07-079 Don & Mike's Commercial SweepingAGREEMENT
THIS AGREEMENT, made and entered into this 1St day of July, 2007, by and
between the CITY OF CUPERTINO, a mi.uiicipal corporation of State of California,
hereinafter referred to as "CITY", and I)on and Mike's Commercial Sweeping
a Contractor with offices at 901 Dell Avenue, Campbell, CA 95008, hereinafter referred
to as "CONTRACTOR";
WITNE~iSETH:
WHEREAS, CITY desires to retain the CONTRACTOR for STREET
SWEEPING SERVICES, PROJECT NO. 2007-02; and
WHEREAS, CITY desires to engage CONTRACTOR to provide these services
by reason of its qualifications and experience for performing such services; and
CONTRACTOR has offered to provide the required. services on the terms and in the
manner set forth herein;
NOW, THEREFORE, in consideratio~i of their mutual covenants, the parties
hereto agree as follows:
1. DEFINITIONS:
(a) The word "City" as used in this agreement shall mean and include all the
territory lying within the municipal boundaries of the city of Cupertino,
California, as presently existing, plus all territory which may be added
thereto during the term of this agreement by annexation or otherwise.
(b) The term "City Manager" shall mean the duly appointed City Manager of
the City of Cupertino, Califorr,.ia, or his designated representative.
2. THE CONTRACT DOCUMENTS. The complete contract consist of the
following contract documents:
a. Notice to Contractors, Proposal, Time of Completion, Estimated
Quantities, Noncollusion affidavit, Bidder Qualification Form,
Subcontractors Form and Signature Form.
b. Standard Specifications, General Provisions and Special Provisions.
c. Plans and Specifications for STREET SWEEPING, PROJECT NO.
2007-02
d. Faithful Performance Bond.
e. Insurance Agreement, Certificate of Insurance, Endorsement of Primary
Insurance, Additional Insured Endorsement, Endorsement of Aggregate
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Limits of Insurance per Project, Waiver of Subrogation Endorsement
Worker's Compensation Ins~~rance and Notice of Policy Cancellation
Endorsement.
£ This Agreement.
All of the above documents are intended to cooperate so that any work
called for in one and not mentioned in the other, or vice versa, is to be
executed the same as if mentioned in all of said documents. The
documents comprising the c~~mplete contract are sometimes hereinafter
referred to as the Contract Documents. In case of conflict between the
Plans and the Specifications on the one hand, and this Contract on the
other, the Plans and Specifications shall prevail.
2. THE WORK. CONTRACTOR agrees to furnish all of the
tools, equipment, apparatus, facilities, labor, transportation and materials
necessary to perform and con-~plete in a good and working order, the work
of slurry sealing various streets, as called for, and in the manner
designated in, and in strict cc-nformity with, the Plans and Specifications
prepared by the Engineer ;end adopted by CITY, which Plans and
Specifications are entitled, respectively, STREET SWEEPING,
PROJECT NO. 2007-02 ,~.nd which Plans and Specifications are
identified by the signatures of'the parties to this Contract. It is understood
and agreed that said tools, equipment, apparatus, facilities, labor,
transportation and materials sJlall be furnished, and that said work shall be
performed and completed as required in said Plans and Specifications
under the sole direction of CONTRACTOR, but subject to the inspection
and approval of CITY, or its representative.
CITY hereby designates as its representative for the purpose of this
Contract the Engineer, Mr. Ralph A. Qualls, Jr.
3. PROJECT COORDINATION.
(a) Cwt . The City Engineer shill be a representative of the CITY for all
purposes under this agreemenrt. The Assistant Director of Public Works
hereby is designated as the PROJECT MANAGER for the City Manager,
and he shall supervise the progress and execution of this agreement.
(b) Contractor. CONTRACTOR shall assign a single PROJECT DIRECTOR
to have overall responsibilil:y for the progress and execution of this
agreement for CONTRACTOR. Don Vierra hereby is designated as the
PROJECT DIRECTOR FOR CONTRACTOR. Should circumstances or
conditions subsequent to the execution of this agreement require a
substitute PROJECT DIRECTOR designee shall be subject to the prior
written acceptance and approval of the PROJECT MANAGER.
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4. DUTIES OF CONTRACTOR ~>ervices to be furnished in accordance with
EXHIBIT "A" BID PROPOSAL rind contract specifications.
(a) Laws to be Observed. CONTRACTOR shall:
(1) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be nece:>sary and incident to the due and lawful
prosecution of the services to lie performed by a CONTRACOR under this
agreement;
(2) Keep itself fully informed of all existing and future federal, state, and local
laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this agreement;
(3) At all times observe and comply with, and cause all of its subcontractors
and employees, if any, to observe and comply with, all of said laws,
ordinances, regulations, order;,, and decrees mentioned above;
(4) Immediately report to the PROJECT MANAGER in writing any
discrepancy or inconsistenc.~ it discovers in said laws, ordinances,
regulations, orders, and decre~;s mentioned above in relation to any plans,
drawing, specifications; or provisions of this agreement.
COMPENSATION. For the performance of the services described herein by
CONTRACTOR, CITY shall pay CONTRACTOR the sum of $ 11,303.04 per
month, less any deductions for work: not performed and or liquidated damages,
payable upon submission by CONT:fZACTOR of itemized billings in triplicate;
provided, however, that the total sum payable to CONTRACTOR shall not
exceed $ 135,636.48 per year. These amounts are based on $16.24
per curb mile for 696 curb miles peer month. Emergency and additional street
sweeping shall be at $ 16.24 per hour or at $ 95.00 per mile.
6. LIQUIDATED DAMAGES. The CONTRACTOR .shall diligently
prosecute the work to completion as scheduled. The CONTRACTOR further
understands that he shall pay liquidated damages to the City of Cupertino in
the sum of One Thousand Dollars ($1,000.00) for each and every day that
services are not completed on time and/or streets are omitted. Omitted
streets must be swept by the follc-wing day.
In case of breakdown by main sweeper, immediate service within one hour by
a second sweeper is required to -;omplete daily schedule. If down for more
than one hour, liquidated damages will be assessed at the rate of One
Hundred Dollars ($100.00) per hour for each hour above and beyond one
hour.
PAGE 3 OF 9
7. TERM. The term of this agreem~:nt shall be two (2) years from the start date
of the agreement. The City shall retain the option to extend the term of the
agreement on a year-to-year basis not exceeding two years from the expiration
of the original term, for a possible total of four (4) years.
The start date of this agreement shall be July 1, 2007.
Any such renewal after the seco~id (2"a) year shall be accomplished by the
City providing a written notice o:F renewal to the Contractor at least 30 days
prior to expiration of the term. Any such renewal shall contain the same
provisions as the original agreement, provided however that the parties may
agree to an increase or decrease iii compensation paid to the Contractor. Any
increase or decrease in the previous contract price shall be based on the annual
percentage change in the Consurr~er Price Index (CPI) as of June of the year
the adjustment is being made. The CPI shall be the San Francisco/Oakland
Consumer Price Index for all urban wage earners. After the first year of the
original contract term a CPI adjustment will be applied to the current contract
price for the last year of the original contract term.
8. TEMPORARY SUSPENSION. The City Manager shall have the authority
to suspend this agreement, wholly or in part, for such period as he deems
necessary due to unfavorable conditions or to the failure on the part of the
CONTRACTOR to perform any provision of this agreement.
9. SUSPENSION; TERMINATION.
(a) Right to Suspend or Terminate. The City may suspend or terminate this
agreement for any reason by giving thirty (30) days written notice.
(b) Patent. Upon such suspension or termination, CONTRACTOR shall be
paid for all services actually rendered to CITY to the date of such
suspension or termination; provided, however, if this agreement is
suspended or terminated for fault of CONTRATOR, CITY shall be
obligated to compensate CONTRACTOR only for that portion of
CONTRACTOR'S services which are of benefit to CITY.
10. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable
opportunity for CITY to ascertain that the services of CONTRACTOR are
being performed in accordance with the requirements and intentions of this
agreement.
All work done and all material;; furnished, if any, shall be subject to the
PROJECT MANAGER'S inspection and approval. The inspection of such
work shall not relieve the CONTRACTOR of any of its obligations to fulfill
its agreement as prescribed.
PAGE 4 OF 9
11. ASSIGNMENT; EMPLOYEES.
(a) Assignment. Both parties shall give their personal attention to the faithful
performance of this agreement and shall not assign, transfer, convey, or
otherwise dispose of this agreement or any right, title, or interest in or to
the same or any part thereof without the prior written consent of the other
party, and then only subject to such terms and conditions as the other party
may require. A consent to one assignment shall not be deemed to be a
consent to any subsequent assignment. Any assignment without such
approval shall be void and, at the option of the other party, shall terminate
this agreement and any license or privilege granted herein. This
agreement and any interest herein shall not be assignable by operation of
law without the prior written consent of the other party.
12. NOTICES. All notices hereunder shall be given in writing and mailed,
postage prepaid, by certified mail. addressed as follows:
TO CITY: Office of the City Clerk
10300 Torre Avenue
Cupertino, CA 95014
TO CONTRACTOR: Attention of the PROJECT
DIRECTOR at the address of
CONTRACTOR recited above.
13. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it
presently has no interest, and sha''~l not acquire any interest, direct, or indirect,
financial or otherwise, which would conflict in any manner or degree with the
performance of the services hereunder. CONTRACTOR further convenants
that, in the performance of this agreement, no subcontractor or person having
such an interest shall be employed. CONTRACTOR certifies that no one who
has or will have any financial ir.~terest under this agreement is an officer or
employee of CITY. It is expre:~sly agreed that, in the performance of the
services hereunder, CONTRACTOR shall at all times be deemed and
independent contractor and not an. agent or employee or CITY.
14. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save
harmless CITY, its officers, agents, and employees of and from:
(a) Any and all claims and demands which may be made against CITY, its
officers, agents, or employee~~ by reason of any injury to or death of any
person or damage suffered ~~r sustained by any person or corporation
caused by, or alleged to h~~ve been caused by, any act or omission,
negligent or otherwise, of COI~TTRACTOR or any subcontractor under this
agreement or of CONTRAC~COR' S or any subcontractor's employees or
agents;
PAGE 5 OF 9
(b) Any and all damage to or dest:ruction of the property of CITY, its officers,
agents, or employees occupied or used by or in the care custody, or control
of CONTRACTOR, or in proximity to the site of the CONTRACTOR'S
work, caused by any act or omission, negligent or otherwise, of
CONTRACTOR or any subcontractor under this agreement or of
CONTRACTOR'S or any subcontractor's employees or agents.
(c) Any and all claims and demands which may be made against CITY, its
officers, agents, or employees by reason of any injury to or death of or
damage suffered or sustained by any employee or agent of
CONTRACTOR or any subcontractor under this agreement, however
caused, excepting, however, any such claims and demands which are the
results of the sole negligence or willful misconduct of CITY, its officers,
agents, or employees;
(d) Any and all claims and dem~inds which may be made against CITY, its
officers, agents, or employees by reason of any infringement or alleged
infringement of any patent rights or claims caused by the use of the
apparatus, appliance, or materials furnished by the CONTRACTOR or any
subcontractor under this agreement; and
(e) Any and all penalties impo:~ed or damages sought on account of the
violation of any law or regulation or of any term or condition of any
permit.
CONTRACTOR, at its own cost„ expense, and risk, shall defend any and all
suits, actions, or other legal proceedings that may be brought or instituted by
third persons against CITY, its officers, agents, or employees on any of the
above claims or demands of such third person, or to enforce any of the above
penalties, and pay and satisfy an:~ judgement or decree that may be rendered
against CITY, its officers, agent, or employees in any such suit, action, or
other legal proceedings.
15. WORKERS' COMPENSATION. CONTRACTOR certifies that it is aware of the
provisions of the Labor Code of the State of California which require every employer
to be insured against liability for workers' compensation or to undertake self-
insurance in accordance with the provisions of that code, and it certifies that it will
comply with such provisions before commencing the performance of the work of this
agreement.
16. INSURANCE. CONTRACTOR , at its sole cost and expense, shall obtain and
maintain in full force and effect throughout the entire term of is agreement the
insurance coverage in amounts specified and having a Best's Guide Rating of "A",
Class VII or better or that is otherwise acceptable to the City. Insuring not only
CONTRACTOR, but also (with the exception of workers' compensation and
employer's liability insurance), CIT'E', its officers, agents and employees, and each of
PAGE 6 OF 9
them with respect to activities and services performed by CONTRACTOR for or on
behalf of CITY under the provisions of this agreement.
Certificates of such insurance, on the forms provided by CITY, shall be filed
with CITY concurrently with the execution of this agreement or, with CITY' S
approval, within ten (10) days thereafter. Said certificates shall be subject to
the approval of the City Attorney and shall contain an endorsement stating
that said insurance is primary coverage and will not be cancelled or altered by
the insurer except after filing with the City Clerk thirty (30) days' written
notice of such cancellation or a teration, and that the City of Cupertino is
named as an additional insured. (:urrent certificates of such insurance shall be
kept on file at all times during the term of this agreement with a City Clerk.
17. CONTRACT SECURITY. The CONTRACTOR shall furnish a surety bond
in an amount equal to four (4) m~~nths of the contract price as security for the
faithful performance of this Contract.
18. AGREEMENT BINDING. Tlie terms, covenant, and conditions of this
agreement shall apply to, and :;hall bind the heirs, successors, executors,
administrators, assigns, and subcontractors and both parties.
19. WAIVERS. The waiver by either party of any breach or violation of any
term, covenant, or condition of tr~is agreement or any provision, ordinance, or
law shall not be deemed to be a v~~aiver of any other term, covenant, condition,
ordinance, or law or of any subsequent breach or violation of the same or of
any other term, covenant, condition, ordinance, or law.
The subsequent acceptance by either party of any fee or other money which
may become due hereunder shill not be deemed to be a waiver of any
preceding breach or violation by the other party of any term, covenant, or
condition of this agreement or of any applicable law or ordinance.
20. COSTS AND ATTORNEYS I~ EES. The prevailing party in any action
brought to enforce the terms of this agreement or arising out of this agreement
may recover its reasonable costs and attorneys' fees expended in connection
with such an action from the other party.
21. WAGE RATES. Because the California Department of Industrial Relations
has determined that street sweeping, as janitorial or custodial services of a
routine recurring or usual nature, is excluded from prevailing wage
requirements, the prevailing wa,e requirements of Section 7-1.01A of the
Standard Specifications do not apply to this contract. However, the
Contractor shall conform to the other applicable -provisions of Sections 7-
1.OlA and 7-1.O1B of the Standard Specifications. The Contractor shall keep
fully informed of all existing and future State and Federal laws and City
ordinances and regulations whi~;h in any manner affect those engaged or
employed in the work. Pursuant to Section 1861 of the Labor Code,
PAGE 7 OF 9
Contractor represents that it is aware of the provisions of Section 3700 of the
Labor Code which require every employer to be insured against liability for
workers' compensation or to undertake self-insurance in accordance with the
provisions of that Code, and Contractor shall comply with such provisions
before commencing the performance of the Work of the Contract Documents.
22. AGREEMENT CONTAINS AIL UNDERSTANDINGS. This document
represents the entire and integrated agreement between CITY and
CONTRACTOR and supersedes all prior negotiations, representations, or
agreements, either written or oral. This document may be amended only by
written instrument, signed by both. CITY and CONTRACTOR. All provisions
of this agreement are expressly :made conditions. This agreement shall be
governed by the laws of the State ~f California.
PAGE .3 OF 9
IN WITNESS WHEREOF, the parties have executed this Agreement, in duplicate, the
day and year first hereinabove written.
(:ONTRACTOR: Don & Mike's Sweeping
notary acknowledgement is required. If a
corporation, corporate seal and corporate
notary acknowledgement and Federal Tax
I.D. are required. If not a corporation a
Social Security No. is required.
CITY OF CUPERTINO
9O1 DELL AVE CAMPBELL CA 95008
F;y: ~i-~''~ 2%1U~-
By: -~
Attest:
City Clerk
C;ontractor's License No. ~ /~,
Date: /G , 2007
Cit Clerk
A
AS TO FO
City Attorney
Project Name & Number: STREET SWEEPING, PROJECT NO. 2007-02
Contractor's Name and Address: Don and Mil:e's Commercial Sweeping
901 Dell Avenue
Campbell, C'A 95008
Contract Amount: $ 11,303.04 per month; $ 135,636.48 per year
Account Numbers: 230-8004-7014 = $ 35,63E~.48 and 520-8003-7106 = $ 100,000.00
File Number: 50,206.05
PAGE 9 OF 9
CALIFORNIA ALL-PURPOSE ACKNOWLED~:MENT
State of California
ss.
County of Q~ ~'~,vLG~
r
On h before me, ~ fyli ~
Date Name a Tithe of 08icer (e Jane Doe, Notary Public's
personally appeared ~-y~cy/~ /~jPJ~ ,
Name(s) of Signer(s)
^ personally known to me
braved to me on the basis of satisfactory
evidence
to be the personn~ whose name(,8'J . is/afe•
subscribed to the within instrument and
acknowledged to me that he/sk>eft~ey executed
the same in his/faer~~#eir authorized
capacity(ieej, and that by his/herftF~e+~
signature(,sj' on the instrument the person, or
the entity upon behalf of which the person}
~°"""""""""""'~~~~~^^^^^^•^.....~ acted, executed the instrument.
_ -• BHUMI PANDYA
COMM. N0. 1716956 w WITNESS my hand and official seal.
NorapvRUSUC-cAUFOI~w ;
SANTA CtARA ~~y ,
dn.n....u.u/~MM; ~XP~RES:ANi„i°~~~,
G
Signature of Notary Publ'
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