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HomeMy WebLinkAbout25R - AGMT DT SAFE PROGRAMREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 18, 2018 TITLE: APPROVE A FIRST AMENDMENT TO THE DOWNTOWN CLEAN AND SAFE PROGRAM SERVICES AGREEMENT WITH DOWNTOWN INC. (STRATEGIC PLAN NO. 3,4A) CITY WANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1� Reading ❑ Ordinance on 20d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a First Amendment to the Downtown Clean and Safe Program Services Agreement with Downtown Inc., in the amount of $500,000 for the period of January 1, 2019 through December 31, 2019, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On January 31, 2013, the City executed a Settlement and Release Agreement with Downtown Inc. to fund the downtown's Clean and Safe program for three years in an amount of $400,000 per year. The terms of the Agreement automatically renewed each year. On January 10, 2018, the City terminated the Settlement and Release Agreement and executed a new agreement for Downtown Clean and Safe Program Services with Downtown Inc. in the amount of $500,000 per calendar year that such funding is approved by the City Council. Funds for the program are made available through increased revenue from the Downtown Enhancements and Parking Modernization Plan approved by City Council on August 4, 2015. As part of the plan, downtown business associations and stakeholders agreed to an increase in parking rates and the implementation of new smart meters in the downtown with the understanding that the increased revenue would be reinvested back into the downtown for modernizing parking structures, enhancing amenities, and addressing deferred maintenance. The 2019 Downtown Clean and Safe Program (Exhibit 1) aligns with the Downtown Enhancements and Parking Modernization Plan's intent to enhance amenities in the downtown. It provides daily litter maintenance, power washing, and security services to the downtown Business Improvement Area. Additionally, the service area for all Clean and Safe services will include the future Skate Park in Downtown Santa Ana, in an alley located behind the parking structure on the southwest corner of French and Spurgeon. These crucial maintenance service 25R-1 First Amendment to the Downtown Clean and Safe Program Services Agreement December 18, 2018 Page 2 beautify the downtown district and enhance the image of the commercial core. The activity is designed to enhance customer experience, increase commerce, and help to attract and retain new businesses within the district. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 (Economic Development), Objective 4 (Continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy A (Provide a safe and inviting public environment in the downtown (including the Wellness Corridor) through enhanced amenities, improved wayfinding and engaging street/sidewalk design and lighting). FISCAL IMPACT Funds in the amount of $250,000 are available in the Downtown Enhancements and Parking Modernization Plan account (no. 02710133-62300) for expenditure in FY 2018-19 for the first six months. The remaining $250,000 will be budgeted in the FY 2019-20 budget. Steven A. Mendoza Executive Director Community Development Agency APPROVED AS TO FUNDS AND ACCOUNTS: d4 _�O; .t. Kalryn Downs, CPA Executive Director Finance and Management Services Agency Exhibits: 1. Downtown Clean and Safe Program 2019 2. First Amendment to the Downtown Clean and Safe Program Services Agreement 3. Downtowns Clean and Safe Program Services Agreement 25R-2 EXHIBIT 1 DOWNTOWN CLEAN & SAFE PROGRAM 2019 January 1, 2019 - December 31, 2019 I. LITTER MAINTENANCE A. PICK UP LITTER AND WASTE "Litter" is defined as, but is not limited to, boxes, cans, papers, containers marked "trash" (or are obviously trash), unwanted or useless materials, or rejected matter. "Waste" includes, but is not limited to, gum, food remains, sewage, excrement, grease, dust, dirt, decals, liquid or dried matter, oily or sticky substances, and graffiti, etc. Remove litter from all outside surfaces including, but not limited to, sidewalks, streets, curbs, planters, tree grates, and store entries. All litter from such surfaces shall be removed from the area and emptied into a designated trash dumpster or receptacle in such a manner as to prevent the adjacent area from becoming littered by such trash. Waste shall be removed from all outside surfaces including, but not limited to, sidewalks, streets, curbs, planters, tree grates, store entries, and trash receptacles. All waste from such surfaces shall be removed from the area and emptied into a designated trash dumpster or receptacle in such a manner as to prevent the adjacent area from becoming soiled by such waste. Waste removal shall be accomplished by the complete and thorough removal of said substances from the area—not by moving it from one surface to another or covering said substances with sand or similar materials. 11-�43101 "F11 ML All trash containers within the BID shall be emptied and cleaned. Trash including, but not limited to, boxes, cans, papers, and other containers marked "trash" (or are obviously trash) shall be removed, along with the liner. All trash from such trash receptacles shall be removed from the BID and emptied into a designated trash dumpster or receptacle in such a manner as to prevent the adjacent area from becoming littered by such trash. All trash containers shall be emptied three times per day on a routing basis (morning, early afternoon and evening). Additionally, any trash containers that may become filled prior to the scheduled routing cleaning, particularity between the hours of 11:00 a.m. and 4:00 p.m. daily, shall be emptied as needed. Trash containers should never have accumulated trash or waste above the level of the container. Whether full or not, container shall be emptied and cleaned if it is omitting a foul, rancid, or putrid odor or showing signs of insect or rodent infestation. Insert new liners into trash containers, securing said liners in such a manner as to present a neat uniform appearance and replacing container lids in their correct position. Using a clean cloth or rag, and germicide detergent solution, remove all waste including, but not limited to, gum, food remains, sewage, excrement, grease, dust, dirt, decals, liquids, dried matter, oily or sticky substances, and graffiti, etc. from the surface of trash containers. Cleaning shall be accomplished by the complete and thorough removal of said substances from the area—not by Page 1 of 5 25R-3 EXHIBIT 1 moving it from one surface to another or covering said substances with sand or similar materials. This includes, but is not limited to, the cleaning of the immediate area surrounding the trash containers. C. CLEAN OUTDOOR BENCHES, BOLLARDS AND LIGHT POLES All benches, bollards and light poles within the area shall be cleaned on a regular basis using clean cloths and a detergent solution. Remove all waste including, but not limited to, gum, food remains, excrement, grease, dust, dirt, litter, liquids, dried matter, decals, sticky substances, graffiti, etc. leaving object in "like new" condition. The immediate area surrounding the object shall be cleaned in the same manner. D. CLEAN ALLEYS Alleys shall be clear of trash, waste, shopping carts, pallets, leaves, and excrement. Shopping carts shall be picked up and taken to shopping center parking lot. Boxes shall be flattened and placed securely in trash container in such a manner as to not protrude excessively. Excrement shall be picked up and disposed of properly, and area washed down with proper germicidal solution. The following are alley locations within the Downtown: • 100 East Fourth Street (south alley) • 200 East Fourth Street (south alley) • 300 East Fourth Street (north and south alley) • 100 West Fourth Street (south alley) • 200 West Fourth Street (south alley) • 300 West Fourth Street (south alley) • 400 West Fourth Street (south alley) E. CLEAN BUS STOPS Bus stops shall be cleared of waste, litter, shopping carts, leaves, and excrement. Trash containers should never have accumulated trash or waste above the level of the container opening. Trashcan liners shall be replaced accordingly. Excrement shall be picked up, disposed of properly, and area washed down with proper germicidal solution. The following are bus stop locations within the Downtown: • 400 North Main west side of street • 300 North Main east side of street • 200 West 5a` street south side of street • 200 East 5a' street south side of street • 100 West Santa Ana Boulevard north side of street • 200 East Santa Ana Boulevard north side of street Page 2 of 5 25R-4 EXHIBIT 1 H. POWER WASH A. POWER WASH PROCESS "Power wash" is defined as the simultaneous mechanical removal of materials or pollutants from the surface for the pavement, through application of water under pressure with elevated temperatures used in the cleaning process and collection of waste and water. Process used shall leave the area clean and free from stains and of all loose, embedded materials including chewing gum. The cleaning process must not damage the concrete surfaces or the brick paver surface. All gum must be removed from the paver, concrete and other sidewalk surfaces. B. POWER WASH SIDEWALKS All gum, dirt, grime, oil, stains and other fluids shall be removed from the sidewalls by using power washing equipment. C. POWER WASH BUS STOPS Bus stop areas are to be cleaned of all debris, bum, dirt, grime, oil, stains and other fluids. The following are bus stop locations within the Downtown: • 400 North Main west side of street • 300 North Main east side of street • 200 West 5' street south side of street • 200 East 5`s street south side of street • 100 West Santa Ana Boulevard north side of street • 200 East Santa Ana Boulevard north side of street D. POWER WASH ALLEYS Alleys are to be cleaned of a debris, bum, dirt, grime, oil, stains and other fluids. The following are alley locations within the Downtown: • 100 East Fourth Street (south alley) • 200 East Fourth Street (south alley) • 300 East Fourth Street (north and south alley) • 100 West Fourth Street (south alley) • 200 West Fourth Street (south alley) • 300 West Fourth Street (south alley) • 400 West Fourth Street (south alley) Page 3 of 5 25R-5 EXHIBIT 1 III. SECURITY IV V A. SECURITY ROLES Patrol, handle calls for service, check for any hazards or safety issues and either mitigate the issue or report it to the proper authority, provide escorts as needed for safety precaution, act as first responder to any emergency situation, conduct investigations as necessary of assigned property and prepare a detailed, accurate and complete report, and communicate with parking structure security guards to share security issues and concerns. STAFFING A. Security Team of Guards: Sunday - Thursday 8 Friday & Saturday 8 00 AM to 12:00 AM 00 AM to 1:00 AM B. Litter Team of 7 Workers: Monday - Sunday 7:00 AM to 9:00 PM C. Power Washing Team of 3 Workers: Monday - Friday 10:00 PM to 4:00 AM Saturday & Sunday 4:00 AM to 10:00 AM BUDGET :Proposed Budget Activity Cost Litter Maintenance $ 280,680 Power Washing $ 116,800 Security Guards $ 102,520 Total $ 500,000 25R-6 Page 4 of 5 EXHIBIT 1 VI. AREA OF SERVICE Santa Ana Business Improvement District. u '15 U3Y111UDYV LT7 1S NJN3Ud 11N 2a J���vai ❑ ❑ IWO i '!s N039Unds �❑❑❑❑❑❑D 0 stl�,u m Us Hsne 15 NIM F-1 F-1 El Ii 1S 980M.)AS 15 390'i7q�A5 N L E161:1 AVM eV0U9 C N u 7 � / '15 MUM 0 0 H L W tl " S IA919 CIL v Llt LL YL E y '1S ssoU v RE O ~ N L Q N l G T M ❑ ❑ Q � <—Zz ' � � LL N 'is U3MOld e 25R-7 5of5 25R-8 x:/:11:1k9K FIRST AMENDMENT TO THE DOWNTOWN CLEAN AND SAFE PROGRAM 6`-fflLtd sE,y:Ie]tlaf a111 t al►`Y Y THIS FIRST AMENDMENT TO THE DOWNTOWN CLEAN AND SAFE PROGRAM SERVICES AGREEMENT is entered into this 18th day of December, 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and Downtown Incorporated; Inc., a California non-profit corporation ("DTI"). RECITALS A. On January 10, 2018, the City entered into the Downtown Clean and Safe Program Services Agreement #A-2017-325 with DTI to fund the downtown's Clean and Safe Program, which includes a security team, a litter team, and a power washing team ("said Agreement"). The intent of said Agreement is for DTI to receive $500,000 for downtown Clean and Safe Program services each calendar year that such funding is approved by City Council. B. The City hereby approves an additional $500,000 for downtown Clean and Safe Program services for use by DTI in 2019 pursuant to the terms and conditions of said Agreement. C. In accordance with the terms and conditions of said Agreement, the parties desire to amend said Agreement to extend the tern of said Agreement, add an additional $500,000 for downtown Clean and Safe Program services for the extended tern of said Agreement, and amend said Agreement to update the services to be provided. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions of said Agreement, except as herein modified, the parties agree as follows: 1. Pursuant to the terms of said Agreement, the City Council approved an additional $500,000 for downtown Clean and Safe Program services for the 2019 calendar year to be utilized by DTI pursuant to the terms of said Agreement. 2. Section 1.03, Term of Services Agreement, shall be amended to read as follows: "This Services Agreement shall commence on the date first written above and terminate on December 31, 2019, unless terminated earlier in accordance with sections 4.02 or 4.05 below." 3. Section 2.01, Clean and Safe Program Services, shall be amended to include the future Skate Park in Downtown Santa Ana, to be constructed in an alley located behind the parking structure on the southwest corner of French and Spurgeon, in the City of Santa Ana (APN #398-326-11), within the Scope of Work for all Clean and Safe Program services. 25R-9 4. Section 2.04, Bi -Annual Financial Statement and Audit, shall be amended to read as follows: "Annual Financial Statement and Audit No later than November I of each year, DTI shall submit to the City Manager a complete statement of DTI's Clean and Safe Program expenditures, and a financial audit for the preceding year prepared by an independent certified public accountant." 5. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Approval and Amendment to said Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA PAUL GODINEZ II City Manager DOWNTOWN INCORPORATED, INC.: Ryan Chase President Tax ID# 26-4051161 25R-10 EXHIBIT 3 MSURANCE ON FILE WORT( MAY PROCEED UNTIL I �SZ C r {q CLERK OFC UNCI A-2017-325 DATE' JAN 19 2018 A (-c,) SERVICES CLEAN AND SAFE PROGRAM SERVICES AGREEMENT C 4.A,Lwo This SERVICES AGREEMENT made and entered into this _ day of 'To -r%. 2018, by and between the City of Santa Ana, a chatter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City" ), and Downtown Incorporated, Inc., a California non-profit corporation ("DTP'). RECITALS A. On January 31, 2013, the City executed Settlement and Release Agreement No. A-2013.039 with DTI to fund the downtown's Clean and Safe Program for three years at a cost of $400,000 per year. The terms of the Settlement and Release Agreement automatically renewed in one year terms. B. All other terms of the Settlement and Release Agreement have been completed, but the parties wish to continue the downtown Clean and Safe Program. Accordingly, the purpose of this Services Agreement is to terminate the Settlement and Release Agreement while continuing with the downtown Clean and Safe Program. C. The current downtown Clean and Safe Program maintenance includes: sidewalk sweeping and pressure washing; gum removal; trash and/or bulky item removal; alley/median/parkway maintenance; and, litter and debris pick-up. Each maintenance service assists in beautifying the downtown district and enhances the image of the commercial core. This activity is designed to increase customer comfort with the downtown, which will in tum increase commerce and help to attract and retain new businesses within the district. D. Downtown Santa Ana continues to experience growth as well as challenges. Recent trends of an increasing transient population are requiring additional litter maintenance and street cleaning needs. A higher influx of visitors to the downtown at night have also added to the higher levels of maintenance necessary to keep the downtown as an directive, safe and clean place for residents and visitors to the area. E. As a result, DTI requested an additional $100,000, for a total of $500,000 per year, to hire two new full-time staff members ($67,200 per year) whose duties will include current maintenance, as well as additional new duties like the placement and removal of recently purchased street finniture. Two more pressure washing days will also be added to their current schedule ($32,799.96 per year). F. These downtown Clean and Safe Program services are meant to complement the existing activities provided pursuant to the City's Business Improvement District ("BID"}. 25R-11 O. Under this Services Agreement, the City and DTI propose to: (1) conSrm that DTI will receive up to $500,000 from the City each calendar year that such funding is approved by City Council for the Clean and Safe Program; (2) provide that DTI's use of said Clean and Safe Program funds will be consistent with the approved Clean and Safe Program Scope of Work; and, (3) provide for auditing of DTI's Clean and Safe Program funds. WHEREFORE, and in consideration of the mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Services Agreement, the parties hereto do hereby agree as follows: ARTICLE I PRELIMINARY MATTERS § 1.01 Definitions As used in this Operating Agreement, the following terms shall have the following meanings: (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative(s). (d) "Clean and Safe Program" means the services designed to provide maintenance and security, as detailed in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference, for the downtown district, which shall be defined by the BID boundaries, as depicted in the Map attached hereto as Exhibit B and incorporated herein by reference. (e) "DTP' means Downtown Incorporated, Inc., a California nonprofit corporation. § 1.02 Termination of Settlement and Release Aareeme Settlement and Release Agreement No. A-2013-039, dated January 31, 2013, between the City and DTI, is hereby terminated in its entirety. Any and all terms of said Settlement and Release Agreement are null and void, and thus no longer in effect. § I.03 Term of Services Aereement This Services Agreement shall commence on the date first written above and terminate on 20_, unless terminated earlier in accordance with sections 4.02 or 4.05, below. The Term of this Agreement shall be automatically renewed in one (1) year Renewal FA 25R-12 Terms, unless terminated earlier in accordance with sections 4.02 or 4.05, below. § 1.04 Status of DTI (a) By its execution of this Agreement, DTI warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation and Bylaws and a true and correct listing of DTI's officers and their terms of office, certified as such by DTI's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of DTI as set forth in the above said Articles of Incorporation and Bylaws. ARTICLE 2 CLEAN AND SAFE PROGRAM SERVICES, FUNDS, AND REPORTS AND RECORDS § 2.01 Clean and Safe Program Services DTI shall perform those Clean and Safe Program services as set forth in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference. § 2.02 Clean and Safe Program Funding (a) City shall provide funding for the Clean and Safe Program throughout the term of this Services Agreement City and DTI shall maintain an account, into which the City shall deposit $125,000. DTI shall be permitted to expend up to, but no more than, one-third (1/3) of the money in the account ($41,667 per month) for Clean and Safe Program contract expenses for each calendar month. Once the Clean and Safe Program services are rendered, and payment is documented, DTI shall provide City with proof of payment in the form of cancelled checks and invoices. After the City confirms and approves the proof of payment, the City shall make an additional deposit into the above -referenced account in the approved amount, thus returning the account balance to $125,000. City will not make additional deposits for DTI's administrative costs, or any other non -services related fees or costs. Each additional deposit shall be for the same amount that DTI demonstrates it paid out for services. City's obligation to make deposits shall be limited to no more than $500,000 per year of the Services Agreement. (b) Ali Clean and Safe Program expenditures must be for the purposes identified in the Clean and Safe Program Scope of Work, and must be sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. If DTI expends any Clean and Safe Program money for unauthorized purposes, the City may, at its sole option, deduct the disputed amount from any future Clean and Safe Program payments to DTI, or may terminate the Agreement pursuant to the terms of section 4.05. 3 25R-13 (c) In the event questions arise relating to the payment of funds to DTI, DTI may within 15 days of notification request an accounting by the City of the amount of net funds disbursed to DTI. Thereupon the City shall re-evaluate the amount of such disbursement and give written notification of its decision to DTI which shall be final and conclusive. § 2.03 Clean and Safe Program Advisory Committee (a) City and DTI shall work cooperatively to manage the Clean and Safe Program. DTI shall create an advisory committee with six (6) voting members to advise and assist in the provision of Clean and Safe Program services. (b) The Clean and Safe Program Advisory Committee members shall consist of, two (2) City employees (one from the Police Department and the other from the Community Development Agency or other department as determined by the City Manager); two (2) DTI members; and, two (2) members from the Santa Ana Business Council. DTI shall notify the Clerk of the Council of any change in the membership of the Clean and Safe Program Advisory Committee. (c) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the Program Advisory Committee. When conducting meetings related to the Clean and Safe Program, members of the Program Advisory Committee shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for the Clean and Safe Program when authorized by the Program Advisory Committee. § 2.04 Bi -Annual Financial Statement and Audit Every six (6) months (June 30 and December 31), DTI shall submit to the City Manager a complete statement of DTI's Clean and Safe Program expenditures, and a financial audit for the preceding half-year prepared by an independent certified public accountant. § 2.05 Financial Records DTI shall keep, or cause to be kept, true, accurate and complete records, including double - entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shaU be retained by DTI for a period of three (3) years after the end of the accounting year to which they pertain. § 2.06 Accounting Procedures 4 25R-14 DTI shall maintain a system of accounting according to Generally Accepted Accounting Practices. § 2.07 Inspection and Audit City shall be entitled, during the term of this Services Agreement and for a period of one year following the termination, to: (a) inspect and examine all of DTPs books, statements, records, and supporting documents to ascertain the correctness of DTI's financial statements. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI; and (b) inspect and examine each expense made by DTI to ascertain that all expenses are for the purposes identified in the Clean and Safe Program Scope of Work, and that all expenses are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI. ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification DTI shall indemnify and save harmless City.and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of, arising out of, or in any manner connected with DTI's management and/or administration of the Clean and Safe Program. § 3.02 Insurance Remrirement Generally Prior to the Commencement Date (except as hereinafter otherwise provided), DTI shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Term, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) day notice thereof has been given in writing to City. § 3.03 Liability Insurance Fd 25R-15 DTI shall provide a policy or policies of insurance which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the operations of DTI, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bonding DTI shall provide a policy or policies of insurance insuring DTI against loss due to dishonesty of DTPs officers, agents and employees. Said policy or policies shall provide coverage in not less than $500,000. § 3.05 Workers' Compensation Insurance DTI shall provide a policy or policies of workers' compensation insurance as required by law. § 3.06 Modification of Insurance Reoulrements The City Manager may modify or suspend the requirements imposed on DTI by this Article if in hislher reasonable determination strict compliance is impossible or excessively costly due to insurance market conditions. . ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifying the nature thereof, and a period of sixty (60) days to cure or correct such default. (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of City In the event ofany default and failure to cure, correct or remedy the same by DTI, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: 25R-16 (a) Delay of any or all transfers of Clean and Safe Program funds to DTI pursuant to §2.02 of this Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such tennination is approved by the City Council. § 4.03 Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties are cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same defhWt or any other default by the other party. § 4.05 Termination This Agreement may be terminated by the City for any reason upon thirty (30) days written notice of termination. Upon any termination, or expiration of the Term, the City, shall have no further obligation to provide funding or other assistance to DTI pursuant to this Agreement for any period following such expiration or early termination ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his/her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to he taken by DTI pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of DTI by DTI's governing board or by such officer of DTI as may be designated by resolution of said governing board. 25R-17 § 5.02 Notices Notices and written communications sent by one party to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by DTI to City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 With Copies to: City Manager City of Santa Ana 20 Civic Center Plaza P.Q. Box 1988 Santa Ana, CA 92702 And: City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 (b) If sent by City to DTI: Downtown Inc. 200 North Main St. 2"d Floor Santa Ana, CA 92701 Attention: Chairman of the Board § 5.03 Non -assignability The rights and obligations of DTI under this Agreement may not be assigned or delegated without the prior approval of the City Council. 8 25R-18 § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way he affected, impaired or invalidated thereby. §5.05 Excluslyl1y Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and DTI. §5.06 Conflict of Interest Clause DTI covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. §5.07 OC Streetcar Proiect DTI, and its members, officers, employees, and representatives, agree not to commence, participate in, or assist with any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, in any way, directly or indirectly, against the City, or any party, on any issue related to the OC Streetcar Project, and knowingly, voluntarily, unconditionally, irrevocably, and expressly forever discharge and release any damages and/or claims, now known or arising in the future, against the City, or any party, on any issue related to the OC Streetcar Project. Any violation of this provision shall be considered a breach of the Agreement subject to immediate termination and cancellation of all funding at the sole and absolute discretion of the City. (signature page follows) 25R-19 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: CITY OF SANTA ANA MAMA D.'HLTIZAR RAUL era Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City AttoMey . Bx Ryan RECOMMENDED FOR APPROVAL: R BERT ZUR S E Executive Director - CDA DOWNTOWN, INC. (Nme) eta cv vC.1na�._k_ (Title) e.,; 1,Uac- Tax ID#I 96 -14 0-6 // 6/ 10 25R-20 EXHIBIT A CLEAN AND SAFE PROGRAM SCOPE OF WORK I I 25C-13 25R-21 TSA Clean & Safe Security team: 4 guards Sunday -Thursday SamtolZam Friday and Saturday 8 am to 1 am Lltter team: 7 workers Monday -Sunday 7amto9pm Power washing team: 3 workers Monday - Friday 10 pm to 4 am Saturday and Sunday 4 am to 10 am 25C-14 25R-22 LITTER MAINTENANCE SCOPE OF WORK A. PICK UP LITTER AND WASTE "Litter" is defined as, but is not limited to, boxes, cans, papers, containers marked "trash" (or are obviously trash), unwanted or useless materials, or rejected matter. "Waste" includes, but is not limited to, gum, food remains, sewage, excrement, dust, dirt, decals, liquid or dried matter, etc. Remove litter from all outside surfaces including, but not limited to, sidewalks, streets, curbs, planters, tree grates, and store entries. All litter from such surfaces shall be removed from the area and emptied into a designated trash dumpster or receptacle in such a manner as to prevent the adjacent area from becoming littered by such trash. Waste shall be removed from all outside surfaces including, but not limited to, sidewalks, streets, curbs, planters, tree grates, store entries, and trash receptacles. All waste from such surfaces shall be removed from the area and emptied into a adjacent area from becoming soiled by such waste. Waste removal shall be accomplished by the complete and thorough removal of said substances from the area—not by moving it from one surface to another or covering said substances with sand or similar materials. B. • CLEAN AND EMPTY TRASH CANS All trash containers within the Downtown shall be emptied and cleaned. Trash including, but not limited to, boxes, cans, papers, and other containers marked "trash" (or are obviously trash) shall be removed, along with the liner. All trash from such trash receptacles shall be removed from the area and emptied into a designated trash dumpster or receptacle in such a manner as to prevent the adjacent area from becoming littered by such trash. All trash containers shall be emptied three times per day on a routine basis (morning, early aftemoon and evening). Additionally, any trash containers that may become filled prior to the scheduled routine,cloaning, particularly between the hours of 11:00 a.m. and 4:00 pm. daily, shall be emptied as needed. Trash containers should never have accumulated trash or waste above the level of the container. Whether full or not, container shall be emptied and cleaned if it is emitting a foul, rancid, or putrid odor or shows signs of insect or rodent infestation. Insert new liners into trash containers, securing said liners in such a manner as to present a neat uniform appearance and replacing container lids in their correct position. 25C-15 25R-23 Using a clean cloth or rag, and germicidal detergent solution, remove all waste including, but not limited to, gum, food remains, sewage, excrement, grease, dust, dirt, decals, liquids, dried matter, oily or sticky substances, etc. from the surface of trash containers. Cleaning shall be accomplished by the complete and thorough removal of said substances from the area—not by moving it from one surface to another or covering said substances with sand or similar materials. This includes, but is not limited to, the cleaning of the immediate area surrounding the trash containers. C. CLEAN OUTDOOR BENCHES, BOLLARDS AND LIGHT POLES All benches, bollards and light poles within the area shall be cleaned on a regular basis using clean cloths and a detergent solution. Remove all waste including, but not limited to, gum, food remains, excrement, grease, dust, dirt, litter, liquids, dried matter, decals, sticky substances, etc, The immediate area surrounding the object shall be cleaned in the same manner. Alleys shall be clear of trash, waste, shopping carts, pallets, leaves, and excrement. Shopping carts shall be picked up and taken to shopping center parking lot. Boxes shall be flattened and placed securely in trash container in such a manner as to not protrude excessively. Excrement shall be picked up and disposed of properly, and area washed down with proper germicidal solution. The following are alley locations within the Downtown: • 100 East Fourth Street (south alley) s 200 East Fourth Sheet (south alley) • 300 East Fourth Street (north and south alley) • 100 West Fourth Street (south alley) 0 200 West Fourth Street (south alley) • 300 West Fourth Street (south alley) ■ 400 West Fourth Street (south alley) E. CLEAN BUS STOPS Bus stops shall be cleared of waste, litter, shopping carts, leaves, and excrement. Trash containers should never have accumulated trash or waste above the level of the container opening. Trasltcan liners shall be replaced accordingly. Excrement shall be picked up, disposed of properly, and area washed down with proper germicidal solution. The following are bus stop locations within the Downtown: 25C-16 25R-24 • 400 North Main west side of street 300 North Main east side of street • 200 West 5's street south side of street • 200 East 5's street south side of street • 100 West Santa Ana Boulevard north side of sheet • 200 East Santa Ana Boulevard north side of street E. AREA OF SERVICE Defined by the Santa Ana Business Improvement District map attached. 25C-17 25R-25 POWER WASH SCOPE OF WORK A. POWER WASH PROCESS "Power wash" Is defined as the simultaneous mechanical removal of materials or pollutants from the surface of the pavement, through application of Water under pressure with elevated temperatures used in the cleaningprocess and the collection of the waste and water. Process used shall leave the area clean and free of stains and of all loose, embedded materials including chewing gum. The cleaning process must not damage the concrete surfaces or the brick paver surface. All gum must be removed from the paver, concrete and other sidewalk surfaces. B. POWER WASH SIDEWALKS All gum, dirt, grime, oil, stains and other fluids shall be removed from the sidewalks power C. POWER WASH BUS STOPS Bus stop areas are to be cleaned of all debris, gum, dlit, grime, oil, stains and other fluids. The following are bus stop locations within the area: • 400 North Main west side of street • 300 North Main east side of street • 200 West 50' street south side of street • 200 East 5' street south side of street • 100 West Santa Ana Boulevard north side of street • 200 East Santa Ana Boulevard north side of street D. POWER WASH ALLEYS AIleys are to be cleaned of all debris, gum, dirt, grime, oil, stains and other fluids. The following aro alley locations within the area: 25C-18 25R-26 • 100 East Fourth Street (south alley) • 200 East Fourth Street (south alley) • 300 East Fourth Street (north and south alley) • 100 West Fourth Street (south alley) • 200 West Fourth Street (south alley) • 300 West Fourth Street (south alley) • 400 West Fourth Sheet (south alley) E. AREA OF SERVICE Defined by the Santa Ana Business Improvement District map attached. 25C-19 25R-27 Wn&eol \ )V I ❑ F -I No3sanas a❑❑ AMMINIMME Is 25R-29 [-I Ls Iisno 7 'LS NIVW a3Mo1i E O CL E Q1 Ln J Ul 25C-22 25R-30 Exhibit2 Downtown Clean and Safe Program Scope of Services Current Clean and Safe Budget ActIVItV Cost Litter Maintenance $213,480 Power Washing $84,000 Security Guards $102,516 Total $399,996 ProposedBudget Activity Cost Litter Maintenance $280,680 Power Washing $116,800 Security Guards $102,516 Total $499,996 25C-23 25R-31 25C-24 25R-32