professional services of Steven Samaniego, who shall coordinate directly
with the WMEA.
6.4. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery, Email
or by U.S. mail. If by U.S. mail, it shall be addressed as set forth below and placed in a sealed
envelope, postage prepaid, and deposited in the United States Postal Service. Such
communication shall be deemed served or delivered: a) at the time of delivery if such
communication is sent by personal delivery; b) at the time of transmission if such communication
is sent by Email; and c) 72 hours after deposit in the U.S. Mail as reflected by the official U.S.
postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
Rincon Environmental LLC
City of West Covina
22505 Lark Spring Terrace
1444 West Garvey Ave. South
Diamond Bar, CA 91765
West Covina, CA 91790
Tel: (909) 964-2628
Tel: (626) 939-8401
Email: stevesamaniego@gmail.com
Email: dcarmany@westcovina.org
Attn: Steve Samaniego
Attn: David Carmany, City Manager
6.5. Attorneys' Fees. If litigation is brought by any party in connection with this
Agreement, each party shall be responsible for its own costs and expenses, including attorneys'
fees.
6.6. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Los
Angeles County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without
City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall
be void and shall constitute a breach of this Agreement and cause for termination of this
Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant
of Consultant's obligation to perform all other obligations to be performed by Consultant
hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify,
hold free and harmless the City, its elected and appointed officials, officers, agents and
employees, at Consultant's sole expense, from and against any and all claims, demands, actions,
suits or other legal proceedings brought against the City, its elected and appointed officials,
officers, agents and employees arising out of the performance of the Consultant, its employees,
and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The
defense obligation provided for hereunder shall apply without any advance showing of negligence
or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be
required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors,
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1/25/2021 Print Staff Report
OPTIONS:
Options available to the City Council include:
1. Approve the Local Enforcement Agency Resolution as presented, or
2. Provide alternative direction to staff.
Prepared by: Mark Persico, Assistant City Manager
Fiscal Impact
FISCAL IMPACT:
The funds to pay for the Rincon Environmental Services Professional Services Agreement ($120,000) to
increase the Cole Huber budget ($35,000) and install the fence ($35,000) total $190,000 and are available
through the General Fund (Account No. 110.22211).
Attachments
Attachment No. 1 - Resolution 2020-104 (Local Enforcement Agency)
Attachment No. 2 - Notice of Intent to Decertify
Attachment No. 3 - Stipulation for Continuance of Hearing and Order
Attachment No. 4 - Professional Services Agreement - Rincon Environmental
CITY COUNCIL GOALS & OBJECTIVES: Achieve Fiscal Sustainability and Financial Stability
Protect Public Safety
Engage in Proactive Economic Development
https://destinyhosted.com/frslpublish/print_ag_memo.cfm?seq=973&rev_num=O&mode=External&reloaded=true&id=0 3/3
omissions or misconduct of the Consultant, its employees, and/or authorized subcontractors,
and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected
and appointed officials, officers, agents and employees based upon the work performed by the
Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or
not the Consultant, its employees, and/or authorized subcontractors are specifically named or
otherwise asserted to be liable. Notwithstanding the foregoing, the Consultant shall not be liable
for the defense or indemnification of the City for claims, actions, complaints or suits arising out of
the sole active negligence or willful misconduct of the City. This provision shall supersede and
replace all other indemnity provisions contained either in the City's specifications or Consultant's
Proposal, which shall be of no force and effect.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither 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, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Consultant shall secure, at its sole expense, and be responsible for any and
all payment of Income Tax, Social Security, State Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for Consultant and its officers,
agents, and employees, and all business licenses, if any are required, in connection with the
services to be performed hereunder. Consultant shall indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees due
to Consultant under this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.10. PERS Eligibility Indemnification. 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 the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS 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.
Except as otherwise provided by state law or regulation to the contrary, Consultant and
any of its employees, agents, and subcontractors providing service under this Agreement shall
not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation,
benefit, or any incident of employment by City, including but not limited to eligibility to enroll in
PERS as an employee of City and entitlement to any contribution to be paid by City for employer
contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall render
any reasonable assistance and cooperation which City might require.
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6.12. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Consultant or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Consultant agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City. Any
use of such documents for other projects not contemplated by this Agreement, and any use of
incomplete documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses,
and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete documents
furnished by Consultant. Consultant shall deliver to City any findings, reports, documents,
information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes
or any other related items as requested by City or its authorized representative, at no additional
cost to the City. Consultant or Consultant's agents shall execute such documents as may be
necessary from time to time to confirm City's ownership of the copyright in such documents.
6.13. Electronic Safeguards. Consultant shall identify reasonably foreseeable internal
and external risks to the privacy and security of personal information that could result in the
unauthorized disclosure, misuse, alteration, destruction or other compromise of the information.
Contractor shall regularly assess the sufficiency of any safeguards and information security
awareness training in place to control reasonably foreseeable internal and external risks, and
evaluate and adjust those safeguards in light of the assessment.
6.14. Economic Interest Statement. Consultant hereby acknowledges that pursuant to
Government Code Section 87300 and the Conflict of Interest Code adopted by City, Consultant
is designated in said Conflict of Interest Code and is therefore required to file an Economic Interest
Statement (Form 700) with the City Clerk, for each employee providing advice under this
Agreement, prior to the commencement of work, unless waived by the City Manager.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and
subconsultants, if any, will comply with all conflict of interest statutes of the State of California
applicable to Consultant's services under this agreement, including, but not limited to, the Political
Reform Act of 1974 (Government Code Section 81000, et seq.) and Government Code Sections
1090-1092. Consultant covenants that none of Consultant's officers or principals have any interest
in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree
with the performance of the services hereunder, including in any manner in violation of the Political
Reform Act. Consultant further covenants that in the performance of this Agreement, no person
having such interest shall be used by Consultant as an officer, employee, agent, or subconsultant.
Consultant further covenants that Consultant has not contracted with nor is performing any
services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s)
and/or partnership(s) owning property in the City and further covenants and agrees that
Consultant and/or its subconsultants shall provide no service or enter into any agreement or
agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s)
owning property in the City prior to the completion of the work under this Agreement.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City
while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
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deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation
and negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
6.19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Consultant and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
6.21. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.22. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by a duly authorized representative
of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement,
based upon the substantial benefit of the bargain for any party, is materially impaired, which
determination made by the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith negotiations.
6.24. Counterparts and Electronic Signatures. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original. All counterparts shall be
construed together and shall constitute one agreement. Counterpart written signatures may be
transmitted by facsimile, email or other electronic means and have the same legal effect as if they
were original signatures.
6.25. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said
parties and that by doing so the parties hereto are formally bound to the provisions of this
Agreement.
6.26. Taxpayer Identification Number. Consultant shall provide City with a complete
Request for Taxpayer Identification Number and Certification, Form W9, as issued by the Internal
Revenue Service.
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[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their respective authorized officers, as of the date first above written.
CITY OF WEST COVINA,
A municipal corporation
Date:
David Carmany
City Manager
CONSULTANT
Date:
Steven Samaniego
President
ATTEST:
Lisa Sherrick
Assistant City Clerk
APPROVED AS TO FORM:
Date:
Thomas P. Duarte
City Attorney
APPROVED AS TO INSURANCE:
Date:
Helen Tran
Human Resources and Risk Management
Director
13
Rincon Environmental LLC
Form Revised April 2020
EXHIBIT A
SCOPE OF SERVICES
Rincon Environmental LLC provide the following services:
• Professional expertise to the Waste Management Enforcement Agency (WMEA) as
the Local Enforcement Agency (LEA) as a division of the Fire Department.
• Assuring the Class III Landfill is in compliance with CalRecycle Solid Waste Lanfill
regulations.
• Be available to address matters on a full-time basis.
ATTACHMENT NO. 1
RESOLUTION NO. 2020-104
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA, CALIFORNIA CONFIRMING A WASTE
MANAGEMENT ENFORCEMENT AGENCY AS A DIVISION
OF THE FIRE DEPARTMENT AND DESIGNATING A
LOCAL ENFORCEMENT AGENCY FOR ENFORCEMENT
OF A SOLID WASTE MANAGEMENT PROGRAM IN THE
CITY OF WEST COVINA
WHEREAS, on April 7, 1992, the City Council of the City of West Covina adopted
Resolution No. 8807 "CREATING A WASTE MANAGEMENT ENFORCEMENT
AGENCY, DESIGNATING A LOCAL ENFORCEMENT AGENCY AND CONFIRMING
THE HEARING PANEL FOR ENFORCEMENT OF A SOLID WASTE MANAGEMENT
PROGRAM IN THE CITY OF WEST COVINA, AND APPOINTING A LOCAL
ENFORCEMENT AGENCY PROGRAM MANAGER;" and
WHEREAS, on July 29, 1992, the California Integrated Waste Management Board
(predecessor agency to the Department of Resources Recycling and Recovery —
CalRecycle) approved the City of West Covina Enforcement Program Plan and during
this period also certified the West Covina Waste Management Enforcement Agency
(WMEA) as the City's designated Local Enforcement Agency (LEA) for the City of West
Covina; and
WHEREAS, since that time the City has had several reorganizations and the
WMEA responsibilities have been assigned to various City Departments, the designation
of which as the LEA were never formalized by amendment of Resolution No. 8807; and
WHEREAS, after consultation with CalRecycle, CalRecycle and the City agree that
the designation of the successor department to be housing the LEA should be confirmed
by the City and the reporting structure reflected in this resolution and thereafter in a
current organizational chart and posted on the City's website; and
WHEREAS, the City Council does hereby again confirm, find, determine and
declare that California Public Resources Code section 43203(c) authorizes the City
Council to designate a separate Local Enforcement Agency for the City of West Covina;
and
WHEREAS, On October 7, 2014, the City Council adopted Resolution No. 2014-
44 establishing the criteria for appointment of a hearing officer pursuant to Public
Resources Code section 44308(d) and Title 14, California Code of Regulations section
18060with the hearing officer to conduct all hearings required by Public Resources Code
Part 4, Chapter 4, and Part 5, Chapter 1 ; and
WHEREAS, On July 16, 2019, the City Council adopted Resolution No. 2019-53
establishing Mr. Mike Hambel as the LEA Hearing Officer.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA,
CALIFORNIA HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Resolution No. 8807 is hereby rescinded.
SECTION 2. Resolution No. 2014-44 shall remain in full force and effect.
SECTION 3. Resolution No. 2019-53 is hereby rescinded.
SECTION 4. The City shall appoint a qualified hearing officer pursuant to the
procedures set forth in Resolution No. 2014-44 as soon as possible and shall report that
information to CalRecycle through an update to its Enforcement Program Plan.
SECTION 5. The City Council does confirm the establishment of the City of West
Covina Waste Management Enforcement Agency ("WMEA")
SECTION 6. The WMEA shall be a division of the Fire Department and shall be
separate and apart from the Community Development Department consistent with the
conflict of interest provisions of Public Resources Code Section 43207; and
SECTION 7. Pursuant to California Public Resources Code section 43203(c), the
City does hereby designate the WMEA to be the LEA for the City of West Covina, as a
division of the Fire Department.
SECTION 8. The Chief of the Fire Department is authorized to act independently
of the City to carry out the responsibilities of the WMEA.
SECTION 9. The Fire Department on behalf of the WMEA may contract for a
qualified Local Enforcement Agency program manager pursuant to applicable statutory
and regulatory requirements.
SECTION 10. The provisions of this Resolution have been reviewed by and are
acceptable to CalRecycle staff.
SECTION 11. This resolution shall be effective upon administrative approval by
CalRecycle staff no later than November 10, 2020.
SECTION 12. The City Clerk shall certify to the adoption of this Resolution and
shall enter the same in the book of original resolutions.
APPROVED AND ADOPTED this 20th day of October, 2020.
Tony Wu
Mayor
APPROVED AS TO FORM ATTEST
Thomas P. Duarte Lisa Sherrick
City Attorney Assistant City Clerk
I, LISA SHERRICK, ASSISTANT CITY CLERK of the City of West Covina,
California, do hereby certify that the foregoing Resolution No. 2020-104 was duly adopted
by the City Council of the City of West Covina, California, at a regular meeting thereof
held on the 20th day of October, 2020, by the following vote of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
Lisa Sherrick
Assistant City Clerk
ATTACHMENT NO. 2
California Environmental Protection Agency
CalRecycle
Department of
Resources Recycling and Recovery
February 27, 2020
Sent via Email and U.S. Mail
David Carmany
City Manager
City of West Covina
1444 W. Garvey Avenue South, Room 305
West Covina, CA 91790
Gavin Newsom
California Governor
Jared Blumenfeld
Secretary for Environmental Protection
Ken DaRosa
CalRecycle Acting Director
Re: Notice of Intent to Decertify the LEA for the City of West Covina
for the LEA's Failure to Fulfill Its Responsibilities and Obligations
under the Public Resources Code Division 30, Part 4, Chapter 2 and
Its Implementing Regulations
Dear Mr. Carmany:
The purpose of this letter is to inform you that due to the City of West Covina's (the City)
chronic failure to comply with and maintain its certification requirements for its local
enforcement agency (LEA) designation' and its failure to acknowledge its jurisdiction
and enforcement obligations over the BKK Sanitary Landfill (Landfill), the Department of
Resources Recycling and Recovery (CalRecycle) intends to begin procedures to
decertify the City as LEA and assume enforcement agency duties over solid waste
facilities within the City's jurisdiction.
If the City would like to avoid a decertification action, it may withdraw its LEA
designation by issuing a notice to CalRecycle as required by Title 14, section 18056 of
the California Code of Regulations (CCR). CalRecycle must receive this notice by
Monday, March 30, 2020. If CalRecycle does not receive such notice by that date, it will
begin decertification proceedings, as required by Article 2.3, Chapter 5, Division 7, Title
14 of the CCR.
1 It is important to note that, in addition to the issues raised in this letter, CalRecycle's records show that
the City originally designated the Waste Management Enforcement Agency (WMEA) as its LEA in 1992.
This designation has not been updated with CalRecycle although the WMEA no longer exists. This letter
continues to refer to an LEA for the City, but this designation issue was not resolved.
1001 1 Street, Sacramento, CA 95814 • P.O. Box 4025, Sacramento, CA 95812
www.CalRecycle.ca.gov • (916) 322-4027
Discussion
CalRecycle brought the issues in this letter to the City's attention at an in -person
meeting at your offices on October 16, 2019. We were hoping to meet directly
with you and other City leadership; however, the only City representatives
present were Community Development Director, Jeff Anderson, and City
Engineer, Michael Ackerman. At that meeting, we discussed information that
had come to light regarding postclosure maintenance of the BKK Sanitary
Landfill as well as continued issues with the LEA's maintenance of its
certification requirements.
The LEA'S Jurisdiction and Enforcement Obligations over the BKK
Sanitary Landfill
The primary reason for the meeting on October 16, 2019, was for CalRecycle to
impress upon the City's representatives CalRecycle's concern over the LEA's
apparent misconceptions concerning the scope and extent of the LEA'S
jurisdiction and enforcement obligations with regard to the BKK Sanitary Landfill.
This issue arose from CalRecycle staff's notation in a September 29, 2016,
Postclosure Maintenance Plan (PCMP) Update Comment letter of certain
deficiencies in BKK's proposed Update, which, among other things, stated:
[Tjhe Update should include the portions of the landfill property that
have been previously omitted. The portions of the landfill property
that have not been incorporated in the Update include the Target
and Home Depot stores, along with the baseball park and
associated recreational facilities. In order for CalRecycle to accept
the Update, the matter of landfill boundary should be resolved by
the operator and subsequently reflected in the Update. The Update
should be revised to incorporate the entire landfill permitted
boundary. Furthermore, should the operator propose modifying the
permitted boundary, CalRecycle staff would like to point out that
any changes in the physical boundaries of the landfill can be
accepted only when such changes do not compromise the
effectiveness of the landfill gas subsurface migration system,
allowing for unbiased monitoring, not influenced by the presence of
collection by the presence of collection system. Thus, only when
the operator can demonstrate the monitoring system can be fully
effective and functional, may CalRecycle concur with such
proposal.
BKK's response to these deficiencies in their follow-up June 8, 2017, PCMP
Update Comment letter appears to assert that the LEA's jurisdictional authority
to enforce solid waste law over the portions of the permitted boundary of the
Landfill that fall outside the waste footprint of the landfill was vitiated upon the