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HomeMy WebLinkAbout25J - AMEND AGMT ATHENS SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 21, 2020 TITLE APPROVE AN AMENDMENT TO THE AGREEMENT WITH ATHENS SERVICES, INC. TO EXERCISE A FOUR-YEAR RENEWAL TERM FOR STREET SWEEPING SERVICES FOR AN ANNUAL AMOUNT OF $1,047,222 (TOTAL NOT TO EXCEED $4,188,888) (NON -GENERAL FUND) {STRATEGIC PLAN NO. 6, 1131 CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 111 Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO /s/Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager to execute an amendment to the agreement with Athens Services, Inc., for street sweeping services for a four-year period, beginning July 1, 2020, and expiring June 30, 2024, increasing the rate to $17.63 per curb mile, for a total service cost of $952,020, plus a 10 percent contingency of $95,202, for a total annual amount not to exceed $1,047,222, and a four- year total of $4,188,888, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency Maintenance Services Division is responsible for sweeping all of the City roadways annually - an estimated 54,000 curb miles. In 2012, City Council approved an eight -year street sweeping agreement with Athens Services, Inc., expiring on June 30, 2020, with one eight - year renewal option (Exhibit 1). The services include weekly street sweeping of residential, arterial and industrials streets, alleys, and up to 400 annual curb miles of free special sweeping for special events. This contracted service has resulted in an operational savings of $2.5 million annually. In 2012, the City successfully negotiated a curb mile rate of $15, which was one the lowest rates in Southern California, and included key provisions such as a maximum annual cost of living adjustment of percent per a Consumer Price Index (CPI) and Producer Price Index (PPI) weighted formula, key quality control measures such as Global Positioning System (GPS) to monitor sweepers, a monthly customer complaint log with resolution implemented, continuous staffing provisions, and an on -site supervisor. To further improve public services and in exchange for a lower curb mile price to the City, Athens Services centralized their Santa Ana operations at the City Corporate Yard to deploy their fleet of sweeping vehicles from the Yard, utilized office/storage space, cleaned their vehicles at the wash rack, and had the option to purchase fuel on -site from 25J-1 Amend Agreement with Athens Services for Street Sweeping Services January 21, 2020 Page 2 the City. All of these items have contributed to faster, more efficient, and successful services to the public. The current street sweeping rate is $15.63 per curb mile as stipulated per the agreement's cost of living adjustment. Agreement Renewal Negotiations and Amendments The City began agreement renewal negotiations with Athens Services in October 2019, with Athens Services formally requesting to exercise the agreement's eight —year renewal option, with three proposed amendments that included: 1. Street sweeping curb mile rate adjustment to $17.63 due to cost of living increases; 2. Removal of the annual cost of living maximum of 2% (Section 3(D)); and 3. Removal of the requirement to utilize street sweeping vehicles eight years old or newer (Section II(C)(1)(c). The City responded to Athens Services proposed amendments and they accepted the City's counter proposal on December 9, 2019. The proposed negotiated agreement amendments (Exhibit 2) are summarized as follows: 1. Curb mile rate increase from $15.63 to $17.63, effective July 1, 2020. 2. Maintain the existing 2% CPI/PPI language. 3. Remove requirement to only utilize sweeper vehicles eight -years or newer and require that vehicles are in new, like new, or newly refurbished condition. 4. A four-year renewal term will be proposed starting on July 1, 2020, and ending on June 30, 2024. Cost Analysis Based on the most recent curb -mile price data gathered, the City has and will continue to benefit from the lowest pricing based on the three most recent contracts awarded to Athens Services and in comparison to other local cities that contract street sweeping services. The table below highlights the proposed curb mile pricing of $17.63 being well below the industry averages: Agencies Curb Mile Rate Athens Services Contracted Cities $21.94 (Average of three most recent contracts Other Contract Sweeper Cities $20.70 (Average of Seven Orange County Cities City of Santa Ana (Proposed) $17.63 25J-2 Amend Agreement with Athens Services for Street Sweeping Services January 21, 2020 Page 3 Quality Control and Performance Measures The agreement continues to include key quality control measures that are consistent with other cities and industry standards to ensure sweeping quality and performance. As well, staff systematically performs daily and weekly route inspections for quality control. Athens Services has been compliant with the service expectations envisioned and expected of them and has been very responsive with corrective measures when the City requests service improvements. They have met their service goals by performing consistent weekly services. They have also provided additional services, including the addition of more street sweepers at times of need, such as during windstorm events, and free sweeping services annually for roadway debris emergencies and special events, such as, but not limited to, Fiestas Patrias Parade, Downtown Events, and the City's 150th Anniversary Celebration. Athens Services has provided street sweeping services for over 30 years, including servicing the City of Santa Ana for the past seven years. They have provided the best quality service at the most cost effective price. Therefore, staff recommends that the City Council approve the recommended action. In the event that this renewal extension is not approved, a Request for Proposals (RFP) will need to be issued, requiring approximately six months to finalize the procurement, with a service start date goal of July 1, 2020. If a new contractor were selected and is unable to acquire the necessary fleet of street sweepers due to industry constraints, a one-year extension to Athens Services would possibly be required to allow sufficient time for a smooth transition with the new contractor. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #6 — Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy #1 b (equitably maintain existing streets and associated assets in a state of good repair so they are clean, safe and aesthetically pleasing for all users.) ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Although the new contact results in a 12.8% increase, the sanitation fund has sufficient cash flow to provide for the increased cost in future years. Funding for the four-year renewal term, FY 2020- 21 through FY 2023-24, will be budgeted and made available in the account specified below: Fiscal Year Account No. Fund Accounting Unit — Amount Description Public Works -Roadway FY 2020-21 06817641-62300 Sanitation Cleaning - Contract $1,047,222 Services -Professional 25J-3 Amend Agreement with Athens Services for Street Sweeping Services January 21, 2020 Page 4 Public Works -Roadway FY 2021-22 06817641-62300 Sanitation Cleaning - Contract $1,047,222 Services -Professional Public Works -Roadway FY 2022-23 06817641-62300 Sanitation Cleaning - Contract $1,047,222 Services -Professional Public Works -Roadway FY 2023-24 06817641-62300 Sanitation Cleaning - Contract $1,047,222 Services -Professional TOTAL $4,188,888 Nabil Saba, PE Interim Executive Director Public Works Agency ►6111e7G1:7 Exhibits: 1. Agreement: #A-2012-167 2. Amended Agreement 19 > > :ii��l � �LF� ril 1�1► I �> `y9 ► I �LTKK�I�J ► � �91 Kathryn Downs, CPA Executive Director Finance and Management Services Agency 25J-4 INSURANCE ON PILE • WORK MAY PROCEED UNTIL INSURANCE EXPIRES CLERK OF COUNCIL p DATE: !/ AGREEMENT FOR PROVISION OF STREET SWEEPING SERVICES A-2012-167 Exhibit 1 THIS AGREEMENT, made and entered into this 16" day of July, 2012 by Athens Services, a California corporation (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City„). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the provision of street sweeping services comparable with "high-level" industry practice. B. On November 22, 2011, City issued a Request for Proposals ("RFP") seeking proposals for provision of street sweeping services. C. Contractor submitted a Proposal which has been determined to the best quality services at minimum cost to the City. D. Contractor is ready and willing to perform the sweeping services and acknowledges that City has relied on Contractor's representations. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional street sweeping contractor. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide street sweeping services for the City of Santa Ana as set forth in City's Request for Proposals (RFP), dated November 22, 2011, and the maps included therein, on file with the Santa Ana Public Works — Maintenance Division. Said services to be performed by Contractor's workforce shall conform with the specifications set forth in Exhibit A, attached hereto. All referenced exhibits are incorporated by this reference. 2. CITY INSPECTION The Executive Director of the Public Works Agency, or his designee, shall regularly inspect the streets and other City property subject to this Agreement. If said inspection results in discovery of work that is not performed in the agreed manner, and to the professional degree set forth in the Specifications, Contractor agrees that the City shall deduct from Contractor's next monthly payment, the City's actual or estimated costs of performing the work to bring the property into conformance with the Specifications. 3. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, $15.00 per curb mile, as set forth in Scenario 3 of City's RFP. The total sum to be expended under this Agreement shall 25J-5 • not exceed $800,790.00, annually, plus a ten percent (10%) contingency for unanticipated services required during the each annual period of this Agreement. b. Invoices. Contractor shall submit a monthly invoice by the 15th of the month to the City for the services rendered in the prior month. All invoices for work performed under this contract shall be submitted electronically in a Microsoft Excel 2003 format or newer, or other format approved by the City Projects Manager or designee. Each monthly invoice shall include the following information at a minimum: i. Contractor's invoice number ii. Beginning and ending dates of services iii. City work order number (if applicable) iv. Work site address/location (if applicable) V. Unit cost, subtotals and total for invoice vi. Curb miles swept authenticated by GPS reports and maps. vii. GPS Route Maps (if requested by City) c. The City will make every effort to make payment within thirty (30) days following receipt of proper invoice. However, payment by City shall not be considered late until sixty (60) days following receipt of proper invoice. Payment need not be made for work which fails to meet the standards of performance of a professional street sweeping service. d. Adjustments to Charges. The parties may agree to an annual adjustment of street sweeping charges (not to exceed 2%) at the end of the first year of the agreement and every year thereafter, utilizing the month of December statistics and supporting documentation. The two indices which will be used for determining adjustments to street sweeping charges shall be the most recent December Consumer Price Index (CPI) for All Urban Consumers for Los Angeles -Anaheim -Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area and the December Produce Price Index (PPI). The adjustment formula shall be as follows: The CPI shall be weighted at ninety (90%) percent and PPI shall be weighted at ten (10%) percent. e. Extra Work. No new work of any kind shall be considered an extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. Documentation of contract compliance may be required on some occasions. 4. TERM This Agreement shall commence on September 1, 2012 and terminate on June 30, 2020 unless terminated earlier in accordance with Section 13, below. The City retains an option to extend the term of this Agreement for one additional eight -year period. Said option shall be exercised in writing at least thirty (30) days prior to the end of the initial term. Notwithstanding the above, in the event the City Council does not allocate funding for street sweeping services during the annual budget approval process, the City shall notify Contractor of such occurrence in writing at least thirty (30) days prior to the end of the current fiscal period, and this Agreement shall terminate on the last day of current fiscal period without penalty or expense to the City. 5. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise 25J-6 discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. :, IQROJIXWIGO Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. section: d. The following requirements apply to the insurance to be provided by Contractor pursuant to this (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25J-7 r INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Contract (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 With courtesy copies to: Public Works — Maintenance Division City of Santa Ana 25J-8 220 S. Daisy Avenue, Bldg A Santa Ana, California 92703 Fax 714-647-3345 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647-6515 To Contractor: Athens Services Gary Clifford 5355 Vincent Avenue Irwindale, California 91706 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any Exhibits or Attachments hereto, the terms of this Agreement shall prevail, followed, in precedential order by, 1) the Specifications attached as Exhibit A, 2) the provisions of City's Request for Proposals dated November 22, 2011, and 3) Contractor's Proposal. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor nor the City. 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. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel. 13. TERMINATION AND DAMAGES a. City reserves the right to terminate this Agreement immediately, without penalty, for cause. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner 25J-9 r 0 required, or if Contractor violates any provision of this Agreement, Contractor shall be deemed in default. City shall provide written notice of such default to Contractor's Project Manager. Contractor shall cure said default within a period of two (2) working days. If more than two (2) working days are reasonably required to cure the default, Contractor shall provide adequate assurance of due performance within forty-eight (48) hours after Contractor receives written notice of default from City. Such assurance shall include acknowledgement of the defaulf Contractor's proposed remedy and the timeline (not more than seven (7) working days) for cure. If such cure is not completed in a timely manner, City may assess liquidated damages or terminate the Agreement forthwith by giving written notice to Contractor's Project Manager. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. Contractor shall be responsible for all costs incurred by City, including replacement costs of equipment and labor required to provide service during Contractor's default. b. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the Projects Manager or designee, the level of maintenance falls below appropriate street sweeping maintenance standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the Projects Manager or designee determines that contract services are performed as well and as frequently as required by this Agreement. c. Termination by Contractor. (i) Contractor may stop providing service pursuant to this Agreement in the event on nonpayment by the City. In order to invoke this provision, Contractor must first provide to City thirty (30) day written notice of nonpayment of undisputed sums. Contractor shall allow the City thirty (30) working days to cure the alleged breach, after Contractor provides written notice of such breach. (ii) The Contractor may request termination of the contract when conditions during the contract make it impossible to perform or when prevented from proceeding with the contract by act of God, by law or official action of a public authority. In such event, Contractor may request termination by providing one -hundred eighty (180) days written notice prior to contract termination date. If such event may not be remedied by reasonable action taken by Contractor, City may approve termination. 14. LIQUIDATED DAMAGES If City determines that the Contractor has breached its promise to provide street sweeping services in compliance with the Terms and Conditions of applicable laws and regulations, and the specifications set forth herein, it would be impracticable and extremely difficult to determine the damage to City arising from such breach. Therefore, in the event of Contractor's breach, Contractor shall pay to City the sum of $265.00 per street sweeping hour during which Contractor remains in breach, in addition to any cost, fines, etc. levied against the City. 15. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS Contractor shall solicit and advertise employment opportunities to Santa Ana residents. The City shall inform the Contractor of areas to publicize recruitment opportunities, such as work centers and community centers. Such effort and procedure will be provided to the City for review. 25J-10 0 16. EMPLOYMENT OF DISPLACED SANTA ANA WORKFORCE Contractor shall extend offers of employment to any displaced City of Santa Ana street sweeper equipment operators for a minimum of one year and at a rate commensurate to their last base salary amount as an equipment operator with the City of Santa Ana. Such effort and procedure will be provided to the City for review. 17. CONTRACTOR COMMUNITY EVENT PARTICIPATION AND PUBLIC AWARENESS Contractor shall participate in public awareness efforts and community events and programs, such as neighborhood clean-up events and anti -litter campaigns. Such participation shall be upon City request provided with reasonable notice of event timing. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS a. Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable environmental, traffic, safety and any other applicable laws, regulations, ordinances, codes and any other legislative or statutory requirements. b. Contractor warrants that the performance of services under this contract shall be compliant with the current requirements of the Occupational Safety and Health Act (OSHA) and as it may be amended or updated throughout the term of this contract. c. Contractor shall be liable for all violation fines levied against the City by, Federal, State and/or local agencies, with authority over Contractor street sweeping services. 19. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 21. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 25J-11 0 • 22. MISCELLANEOUS PROVISIONS a. Each undersigned represents and wan -ants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: La a Needy Assistant City Attorney FOR APPROVAL: vRAUL GOIffNEZ, II Executive 01rector—PWA CITY OF SANTA ANA QL�-- PAUL M. WALTERS City Manager ATHENS SERVICES �` 4L9-4— M. CIifford Chief Operat* Officer Tax ID# 5 25J-12 r EXHIBIT A SPECIFICATION FOR STREET SWEEPING SERVICES CONTRACTOR'S WORKFORCE a. Contractor shall provide a work force sufficient to perform the required services. b. All contract services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state and federal laws and regulations. Contractor shall employ at its own cost, all professional and technical personnel necessary to properly perform the contract services. c. Contractor shall establish, implement and maintain written operating procedures designed to ensure the work forces' utilization of techniques generally accepted for cities of the size and nature of the City of Santa Ana. A current copy of Contractor's Operating Procedures shall be provided to the Santa Ana Maintenance Supervisor. d. Contractor shall provide a skilled, experienced and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. e. Contractor personnel while performing contract services for the City shall be neat in appearance and wear uniforms as approved by the Santa Ana Maintenance Supervisor. Additionally, all Contractor personnel shall wear identification badges or patches. Employees driving Contractor's vehicles shall at all times possess and carry a valid Commercial Drivers License issued by the State of California. If the City Maintenance Supervisor determines that any person employed by Contractor has failed or refused to observe the terms of the contract, appears to be incompetent, acts in a disorderly, improper or unsafe manner, shows signs of intoxication or other impairment, shall be removed from the performance of services for the City. Prior to returning a removed employee to work in the City, Contractor shall provide, in writing, the reason for the individual's behavior and the means imposed to prevent the behavior from occurring in the future. f. Complaints received by City regarding Contractor's performance will be transmitted to Contractor in writing, by telephone or fax, and handled by Contractor's supervisor. All complaints shall receive a follow-up response within twenty-four (24) hours following notification of the Contractor. A report of the Contractor's investigation and corrective action will be promptly provided to City. g. Contractor shall provide a manager to coordinate work with the City Maintenance Supervisor and ensure satisfactory performance of services. h. Contractor shall provide adequate safeguards to prevent damage to existing structures and improvements. Structures and improvements of any kind, whether public or private, which are removed, damaged or destroyed in the course of work shall be replaced and/or repaired at Contractor's expense, to the original condition and to the satisfaction of the City. 25J-13 0 • i. City may utilize a Parking Control Officer to cite vehicles for parking during street sweeping hours. The Contractor shall coordinate sweeping activities with the parking control officer. All costs for coordination are the responsibility of the Contractor, and no additional compensation will be allowed. j. The City may at various times and locations temporarily install portable traffic counting equipment of the type which is activated by vehicles coming in contact with a hose placed in the roadway. Caution shall be used by the Contractor to avoid damaging said equipment. If the Contractor, while in the performance of this contract damages any of the traffic counting equipment or appurtenances, Contractor shall bear the entire cost for the restoration, repair, inspection, testing or replacement of said damaged equipment. II. CONTRACTOR REQUIREMENTS AND RESPONSIBILITIES A. WORK ASSIGNMENTS AND SCHEDULE Contractor shall be provided weekly route schedules by the City. Contractor shall submit a written sweeping schedule to the City Projects Manager or designee clearly identifying the sweeping tasks required by this Agreement and days they are scheduled to be performed in each particular area. Contractor shall review and propose sweeping route modifications to improve sweeping program efficiency. If it is necessary to make periodic revisions to this maintenance schedule, a modified schedule must be submitted for review to the Projects Manager or designee for approval prior to the date the changes are to take effect, but not less than 48-hours. Otherwise, it is intended that the Contractor will develop a permanent schedule utilizing the information, route schedule and any other information provided by the City, which will allow the City to monitor the Contractor's progress. Failure to notify of a change and/or failure to perform an item of work on a scheduled day may result in deduction of payment for that date or week based on curb miles not swept. The Contractor shall adjust his/her schedule to compensate for all holidays and rainy days. Street sweeping shall be scheduled for all regular holidays and rainy days, unless otherwise indicated by the City. B. ALTERNATIVE -FUEL SWEEPING EQUIPMENT Contractor will utilize alternative -fuel sweepers ONLY, as defined pursuant to Air Quality Management District (AQMD) Rule 1186.1 - altemative-fuel sweeper means a sweeper with engine(s) that use compressed or liquefied natural gas, liquefied petroleum gas (propane), methanol, electricity, or fuel cells. Hybrid -electric and dual fuel technologies that use diesel fuel are not considered alternative - fuel technologies for the purposes of Rule 1186.1. C. STREET SWEEPING EQUIPMENT 1. The street sweeper or any relief sweeper used to perform this contract work shall: a. Be AQMD and State (if applicable) approved alternative fuel. Contractor shall be liable for all AQMD, State or Federal fines levied against the City relating to Contractor street sweeping equipment violations. b. Be a standard full size motorized sweeper equal to or larger than an Elgin Broom Sweeper, Tymco 600, Schwarze model A8000 or similar model with equal pick up abilities with dual gutter brooms. Vacuum sweepers may be considered. c. Be no more than eight (8) years in age at any period during the contract. Contractor will be allowed 12-months to replace necessary sweepers at the end of the first eight year term of this Agreement. 25J-14 d. Be able to deposit hopper debris at City Yard Bin "Pit" area (washout, cleaning, dumping of hopper on streets will not be allowed). e. Be maintained in top -class running condition including arriving clean for each daily schedule. f. Contractor shall provide a relief sweeper to complete scheduled routes for each sweeper out of operation, broken down, scheduled for maintenance or any other similar situation. g. Contractor shall provide a listing of all sweepers and relief sweepers identifying: i. Make, model, and year. ii. Company identification unit number. iii. California license number. iv. Company vehicle colors. v. Sweeper color, if different. vi. Names of all operators, California driver's license number, license class, expiration date and a current California DMV record for each driver. It. Contractor will not be permitted to washout or clean hopper on any public street, alley or City owned parking Iot, except in designated areas at the City Corporate Yard. 2. The street sweeper or any relief sweeper shall be equipped with the following: a. Rotating amber dome lights. b. DMV night traveling amber side, rear, and top lights or similar. c. Dual side gutter brooms. d. A set of road trouble fluorescent triangles. e. A radio or mobile phone. D. STREET SWEEPING SPEED 1. Street sweepers shall be operated at speeds no greater than eight (8) miles per hour, as will be indicated on tachograph charts, covered hereinafter. 2. Reviews by the City shall be made of all information and reports generated by the GPS tracking system. 3. Indications of any day's sweeping exceeding 8 miles per hour shall result in: a. Notification after the first two occurrences to the contractor that he is in non-compliance. b. Reduction in monthly payment by one eighteenth for each day that sweeping is recorded in excess of 8 miles per hour over a total of one hour per day. E. QUALITY OF SWEEPING The quality of sweeping shall be to the satisfaction of the Public Works Agency Executive Director or designee. Contractor shall at all times use good sweeping practices as dictated by the highest standards within the sweeping industry and will make adjustments to its equipment as necessary to result in clean streets with no debris trails left behind. On occasion and as deemed necessary by City, this will require the complete width of the street, curb to curb, to be swept clean of debris. Contractor shall exercise due 25J-15 care so as to prevent spilling, scattering, or dropping of debris during the sweeping activity and shall immediately clean up any such spillage, dropping, or scattering. Sweeping practices include, but are not limited to the following: (a) Sweeping speed shall be adjusted to street conditions with a maximum speed of eight (8) miles per hour; and (b) patterned concrete medians, intersections, and crosswalks shall be swept at a maximum speed of three (3) miles per hour. Standards, schedules, and frequencies may be modified from time to time as deemed necessary by the City to ensure the highest sweeping quality. Due to different street widths throughout the City, street sweeping may require slower travel speed and/or multiple passes by the sweeper, in many cases, to ensure curb -to -curb coverage of the street, as appropriate. Streets with raised medians (commercial and residential) shall have their curb -gutter perimeter swept, including turnouts. Street grade striped medians shall be swept in their entirety. All deposits within intersections shall be removed as part of the sweeping operations. Each street shall be swept clean to the adjacent property line. Swept clean means minimal debris residual or tailings. Sweeper must not blow debris onto private property. F. GLOBAL POSITIONING SYSTEM (GPS) Contractor shall provide all street sweepers used in the City with a GPS that enables computer monitoring location of the sweepers at all times. This system will also monitor the day-to-day operation of the sweepers, location of sweeper, including streets swept, curb miles swept, brooms up or down, and the direction and speed of travel. The City and Contractor shall be enabled to view this information via computer at all times. GPS reports shall be available at the request of the City. G. REQUIRED CONTRACTOR IDENTIFICATION SIGNAGE Contractor will have identification signage on all vehicles at all times while working in an official capacity for the City. Such signage shall be of a professional quality and maintained neat in appearance, free of graffiti, easily identifiable and in sound condition. All costs associated with the fabrication of such signage shall be borne by Contractor. Such signage design shall be pre -approved by the City prior to production. Signage type and material shall be plastic with magnetic backing, painted signage on vehicle or similar. Taped vehicle signage will not be allowed. Such signage shall state Authorized Contractor, City of Santa Ana, Public Works Agency, name of Contractor and Contractor telephone number. Signage Letter Minimum Size shall be two -inches for Authorized Contractor, City of Santa Ana and Public Works Agency. A minimum of one -inch height will be required for all other information. 14. FUELING OF SWEEPERS Contractor shall be responsible for fueling each sweeper and shall be ready to sweep at all scheduled times. I. SPECIAL SWEEPING Contract shall provide up to 400 annual curb miles of special sweeping at no additional cost for special events, parades, inclement weather sweeps, roadway hazards, spills (similar, but not limited to oil, paper, debris, etc). These sweeps are not re -sweeps of an area not swept properly, but rather an additional sweep that is not part of the regular schedule. If appropriate, prior approval from City Projects Manager or designee is required. Additionally, Contractor shall routinely sweep the City Corporation Yard and maintain sweeper wash rack area clean J. PERFORMANCE DURING INCLEMENT WEATHER 1. The City shall determine when sweeping operations should cease due to inclement weather or other reasons and will notify the Contractor immediately of such determination. 25J-16 2. Payment by City shall be made only for work performed prior to receipt of notification that service must cease, as set forth above. K. CONTRACTOR PERSONNEL A list identifying the names of all Contractor street sweeping equipment operators shall be provided to the City Projects Manager or designee. All Contractor personnel operating sweeping equipment shall be required to be licensed to operate such sweeper and maintain a valid license issued by the California Department of Motor Vehicles. L. WORKING HOURS All sweeping activities shall be completed within established sweeping time periods as posted on City streets. Typically, sweeping operations should be completed by 3:30 PM, Monday through Friday unless prior approval is given by the City Projects Manager or designee. Approval and deviation of Contractor schedule will be at the sole discretion of the City. M.INSPECTIONS The Executive Director or his designee shall regularly inspect the streets and other City property subject to this Agreement to ensure that the work is being, and has been, performed in accordance with the terms identified in this agreement. All work found in such inspections not conforming to the applicable requirements shall be corrected by the Contractor and the City shall have the right to withhold payment to the Contractor until the work is corrected. N. PROTECTION OF THE PUBLIC AND DAMAGES TO EXISTING STRUCTURES 1. Contractor shall exercise caution at all times for the protection of persons and property. All fines, penalties and/or repair charges resulting from the Contractor's actions shall be the sole responsibility of the Contractor. 2. Contractor shall not permit placing or use equipment in such a manner as to block vehicle traffic lanes or create safety hazards. Contractor shall be responsible for the use of all appropriate warning traffic safety devices when deemed necessary. 3. Methods proposed by the Contractor and approved by the City shall not harm, deface or damage the streets being swept, street trees, sidewalks or street curbs. In the event that damaged to City right-of- way has occurred in the course of work, the Contractor shall be solely responsible for its repair or replacement. O. SPECIFICATIONS This scope of services is intended to cover all labor, material and standards of workmanship to be employed for in this work plan or reasonably implied by terms of same. Work or materials of a minor nature which may not be specifically mentioned, but which may be reasonably assumed as necessary for the completion of this work, shall be performed by the Contractor as if described in the specifications. P. WATER Contractor will be provided access to City fire hydrants free of charge, to utilize when filling sweepers. The City will provide information and demonstrate how to properly utilize fire hydrant connections. Q. DEBRIS DISPOSAL Disposal of Santa Ana sweeping debris at the City Corporation Yard will be permitted free of charge. In compliance with Santa Ana Municipal Code §18-155, debris disposal discharge shall not be permitted onto the street. Debris disposal discharge includes dumping or disposal of any liquid, semi -solid or solid substance. Contractor will be responsible for collection of incidental debris around trash container/bin 25J-17 n resulting from disposal exchange within two -hours after exchange. Coordination will be made by the City Projects Manager or designee. Contractor shall make every effort to recycle materials. R. SPILLS 1. Contractor shall make additional passes on a street route to pick up any spillage of sweeping materials debris dropped during turns or crossings of cross gutters, prior to moving to the next area. 2. The equipment operator shall immediately stop in the event of equipment spillage such as a spillage of gasoline, diesel, motor oil, or hydraulic oil. A call for assistance must be made and the area cleaned within two hours. Failure to affect a proper cleanup will result in the City responding with Fire and Public Works Hazmat crews, and costs will be deducted from the following invoice to be paid. The quality of spill clean-ups shall be to the satisfaction of the City Projects Manager or designee. S. RECORDS Contractor shall keep accurate records concerning all of its employees or agents and provide the City with names and telephone numbers of emergency contact employees. Contractor shall complete a monthly maintenance report indicating work performed, including GPS maps of routes swept and submit this completed report to the City Projects Manager or designee. This report shall include a description of work performed, including man-hours, equipment, and any additional work, which Contractor deems to be beyond the scope of the contract. Payment for this work will not be authorized unless the additional work and the costs thereof are first approved by the City.. Contractor shall provide monthly phone customer service logs, including calls made by City staff, indicating name, date, time and phone number of caller, reason for request, responselaction by Contractor and time required to address request. Such logs shall be accurate and truthful. Contractor shall permit the City to inspect and audit its books and records regarding services provided in City at any reasonable time. T. EMERGENCY SERVICES The Contractor shall be available by phone, and shall respond to emergency calls placed by City within thirty (30) minutes during normal working hours. Contractor will provide the City with names and telephone numbers of at least two qualified persons to be called by City representatives when emergency maintenance conditions occur during hours when the Contractor's normal work force is not present in the City of Santa Ana. These Contractor representatives shall respond to emergency calls within one (1) hour from receiving notification. The City anticipates the need for this service of up to six -occurrences per year. U. SUPERVISION OF CONTRACT AND MEETINGS WITH CITY All work shall meet with the approval of the City of Santa Ana Public Works Maintenance Services Division. There shall be a minimum of one monthly meeting between Contractor City representatives to determine progress and to establish areas needing attention. A status report of activities performed and maintenance issues addressed by the Contractor will be submitted in writing to the City on a weekly basis. Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. V. CONTRACTOR'S EQUIPMENT City will permit Contractor to store equipment and necessary service vehicles used exclusively for providing street sweeping service, at the City Corporate Yard. City will grant to Contractor, on the terms and conditions set forth in Exhibit B, attached hereto, a license to utilize the eight (8) CNG time - fill spaces, and four (4) non-CNG spaces at the City Corporate Yard, for Contractor sweeping operations. Said spaces shall be utilized only for street sweepers, maintenance vehicles and supervisor 25J-18 vehicles. Additionally, City will grant to Contractor a license to use the small office/locker room at the City Corporate Yard. Said license area is shown on the map attached hereto as Exhibit 13-1. W. MATERIALS AND EQUIPMENT Contractor shall make all reasonable effort to purchase equipment and materials in the City of Santa Ana and to utilize Santa Ana vendors. Such efforts shall be provided to the City. The City shall have the ability to provide a list of possible Santa Ana Vendors to the Contractor. X. CUSTOMER SERVICE Contractor shall provide service, which is accessible, courteous, responsive, timely, equitable and given in the spirit of professionalism and mutual respect. A Contractor equipment operator is an extension of the City of Santa Ana Public Works, and as such is expected to: 1. Interact with customers and City officials, whether in person or on the phone, in a pleasant, respectful and professional manner. 2. Give full attention to each customer's needs by asking questions. Provide information, products and service in an accurate, organized and complete manner. Determine that the customer's request has been fulfilled. 3. Comply with all federal, state, county, and city laws and regulations. 4. Use adequate equipment that is kept clean and neat at all times. 5. Train other Contractor employees to be polite and courteous during public contact. 6. Employ truth and accuracy in reporting customer service records. III. DEFINITIONS 1. Curb Mile — measurement of curbing of streets and medians and equal to 5,280 linear feet. 2. Linear Mile — measurement of actual miles driven in order to satisfactorily clean streets to the City standard, which may require multiple passes depending on condition and width of street. 3. Curb -to -Curb — area within the curb limits of the street including medians, intersections and street ends. 4. Contractor Holidays —New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. 5. Inclement Weather — weather conditions that prohibit the effective operation of sweeping operations. 6. Debris — litter, rubbish, leaves, sand, debris trail, dirt, garbage, and other foreign material. 7. Street — all paved dedicated public rights -of -way within the existing or future City limits. 8. Re -sweep — sweep required when previous sweeps are deemed by the City to be below standard or when a street or sections of a street are missed during regularly scheduled operation. Such re -sweeps will be at no additional cost with up to two re -sweeps performed to City satisfaction. 9. Sweeper— Sweeping machine. 25J-19 10. Swept Clean — means minimal debris residual or tailings. 11. Special Sweeping (Sweeps) — sweeping involving special events, parades, inclement weather, roadway hazards, spills (similar, but not limited to oil, paper, debris, etc.) and City surface parking lots. 12. Travel Speed — sweeper operator must maintain a speed of no more than eight (8) miles per hour, or other agreed upon speed by the City, while the sweeping broom is lowered in the operating position. 25J-20 EXHIBIT B CITY CORPORATE YARD LICENSE AGREEMENT 1. PARTIES. This License Agreement is made and entered into this 16`h day of July, 2012 by and between the City of Santa Ana, a charter city and municipal corporation organized and existing pursuant to the Constitution and laws of the State of California, (hereinafter referred to as "City") and Athens Services, a California corporation (hereinafter referred to as "Athens"). k 9:la51f.YoI.`! City hereby grants to Athens on the terms and conditions hereinafter set forth. A non-exclusive license to enter that certain real property located at 215 S. Center Street in the City of Santa Ana, County of Orange, State of California, commonly known the City Corporate Yard (hereinafter the "Premises"), and an exclusive license to eight (8) Compressed Natural Gas (CNG) time -fill spaces, four non-CNG spaces and the small locker room at the City Corporate Yard, Fleet Maintenance Facility, depicted in Exhibit B-1, attached hereto (said hereinafter called the "License Area"). Athens hereby accepts the Premises in their condition existing as of the commencement date of this Agreement. Athens shall maintain the License Area in a clean and safe condition, in conformance with environmental standards and regulations. Upon the expiration or termination of this License Agreement, Athens shall surrender the Premises to City in good and clean condition, less ordinary wear and tear. The term of this License shall be eight years commencing on and ending on unless sooner terminated as hereinafter provided. Said License is for the sole purpose of providing space for the City's street sweeping service provider to store the equipment necessary to perform service for the City. This license will automatically terminate upon termination of the parties agreement to provide street sweeping for the City. 4. RENT Athens shall pay rent for the License Area in the form of reduced price per curb mile for sweeping services. Said reduced price may be increased, as agreed by City and Athens annually when the parties adjust the compensation for sweeping services. Athens shall monthly compensate City for the cost of compressed natural gas transferred to street sweeping equipment through the time -fill pumps during the previous month. Said cost shall be the sum of (the gasoline gallon equivalent-(GGE) pumped at the time -fill pumps X the commodity price per GGE paid by City) + (GGE x Fleet Facility overhead ($1.34/GGE)). The City's overhead charges shall be adjusted annually in the same percentage as the change in the most recent December Consumer Price Index (CPI), All Urban Consumers for Los Angeles -Anaheim -Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area and the December Produce Price Index (PPI). The adjustment formula shall be as follows: The CPI shall be weighted at ninety 25J-21 (90%) percent and PPI shall be weighted at ten (10%) percent. Each annual adjustment shall not exceed two percent (2%). 5. SECURITY DEPOSIT Athens shall deposit with City upon the execution of this License the sum of Five Thousand Dollars ($5,000.00) dollars as a security deposit for the Athens' faithful performance of the provisions of this License. If Athens fails to pay rent or otherwise defaults with respect to any provision of this License, City may use the security deposit or any portion of it to cure the default or compensate City for all damages sustained by City resulting from Athens' default. Athens shall immediately on demand pay to City the sum equal to that portion of the security deposit expended or applied by City which was provided for in this paragraph so as to maintain the security deposit in the stun initially deposited with City. City shall not be required to pay Athens interest on the security deposit. If Athens performs all of its obligations under this License, the security deposit, or that portion thereof which has not previously been applied by the City, shall be returned to Athens within fourteen (14) days after the expiration of the term of this License, or after Athens has vacated the Premises, whichever is later. 6. USE. Athens shall use the Premises only for storage and fueling of equipment required to perform the street sweeping agreement, such as street sweepers, supervisor vehicle and a back hoe if necessary to remove sludge from wash rack to waste bins, and for no other purpose without the City's prior written consent. Athens may utilize the wash rack to clean sweepers and shall dispose of sludge in the waste bins on the Premises. Athens shall prevent sludge from entering the storm drains in violation of NPDES regulations. Athens may perform minor maintenance on its equipment while stored at the Premises, however, Athens shall provide all tools and equipment necessary for such maintenance. Further, Athens shall not perform any maintenance which will allow the escape of fluids in violation of NPDES regulations. Any waste/trash resulting from such maintenance shall be disposed off -site. 7. TAXES AND UTILITIES a.) If the Orange County Tax Collector makes a determination that the use of the License Area by Athens constitutes a possessory interest, Athens shall pay, before they become delinquent, all taxes, assessments or other charges levied or imposed by any governmental entity on Athens License Area. b.) City shall pay electricity, water and sewer charges imposed on the Premises. c.) In the event Athens' use of the Corporate Yard increases costs to City such as NPDES compliance costs, Athens will be responsible for such increases. The parties shall negotiate the terms and conditions of the Street Sweeping Service Agreement, to agree to a method of compensation for such increased costs. S. IMPROVEMENT AND ACCESS a.) Athens shall have access to the Premises during normal Corporate Yard business hours from 6 am to 8 pm Monday through Friday. Athens shall be provided access cards for its employees to utilize the Daisy Street employee parking area during their shifts. If Athens requires access to the Premises after hours, it shall contact City Corporate Yard manager to arrange necessary access. 25J-22 El b.) Athens shall maintain and repair the License Area, including the removal of all trash, debris and waste material. If Athens causes any damage to the Premises, it shall properly repair the same to the satisfaction of the City. If Athens fails to so repair, City may repair and deduct the cost of such repair from the next monthly payment for Athens provision of sweeping services. 8. LIENS Athens will not permit any mechanics' or materialmens's of other liens to stand against the Premises by reason of any use or occupancy by Athens or any agent or representative of Athens. 9. INDEMNITY AND INSURANCE Athens shall protect, defend, indemnify and save and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Athens' failure to comply with any obligations contained in this License Agreement by Athens, its officers, agents or employees except such loss or damage which is caused by the sole negligence or willful misconduct of City. Athens further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Insurance In addition to the Athens' covenant to indemnify and hold harmless City, Athens shall obtain and furnish to City, a policy of general public liability insurance, commercial general liability, covering the Premises. The policy shall indemnify Athens and City, their officers, agents and employees, while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $1,000,000 per occurrence. The policy shall name the City of Santa Ana, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any insurance coverage which may be applicable to the Premises shall be deemed excess coverage and that Athens' insurance shall be primary. Under no circumstances shall the above -mentioned insurance contain a "deductible" or any other similar form of limitation on the required coverage. Athens is required to give the City no less than thirty (30) days notice of cancellation or reduction in coverage. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Athens to furnish insurance during the term of this Agreement. Property Insurance Athens shall provide to City, before entering the Premises, and shall maintain in force during the entire term of this Agreement, property insurance with extended coverage endorsements thereon, on the Premises in an amount equal to the full replacement cost and/or value thereof; this policy shall contain a replacement cost endorsement naming Athens as the insured and shall not contain a co-insurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair or rebuild any such improvements so damaged or destroyed; and if not so used, such proceeds shall be paid to City. The proceeds of any such insurance payable to City shall be used for rebuilding or repair as necessary to restore the Premises at the discretion of City. The policy shall name the City of Santa Ana as an Additional Insured. The policy or policies shall also contain the following endorsements: 25J-23 • 1�1 The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior written notice to City; and 2. The City of Santa Ana will not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with City. Certificates of Insurance Prior to execution of this Agreement, Athens shall furnish to City certificates of insurance and additional insured endorsements to each of Athens' insurance policies, subject to approval of the City Attorney, evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: 1. provide the name and policy number of each carrier and policy; 2. shall state that the policy is currently in force; and 3. shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days prior written notice of Landlord. Athens shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of City by Athens under the Agreement. City or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance, which Athens shall provide within fifteen (15) days of City's request. 10. TERMINATION AND DEFAULT a. Termination in the Event of Casualty or Condemnation In the event of any damage, destruction or condemnation of the Premises, which renders the Premises unusable or inoperable in City's judgment, City shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Premises by giving written notice to Athens within thirty (30) days after such damage, destruction or condemnation. If by virtue of such casualty or condemnation, City determines that the Premises is no longer adequate for Athens to continue its operations, or any repairs to the Premises have not been completed or cannot reasonably be completed within sixty (60) days from the date of the damage, destruction or condemnation, this License Agreement will become null and void, and the parties will negotiate an adjustment to the street sweeping curb -mile rate. b. Termination This Agreement may be terminated by either party on thirty (60) days prior written notice. In the event of such termination, the parties will negotiate an adjustment to the street sweeping curb -mile rate. 25J-24 it. ASSIGNMENT Athens shall not, either voluntarily or by operation of law, assign, transfer, mortgage, pledge, or encumber this License or any interest therein, and shall not sublet said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants, and invitees of Athens excepted) to occupy or use said Premises, or any portion thereof, without the prior written consent of the City. Default by Athens Should Athens default in the performance of any of the terms, conditions, or obligations contained in this Agreement, City may immediately terminate the License, re-enter and regain possession of the License Area. Insolvency of Athens The insolvency of Athens as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Athens, or the making of a general assignment for the benefit of creditors by Athens, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle City to re-enter and regain possession of the License Area. Cumulative Remedies The remedies given to City in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. Waiver of Breach The waiver by City of any breach by Athens of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Athens either of the same or another provision of this Agreement. 12. HAZARDOUS MATERIALS Athens represents and warrants that it will comply with all environmental laws during the term of this Agreement; its use of the Premises herein will not generate any hazardous substance, and it will not store or dispose on the Premises nor transport to or over the Premises any hazardous substance. Athens further agrees to clean-up and remediate any hazardous substance on the Premises, and hold City harmless from and indemnify City against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release by Athens or anyone acting on behalf of Athens, including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of City, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 13. MISCELLANEOUS Force Majeure — Unavoidable Delays 25J-25 Should the performance of any act required by this Agreement to be performed by either City or Athens be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused. Compliance with Laws Athens shall at Athens' own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Athens' use and occupancy of the Premises whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Athens in a proceeding brought against Athens by any government entity, that Athens has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Athens and shall be considered grounds for termination of this Agreement by City. Athens will obtain all permits and other governmental approvals, required in connection with Athens' activities hereunder, and update such permits/approvals as necessary. Partial Invalidity Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. Waste or Nuisance Athens shall not commit or permit the commission by others of any waste on the Premises. Athens shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Premises; and Athens shall not use or permit the use of the Premises for any unlawful purpose. 25J-26 .� c _y _. � -x .t yy � � �;-,�. s � . _.... a ..� ._. �y `fix .,..va . � ._ .t,,,. _.__.f � .� . :.,�, ` � -^ i - �� .. ... � � i �. 9 3{ � y iB • [ ; � �.�. $${ ♦2W�� � v. d ,j C i� � i' T M? r 1 d1fiM4 �� �K.. � � Yk� E ,f ,Y.a7,4 3 t p �• ..' +^ - �� � :. `� e f J # p � u i ,'. � { {,,.... 4-4' �. � .we. A � a � �� $. f Y $]p • s n / � p � f L �� i ' .�:: ��. � .. M i Y ';t':: � �, A I i y 1 1 h { ' S{ I♦ ## Ttt � s� p k ♦ I �� �I � � 1 g ry x� �� �a e � _ .3 i � �,_ w � K �8 {�F- s �. ....:_ «F R � .. � y T_ was oe.r: � } ... � �r..'.w.... � .; j v �'•: - � �.. Exhibit 2 FIRST AMENDMENT TO AGREEMENT FOR PROVISION OF STREET SWEEPING SERVICES THIS FIRST AMENDMENT to the above -referenced agreement is entered into on January 21, 2020, by and between Athens Services ("Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The parties entered into Agreement No. A-2012-167, dated July 16, 2012, by which Contractor agreed to provide street sweeping services ("Agreement'). B. The Agreement remains in effect through June 30, 2020, with provision for extension, and the parties now wish to adjust the curb mile rate, extend the term of the Agreement, and amend certain specifications for equipment. The Parties therefore agree: 1. Section 3.a., Compensation, is amended such that the rate for services shall be $17.63 per curb mile, effective June 30, 2020. 2. Section 4, Term, is amended to extend the term of the Agreement through June 30, 2024. 3. Exhibit A, Specification for Street Sweeping Services, Section H(C)(1)(c), is amended to read in its entirety as follows: "Contractor to have well -maintained alternative fueled vacuum sweepers in new, like -new, or newly refurbished condition." 4. Except as modified by this First Amendment, all terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. ATTEST DAISY GOMEZ Clerk of the Council CITY OF SANTA ANA KRISTINE RIDGE City Manager -- signatures continue on next page -- Page 1 of 2 25J-28 APPROVED AS TO FORM SONIA R. CARVALHO, City Attorney By: /0, f�,L WIN M. FUNK Assistant City Attorney RECOMMENDED FOR APPROVAL Nabil Saba Acting Executive Director Public Works Agency CONTRACTOR Name: Cord Laule Title: Executive Vice President Page 2 of 2 25J-29