99-093 Don & Mike’s Sweeping, Inc. AGREEMENT
THIS AGREEMENT, made and entered into this 7th day of October , 1999, by
and between the CITY OF CUPERTINO, a municipal corporation of State of California,
hereinafter referred to as "CITY", and DON& MIKE'S SWEEPING, INC. a Contractor
with offices at 901 Dell Avenue; Campbell, CA 95008, hereinafter referred to as
"CONTRACTOR";
WITNESSETH:
WHEREAS, CITY desires to retain the CONTRACTOR for STREET
SWEEPING SERVICES; 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 consideration 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 Manage?' shall mean the duly appointed City Manager of
the City of Cupertino, California, or his designated representative.
2. PROJECT COORDINATION.
(a) City. The City Engineer shall be a representative of the CITY for all
purposes under this agreement. The Public Works Superintendent 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 responsibility 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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3. DUTIES OF CONTRACTOR. Services to be furnished in accordance with
EXHIBIT"A" BID PROPOSAL and 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 necessary and incident to the due and lawful
prosecution of the services to be 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, orders, and decrees mentioned above;
(4) Immediately report to the PROJECT MANAGER in writing any
discrepancy or inconsistency it discovers in said laws, ordinances,
regulations, orders, and decrees mentioned above in relation to any plans,
drawing, specifications, or provisions of this agreement.
4. COMPENSATION. For the performance of the services described herein by
CONTRACTOR, CITY shall pay CONTRACTOR the sum of $9,750.80
(NINE THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND
EIGHTY CENTS) per month, less any deductions for work not performed
and or liquidated damages, payable upon submission by CONTRACTOR of
itemized billings in triplicate; provided, however, that the total sum payable to
CONTRACTOR shall not exceed $117,009.60 (ONE HUNDRED
SEVENTEEN THOUSAND NINE DOLLARS AND SIXTY CENTS) per
year. These amounts are based on $12.83 (TWELVE DOLLARS AND
EIGHTY THREE CENTS) per curb mile for 760 curb miles per month.
5. 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$360.00 (THREE HUNDRED SIXTY DOLLARS) for each and
every day that services are not completed on time and/or streets are omitted.
In case of breakdown by main sweeper, immediate service within one hour by
a second sweeper is required to complete daily schedule. If down for more
than one hour, liquidated damages will be assessed at the rate of$60.00 per
hour for each hour above and beyond one hour.
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6. TERM. The term of this agreement shall be one (1) year from the date of
execution of this agreement by the parties, hereto, provided, however, the
CITY retains the option to extend the term of the contract on a year-to-year
basis.
Any such renewal shall be accomplished by the City providing a written
notice of renewal to a CONTRACTOR at least 30 days prior to expiration of
the term. Any such renewal shall contain the same provision as the original
contract, provided however, that the parties may agree to an increase or
decrease in compensation paid to the CONTRACTOR.
Any increases or decreases in the previous contract price shall be based on the
'Consumer Price Index (CPI). The CPI shall be the San Francisco/Oakland
Consumer Price Index for all union wage earners. The adjusted (whether
increased or decreased) unit prices shall be computed as follows:
Divide the differences between the CPI on the anniversary date of the
agreement and the CPI on the date of the agreement by the CPI on the date of
the agreement and multiply by the unit prices specified in the agreement.
7. 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.
8. 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) Payment. 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
CONTRACTORS services which are of benefit to CITY.
9. 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 materials 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.
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10. 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. My 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.
11.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.
12. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it
presently has no interest, and shall 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 interest under this agreement is an officer or
employee of CITY. It is expressly 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.
13. 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 employees by reason of any injury to or death of any person or damage
suffered or sustained by any person or corporation caused by, or alleged to have
been 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;
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(b) Any and all damage to or destruction 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 demands 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 imposed 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 any judgement or decree that may be rendered
against CITY, its officers, agents, or employees in any such suit, action, or
other legal proceedings.
14. 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.
15. 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 of the least an "A", Class VII rating as determined in accordance
with the insurance industry standard, insuring not only CONTRACTOR, but also
(with the exception of workers' compensation and employer's liability insurance),
CITY, its officers, agents and employees, and each of them with respect to activities
and services performed by CONTRACTOR for or on behalf of CITY under the
provisions of this agreement.
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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 alteration, and that the City of Cupertino is
named as an additional insured. Current certificates of such insurance shall be
kept on file at all times during the term of this agreement with a City Clerk.
16. CONTRACT SECURITY. The CONTRACTOR shall furnish a surety bond in
an amount equal to three months of the contract price as security for the
faithful performance of this Contract.
17. AGREEMENT BINDING. The terms, covenant, and conditions of this
agreement shall apply to, and shall bind the heirs, successors, executors,
administrators, assigns, and subcontractors and both parties.
18. WAIVERS. The waiver by either party of any breach or violation of any
term, covenant, or condition of this agreement or any provision, ordinance, or
law shall not be deemed to be a waiver 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 shall 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.
19. COSTS AND ATTORNEYS FEES. 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.
20.NONDISCRIMINATION. No discrimination shall be made in the
employment of persons under this agreement because of the race, color,
national origin, ancestry, religion or sex of the person. If the value of this
agreement is, or may be, $5,000 (Five Thousand Dollars) or more,
CONTRACTOR agrees to meet all requirements of the Cupertino Municipal
Code pertaining to nondiscrimination in employment and to submit the
"Compliance Report — Nondiscrimination Provisions of City of Cupertino
Contracts".
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If CONTRACTOR is found in violation of the nondiscrimination provisions
of this agreement or the applicable affirmative action guidelines pertaining to
this agreement, CONTRACTOR shall be found in material breach of this
agreement. Thereupon, CITY shall have the power to cancel or suspend this
agreement, in whole or in part, or to deduct from the amount payable to
CONTRACTOR the sum of $250 (Two Hundred Fifty Dollars) for each
calendar day during which CONTRACTOR is found to have been in such
noncompliance as damages for said breach of contract, or both.
21. WAGE RATES. There is no minimum age rate required for this agreement.
22. AGREEMENT CONTAINS ALL 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 of California.
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PAGE 7 OF 8
IN WITNESS WHEREOF, the patties have executed this Agreement, in duplicate, the
day and year first hereinabove written.
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CONTRACTOR:
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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 ea�l 'TINO
By:
Mayor Soc. Security# Federal Tax I.D
Attest: v Contractor's License No. eit
City Clerk
Date: cbfc. 1 , 1999
City Clerk
APPROVE m AS TOFirpfr.Ln
7 i
City Attorney
Project Name &Number: STREET SWEEPING
Contractor's Name and Address: Don&Mike's Sweeping, Inc.
901 Dell Avenue
Campbell, CA 95008
Contract Amount: $9,750.80 per month; $117,009.60 per year
Account Number: 230-8004-7014
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File Number: 50,206.02
PAGE 8 OF 8
; City Hall
.T.
4.1
tat p 10300 Torre Avenue
Cupertino, CA 95014-3255
(408)777-3354
City of FAX(408)777-3333
Cupertino
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM /1 AGENDA DATE August 16, 1999
SUBJECT AND ISSUE
Authorization to extend street sweeping contract with Don & Mike's Sweeping, Inc.
BACKGROUND
It is desirable to convert the Public Works Contract to a maintenance contract with Don & Mike's
Sweeping, Inc. The City has contracted the services of Don & Mike's Sweeping, Inc. for the last four
years, utilizing one year extensions. At each extension, the staff reviewed unit costs to assure that the
City is receiving the lowest cost possible for street sweeping.
Recent surveys indicate that we are among the lowest of the cities surveyed. It is, therefore, desirable
to retain Don & Mike's Sweeping, Inc. under a maintenance contract and allow for cost-of-living
increases each year. The City reserves the right to terminate at any time if it so desires during the term
of the agreement.
STAFF RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 99-,R0-, approving a maintenance
agreement with Don& Mike's Sweeping, Inc.
S/:mitted b • / Approved for submission:
1.d
Bert J. Vis evich Donald D. Brown
Director o •ublic Works City Manager
Panted on Recycled Paper //
RESOLUTION NO. 99-252
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF MAINTENANCE AGREEMENT FOR STREET
SWEEPING PURPOSES
WHEREAS, it is desirable to modify the current agreement for street sweeping from a
Public Works contract to a year-round maintenance agreement with the same terms and
.conditions;and
WHEREAS, unit costs have been reviewed and surveys have been conducted to ensure
that the City is receiving a competitive rate.
NOW, THEREFORE, BE IT RESOLVED THAT the Mayor and the City Clerk are
hereby authorized to execute said maintenance agreement.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 16th day of August, 1999,by the following vote:
Vote Members of the City Council
AYES: Burnett, Chang,Dean, James, Statton
NOES: None
ABSENT: None
ABSTAIN: None '
ATTEST: _ APPROVED:
/s/Kimberly Smith /s/Wally Dean
City Clerk Mayor, City of Cupertino