HomeMy WebLinkAbout07 - CC-6 - Second Amendment to Agreement with Clean - 12/5/2017CITY COUNCIL AGENDA REPORT
MEETING DATE: DECEMBER 5, 2017
ITEM NUMBER: CC -6
SUBJECT: SECOND AMENDMENT TO THE AGREEMENT WITH CLEANSTREET FOR STREET
SWEEPING SERVICES
DATE: NOVEMBER 27, 2017
FROM: PUBLIC SERVICES DEPARTMENT \ MAINTENANCE SERVICES DIVISION
PRESENTATION BY: RAJA SETHURAMAN, PUBLIC SERVICES DIRECTOR
FOR FURTHER INFORMATION CONTACT: BRUCE LINDEMANN, MAINTENANCE
SUPERINTENDENT, (714) 327-7470
RECOMMENDATION
1) Approve the Second Amendment (Attachment 1) to the Maintenance Agreement with
CleanStreet, 1937 W. 169th Street, Gardena, CA 90247, to increase the annual
amount of the contract by $18,190.00 for residential, collector and arterial street
sweeping City wide, to adjust for Consumer Price Index (CPI) growth of 2.6 percent.
2) Authorize the City Manager to execute the Amendment.
BACKGROUND
In November 2014 staff solicited a Request For Bid (RFB) to perspective qualified
vendors for the City's residential and arterial street sweeping services. After a
thoroughly vetted process that met all the requirements set forth in the City of Costa
Mesa's purchasing policy manual and the requirements set forth by the State of
California, the CleanStreet organization was selected. The City of Costa Mesa entered
into a five (5) year agreement with CleanStreet for comprehensive residential, collector
and arterial street sweeping services on March 16th, 2015.
In the two years that the CleanStreet organization has been performing the residential,
collector and arterial street sweeping duties for the City they have conducted themselves
in a professional and efficient manner. A barometer of CleanStreet's success is the
increase in the annual quantity of debris removed from City streets. It went up over 45%
in Fiscal Year 2015-16 compared to Fiscal Year 2013-14. The total tonnage of debris
removed for the year was 1,246 tons. That equates to over 550 tons more trash
diverted from the City's storm drain system than the previous year. The total amount of
debris removed from City streets in Fiscal Year 2016-17 continues to show CleanStreet
is providing dependable and reliable service. All collected debris now goes through a
recycling process, thus diverting hundreds of tons of waste from county landfills; this
was not the case prior to the CleanStreet organization conducting the street sweeping
duties.
City staff recently conducted a street sweeping survey to examine the efficiency of
CleanStreet sweeping services. This was done to confirm the effectiveness of the
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residential street sweeping program. The results of the survey showed that CleanStreet
is performing the sweeping of residential routes on schedule and effectively. Debris is
being removed from the gutters and curb lines per the specifications of the contract and
meeting City standards. The inspections also showed that ample water was being used
on all routes, which effectively minimizes dust. Resident complaints have decreased
due to the consistency of streets being swept as scheduled. On the occasion that staff
receives a complaint, staff can access the truck -mounted GPS technology to quickly
determine in real time if the street sweeper has passed down the street; at what time;
and how fast was it traveling. This allows administrative staff to factually respond to
complaints or make needed adjustments to routes being swept. This has been a
valuable tool in monitoring the work of the contractor.
ANALYSIS
The proposal submitted by CleanStreet allows for adjustment to compensation starting
in the second year of service based on Consumer Price Index (CPI). The CPI for the
past year is 2.6%. CleanStreet has requested the total price of the contract and the unit
cost schedule be increased by 2.6% to reflect the CPI increase. If approved, the annual
compensation will be increased by $ 18,190. This will affect the total price of the contract
and the unit price structure reflecting the incorporation of the increase into each of the unit
costs. The work performed by CleanStreet is invoiced based on the unit (per mile) costs
and is limited by the contract amount.
ALTERNATIVES CONSIDERED
The CPI price increase is included in the terms and conditions of the existing contract.
No alternatives were considered.
FISCAL REVIEW
If approved the CPI increase of 2.6% will result in an increase in the cost of the street
sweeping contract in the amount of $18,190.00. The current annual contract amount is
$699,600.00. The total for the contract with the CPI increase will be $717,790.00.
Funding for the requested CPI increase was included in the adopted FY 2017-18 Public
Services Department budget.
LEGAL REVIEW
The City Attorney has reviewed the Second Amendment and approved it as to form.
CONCLUSION
CleanStreet has been the City's provider for residential, collector and arterial street
sweeping services since March of 2015. In that time the quantity of debris removed
from City streets has increased, and the consistency of streets being swept has
improved. Street sweeping surveys and daily inspections conducted by staff have
determined that CleanStreet is meeting all requirements set forth in the contract and
meets staff's expectations of service levels.
Per the terms of the agreement, an increase in the annual contract based on the
Consumer Price Index is allowed. The requested 2.6% increase in the contract is
consistent with the published CPI for Orange County and is recommended to be
approved.
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RAJA SETHURAMAN
Public Services Director
ATTACHMENTS
DISTRIBUTION
1
2
3
BRUCE LINDEMANN
Maintenance Superintendent
Amendment No. 2 to Agreement with CleanStreet
Agreement with CleanStreet
CleanStreet request for CPI price adjustment
City Manager
Assistant City Manager
City Attorney
Interim Finance Director
City Clerk
Staff
File
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ATTACHMENT #1
SECOND AMENDMENT
TO PROFESSIONAL SERVICES AGREEMENT
WITH
CLEANSTREET
This Second Amendment ("Amendment") is made and entered into this 21st day of
November, 2017 ("Effective Date"), by and between the CITY OF COSTA MESA, a municipal
corporation ("City"), and CLEANSTREET, a California corporation ("Consultant").
WHEREAS, City and Consultant entered into an agreement on March 1, 2015 for
Consultant to provide street sweeping services (the "Agreement"); and
WHEREAS, on June 15, 2015, City and Consultant amended the Agreement to permit
Consultant to lease space at City's Corporation Yard to store equipment used in connection with
Consultant's services; and
WHEREAS, City and Consultant now desire to amend the Agreement to permit annual
adjustments to Consultant's compensation based on Consumer Price Index ("CPI") data for the
Los Angeles -Riverside -Orange County area; and
WHEREAS, Consultant requested an increase of 2.6 percent (2.6%) based upon the CPI
increase from March 2016 to March 2017; and
WHEREAS, City and Consultant desire to increase Consultant's maximum annual
compensation accordingly by Eighteen Thousand One Hundred Ninety Dollars ($18,190.00), to
Seven Hundred Seventeen Thousand Seven Hundred Ninety Dollars ($717,790.00).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Rev. 11-16
Section 2.1 of the Agreement is hereby deleted in its entirety and replaced as
follows:
Consultant shall be paid in accordance with the fee schedule set forth in
Exhibit "B" (the "Fee Schedule"). Consultant's total annual compensation for the
first two years of this Agreement shall not exceed Six Hundred Ninety -Nine
Thousand Six Hundred Dollars ($699,600.00). Thereafter, the annual
compensation may be increased or decreased on an annual basis using the
Consumer Price Index for All Urban Consumers for the Los Angeles — Riverside —
Orange County area ("CPI -U"), based on an increase or decrease to the CPI -U for
the twelve (12) month period preceding the anniversary date of this Agreement.
Consultant may request an increase in the annual compensation based on an
increase in the CPI -U following each anniversary date during the term of this
Agreement by submitting a written request to City that includes documentation
evidencing the increase ("Request for Increase"). If there is a decrease in the CPI -
U, then City may provide Consultant with written notice of such decrease and
documentation evidencing the decrease ("Notice of Decrease"). Following a
Request for increase or Notice of Decrease, the parties Will enTar into an
amendment to this Agreement reflecting the adjustment to the total annual
compensation. No adjustment to the annual compensation will be retroactive.
CleanStreet Second Amendment 0
2. Consultant's maximum annual compensation shall be increased by Eighteen
Thousand One Hundred Ninety Dollars ($18,190.00), to Seven Hundred
Seventeen Thousand Seven Hundred Ninety Dollars ($717,790.00).
3. All terms not defined herein shall have the same meaning and use as set forth in
the Agreement.
4. All other terms, conditions, and provisions of the Agreement not in conflict with this
Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by and through their respective authorized officers, as of the date first written above.
CITY OF COSTA MESA
Date:
City Manager
CONSULTANT
Date:
Signature
Name and Title
ATTEST:
City Clerk
APPROVED AS TO FORM:
Date:
City Attorney
APPROVED AS TO INSURANCE:
Date:
Risk Management
2
CleanStreet Second Amendment
Rev. 11-16
APPROVED AS TO CONTENT:
Date:
Project Manager
DEPARTMENTALAPPROVAL
Date:
Public Services Director
APPROVED AS TO PURCHASING:
Date:
Interim Finance Director
3
CleanStreet Second Amendment 5
Rev. 11-16
ATTACHMENT #2
CITY OF COSTA MESA
PROFESSIONAL SERVICES AGREEMENT
WITH
CLEAN STREET
THIS AGREEMENT is made and entered into this 1st day of March, 2015 ("Effective
Date"), by and between the CITY OF COSTA MESA, a municipal corporation ("City"), and
CLEANSTREET, a California corporation ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent
contractor to perform street sweeping services, as more fully described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise
contemplated within California Government Code Section 37103, and holds all necessary
licenses to practice and perform the services herein contemplated; and
C. WHEREAS, City and Consultant desire to contract for the specific services
described in Exhibit "A" (the "Project") and desire to set forth their rights, duties and liabilities in
connection with the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the
provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described
in the City's Request for Proposal ("RFP"), attached hereto as Exhibit "A," and Consultant's
Response to City's RFP (the "Response") attached hereto as Exhibit "B," both incorporated herein
by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by
professional consultants in similar fields and circumstances in accordance with sound
professional practices. Consultant also warrants that it is familiar with all laws that may affect its
performance of this Agreement and shall advise City of any changes in any laws that may affect
Consultant's performance of this Agreement.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to
the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work
will be done by the City's Chief Executive Officer ("City CEO") or his or her designee. If the quality
of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the
matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is 6)
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws, including,
but not limited to, those laws related to minimum hours and wages; occupational health and
safety; fair employment and employment practices; workers' compensation insurance and safety
in employment; and all other Federal, State and local laws and ordinances applicable to the
services required under this Agreement. Consultant shall indemnify and hold harmless City from
and against all claims, demands, payments, suits, actions, proceedings, and judgments of every
nature and description including attorneys' fees and costs, presented, brought, or recovered
against City for, or on account of any liability under any of the above-mentioned laws, which may
be incurred by reason of Consultant's performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in,
nor permit its agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, age, physical handicap; medical condition, marital status,
sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the
Government Code.
1.6, Non -Exclusive Agreement. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services
contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties
set forth herein shall not be delegated or assigned to any person or entity without the prior written
consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ
other personnel to perform services contemplated by this Agreement at Consultant's sole cost
and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have
access to financial; accounting, statistical, and personnel data of private individuals and
employees of City. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data shall be
returned to City upon the termination of this Agreement. Consultant's covenant underthis Section
shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set
forth in Exhibit "B" (the "Fee Schedule"). Consultant's total compensation shall not exceed Six
Hundred Ninety Nine Thousand Six Hundred Dollars ($ 699,600.00) per year.
2.2. Additional Services. Consultant shall not receive compensation for any services
provided outside the scope of services specified in the Consultant's Proposal unless the City or
the Project Manager for this Project, prior to Consultant performing the additional services,
approves such additional services in writing. It is specifically understood that oral requests and/or
approvals of such additional services or additional compensation shall be barred and are
unenforceable.
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2.3, Method of Billing. Consultant may submit invoices to the City for approval on a
progress basis, but no more often than two times a month, Said invoice shall be based on the
total of all Consultant's services which have been completed to City's sole satisfaction. City shall
pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each
invoice shall describe in detail, the services performed, the date of performance, and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City or its Project Manager for inspection and/or audit at mutually convenient
times for a period of three (3) years from the Effective Date.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be
performed pursuant to this Agreement shall commence within five (5) days from the Effective Date
of this Agreement. Said services shall be performed in strict compliance with the Detailed Project
Schedule approved by City as set forth in Exhibit "B." The Project Schedule may be amended by
mutual agreement of the parties. Failure to commence work in a timely manner and/or diligently
pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God; fire, strikes, material shortages, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a
party•
4.0. TERM AND TERMINATION
4.1. Term, This Agreement shall commence on the Effective Date and unless earlier
terminated as allowed for in the approved Agreement, contract term shall be for a period of five
(5) years. The term of the Agreement shall automatically be extended for up to three (3) 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 Proposer 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. At the conclusion of the final
term of the Agreement, the City Manager shall have the authority to consent to an extension of
the Agreement for a reasonable period of time, on a month to month basis, under the same terms,
until a new Agreement is awarded.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of
termination. In the event of such termination, Consultant shall immediately stop rendering
services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and including
the date of City's written notice of termination. Compensation for work in progress shall be
3CIeanStreet PSA
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prorated based on the percentage of work completed as of the effective date of termination in
accordance with the fees set forth herein. In ascertaining the professional services actually
rendered hereunder up to the effective date of termination of this Agreement, consideration shall
be given to both completed work and work in progress, to complete and incomplete drawings,
and to other documents pertaining to the services contemplated herein whether delivered to the
City or in the possession of the Consultant.
4.4. Documents, In the event of termination of this Agreement, all documents prepared
by Consultant in its performance of this Agreement including, but not limited to, finished or
unfinished design, development and construction documents, data studies, drawings, maps and
reports, shall be delivered to the City within ten (10) days of delivery of termination notice to
Consultant, at no cost to City. Any use of uncompleted documents without specific written
authorization from Consultant shall be at City's sole risk and without liability or legal expense to
Consultant.
5,0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum scope
of insurance coverages with an insurance company admitted to do business in California, rated
"A," Class X, or better in the most recent Best's Key Insurance Rating Guide, and approved by
City:
(a) Commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than One Million Dollars ($1,000,000.00),
combined single limits, per occurrence. if such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or shall
be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non -owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per occurrence for bodily injury
and property damage.
(c) Workers' compensation insurance as required by the State of California.
Consultant agrees to waive, and to obtain endorsements from its workers'
compensation insurer waiving subrogation rights under its workers'
compensation insurance policy against the City, its officers, agents,
employees, and volunteers arising from work performed by Consultant for
the City and to require each of its subcontractors, if any, to do likewise
under their workers' compensation insurance policies.
5.2. Endorsements. The commercial general liability insurance policy and business
automobile liability policy shall contain or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of Costa Mesa and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the Consultant pursuant to its contract with the City; products and
completed operations of the Consultant; premises owned, occupied or
used by the Consultant; automobiles owned, leased, hired, or borrowed by
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(b) Notice: "Said policy shall not terminate, be suspended, or voided, nor shall
it be cancelled, nor the coverage or limits reduced, until thirty (30) days
after written notice is given to City.
(c) Other insurance: "The Consultant's insurance coverage shall be primary
insurance as respects the City of Costa Mesa, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
Costa Mesa shall be excess and not contributing with the insurance
provided by this policy."
(d) Any failure to comply with the reporting provisions of the policies shall not
affect coverage provided to the City of Costa Mesa, its officers, officials,
agents, employees, and volunteers.
(e) The Consultant's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a deductible
or self-insured retention to provide such coverage, the amount of such deductible or self-insured
retention shall be approved in advance by City. No policy of insurance issued as to which the
City is an additional insured shall contain a provision which requires that no insured except the
named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and
content approved by City, prior to performing any services under this Agreement. The certificates
of insurance shall be attached hereto as Exhibit "C" and incorporated herein by this reference.
5.5. Non -limiting, Nothing in this Section shall be construed as limiting in any way, the
indemnification provision contained in this Agreement, or the extent to which Consultant may be
held responsible for payments of damages to persons or property.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations, This Agreement may be modified only in writing, and signed by
the parties in interest at the time of such modification. The terms of this Agreement shall prevail
over any inconsistent provision in any other contract document appurtenant hereto, including
exhibits to this Agreement.
6.2. Representatives. The City CEO or his or her designee shall be the representative
of City for purposes of this Agreement and may issue all consents, approvals, directives and
agreements on behalf of the City, called for by this Agreement, except as otherwise expressly
provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Consultant called for by this Agreement, except as otherwise expressly provided in this
Agreement.
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6.3. Project Managers. City shall designate a Project Manager to work directly with
Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its
agent in all consultations with City during the term of this Agreement. Consultant or its Project
Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile
or mail and shall be addressed as set forth below. Such communication shall be deemed served
or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at
the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit
in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through
regular United States mail.
IF TO CONSULTANT: IF TO CITY:
CleanStreet City of Costa Mesa
1937 W. 169th Street 77 Fair Drive
Gardena, CA 90247 Costa Mesa, CA 92626
Tel: (800) 225-7316 ext. 108 Tel: (714) 754 -
Fax: (310) 538-8015 Fax: (714) 754-
Attn: Rick Anderson Attn: Bruce Lindemann - - -
6.5_ Drug-free Workplace Policy. Consultant shall provide a drug-free workplace by
complying with all provisions set forth in City's Council Policy 100-5, attached hereto as Exhibit
"D" and incorporated herein by reference. Consultant's failure to conform to the requirements set
forth in Council Policy 100-5 shall constitute a material breach of this Agreement and shall be
cause for immediate termination of this Agreement by City.
6.6. Attorneys' Fees. In the event that litigation is brought by any party in connection
with this Agreement, the prevailing party shall be entitled to recover from the opposing party all
costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof.
6.7. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in
Orange County, California.
6.8. Assignment. Consultant shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's
prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be
void and shall constitute a breach of this Agreement and cause for termination of this Agreement_
Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's
obligation to perform all other obligations to be performed by Consultant hereunder for the term
of this Agreement.
6.9. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify,
hold free and harmless the City, its elected officials, officers, agents and employees, at
Consultant's sole expense, from and against any and all claims, actions, suits or other legal
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proceedings brought against the City, its elected officials, officers, agents and employees arising
out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the
work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall
apply without any advance showing of negligence or wrongdoing by the Consultant, its
employees, and/or authorized subcontractors, but shall be required whenever any claim, action,
complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the
Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action,
complaint or suit asserts liability against the City, its elected officials, officers, agents and
employees based upon the work performed by the Consultant, its employees, and/or authorized
subcontractors under this Agreement, whether or not the Consultant, its employees, and/or
authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification
of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful
misconduct of the City. This provision shall supersede and replace all other indemnity provisions
contained either in the City's specifications or Consultant's Proposal, which shall be of no force
and effect.
6.10. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of
Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Consultant shall secure, at its sole expense, and be responsible for any and
all payment of Income Tax, Social Security, State Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for Consultant and its officers,
agents, and employees, and all business licenses, if any are required, in connection with the
services to be performed hereunder. Consultant shall indemnify and hold City harmless from any
and all taxes, assessments, 'penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees due
to Consultant under this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.11. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and/or employee contributions for
PERS benefits.
7cleanStreet PSA ,3�
6.12. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall render
any reasonable assistance and cooperation which City might require.
6.13. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Consultant or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Consultant agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City. Any
use of such documents for other projects not contemplated by this Agreement, and any use of
incomplete documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses,
and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete documents
furnished by Consultant. Consultant shall deliver to City any findings, reports, documents,
information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes
or any other Project related items as requested by City or its authorized representative, at no
additional cost to the City,
6.14. Public Records Act Disclosure. Consultant has been advised and is aware that
this Agreement and all reports, documents, information and data, including, but not limited to,
computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors,
pursuant to this Agreement and provided to City may be subject to public disclosure as required
by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade
secrets, as that term is defined in the California Government Code Section 6254.7, and of which
Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all
information obtained by it that is designated as a trade secret, The City shall not, in any way, be
liable or responsible for the disclosure of any trade secret including, without limitation, those
records so marked if disclosure is deemed to be required by law or by order of the Court.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and
subconsultants, if any, will comply with all conflict of interest statutes of the State of California
applicable to Consultant's services under this agreement, including, but not limited to, the Political
Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant and its officers, employees, associates and
subconsultants shall not, without the prior written approval of the City Representative, perform
work for another person or entity for whom Consultant is not currently performing work that would
require Consultant or one of its officers, employees, associates or subconsultants to abstain from
a decision under this Agreement pursuant to a conflict of interest statute.
6.16. Responsibility for Errors. Consultant shall be responsible for its work and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation
as may be required by the City's representative, regarding any services rendered under this
Agreement at no additional cost to City, in the event that an error or omission attributable to
Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design
drawings, estimates and other Consultant professional services necessary to rectify and correct
the matter to the sole satisfaction of City and to participate in any meeting required with regard to
the correction.
6.17. Prohibited Employment. Consultant will not employ any regular employee of City
while this Agreement is in effect.
8cleanstreet PSA
6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.19. Costs. Each party shall bear its own costs and fees incurred in the preparation
and negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
6.20. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Consultant and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
6.21. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
6.22, Construction. The parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or interpretation arises with
respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties
and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring
or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.23. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.24. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by a duly authorized representative
of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.25. Severability, if any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
provision in any other circumstance. Notwithstanding the foregoing, if the value of this
Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired,
which determination made by the presiding court or arbitrator of competent jurisdiction shall be
binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.26. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original. Ali counterparts shall be construed together and shall
constitute one agreement.
6.27. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said
[)0eanStreet PSH
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parties and that by doing so the parties hereto are formally bound to the provisions of this
Agreement.
IN WITNESS_ WHEREOF, the parties hereto have caused this Agreement to be executed by and
through their respective authorized officers, as of the date first above written.
CITY OF COSTA MESA,
A municipal -corporation
ief x4at e Olff6er
CONSULTANT
ig atur
... � ►... ` .�....�► � • _rte _
Name and Title
ev=3-- ±t 4:-n o g,
Social Security or Taxpayer ID Number
ATTEST:
0 LW t (I
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City Clerk and ex- fr"icio Clerk
of the City of Costa Mesa
APPROV
E
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City orn
APPR ED AS TO SURANCE:
Ris nagement
DEPARTMENTAL ADRROVAL
Public
Date: r
Date:
Date: -,711,
Date:
1aCleenStreet PSA
CleanStreet
Cleaning Your Environment
June 14, 2017
Mr. Bruce Lindemann
Maintenance Superintendent
77 Fair Drive
Costa Mesa, CA 92626
Dear Mr. Lindemann,
ATTACHMENT #3
Email: Bruce. Lindemann(a)costamesaca.gov
As per the terms of our street sweeping contract with the City of Costa Mesa,
CleanStreet is requesting a CPI increase of 2.6% based upon the period of 2-
2016 to 3-2017.
We appreciate your business very much and hope to continue our excellent
working relationship for years to come.
Please feel free to give me a call if you have any questions or comments.
Sincerely,
CLEANSTREET
Pick, nderson - `" l
Director of Business Development
Cell: (310) 740-1601
Office: (800) 225-7316 x108
randerson(a-)-clean street. com
11
1937 West 169th Street, Gardena, California 90247 (800) 225-7316
CIeanStreet.com E-mail: info@CI eanStreet.com Fax: (310) 538-8015