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HomeMy WebLinkAboutS25 - S25 - City Wide Street Sweeping ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. s25 April 27, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, (949) 644 -3055 mharmon(dnewportbeachca.gov SUBJECT: Approval of Ten Year Agreement with Arakelian Enterprises, Inc., dba Athens Services, to Provide City Wide Street Sweeping Services; and Approval of a Budget Amendment Transferring $600,000 from Internal Service Funds- Equipment Replacement to the General Fund. ISSUE: Should the City Council: 1) approve the agreement with Athens Services to provide City -wide street sweeping services for up to ten years, and 2) approve the attached budget amendment transferring $600,000 from the Internal Service Fund- Equipment Replacement to the General Fund? RECOMMENDATIONS: 1. Approve the terms and award a five (5) year initial agreement, with an additional five (5) one -year extensions, with Athens Services to provide street sweeping services. 2. Approve the attached budget amendment transferring $600,000 from the Internal Service Fund - Equipment Replacement Reserve to the General Fund. DISCUSSION: Background Currently, City crews and equipment in the General Services Department are responsible for sweeping residential and commercial streets throughout the City on a weekly basis. The scope of work in the proposed negotiated contract with Athens Approval of Ten Year Agreement with Athens Services To Provide City -Wide Street Sweeping Services April 27, 2010 Page 2 Services includes full responsibility for the weekly sweeping of all residential and commercial streets within the City, including extra sweeping services as needed for special events. On March 23, 2010, the City Council unanimously directed staff to negotiate a contract with Athens to provide these services. A copy of the March 23rd agenda report is attached. Contract Terms During the past two weeks, staff and representatives from Athens Services met in good faith and agreed to the terms and conditions included in the attached agreement. Some of the terms and conditions include: • Phased Approach- Transition Year: The sweeping operations shall be implemented utilizing a phased approach in which Athens will assume incremental responsibility of areas over a 12 month period. City staff will approve the implementation of each additional phase during the course of the first year. • Fees Paid by City: The City will pay Athens Services $35,000 per month under the terms of this agreement. During the transition period, the City shall pay Athens on a pro -rata monthly basis based on the curb mile cost of the assigned areas of responsibility. • Insurance Coverage Requirements: Athens Services shall maintain the following: $1,000,000 Worker's Compensation Coverage, $2,000,000 General Liability Coverage, and $2,000,000 Automobile Liability Coverage. • Reporting Requirements: Athens Services shall submit monthly reports showing maintenance records for each vehicle used in the City, a description of the work performed including labor hours, equipment used, and any additional work that was performed with City approval. In addition, Athens shall provide a phone log listing all contacts from Newport Beach customers and the reason for the contact. • Annual Consumer Price Index Adjustment: The City shall grant Athens Services an annual CPI increase (not to exceed 3 %) at the end of the first year of the agreement, and every year thereafter. The Consumer Price Index to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles, Anaheim, Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. • AQMD Approved Equipment: Athens shall use only clean -air natural gas powered vehicles in performing the duties of this agreement. Contractor' Approval of Ten Year Agreement with Athens Services To Provide City -Wide Street Sweeping Services April 27, 2010 Page 3 vehicles will be fueled at the CNG fueling station located at the City Yard under a separate agreement with Clean Energy, Inc. • Additional Sweeping Services: Athens shall perform 150 curb miles per year at no additional cost to the City for special events. In addition, Athens will perform 250 curb miles of sweeping at no additional cost to the City for inclement weather sweeps. • Global Positioning System (GPS): Athens Services shall provide all street sweepers used in the City with a GPS that enables the monitoring of the location of the contract sweepers at all times via computer. This system will also monitor the day -to -day operation of the sweepers, including streets swept, brooms up or down, and the direction and speed of travel. • Term: The term of the agreement is for up to ten (10) years; five (5) year initial term with an option to extend the agreement in five (5), one -year increments (total of 10 years). Financial Review 1) Program Savings Funding for this agreement will be included in the proposed Fiscal Year 2010 -11 budget. The current cost for street sweeping services, utilizing City staff and equipment, is approximately $915,000 per year. The proposal from Athens Services of $420,000 per year represents a savings to the City of approximately $500,000 per year, and $5,800,000 over the life of the agreement. Entering into this agreement will allow the City to eliminate three positions in the General Services Department. 2) Reduction in Equipment Replacement Fund In addition to the ongoing operational savings listed above, staff has identified significant one -time costs savings. Currently, the City's Equipment Replacement Reserve Fund includes $600,000 for the future replacement of City street sweeping equipment. Staff recommends that these funds be transferred to the General Fund if City Council approves the Agreement with Athens Services. Environmental Review: This project does not require environmental review. Approval of Ten Year Agreement with Athens Services To Provide City -Wide Street Sweeping Services April 27, 2010 Page 4 Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Legal Review The City Attorney's Office has reviewed this report and signed the attached Agreement. Mark Harmon General Services Director Attachments 'Maurice Turner Administrative Analyst 1) March 23, 2008, City Council Staff Report 2) Budget Amendment 3) Proposed Agreement with Athens Services Agenda Item No. 24 March 23, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, (949) 644 -3055 mharmonOnewportbeachca.gov SUBJECT: Vendor Selection for Contract Negotiations for Street Sweeping Services ISSUE: Should the City Council select a vendor and direct staff to negotiate a five -year contract to provide street sweeping services? RECOMMENDATION: Direct staff to negotiate a five -year contract (five -year initial contract with five (5) optional one -year extensions) with Arakelian Enterprises, Inc., dba Athens Services, to provide city -wide street sweeping services. DISCUSSION: Background On January 12, 2010, City Council approved a Street Sweeping Request for Proposal (RFP) document for distribution to a list of contractors on file with the General Services Department, and authorized staff to return to Council with a selected firm if appropriate (Attachment 1). This action by Council followed a Study Session report on September 22nd, and a Finance Committee meeting regarding street sweeping on October 13th. A copy of the January 12th agenda report, approved minutes, and a draft contract reviewed by the Office of the City Attorney are attached. Project Description/Term of Contract The contractor will be required to perform sweeping services for 655 curb miles of City streets on a weekly basis. Street sweeping equipment must be approved by the City Vendor Selection for Contract Negotiations: Street Sweeping Services March 23, 2010 Page 2 and comply with all AQMD requirements for clean fuel (CNG /LNG) use. Contractor will ensure curb -to -curb coverage, including turnouts and medians. The contractor shall perform 150 curb miles of special event sweeps at no additional cost for each contract year at the request of the City. The contractor shall also provide 250 curb miles of inclement weather sweeps at no additional cost to the City. Both special event and inclement weather sweeping are in addition to the 655 curb miles of weekly prescheduled sweeping services. Experience has proven that a multi -year contract is the most cost- effective means to have street sweeping services performed for both the City and the contractor. The term of the proposed contract is for five years due to the large commitment of personnel and equipment required to provide this service. At the conclusion of five years, the City will hold an option to continue the agreement with five one -year extensions. An annual CPI increase is included after the 15t year of service and is capped at a maximum of 3% per year. Proposal Process and Analysis On January 21, 2010, a copy of the RFP was mailed to 22 companies on file with the General Services Department. On February 2nd, 14 companies attended a mandatory pre -bid meeting to discuss the RFP requirements in detail. The deadline for submitting a proposal to the City was February 19, 2010. Prior to this deadline, the City received 11 proposals to provide city -wide street sweeping services. As indicated in Section 1.E of the RFP, costs /fees were not the sole criteria for selection of a contractor. Evaluation criteria for the proposals also included background and experience, and technical expertise given the scope of work required for this contract. Cost Information: Each proposal was required to provide two separate cost proposals - 1) Total Annual Cost for Weekly Sweeping (52 sweeps per year per street), and, 2) Total Annual Cost for Twice Monthly Sweeping (24 sweeps per year per street). As the following chart indicates, Athens Services was the lowest, responsive proposal. 1) City Provided Service 2) Athens Services 3) Ware Disposal (alternative) 4) CR &R Inc. 5) Dickson Services 6) Ware Disposal 7) Cannon Pacific 8) Nationwide Environmental 9) CleanStreet 10) Sunset Property Service 11) Webco Sweeping 12) Rainbow Disposal Vendor Selection for Contract Negotiations: Street Sweeping Services March 23, 2010 Page 3 PROPOSAL RESULTS WEEKLY SERVICE (52 sweeps) $852,000 $419,960 $442,510 $524,554 $544,440 $591,261 $629,735 $687,589 $711,419 $742,048 $878,551 $895,254 Background and Experience/Technical Expertise: TWICE MONTHLY (24 sweeps) N/A $229,983 $178,525 $335,260 $301,536 $188,525 $408,470 $430,410 $386,476 $364,766 $415,383 $447,852 Athens Services has been providing street sweeping services for over 23 years. Currently, 15 municipalities in Orange and Los Angeles Counties contract with Athens for city -wide street sweeping services (600,000 residents and businesses). In addition, and in regards to technical experience, the following five cities have transitioned from municipal provided services to full contracts with Athens Services for street sweeping: Placentia, Azusa, Pomona, Glendora, and Irwindale. Staff has contacted these cities and they were very satisfied with the smooth transition to contract sweeping, the reduced overall cost, and the continued high quality of service provided by Athens. Athens experience in transitioning cities from municipal services to contract services will be critical in the success of this agreement. Athens Services has proposed to use Compressed Natural Gas (CNG) sweepers, and they will fuel this equipment at the new CNG Station located in the City Yard. The City Vendor Selection for Contract Negotiations: Street Sweeping Services March 23, 2010 Page 4 receives a $0.10 royalty payment for each gasoline gallon equivalent (GGE) of fuel sold from the station, so this revenue to the City will further reduce the overall cost of the contract. In addition, the clean- burning CNG sweepers used by the contractor will replace the older diesel equipment that is currently being used by the City, which will improve air quality and reduce noise levels in the community. Financial Review Funding for this agreement will be included in the Fiscal Year 2010 -11 budget. The current annual cost for street sweeping services, with City personnel and equipment, is approximately $915,000 per year (Attachment 2). Based on the proposal from Athens Services of $419,960, this agreement would represent a savings of approximately $250,000 in FY 2011 (transition year), and $450,000 to $500,000 per year in subsequent years. Over the 10 -year term of this agreement, the total cost savings by contracting with Athens Services will be approximately $5,800,000. In addition to the ongoing operational savings listed above, staff has identified significant one -time cost savings. Currently, the City's Equipment Replacement Reserve Fund includes $600,000 for the future replacement of City owned street sweepers. These funds would be transferred back to the General Fund if Council approves an outside contract for these services. Recommendation Based on the evaluation of bids using the criteria above, City staff believes the proposal from Athens Services will provide the best value for the City in terms of cost and service level. Following City Council's direction to negotiate the terms of the contract with Athens Services, staff will enter into a 2 -week negotiation period to discuss the terms in the agreement. The terms will include the phased or transition plan, storage of sweeping equipment, fueling at City Yard, maintenance and repair schedules, use of Global Positioning Systems (GPS) on each sweeper, and possible route changes. During this period, both parties will have the ability to negotiate all terms, with the exception of cost. Following the negotiation period, staff will return to the City Council on April 27i' for the final approval of the agreement and execution of the contract. The targeted start date for this project is June 1, 2010. Vendor Selection for Contract Negotiations: Street Sweeping Services March 23, 2010 Page 5 Service Level -Weekly vs. Twice Monthly Due to the competitive proposals, potential water quality issues, wind /sand problems in beach and bay areas, significant tree litter in Newport Beach, and resident expectations, staff is strongly recommending that weekly street sweeping be continued. Changing to a twice- monthly sweeping schedule would also require changing several hundred signs for streets that are currently posted (restricted parking on sweep days), and require a significant learning curve for residents already familiar with our weekly schedules. Environmental Review: This project does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Legal Review The City Attorney's Office has reviewed the Request for Proposal document and Draft Agreement (Attachment 3). General Services Director Attachments 1) January 12 City Council Staff Report 2) Analysis of Current Street Sweeping Cost 3) Draft Agreement TO: CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Attachment 1 Agenda Item No.15 January 12, 2010 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, 949 - 644 -3055 mharmon@newportbeachca.gov SUBJECT CITY WIDE STREET SWEEPING: REQUEST FOR PROPOSAL (RFP) ISSUES: Should the City consider contract street sweeping? RECOMMENDATION: Staff recommends that the City Council take the following action: 1) approve the attached Street Sweeping Request for Proposal (RFP) document for distribution to the list of contractors on file with the General Services Department, 2) authorize staff to return to Council with a recommendation on how street sweeping services are to be provided and a selected firm, if appropriate. DISCUSSION: At the September 22 "d, 2009, Council Study Session, staff presented information on the current street sweeping program which is performed with City personnel and equipment. The presentation (Attachment A) included discussion on costs, vehicle condition and replacement, recent municipal contracts, and a proposed pilot program. Due to the age and condition of the current fleet of street sweepers, and the high cost of purchasing Air Quality Management District (AQMD) compliant equipment, staff recommended that the City seek proposals from commercial sweeping contractors to conduct a six -month pilot program within the City. The intent of the pilot program was to determine the comparative costs associated with contract sweeping, the challenges involved with posted streets, and the level or quality of service that would be received. City Wide Street Sweeping: Request for Proposal January 12, 2010 Page 2 On October 13tit, 2009, staff presented a draft RFP to the Finance Committee for review and comment. The draft RFP has two significant changes from our original recommendation that envisioned merely a pilot project. First, we know propose a RFP for sweeping the entire City on a long -term, multi -year contract, and forgo the pilot program concept. The main reason for this is the time involved in preparing a RFP, analyzing bids, and awarding a contract for a term as short as six months. In lieu of a pilot program, staff recommends that a contract, if appropriate, be awarded for the entire City with a phased -in approach to implementation. This approach will allow for an incremental changeover of service provider so that issues and problems Within one area can be resolved prior to the start of service in a different area of the City. Secondly, we now propose that respondents offer two service alternatives; one for bi- monthly sweeping and one for the weekly sweeping schedule that we now do. Several cities have moved to a bi- monthly program to reduce operational costs. However, when considering changing the weekly sweeping of residential and commercial streets in Newport Beach, we will want to consider the change's impact on water quality issues, storm /tide clean -up, and posted street enforcement/sign changes. The Finance Committee supported the draft RFP, including the two changes noted above, and directed staff to return to the full Council for approval. Bid/ Proposal Analysis As stated in the attached RFP (Attachment B), staff will be analyzing each proposal received based on the following criteria: Background and Experience, Technical Expertise, Management Plan, and their Proposed Cost. A committee of various department staff members, including Administrative Services and Public Works Departments, will be formed to analyze each bid and determine a recommendation for City Council consideration. FUNDING: There is no financial impact due to the release of the RFP. ENVIRONMENTAL REVIEW. This action requires no environmental review, as it is not a project pursuant to CEQA. LEGAL REVIEW The City Attorney's Office has reviewed the attached RFP and approved as to form. City Wide Street Sweeping: Request for Proposal January 12, 2010 Page 3 Prepared /Submitted by: General Services Director Attachment: (A) September 22, 2009, Power Point Presentation (B) Request for Proposal (RFP) for City Wide Street Sweeping Services Street Sweeping Cost Comparision for FY 2010 - 2013 Attachment 2 Mats ffe-6;�� $ FY 10 378,470.75 L$ FY It 404,812.72 $ FY 12 409,611.57 1 $ FVA3 415,549.01 $ 445,535.56 364,167.12`+ 14 386,459.58 $ 419,313.56 :$ � — 11 ' 1 X: 458,424,'' Fuel $ 68,574.401 $ 61,716.96 63,568A7 $ 65,475.52 55j191.50 1 $ 72.658.7 $ 72,658.70 $ 5 0 72,658.70 Hauling $ 71,813.71 (24,000-OO)l $ $ 75,743.20 (24,000.00) $ $ 76,673.04 24,60-000) $ ; 77,766.77 X4,00.0'"00) _ k�OL From OtherAgencies, 1 914217.47'' ' $ 977MI 16 $ 1,017,825.34 S '065 '874 . 98 ffi-h� ssed! imple! 3 !34 01416. 3 1 7S-- T77�� Contract $ 261,865.83 $ 432.658.80 $ 445,535.56 -'f 72,658.70 i::J2,658;40°: $ 75,743.20 $ 76,673.04 $ 77,766.77 P�% �MM Kdericles; _777 -$ T 720,4 4.05 W7,890.54—$_ 571,961 Net Savings 1$ 256,977.121$ 459,934.801$ 493,913.94 INotes: PIERS Increases - Annual employer PERS contribution rates: 8.275% 15.406% 16.780% 18.480% CNG Requirement - AQMD mandates newly purchased sweepers must meet alternative fuel requirement Hauling & Disposal - City staff will maintain the operation of the hauling & disposal of debris Transition -43% of sweeping will be done by City staff during the phased impimentation in FY1 I % of Miles by Phase $1,000,000 $800,000 $600,000 $400,000 $200,000 $0 FY 11 Employer PERS Contribution Rate 18.48% FY 10 FY 11 FY 12 FY 13 City vs Contract Annual Cost FY 12 FY 13 1 March 15, 2010 AGREEMENT FOR STREET SWEEPING SERVICES BETWEEN THE CITY OF NEWPORT BEACH AND ARAKELIAN ENTERPRISES, INC. d /b /a ATHENS SERVICES THIS AGREEMENT FOR STREET SWEEPING SERVICES ( "Agreement') is entered into this day of 2010, by and between the City of Newport Beach, a California Municipal Corporation and Charter City ( "City "), and, Arakelian Enterprises, Inc, a California Corporation doing business as Athens Services located at 14048 Valley Blvd., City of Industry, CA 91716 ( "Contractor "), and is made with reference to the following: RECITALS WHEREAS, the City desires to obtain contract services for the sweeping of six hundred and fifty -five (655) curb miles of City streets on a weekly basis. WHEREAS, on January 12, 2010 a Request for Proposals ( "RFP ") requesting proposals for the sweeping of City streets was mailed to firms performing this service. WHEREAS, the Contractor has been deemed to be the most qualified to perform the services out of those firms which responded to the RFP. WHEREAS, the Contractor desires to enter into this Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the initial term of this Agreement shall be for a period of five (5) years. The initial term shall commence on June 1, 2010, after City Council approval of this Agreement, and upon receipt and approval of all required certificates of insurance. The term of this Agreement shall automatically be extended for five (5) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least ten (10) days before the end of the initial term or any extended term, of its intent to it A09 -00741 terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. The term of this Agreement shall not extend beyond May 31, 2020, without a separate Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ( "Contract Services') as described in the RFP's Description of Project, attached hereto as Exhibit "A ", and the Contractor's proposal, attached hereto as Exhibits 'B" and "C ", and incorporated herein by reference. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. The Contract Services shall be performed in accordance with the frequency as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of sweeping as necessary, including reducing the frequency to twice- monthly sweeping. The City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of the reduction of sweeping frequency. City shall implement a phased approach to transition to Contractor - provided services. The City's General Services Department Director or his /her designee ( "City's Administrator") shall approve the geographic boundaries, duration, and number of phases that describe Contractor's assigned areas of responsibility based upon the performance of Contractor. All areas not assigned to Contractor shall remain the sole responsibility of the City. 3. WORKMANSHIP. SUPERVISION, AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally allowed to work in the United States. 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 or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. C. The 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. A current copy of the operating procedures shall be provided to the City's General Services Department Operations Support Superintendent or his /her designee ( "Operations Support Superintendent "). D. The Contractor's work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The 2 A09 -00741 supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working in the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. Employees shall not remove any portion of their uniform while working within the City. Employees driving the Contractor's vehicles shall at all times possess and carry a valid Commercial Drivers License issued by the State of California, if required for the type of vehicle they drive. If the City's Administrator determines that any person employed by the Contractor has failed or refused to carry out the terms of this Agreement, appears to be incompetent, acts in a disorderly, improper, or unsafe manner, or shows signs of intoxication or other impairment, instead of initiating termination for breach, the City's Administrator may notify Contractor, who shall take immediate remedial action, which may include removing the employee from the job site. Prior to returning a removed employee to work within the City, the Contractor shall provide in writing the reason for the individual's behavior and the means used to prevent this behavior from occurring again. In no event shall Contractor fail to prevent, prohibit, or resolve problems with its employees working after receiving notice of same from the City. Violation of this section by Contractor shall be a material breach of this Agreement and may result in the City terminating the Agreement or temporarily suspending services hereunder, with Contractor being liable for any resulting costs incurred by the City. No action to terminate or suspend shall be taken by City until after Contractor is provided notice and afforded an opportunity to respond or refute the allegations, except that the City's Administrator may immediately suspend services hereunder if he finds such action reasonably appropriate to protect the public safety, health or welfare. F. All work shall be performed in accordance with the highest street sweeping standards. G. Complaints received by the City regarding the Contractor's performance will be transmitted to the Contractor's office in writing, by telephone or facsimile, and handled by the Contractor's supervisor. Contractor shall provide a follow -up response to all complaints within twenty -four (24) hours following notification of the Contractor. A report of the Contractor's investigation and the corrective action taken shall be made promptly by the Contractor to the City's Administrator. Repeat complaints may be handled by a joint visit to the site by a City Inspector and the Contractor's supervisor. Complaints received directly by the Contractor shall be submitted in writing to the City on the day such complaints are received. Contractor shall maintain a log of complaints received and corrective actions implemented which shall be submitted to the City within ten (10) days following the end of the month. H. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the 3 A09 -00741 identification of the Contractor. All vehicles used to perform work under this Agreement shall conform to AQMD Rule 1186.1. I. Contractor shall provide a manager to coordinate work with the City's Administrator, and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. J. Work within the City by utility and construction companies may be progressing concurrently with the work under this Agreement. It is the responsibility of the Contractor to be informed of work planned by these parties and to coordinate street sweeping work accordingly. K. The Contractor warrants that it has familiarized itself with all City's streets and curbs at the time of commencement of this Agreement. Contractor is also familiar with all existing installations, both public and private, in the area where services shall be performed under this Agreement. Contractor shall provide adequate safeguards to prevent damage to existing structures and improvements. Structures or 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 the Contractor's expense, to the original condition and to the satisfaction of the City. Failure to have such damages repaired in a timely manner will result in the City deducting from the Contractor's payment the cost to perform the necessary remedial work. The 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. The Contractor must exercise due 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: (1) Sweeping speed shall be adjusted to street conditions with a maximum speed of six (6) miles per hour; and (2) 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 for the proper maintenance of the sites. 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. 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. Any sweeper used must not blow debris onto private property. L. The City's Administrator may require the installation of sweeping speed monitoring devices to record actual vehicle speed during sweeping. All installation and maintenance expenses shall be the responsibility of the Contractor, further, remote 4 A09 -00741 access to the Contractor's equipment GPS tracking data shall be granted, free of charge, to the City's Administrator. Sweepers shall be operated as close to parked cars or other obstacles as safety allows. M. The Contractor may store, clean, and perform basic preventative maintenance on vehicles in designated areas of the City's corporation yard. The City shall not be liable for fire, theft, damage to, or loss of vehicle, or any articles left therein. N. The City shall use a parking control officer to cite vehicles for parking during posted street sweeping hours in certain areas. The Contractor shall coordinate sweeping activities with the Newport Beach Police Department Parking Control Commander or his /her designee. All costs for coordination are the responsibility of the Contractor, and no additional compensation will be allowed. O. 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 his contract duties, damages or causes to be damaged any of the aforementioned traffic counting equipment or appurtenances, the Contractor shall bear the entire cost for the restoration, repair, inspection, testing or replacement of said damaged equipment. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor an amount not to exceed Four Hundred Nineteen Thousand Nine Hundred Sixty Dollars and no /100 ($419,960.00) per year, subject to the CPI adjustment after the first year. Contractor shall submit invoices to City on a monthly basis. City shall pay approved monthly invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in the section entitled "Notices'. City shall pay Contractor on a pro -rata monthly basis for the duration of the transition period. Contractor shall submit invoices based on the curb miles of the assigned areas of responsibilities as a percentage of the total curb miles. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rate to be paid by the City as set forth in Exhibits "B" and "C" shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2010, the index to be used for the numerator is the index for the month of March 2010 and the index to be used for the denominator is March 2009. The "Consumer Price 3 A09 -00741 Index' to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 5. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, 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 Agreement (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, L A09 -00741 Al vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or 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 Agreement. 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. T77:7IL5 Without limiting Contractor's indemnification of City, and prior to commencement of work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without A09 -00741 7 limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured's with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. LI A09 -00741 4 10. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor shall not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. The Contractor is required to keep a daily log of all streets swept, including the name and location of the streets and the number of curb -miles swept, along with a description of any special services performed. The log shall be signed by the Supervisor on a daily basis. Each month, a report shall be prepared from the daily log, giving a brief description of all routine, special event, and emergency activities. The log report shall be attached to the monthly invoice submitted to the City's Administrator. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. E A09 -00741 11 12. 13. 14. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The City's Administrator shall have the authority to act for the City under this Agreement. The City's Administrator shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional /emergency services as requested by the City's Administrator. The City's Administrator may give verbal authorization for additional /emergency services, prior to performance of the work, up to One Thousand Dollars ($1,000.00). Contractor shall obtain written authorization from the City's Administrator prior to the performance of any additional /emergency services that exceed One Thousand Dollars ($1,000.00). Additional services, shall be billed in accordance with the per mile unit cost proposed by the Contractor in Exhibit "C." B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of work, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit "C." In the event the location is withdrawn for a period of less than a full year, Contractors compensation shall be reduced on a prorated basis. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager, or his designee and his decision shall be final and binding upon Contractor and his sureties. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City's Administrator. A09 -00741 10 15. 16. iIN 18. 19. A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the work. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 11 A09 -00741 Attn: Mark Harmon General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Ron Arakelian, Jr. Athens Services 14048 Valley Blvd. City of Industry, CA 91716 20. TERMINATION /DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. 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. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. In the event that funds are not budgeted for services in future years, the City shall terminate upon seven (7) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (1 -5) working days to cure the alleged breach. C. 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 City's Administrator, the level of sweeping falls below appropriate sweeping standards and /or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City's Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 12 A09 -00741 21. COMPLIANCE WITH LAW All services rendered hereunder by Contractor shall be provided in accordance with all ordinances; resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 22. LICENSES, FEES, PERMITS AND ASSESSMENTS Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 23. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. 25. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 26. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 27. CONTROLLING LAW AND VENUE Except for payment disputes governed by Section 13, the laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 13 A09 -00741 28. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Work or any other attachments attached hereto, the terms of this Agreement shall govern. 30. NO ATTORNEYS' FEES In the event of any dispute under this Agreement the prevailing party shall not be entitled to attorneys' fees. [SIGNATURES ON NEXT PAGE] 14 A09 -00741 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Leonie Mulvihill, Acting City Attorney ATTEST: By: Leilani Brown, City Clerk Attachments: CITY OF NEWPORT BEACH A Municipal Corporation Keith D. Curry, Mayor CONTRACTOR Ron Arakelian, Jr., Chairman By: Michael Arakelian, Secretary [END OF SIGNATURES] Exhibit "A" — Description of Project Exhibit "B" — Total Annual Cost Form Exhibit "C — Unit Price Form 15 A0O -00749 AGREEMENT FOR STREET SWEEPING SERVICES BETWEEN THE CITY OF NEWPORT BEACH AND ARAKELIAN ENTERPRISES, INC. d /b /a ATHENS SERVICES THIS AGREEMENT FOR STREET SWEEPING SERVICES ( "Agreement ") is entered into this day of 2010, by and between the City of Newport Beach, a California Municipal Corporation and Charter City ( "City "), and, Arakelian Enterprises, Inc, a California Corporation doing business as Athens Services located at 14048 Valley Blvd., City of Industry, CA 91716 ( "Contractor "), and is made with reference to the following: RECITALS WHEREAS, the City desires to obtain contract services for the sweeping of six hundred and fifty -five (655) curb miles of City streets on a weekly basis. WHEREAS, on January 12, 2010 a Request for Proposals ( "RFP ") requesting proposals for the sweeping of City streets was mailed to firms performing this service. WHEREAS, the Contractor has been deemed to be the most qualified to perform the services out of those firms which responded to the RFP. WHEREAS, the Contractor desires to enter into this Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the initial term of this Agreement shall be for a period of five (5) years. The initial term shall commence on June 1, 2010, after City Council approval of this Agreement, and upon receipt and approval of all required certificates of insurance. The term of this Agreement shall automatically be extended for five (5) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least ten (10) days before the end of the initial term or any extended term, of its intent to 1 A09 -00741 terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. The term of this Agreement shall not extend beyond May 31, 2020, without a separate Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ( "Contract Services ") as described in the RFP's Description of Project, attached hereto as Exhibit "A ", and the Contractor's proposal, attached hereto as Exhibits "B" and "C ", and incorporated herein by reference. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. The Contract Services shall be performed in accordance with the frequency as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of sweeping as necessary, including reducing the frequency to twice- monthly sweeping. The City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of the reduction of sweeping frequency. City shall implement a phased approach to transition to Contractor - provided services. The City's General Services Department Director or his /her designee ( "City's Administrator ") shall approve the geographic boundaries, duration, and number of phases that describe Contractor's assigned areas of responsibility based upon the performance of Contractor. All areas not assigned to Contractor shall remain the sole responsibility of the City. 3. WORKMANSHIP. SUPERVISION, AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally allowed to work in the United States. 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 or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. C. The 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. A current copy of the operating procedures shall be provided to the City's General Services Department Operations Support Superintendent or his /her designee ( "Operations Support Superintendent "). D. The Contractor's work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The 2 A09 -00741 supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working in the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. Employees shall not remove any portion of their uniform while working within the City. Employees driving the Contractor's vehicles shall at all times possess and carry a valid Commercial Drivers License issued by the State of California, if required for the type of vehicle they drive. If the City's Administrator determines that any person employed by the Contractor has failed or refused to carry out the terms of this Agreement, appears to be incompetent, acts in a disorderly, improper, or unsafe manner, or shows signs of intoxication or other impairment, instead of initiating termination for breach, the City's Administrator may notify Contractor, who shall take immediate remedial action, which may include removing the employee from the job site. Prior to returning a removed employee to work within the City, the Contractor shall provide in writing the reason for the individual's behavior and the means used to prevent this behavior from occurring again. In no event shall Contractor fail to prevent, prohibit, or resolve problems with its employees working after receiving notice of same from the City. Violation of this section by Contractor shall be a material breach of this Agreement and may result in the City terminating the Agreement or temporarily suspending services hereunder, with Contractor being liable for any resulting costs incurred by the City. No action to terminate or suspend shall be taken by City until after Contractor is provided notice and afforded an opportunity to respond or refute the allegations, except that the City's Administrator may immediately suspend services hereunder if he finds such action reasonably appropriate to protect the public safety, health or welfare. F. All work shall be performed in accordance with the highest street sweeping standards. G. Complaints received by the City regarding the Contractor's performance will be transmitted to the Contractor's office in writing, by telephone or facsimile, and handled by the Contractor's supervisor. Contractor shall provide a follow -up response to all complaints within twenty -four (24) hours following notification of the Contractor. A report of the Contractor's investigation and the corrective action taken shall be made promptly by the Contractor to the City's Administrator. Repeat complaints may be handled by a joint visit to the site by a City Inspector and the Contractor's supervisor. Complaints received directly by the Contractor shall be submitted in writing to the City on the day such complaints are received. Contractor shall maintain a log of complaints received and corrective actions implemented which shall be submitted to the City within ten (10) days following the end of the month. H. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the 11 A09 -00741 identification of the Contractor. All vehicles used to perform work under this Agreement shall conform to AQMD Rule 1186.1. I. Contractor shall provide a manager to coordinate work with the City's Administrator, and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. J. Work within the City by utility and construction companies may be progressing concurrently with the work under this Agreement. It is the responsibility of the Contractor to be informed of work planned by these parties and to coordinate street sweeping work accordingly. K. The Contractor warrants that it has familiarized itself with all City's streets and curbs at the time of commencement of this Agreement. Contractor is also familiar with all existing installations, both public and private, in the area where services shall be performed under this Agreement. Contractor shall provide adequate safeguards to prevent damage to existing structures and improvements. Structures or 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 the Contractor's expense, to the original condition and to the satisfaction of the City. Failure to have such damages repaired in a timely manner will result in the City deducting from the Contractor's payment the cost to perform the necessary remedial work. The 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. The Contractor must exercise due 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: (1) Sweeping speed shall be adjusted to street conditions with a maximum speed of six (6) miles per hour; and (2) 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 for the proper maintenance of the sites. 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. 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. Any sweeper used must not blow debris onto private property. L. The City's Administrator may require the installation of sweeping speed monitoring devices to record actual vehicle speed during sweeping. All installation and maintenance expenses shall be the responsibility of the Contractor, further, remote 4 A09 -00741 access to the Contractor's equipment GPS tracking data shall be granted, free of charge, to the City's Administrator. Sweepers shall be operated as close to parked cars or other obstacles as safety allows. M. The Contractor may store, clean, and perform basic preventative maintenance on vehicles in designated areas of the City's corporation yard. The City shall not be liable for fire, theft, damage to, or loss of vehicle, or any articles left therein. N. The City shall use a parking control officer to cite vehicles for parking during posted street sweeping hours in certain areas. The Contractor shall coordinate sweeping activities with the Newport-Beach Police. Department Parking Control Commander or his/her designee. All costs for coordination are the responsibility of the Contractor, and no additional compensation will be allowed. O. 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 his contract duties, damages or causes to be damaged any of the aforementioned traffic counting equipment or appurtenances, the Contractor shall bear the entire cost for the restoration, repair, inspection, testing or replacement of said damaged equipment. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor an amount not to exceed Four Hundred Nineteen Thousand Nine Hundred Sixty Dollars and no /100 ($419,960.00) per year, subject to the CPI adjustment after the first year. Contractor shall submit invoices to City on a monthly basis. City shall pay approved monthly invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in the section entitled "Notices ". City shall pay Contractor on a pro -rata monthly basis for the duration of the transition period. Contractor shall submit invoices based on the curb miles of the assigned areas of responsibilities as a percentage of the total curb miles. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rate to be paid by the City as set forth in Exhibits 'B" and "C" shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2010, the index to be used for the numerator is the index for the month of March 2010 and the index to be used for the denominator is March 2009. The "Consumer Price 3 A09 -00741 Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 5. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, 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 Agreement (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, C A09 -00741 vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or 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 Agreement. 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. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements I. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without rA A09 -00741 limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured's with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. E A09 -00749 51 10. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor shall not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. RECORDS /REPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. The Contractor is required to keep a daily log of all streets swept, including the name and location of the streets and the number of curb -miles swept, along with a description of any special services performed. The log shall be signed by the Supervisor on a daily basis. Each month, a report shall be prepared from the daily log, giving a brief description of all routine, special event, and emergency activities. The log report shall be attached to the monthly invoice submitted to the City's Administrator. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 9 A00 -00749 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The City's Administrator shall have the authority to act for the City under this Agreement. The City's Administrator shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional /emergency services as requested by the City's Administrator. The City's Administrator may give verbal authorization for additional /emergency services, prior to performance of the work, up to One Thousand Dollars ($1,000.00). Contractor shall obtain written authorization from the City's Administrator prior to the performance of any additional /emergency services that exceed One Thousand Dollars ($1,000.00). Additional services, shall be billed in accordance with the per mile unit cost proposed by the Contractor in Exhibit "C." B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of work, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit "C." In the event the location is withdrawn for a period of less than a full year, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager, or his designee and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City's Administrator. 10 A09 -00741 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the work. 18. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 ( "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 11 A09 -00741 Attn: Mark Harmon General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Ron Arakelian, Jr. Athens Services 14048 Valley Blvd. City of Industry, CA 91716 20. TERMINATIONIDEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. 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. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. In the event that funds are not budgeted for services in future years, the City shall terminate upon seven (7) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. 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 City's Administrator, the level of sweeping falls below appropriate sweeping standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City's Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 12 A09 -00741 21. COMPLIANCE WITH LAW All services rendered hereunder by Contractor shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 22. LICENSES, FEES, PERMITS AND ASSESSMENTS Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services- required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 23. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. 25. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 26. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 27. CONTROLLING LAW AND VENUE Except for payment disputes governed by Section 13, the laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 13 A09 -00741 28. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Work or any other attachments attached hereto the terms of this Agreement shall govern. 30. NO ATTORNEYS' FEES In the event of any dispute under this Agreement the prevailing party shall not be entitled to attorneys' fees. [SIGNATURES ON NEXT PAGE] 14 A09 -00741 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Lkeodie Mulvihill, F Acting City Attorney . 1Izt.1w ATTEST: By: Leilani Brown, City Clerk Attachments: CITY OF NEWPORT BEACH A Municipal Corporation By: Keith D. Curry, Mayor CONTRACTOR By: Ron Arakelian, Jr., Chairman By: Michael Arakelian, Secretary [END OF SIGNATURES] Exhibit "A" — Description of Project Exhibit "B" — Total Annual Cost Form Exhibit "C — Unit Price Form 15 A09 -00741 EXHIBIT "A ": SCOPE OF WORK City of Newport Beach - Request for Proposal Street Sweeping ATTACHMENT : DESCRIPTION OF PROJECT SCOPE OF WORK Furnish all labor, equipment, materials, and supervision to perform maintenance as described herein including, but not limited to, the following: Using a modern regenerative air street sweeper, thoroughly sweep each improved street in the City on a weekly or twice monthly basis. DEFINITIONS a. Curb Mile — measurement of curbing of streets and medians b. 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 c. Curb -to -Curb — area within the curb limits of the street including medians, intersections, and street ends d. Holiday — all days observed by the City as holidays including: New Year's Day, Martin Luther King Jr Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving (including the following Friday), Christmas Eve & Christmas Day, New Year's Eve. e. Inclement Weather — weather conditions that prohibit the effective operation of sweeping operations f. Debris — litter, rubbish, leaves, sand, dirt, garbage, and other foreign material g. Street — all paved dedicated public rights -of -way within the existing or future corporate limits of the City h. 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 i. Special Sweep — sweep involving unusual conditions such as traffic hazards, parades, and similar events billed at an hourly rate including travel time. If appropriate, prior approval from General Services Director or designee is required j. Travel Speed — sweeper operator must maintain a speed of no more than six miles per hour while the sweeping broom is lowered in the operating position City of Newport Beach - Request for Proposal Street Sweeping III. WORKING HOURS All sweeping activities shall be completed by 2:00 PM, Monday through Friday unless prior approval is given by the Operations Support Superintendent. Typically sweeping occurs no earlier than 4:00 AM, except in designated areas in which sweeping begins at 3:00 AM. Approval of Contractor schedule will be at the sole discretion of the City. IV. LEVEL OF MAINTENANCE All work shall be performed in accordance with the highest maintenance standard. Standards, schedules, and frequencies may be modified from time to time as deemed necessary by the City for the proper maintenance of the sites. 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. 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. Any sweeper used must not blow debris onto private property nor drain water onto the street from the rear hopper. Sweeper shall travel with the direction of traffic at all times. A significant number of City streets are posted no parking for street sweeping during designated hours on various days of the week. It is imperative that the Contractor maintain a firm schedule for sweeping posted streets, as the Contractor is required to coordinate sweeping operations with Parking Control Officers from the Newport Beach Police Department. The Contractor is required to sweep parking lots, including the City Utilities and Corporation Yards, adjacent to streets along the scheduled route. An acceptable alternative to hand sweeping, for locations such as street ends and portions of parking lots, will be considered. Any alternative must be included in this proposal and approved by the Operations Support Superintendent. The Contractor is required to correct deficiencies within the time specified by the City. Re- sweeps of the deficient area will not be billed to the City. If noted deficient work has not been completed, payment for subject deficiency shall be withheld for current billing period and shall continue to be withheld until deficiency is corrected, without right to retroactive payments. The Contractor shall perform 150 curb miles of special event sweeps "free -of- charge" for each contract year at the request of the City. These sweeps are not re- City of Newport Beach - Request for Proposal Street Sweeping sweeps of an area not done properly but rather an additional sweep that is not part of the regular schedule. These may be used to clean before and after traffic hazards, parades, and similar events, or for any reason that the City chooses. The Contractor shall perform 250 curb miles of inclement weather sweeps "free -of charge" for each contract year at the request of the City. These sweeps are not re- sweeps of an area not done properly but rather an additional sweep that is not part of the regular schedule. If, in the judgment of the City, the level of maintenance is less than that specified herein, the City shall, at its option, in addition to or in lieu of other remedies provided herein, withhold appropriate payment from the Contractor until services are rendered in accordance with specifications set forth within this document and providing no other arrangements have been made between the Contractor and the City. Failure to notify of a change and /or failure to perform an item or work on a scheduled day may result in deduction of payment for that date or week. Payment will be retained for work not performed until such time as the work is performed to City standard. V. TERM OF CONTRACT Unless earlier terminated as allowed for in the Agreement, contract term shall be for a period of five (5) years. The term is intended to commence in April 2010, after City Council approval of this contract, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for up to five (5) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate the Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. VI. SUPERVISION OF CONTRACT All work shall meet with the approval of the City of Newport Beach General Services Department. There shall be a minimum of one monthly meeting with the Contractor and the City representative 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 City of Newport Beach - Request for Proposal Street Sweeping corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. VII. SPECIFICATIONS This Description of Project is intended to cover all labor, material and standards of workmanship to be employed in the work called 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. VIII. CORRESPONDENCE All correspondence shall be addressed to Jim Auger, Operations Support Superintendent, General Services Department, City of Newport Beach, P.O. Box 1768, Newport Beach, 92658. IX. PROVISIONS FOR EXTRAS 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. The Contractor will be required to provide before and after photographs of safety items or emergency repairs. Documentation of contract compliance may be required on some occasions. X. WATER The Contractor will be issued water meter(s), which must be utilized when filling equipment from City fire hydrants. The Contractor will be responsible for the deposit required to obtain the water meter(s) and all charges stemming from the use of City water. XI. DISPOSAL Disposal of sweeping debris at the City Corporation Yard will be permitted. MI. RECORDS AND SCHEDULE The contractor shall keep accurate records concerning all of his /her employees or agents and provide the City with names and telephone numbers of emergency contact employees. The contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the Operations Support Superintendent. This report should also contain a description of work performed, including man - hours, equipment, and any additional work, which the contractor City of Newport Beach - Request for Proposal Street Sweeping 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. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service, and a description of the action taken from the City call. The Contractor shall, within fifteen (15) days of the effective date of an executed agreement, ' prepare and submit a written sweeping schedule to the Operations Support Superintendent. This schedule shall clearly identify the sweeping tasks required by this agreement and days they are scheduled to be performed in each particular area. If it is necessary to make periodic revisions to this maintenance schedule, a modified schedule must be submitted to the Operations Support Superintendent for approval prior to the date the changes are to take effect. Otherwise, it is intended that the Contractor will develop a permanent schedule, which will allow the City to monitor the Contractor's progress and allow residents to move vehicles, etc., to further ease the sweeping of streets. The Contractor shall permit the City to inspect and audit its books and records regarding City - provided services at any reasonable time. XIII. EMERGENCY SERVICES The Contractor will provide the City with names and telephone numbers of at least two qualified persons who can 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 Newport Beach. These Contractor representatives shall respond to said emergency within thirty (30) minutes from receiving notification. XIV. CONTRACTOR'S OFFICE Contractor is required to maintain an office within a one (1) hour response time of the job site and provide the office with phone service during normal working hours. During all other times, a telephone answering service shall be utilized and the answering service shall be capable of contacting the Contractor by radio or pager. Contractor shall have a maximum response time of thirty (30) minutes to all emergencies. The on -site storage of equipment used exclusively for providing service within the City will be permitted. Contractor will have full responsibility for maintaining an office and a yard. City of Newport Beach - Request for Proposal Street Sweeping Xv. SCHEDULES A. Phased Implementation 1. The sweeping operations shall be implemented utilizing a phased approach in which contract staff will assume incremental responsibility of sweeping areas of the city over the course of approximately 12 months. The City will only pay for the phase(s) actually assigned to and being swept by the Contractor. The City reserves the right to-extend each phase if necessary. 2. City staff shall remain responsible for areas of the city that are not specifically assigned to contract staff. B. Annual Schedule 1. The Contractor shall provide an annual schedule indicating the time frames when items of work shall be accomplished per the performance requirements. 2. The Contractor shall complete the schedule for each functional area in a manner which shall correspond to the twice per month schedule. 3. The annual schedule shall be submitted for City approval within fifteen (15) calendar days after effective date of the contract. 4. The Contractor shall submit revised schedules when actual performance differs substantially from planned performance. C. Monthly Schedule 1. Monthly schedule forms shall be provided by the Contractor indicating the major items of work to be performed in accordance with the performance requirements and further delineate the time frames for accomplishment by day of the week and by morning and afternoon. 2. The Contractor shall complete the schedule for each item of work and each area of work. 3. The initial schedule shall be submitted one week prior to the effective date of the contract. Thereafter, it shall be submitted monthly on the first Monday of the month for City approval, prior to scheduling work for the upcoming month. 4. Changes to the schedule shall be received by the Operations Support Superintendent at least twenty -four (24) hours prior to the scheduled time for the work. 5. 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. City of Newport Beach - Request for Proposal Street Sweeping 6. The Contractor shall adjust his /her schedule to compensate for all holidays and rainy days. Maintenance and litter removal shall he scheduled for all holidays and rainy days, unless otherwise indicated by the City. Performance on Schedule The Contractor has been provided the maximum latitude in establishing work schedules which correspond to its manpower and equipment resources. The Contractor has also-been provided the opportunity and procedure for adjusting those schedules to meet special circumstances. Therefore, all work shall be completed on the day scheduled. XVI. Performance During Inclement Weather 1. During the periods when inclement weather hinders normal operations, the Contractor shall adjust his /her work force in order to accomplish those activities that are not affected by weather. 2. Failure to adjust the work force to show good progress on the work shall result in deduction of payments to reflect only the work actually accomplished. 3. The Contractor shall immediately notify the Operations Support Superintendent when the work force has been removed from the job site due to inclement weather or other reasons. 4. The Contractor shall perform 250 curb miles of inclement weather sweeps "free -of charge" for each contract year at the request of the City. These sweeps are not re- sweeps of an area not done properly but rather an additional sweep that is not part of the regular schedule. EXHIBIT "B": TOTAL ANNUAL COST FORM City of Newport Beach - Request for Proposal Street Sweeping ATTACHMENT E: TOTAL ANNUAL COST FORM ROUTE Tots( Annual Cast Total Annual Cost (52 Weekly sweeps) (24 Twice monthly sweeps) ( "Phase 1(191,5 curb miles) $ 122,782 $- 67,239 i I Phase It (139.3 curb miles) $ 89,314 $ 48,911 I Phase 111 (94 curb miles): $ 80,269 $ 33,005 i 1 Phase IV {107.3 curb miles} f i $ 68,7$6 $ 37,675 Phase V (122.5 curb miles) i $ 78,799 i $ 43,153 � Ir 1 TotatAnnual Cost { 1 $419,960 $,229;983 I Aph,ua( Per Curb Mile Cpst. '3 (rotalAnnual C"VOSCurb mil es) $ 641- $351 . M EXHIBIT C: UNIT PRICE FORM City of Newport Beach— Request for Proposal Street Sweeping ATTACHMENT F: KNIT PRICE FORM The Contractor agrees that for requested and /or required changes in the scope of work, including ;additions and deletions on work not performed, the Contract Sum shall be adjusted in accordance with the following unit prices, where the City elects to use this method in determining costs. Contractor is advised that the unit prices may enter into the determination of the contract award. Unit prices listed below refer to all services and include all Costs connected with such services; including but not ,limited to, materials, labor, overhead, and profit for the contractor, The unit prices quoted by the Contractor shall be those unit prices that will be charged or credited for labor and materials to be provided regardless of the total number units and/or amount of labor required for added or deleted items of work. All work shall be performed in accordance with specifications described in the RFP. DESCRIPTION. Unit Price Unit Price (52 Weekly sweeps) (24 Twice Curb mile for additional scheduled sweeps (i.e. annexation) $ 12.33 $ 14,63' Curb mile for additional special l sweeps (:e. event, emergency) j $ 14.83 $ 12.13 C -1 City of Newport Beach BUDGET AMENDMENT 2009 -10 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: NO. BA- 10BA -039 AMOUNT: $sao,000.ao rq Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance .s2- Z71 10 This budget amendment is requested to provide for the following: To transfer Equipment Fund unappropriated fund balance to the General Fund since the street sweeping contract results in elimination of the need to replace street sweeping vehicles. Replacement charges that were expensed to the General Fund and held in the Equipment Fund will no longer be needed and therefore should be returned to the General Fund. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 010 3605 General Fund - Fund Balance $600,000.00 610 3605 Equipment Fund - Fund Balance $600,000.00 * REVENUE ESTIMATES (3601) Fund /Division Account Description 9010 6000 General Fund ND - Transfer In $600,000.00 EXPENDITURE APPROPRIATIONS (3603) w t t Description Division Number 9610 Equipment Fund ND Account Number 9900 Transfer Out $600,000.00 Division Number Account Number Division Number Account Number " Automatic System Signed: '�qq•• '� ��,, -� Entry. '//7Z 11 7Z i 1 Financial Approval: i nistrative Services Director Date Signed: 6 1 462 J ) b Administrati a pproval: City Manager Date Signed: City Council Approval: City Clerk Date w t t