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06-02-2020 - AGENDA ITEM 06 CONSIDERATION OF ACTIONS TAKEN BY THE CITY MANAGER UNDER THE FISCAL EMERGENCY (RESOLUTION 2020-46) REGARDING AGREEMENTS WITH NATIONWIDE ENVIRONMENTAL SERVICES AND CARE AMBULANCE SERVICESAGENDA ITEM NO.6 Xft AGENDA STAFF REPORT City of West Covina I Office of the City Manager DATE: June 2, 2020 TO: Mayor and City Council FROM: David Carmany City Manager SUBJECT: CONSIDERATION OF ACTIONS TAKEN BY THE CITY MANAGER UNDER THE FISCAL EMERGENCY (RESOLUTION 2020-46) REGARDING AGREEMENTS WITH NATIONWIDE ENVIRONMENTAL SERVICES AND CARE AMBULANCE SERVICES RECOMMENDATION: Adopt the following resolutions related to the City's Fiscal Emergency: RESOLUTION NO.2020-55 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, RATIFYING THE CITY MANAGER'S TERMINATION OF THE CONTRACT SERVICES AGREEMENT BETWEEN THE CITY AND NATIONWIDE ENVIRONMENTAL SERVICES, DATED JUNE 189 20029 AS AMENDED RESOLUTION NO.2020-56 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA CALIFORNIA, AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE AN AGREEMENT WITH CARE AMBULANCE SERVICES, INC. FOR AMBULANCE TRANSPORTATION AND BILLING SERVICES BACKGROUND: On March 4, 2020, Governor Newsom declared a State of Emergency in California. On March 4, 2020, the County of Los Angeles declared a local emergency and a local health emergency. On March 16, 2020, the City Manager, acting as the Director of Emergency Services, declared a local emergency due to the novel coronavirus (COVID-19). On March 17, 2020 the City Council adopted Resolution 2020-19, ratifying the actions of the City Manager, and declaring the existence of a local emergency. On May 19, 2020, the City Council adopted Resolution 2020-46, declaring a fiscal emergency due to cash flow issues. The City's unassigned fund balance has continuously declined from $20,531,695 in FY 2014-15 to a projected balance of $1,903,251 on June 30, 2020. The City is struggling to meet its obligations as they become due. Compounding the matter is the widespread business disruption caused by the COVID-19 pandemic. DISCUSSION: David Carmany May 27, 2020 Page 3 Contract is not designed to protect lives or property. To the contrary, without sweeping the streets and keeping the areas clean, the City is actually increasing the risk of injury and sickness to its residents. NES relied on the City's promises in the Fifth Amendment to invest substantial sums of money in capital equipment to service the Sweeping Contract for the extended term. NES has performed and will continue to perform its obligations under the Sweeping Contract. Even assuming for the sake of argument that the financial situation arising from Covid-19 presented an emergency recognized under the law which temporarily prevents the City from performing, which it does not, that would still not allow the City to terminate the contract but would merely entitle the City to temporarily suspend the obligations. See Maudlin v. Pacific Decision Sciences Corp., 137 Cal.App.4th 1001, 1017 (2006)("'Temporary impossibility usually suspends the obligation to perform during the time it exists.' (1 Witkin, Summary of Cal. Law (loth ed. 2005) Contracts, § 833, p. 921.) The obligation to perform is not excused or discharged by a temporary impossibility —it is merely suspended. The bottom line is that City cannot justify termination of the Sweeping Contract with NES under anv set of circumstances, and the City cannot use its declared fiscal crisis as a pretext to terminate or suspend the Sweeping Contract. The Sweeping Contract, at paragraph 1.7, contains an express provision requiring the City to act in good faith. Although a good faith requirement is implied in every contract, the City and NES thought it important enough in this case to include an express provision. In short, neither party shall take any action that would deprive the other of the benefits expected under the agreement. The Sweeping Contract does not grant the City the right to terminate under any circumstances. The City is clearly acting in bad faith by purporting to unilaterally terminate a valid 15- year contract which required NES to invest substantial sums in capital with "zero" notice. Not only is the purported Notice of Termination defective, it is the most extreme aggressive action possible. The City had at its fingertips the ability to exercise good faith and to treat NES fairly and these options were ignored, and instead used a temporary health crisis as an excuse to take aggressive action adverse to NES. At this time, NES intends to continue to service the City and comply with its contractual obligations. Additionally, it is NES' position that the City's action taken in its Notice of Termination is itself a default by the City under the Sweeping Contract. Therefore, pursuant to Section 7.2 of the Sweeping Contract, this letter shall constitute NES' written notice to the City that it is in default under the Sweeping Contract. The City should review Section 7.2 of the Sweeping Contract and thereafter comply with its obligation to cure its default within ten (10) days of this letter, which also must include a written withdrawal of its Notice of Termination. Should the City fail to cure its default, NES has no alternative but to David Carmany May 27, 2020 Page 4 institute legal action to enforce its rights under the Sweeping Contract. If NES is forced to bring legal action to enforce its rights and obtain a declaration that the City's actions are unlawful and a breach of the Sweeping Contract, NES will also seek recovery of all damages, legal fees and costs incurred. NES reserves all rights under the Sweeping Agreement and California law and this letter shall not constitute a waiver of any rights. For nearly two decades, NES has been a high -performing corporate partner working with the City to provide essential health and safety street sweeping services. NES looks forward to working with the City to develop a reasonable solution during this period, however, the City should clearly recognize that NES will take all actions necessary to protect its legal rights under the Sweeping Contract. I look forward to your response. Ve truly yours Ani Samuelian President ATTACHMENT NO. 3 AGREEMENT FOR AMBULANCE TRANSPORTATION AND BILLING SERVICES THIS AGREEMENT FOR AMBULANCE TRANSPORTATION AND BILLING SERVICES ("Agreement'), dated July 1, 2020for purposes of identification only, is made and entered into by and between the CITY OF WEST COVINA, a municipal corporation ("WEST COVINA") and CARE AMBULANCE SERVICES, INC., a California corporation ("CONTRACTOR"). WITNESSETH: WHEREAS, WEST COVINA seeks ambulance transportation and billing services on a temporary basis; and WHEREAS, CONTRACTOR is an ambulance provider fully licensed and qualified to perform the work required by this Agreement; and WHEREAS, WEST COVINA desires to use the services of CONTRACTOR in accordance with all applicable laws and the terms set forth herein. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: SECTION 1. GENERAL REQUIREMENTS CONTRACTOR shall perform Basic (BLS) and Advanced (ALS) emergency medical transport and other related services as set forth herein in accordance with and as required by all applicable laws and by the terms and conditions of this Agreement. The terms BLS and ALS as utilized throughout this Agreement shall be as defined in the California Health and Safety Code and applicable provisions of the California Code of Regulations, as amended. A. CONTRACTOR shall perform the services set forth herein in accordance with the Minimum Acceptable Operational Standards and Procedures agreed upon by WEST COVINA and CONTRACTOR. B. CONTRACTOR shall comply with the Schedule of Performance to be issued and approved by the WEST COVINA Fire Chief. ATTACHMENT NO. 3 C. CONTRACTOR shall involve itself in and support the WEST COVINA Fire Department's (hereinafter "Department") First Responder Program to enhance quality patient care with the timely delivery of appropriately trained EMS personnel. D. CONTRACTOR shall provide continuous quality improvement reports (CQI), as required by WEST COVINA's Fire Chief. E. CONTRACTOR's Clinical Performance must be consistent with standards established by the Los Angeles County Emergency Medical Services Agency (EMSA). F. CONTRACTOR shall provide all labor, supervision and equipment required to perform said ambulance services. G. CONTRACTOR's Director of Operations and WEST COVINA's Fire Chief, or their mutually agreeable designees, shall meet monthly, or as reasonably determined by WEST COVINA's Fire Chief to review the performance of CONTRACTOR under this Agreement and to review operational concerns and make such operational modifications as are reasonably deemed necessary by WEST COVINA's Fire Chief. SECTION 2. COMPENSATION TO CONTRACTOR A. CONTRACTOR will not be compensated by WEST COVINA for its services under this Agreement, except that CONTRACTOR may bill for ambulance service necessitated by work related injuries of WEST COVINA employees. CONTRACTOR will bill patients for services provided in accordance with rates established by the County of Los Angeles and/or WEST COVINA. B. WEST COVINA assumes no financial liability for the cost of services to be provided to patients pursuant to this Agreement, including financial liability for the cost of dry run (non -transports). SECTION 3. BILLING A. CONTRACTOR agrees to identify code, bill and collect all fees on behalf of WEST COVINA for emergency response services rendered by WEST COVINA. CONTRACTOR further agrees that all ALS amounts billed and collected on behalf of WEST COVINA will be separately identified within the accounting records in sufficient detail to allow for verification by WEST COVINA pursuant to Section 21 (AUDITS) of this Agreement and that such records will be retained for the current year of operation and for 0 ATTACHMENT NO. 3 six (6) years following termination of this Agreement. CONTRACTOR shall, on or before the close of business on the last day of every calendar month, remit all funds collected on behalf of WEST COVINA during the immediately preceding calendar month. CONTRACTOR shall bill and collect in accordance with current practices of CONTRACTOR or as otherwise reasonably directed by WEST COVINA. B. The services covered by this Agreement include situations where a patient is transported in a basic life support ambulance of CONTRACTOR and the ambulance crew is supplemented by WESTCOVINA paramedic(s). CONTRACTOR shall bill patients or their insurance service for ALS service to the extent allowed by law. C. Upon receipt of payment by the patient or third -party payors, CONTRACTOR shall pay WEST COVINA the difference between the amount actually received for the transport and what would have been paid had the transport been a BLS transport, provided that such amount shall not exceed the difference between what would have been paid for ALS transport and what would have been paid for BLS transport. D. WEST COVINA is only entitled to be reimbursed for use of its paramedic when a paramedic is actually provided and a paramedic is medically necessary due to the condition of the patient. E. If after payment is made by CONTRACTOR to WEST COVINA, an overpayment is assessed against CONTRACTOR by any third -party payor claiming ALS (i.e., the paramedic) was not medically necessary, WEST COVINA shall refund to CONTRACTOR the amount of such overpayment, whether calculated individually or through statistical sampling. F. To the extent permitted by law, WEST COVINA shall be responsible to provide CONTRACTOR a copy of the Prehospital Care Report form completed by its paramedic when the paramedic is in the CONTRACTOR's vehicle used to transport a patient. SECTION 4. EQUIPMENT AND SUPPLIES CONTRACTOR shall comply with the following: A. maintain, at a minimum, a standard inventory of supplies and equipment per Los Angeles County Emergency Medical Services Agency protocol on primary responding and reserve ambulances. C7 ATTACHMENT NO. 3 B. where possible, ensure that all equipment and supplies are readily available and accessible from the interior portions of the patient transportation compartments. C. maintain all emergency equipment and supplies in a "ready to use" condition, as required by Los Angeles County EMSA Policies and Procedures, California Vehicle Code, and the California Health and Safety Code and all other applicable laws, regulations and/or procedures throughout the term of this Agreement. SECTION 5. VEHICLES A. All vehicles utilized by CONTRACTOR to provide services to WEST COVINA shall meet or exceed requirements of the California Highway Patrol, the Department of Transportation, and/or the Los Angeles County EMSA. B. CONTRACTOR shall dedicatethree (3) ambulances to be used exclusively for emergency transports originating in WEST COVINA. C. The dedicated ambulances shall serve WEST COVINA twenty-four (24) hours per day, seven (7) days per week, and shall be housed at locations as approved by the WEST COVINA Fire Chief within the boundaries of WEST COVINA, or such other locations as are approved in writing by the WEST COVINA Fire Chief. The housing of such ambulances and crews may include lease arrangements between CONTRACTOR and WEST COVINA, which may be the subject of a separate agreement. However, the inability to procure such lease agreements with WEST COVINA shall not extinguish CONTRACTOR's obligations to house such ambulances and crews in WEST COVINA. D. CONTRACTOR shall ensure that the appearance of all ambulances utilized in WEST COVINA reflect the highest standards of the industry in appearance. Ambulances shall be unblemished, clean, waxed to a shine, and without defects. SECTION6. PERSONNEL AND HOUSING A. CONTRACTOR shall ensure that all services provided pursuant to this Agreement are rendered by personnel trained and experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by ambulance operators, emergency medical technicians (EMTs) and other personnel in similar circumstances. 4 ATTACHMENT NO. 3 B. CONTRACTOR shall ensure that ambulance personnel are certified and able to perform all treatment modalities within their scope of practices as defined by Los Angeles County EMSA policies and procedures. C. CONTRACTOR shall conduct a thorough investigation of all personnel employed to work in WEST COVINA, including, but not limited to: subscribing to and utilizing the California State Department of Motor Vehicles Pull Notice Program; 2. screening EMT candidates by requiring that all EMT candidates submit current proof of a valid EMT certification, Los Angeles County EMT Provider's License, valid California Driver's License and a valid California Ambulance Driver's Certificate with a Medical Examiner's Certificate; 3. requiring all EMT candidates to provide a current Department of Motor Vehicles Report of Driving Record. If the EMT candidate is a non -California licensed driver, the candidate must submit a driving record from the state in which the applicant is currently licensed. CONTRACTOR shall strictly adhere to its policies that require that only candidates who meet minimum driving standards are considered and accepted for employment. Any candidate with a poor driving history shall not be considered for employment to serve WEST COVINA; 4. ensuring compliance with Los Angeles County EMSA's criminal history check requirement for all persons issued an EMT-B Provider's license. CONTRACTOR shall thoroughly contact all references given on applications, particularly any prior EMS employer; 5. conducting an oral interview of all qualified candidates with authorized personnel of CONTRACTOR's at which time the candidate's prior work history, goals and EMT knowledge will be reviewed; 6. conducting strength and flexibility testing of all EMT candidates by qualified and licensed health care professionals to simulate the physical strength necessary for the position, flexibility, and use of proper lifting techniques; and 7. requiring a pre -placement medical examination, including, a personal health history, vision testing, hearing tests, blood sugar testing, musculoskeletal evaluation and urinalysis drug screening. 6 ATTACHMENT NO. 3 D. CONTRACTOR shall ensure that all of CONTRACTOR's responding personnel shall be physically and mentally capable of performing all duties of emergency ground ambulance personnel. E. CONTRACTOR shall ensure that personnel for the three (3) dedicated ambulances are housed within the WEST COVINA city limits and/or locations approved in advance by the WEST COVINA Fire Chief. Staff for each ambulance shall be housed in accordance with Los Angeles County EMSA standards. F. Contractor shall ensure that each ambulance is staffed in accordance with Los Angeles County EMSA standards. G. CONTRACTOR shall provide afield supervisor to be stationed within WEST COVINA or at a location approved by the WEST COVINA Fire Chief and immediately available on a twenty-four (24) hour basis. H. CONTRACTOR shall obtain the approval by W ESTCOVINA Fire Chief of all EMTs assigned to WEST COVINA. I. CONTRACTOR shall assign EMTs to a work week that matches the WEST COVINA Fire Department's shift schedule or other schedule as may be approved from time to time by the WEST COVINA Fire Chief. J. CONTRACTOR shall train, at its own expense, all employed personnel in the Los Angeles County disaster response procedures. K. CONTRACTOR shall provide driver training to all employed personnel in accordance with the standards of the Commission of Accreditation of Ambulance Services (CAAS). L. CONTRACTOR shall provide training of all personnel in accordance with CAAS standards. M. CONTRACTOR shall ensure that all personnel complete WEST COVINA's orientation training module as approved by the Fire Chief. N. CONTRACTOR agrees to participate, upon the request of WEST COVINA's Fire Chief, in joint training exercises to improve the capability and coordination of both agencies' response to a given emergency or disaster. Such training will be scheduled and coordinated by the training officers of the Department and CONTRACTOR and shall meet all current State Regulations. The individuals to be involved in suchtraining will be identified by the training officers of the Department and CONTRACTOR. a ATTACHMENT NO. 3 O. CONTRACTOR shall, to theextent allowed bylaw, provide upon requestof WEST COVINA's Fire Chief or his/her designee, the training records of all personnel responding to emergencies within WEST COVINA. P. CONTRACTOR shall ensure that ambulance personnel do not participate in any firefighting operations. Q. CONTRACTOR shall ensure complianceby all employees to all applicable vehicle, safety and medical provisions of CONTRACTOR. R. CONTRACTOR ensure that all response personnel have in their possession at all times when on duty applicable licenses, certifications or permits required for their specificjob. S. CONTRACTOR shall make available for inspection upon request by WEST COVINA's Fire Chief licenses, certifications or permits of any or all employees of CONTRACTOR. T. CONTRACTOR shall have in place a chemical dependence awareness program and a critical incident plan to deal with personnel demonstrating signs and/or symptoms of chemical dependence, emotional instability or physical injury or incapacity. U. CONTRACTOR shall utilize reasonable work schedules, shift assignments, and shall provide adequate working conditions. CONTRACTOR shall utilize management practices which ensure that field personnel working extended shifts, part-time jobs, voluntary overtime or mandatory overtime are not exhausted to an extent which might impair judgment or motor skills. WEST COVINA's Fire Chief may determine that work schedules and shift assignments are not reasonable, in which case CONTRACTOR will revise same accordingly. No liability shall result to WEST COVINA or to WEST COVINA's Fire Chief as the result of determining or failing to determine the reasonability of work schedules and shift assignments. W. Upon the request of WESTCOVINA's Fire Chief, CONTRACTORshall ensurethat certain personnel are not assigned to dedicated units responding within WEST COVINA. CONTRACTOR shall take all appropriate actions relating to personnel based on documented complaints received from the Department. X. CONTRACTOR shall ensure that none of its personnel are in possession of or under the influence of any alcohol, drugs, medications or any other chemical substances, the use of which may impair performance. Y. CONTRACTOR shall ensure that all personnel working in W ESTCOVINA conform to company and city uniform and grooming standards, and conduct themselves in a positive and professional manner. Z. CONTRACTOR shall ensure compliance by all employees to all applicable provisions of all applicable federal, state, and local laws, WESTCOVINA's ordinances, and other regulations and statutes. II ATTACHMENT NO. 3 AA. CONTRACTOR shall require that all ambulance personnel work under the direction of the Incident Commanderand/or the EMT -Paramedic in charge of the patient(s) and/or scene. They shall respond to the directions of such persons in a positive and affirmative manner. BB. CONTRACTOR shall ensure that ambulance personnel inform the EMT - Paramedic and/or Incident Commander of any unseen danger of safety concern of which ambulance personnel become aware. CC. CONTRACTOR shall ensure that ambulance personnel place their apparatus and equipment in a safe location and are mindful of the need for safe operations on the scene of an emergency. SECTION 7. TERM A. CONTRACTOR shall commence operations under the terms and conditions of this Agreement within fifteen (15) days of receipt of written notification to commence from the West Covina Fire Chief, or sooner if the need arises to prevent any interruption of service. B. This Agreement shall be for an initial term of two (2) years commencing upon the date of execution of this Agreement by both parties. SECTION 8. TERMINATION A. Either party may terminate this Agreement for by providing the other party ninety (90) days prior written notice of termination. During that ninety (90) day period, both parties may meet to amend this agreement to a "Leased Unit Hour" service delivery model. B. WEST COVINA may terminate this Agreement for cause by providing CONTRACTOR seven (7) days prior written notice of termination for cause detailing the factors constituting cause. SECTION 9. INDEPENDENT CONTRACTOR The performance of CONTRACTOR's services hereunder shall be in the capacity of an independent contractor and not as an officer, agent, or employee of WESTCOVINA. CONTRACTOR agrees that WEST COVINA shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, 8 The City is experiencing a significant decline in revenue from all sources (i.e. sales tax, property tax, hotel occupancy tax and fees for service). While the Los Angeles County Public Health Officer's "Safer at Home" order is still in effect, businesses are starting to reopen under the County's five -stage roadmap to reopening. On May 26, 2020, the Public Health Officer issued a Stage 2 opening allowing more retail stores and offices to reopen. The situation is evolving quickly and the City has been actively following and anticipating next steps in the reopening process. In order to address the near -term and long-term budget impacts, immediate action is necessary. The City Manager has implemented a hiring freeze and suspended all non -essential purchases. On May 20, 2020, the City Manager also issued a "Notice of Termination" to Nationwide Environmental Services ("Nationwide"). Nationwide has been providing street sweeping services to the City since 2002. Nationwide sent a response to the Notice of Termination on May 27, 2020 (Attachment No. 2). Cancellation of the contract will impact the City's ability to comply with the National Pollution Discharge Elimination System (NPDES) permit requirements and the federal Clean Water Act. The City Manager is in communication with Nationwide and is seeking amicable resolution. This matter will need to be resolved; however, cancellation of the contract is necessary to assure the fiscal viability of the City. The City Council is being asked to ratify the City Manager's termination of the agreement through adoption of Resolution 2020-55 (Attachment No. 1). It is further recommended that the City Council approve the contracting of emergency medical transport - Basic Life Support (BLS) and Advanced Life Support (ALS) - and other related services with Care Ambulance Service, Inc. (Attachment No. 3). Contracting for these services will reduce the City's need for Fire Department personnel and improve the City's cash flow. The City Council is being asked to authorize the City Manager to enter into an agreement with Care Ambulance Service, Inc., in a form approved by the City Attorney, for such services, for a two-year term (Attachment No. 4). Pursuant to West Covina Municipal Code section 2-330(b), bidding for such services is not required due to the COVID-19 emergency and the fiscal emergency. LEGAL REVIEW: The City Attorney's Office has reviewed and approved the resolutions as to form. The agreement with Care Ambulance Services, Inc. will be in substantially the same form as attached, subject to final approval as to form by the City Attorney prior to execution by the City Manager. OPTIONS: The options available to the City Council include the following: 1. Adopt the attached resolutions. 2. Direct the City Manager to rescind the notice of termination and renegotiate the contract with Nationwide Environmental Services for street sweeping. 3. Not approve the agreement with Care Ambulance Service, Inc. for BLS/ALS services. 4. Provide alternate direction. Prepared by: Mark Persico, Assistant City Manager Attachments Attachment No. 1 - Resolution 2020-55 (Termination of Nationwide Environmental) Attachment No. 2 - Response from Nationwide Environmental Services Attachment No. 3 - Draft Agreement with CARE Ambulance Services Attachment No. 4 - Resolution 2020-56 (Agreement with CARE Ambulance Services) CITY COUNCIL GOALS & OBJECTIVES: Achieve Fiscal Sustainability and Financial Stability Protect Public Safety Engage in Proactive Economic Development ATTACHMENT NO. 3 unemployment, health or any other benefits and CONTRACTOR agrees that it shall not sue or file a claim, petition or application relative to any of the above against WEST COVINA or any of its officers, employees, agents, representatives or sureties. CONTRACTOR 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 CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. CONTRACTOR shall indemnify and hold WEST COVINA harmless from any and all taxes, assessments, penalties, and interest asserted against WEST COVINA by reason of the independent contractor relationship created by this Agreement. CONTRACTOR further agrees to indemnify and hold WEST COVINA harmless from any failure of CONTRACTOR to comply with the applicable worker's compensation laws. SECTION 10. CONFIDENTIALITY CONTRACTOR shall maintain the confidentiality of all records and information, including, but not limited to, billings, WEST COVINA records and patient records, in accordance with all applicable Federal, State and local laws, rules, regulations, ordinances, directives, guidelines, policies and procedures relating to confidentiality, including, without limitation, Los Angeles County policies concerning information technology security and the protection of confidential records and information including but not limited to Prehospital Care Policy No. 607, Electronic Submission of Prehospital Data. SECTION 11. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) A. The parties acknowledge the existence of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations. CONTRACTOR understands and agrees that, as a provider of medical treatment services, it is a "covered entity' under HIPAA and, as such, has obligations with respect to the confidentiality, privacy, and security of patients' medical information, and must take certain steps to preserve the confidentiality of this information, both internally and externally, including the ATTACHMENT NO. 3 training of its staff and the establishment of proper procedures for the release of such information, including the use of appropriate consents and authorizations specified under HIPAA. B. The parties acknowledge their separate and independent obligations with respect to HIPAA, and that such obligations relate to transactions and code sets, privacy, and security. CONTRACTOR understands and agrees that it is separately and independently responsible for compliance with HIPAA in all these areas and that WEST COVINA has not undertaken any responsibility for compliance on CONTRACTOR's behalf. CONTRACTOR has not relied, and will not in any way rely, on WEST COVINA for legal advice or other representations with respect to CONTRACTOR's obligations under HIPAA, but will independently seek its own counsel and take the necessary measures to comply with the law and its implementing regulations. C. CONTRACTOR and WEST COVINA understand and agree that each is independently responsible for HIPAA compliance and agree to take all necessary and reasonable actions to comply with the requirements of the HIPAA laws and implementing regulations related to transactions and code sets, privacy, and security. D. Each parry further agrees that, should it fail to comply with its obligations under HIPAA, it shall indemnify and hold harmless the other party (including the other partys officers, employees, and agents), for damages to the other party that are attributable to such failure. SECTION 12. COMPLIANCE WITH LAWS In the performance of this Agreement, CONTRACTOR shall abide by and conform to (and shall ensure that CONTRACTOR'S employees, agents and representatives, if any, shall abide by and conform to) any and all applicable laws, statutes, safety rules, regulations and practices of the United States, the State of California, the ordinances of the City of West Covina, and any other local laws. Such compliance includes, but is not limited to, the California Health and Safety Code, the California Vehicle Code, Los Angeles County ordinances, and the Los Angeles County Emergency Medical Service policies and procedures. T ATTACHMENT NO. 3 SECTION 13. LAWS GOVERNING CONSTRUCTION OF TERMS This Agreement shall be governed by the laws of the State of California. Any legal action concerning or arising out of this Agreement shall be filed in a court of the State of California having jurisdiction of the subject matter, and venue shall be in the County of Los Angeles, State of California. SECTION 14. DISPUTES BETWEEN CONTRACTOR AND WEST COVINA Either party hereto may give the other party written notice of any dispute with respect to this Agreement. Such notice shall specify a date and location for a meeting of the parties hereto at which such parties shall attempt to resolve such dispute. The WEST COVINA Fire Chief shall cause a record to be kept of the proceedings conducted and information presented during such meeting. In the event that such dispute cannot be resolved by the parties within 30 days, the dispute may be referred by either party to the WEST COVINA City Manager. The decision of the WEST COVINA City Manager shall be final. SECTION 15. ASSIGNMENT AND DELEGATION CONTRACTOR may not delegate or assign the rights or obligations hereunder, either in whole or in part, without prior written consent of WEST COVINA, which consent may be withheld with impunity by WEST COVINA. Any attempted assignment or delegation in derogation of this paragraph shall be void. For purposes of the Section, a transfer or sale by any shareholder of greater than twenty-five percent (25%) of the stock currently issued by CONTRACTOR, or sale or transfer of over twenty-five (25%) of the assets of CONTRACTOR, will be deemed an assignment. SECTION 16. GRATUITIES CONTRACTOR warrants that neither it, nor any of its employees, agents or representative has offered or given any gratuities to WEST COVINA's employees, agents or representatives in an attempt to secure this Agreement or secure favorable treatment with respect thereto. RIF ATTACHMENT NO. 3 SECTION 17. CONFLICTS OF INTEREST A. CONTRACTOR warrants that it has no blood or marriage relationship, and that it is not in any way associated with, any WEST COVINA officer or employee. CONTRACTOR acknowledges receipt of WEST COVINA's Conflict of Interest Code, as promulgated in accordance with the Political Reform Act (hereinafter "Code"). CONTRACTOR agrees to abide by WEST COVINA's Code, and agrees that any material breach of such Code shall give WEST COVINA the right to rescind, cancel or otherwise terminate this Agreement, at WEST COVINA's discretion. B. CONTRACTOR shall be responsible for complying with the Political Reform Act and such other conflict of interest laws as may be applicable, as such laws may be amended from time to time. SECTION 18. WAIVER Waiver of any default shall be deemed a waiver of any subsequent default. Waiver of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless stated to be such, in writing, by WEST COVINA and attached to the original Agreement. SECTION 19. INDEMNIFICATION CONTRACTOR agrees to indemnify, defend, with counsel selected by WEST COVINA, and hold harmless WESTCOVINA and its officials, officers, agents, employees, representatives and volunteers from and against any and all claims, demands, defense costs, actions, litigation, liability, or consequential damages of any kind or nature arising out of and/or relating to this Agreement, except for such loss or damage arising out of the sole, active negligence of WEST COVINA. SECTION 20. INSURANCE Without limiting WEST COVINA's right to indemnification, it is agreed that CONTRACTOR shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows: ATTACHMENT NO. 3 A. Worker's Compensation/Employer's Liability Worker's Compensation and Employer's Liability Insurance in a statutory amount for workers' compensation, and in an amount not less than $1,000,000 for employer's liability. Such insurance shall contain a waiver -of -subrogation clause in favor of WEST COVINA, its officers, officials, employees, agents, representatives and volunteers. B. Commercial General Liability Commercial General Liability Insurance in an amount not less than $10,000,000 per occurrence, written on an occurrence form. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $10,000,000 per occurrence. C. Comprehensive Automobile Liability Comprehensive Automobile Liability Insurance in an amount not less than $3,000,000 per occurrence, covering owned, non -owned and hired vehicles, written on an occurrence form. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. D. Ambulance Medical Malpractice Ambulance Medical Malpractice Insurance in an amount not less than $3,000,000 per occurrence. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. Such insurance coverage may be combined with either the general or automobile liability coverage required above; however, if the insurance coverage is so structured, the combined coverage shall be in an amount not less than $5,000,000 per occurrence, with an annual aggregate of not less than $10,000,000. E. Automobile Physical Damage Automobile Physical Damage Insurance covering the ambulances required under this Agreement, covering collision and comprehensive damages exposures, in an amount not less than the actual cash value of each ambulance (including related on -board equipment). F. Professional Liability Insurance covering CONTRACTOR's liability arising from or related to this Agreement, with limits of not less than $3,000,000 million per claim and $5,000,000 aggregate. Further, CONTRACTOR understands and agrees it shall maintain such 13 ATTACHMENT NO. 3 coverage for a period of not less than three (3) years following this Agreement's expiration, termination or cancellation. G. Sexual Misconduct Liability Insurance covering actual or alleged claims for sexual misconduct and/or molestation with limits of not less than $2,000,000 per claim and $2,000,000 aggregate, and claims for negligent employment, investigation, supervision, training or retention of, or failure to report to proper authorities, a person(s) who committed any act of abuse, molestation, harassment, mistreatment or maltreatment of a sexual nature. Prior to commencing any work under this Agreement, CONTRACTOR shall deliver to WEST COVINA insurance certificates confirming the existence of the insurance required by this Agreement. H. Additional Provisions The following terms and conditions also apply: 1. As respects the above -referenced General, Automobile, and Ambulance Liability Insurance: a. Upon receipt of notice of a claim or claims which reasonably may deplete one-half or more of the aggregate limits, CONTRACTOR shall immediately provide written notification to WEST COVINA. b. Upon receipt of notice of a claim or claims against such liability insurance which is reasonably expected to deplete ninety percent (90%) or more of the aggregate limits, CONTRACTOR shall immediately provide written notification to WEST COVINA. C. Such insurance, except for ambulance malpractice coverage (if a stand-alone coverage), shall contain or be endorsed to contain the following provisions: i. The City of West Covina, its officers, officials, employees, representatives, and volunteers are to be covered as additional insureds with respect to liability arising out of the operations, activities, work, products, materials, or services of the CONTRACTOR; or with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONTRACTOR. The coverage shall contain no special 14 ATTACHMENT NO. 3 limitations on the scope of its protection afforded to the City of West Covina, its officers, officials, employees, representatives, and volunteers. ii. This insurance is primary to, and shall not contribute with, any insurance or self-insurance maintained by the City of WEST COVINA or any of the designated additional insureds. 2. All insurance policies required under this Agreement shall provide for thirty (30) days prior written notice to WEST COVINA before cancellation, limitation, or reduction of coverage. 3. No insurance required under this Agreement shall provide for a deductible or a self -insured retention in excess of $5,000, without prior written consent by WEST COVINA. The granting or denying of such consent shall be atthe sole and absolute discretion of WEST COVINA. 4. All required insurance shall be placed with insurers acceptable to WEST COVINA with current A.M. Best's ratings of no less than A:VII. Workers' compensation insurance may be placed with the California State Compensation Insurance Fund. All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of the WEST COVINA, insurance provided by non - admitted or surplus carriers with a minimum A.M. Best's rating of no less than A, Class X may be accepted if CONTRACTOR evidences the requisite need to the sole satisfaction of WEST COVINA. 5. Prior to commencing any work under this Agreement, CONTRACTOR shall furnish WEST COVINA with certificates of insurance which bear original signatures of authorized agents and which reflect insurers' names and addresses, policy numbers, coverage, limits, deductibles and self -insured retentions. Additionally, CONTRACTOR shall furnish certified copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by WEST COVINA before work commences under this Agreement. WEST COVINA reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements. 6. In addition to any other remedies WEST COVINA may have, if CONTRACTOR fails to provide or maintain any insurance policies or policy endorsements 15 ATTACHMENT NO. 3 to the extent and within the time herein required or if WEST COVINA receives notices of a depletion of 90% or more of CONTRACTOR's aggregate limits of insurance, WEST COVINA may, at its sole option: a. Obtain or reinstate required insurance limits and coverages and deduct and charge CONTRACTOR for the premiums for such insurance. b. Order CONTRACTOR to stop work under this Agreement until CONTRACTOR demonstrates compliance with the requirements hereof. C. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to other remedies WEST COVINA may have and is not the exclusive remedy for CONTRACTOR's failure to maintain insurance or secure appropriate endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which CONTRACTOR may be held responsible for payment of damages (to persons or property) resulting from CONTRACTOR's performance of, or failure to perform, the work covered under this Agreement. WEST COVINA reserves the right at any time to review the coverage, form, and limits of insurance required herein. If, in the sole and absolute discretion of WEST COVINA, the insurance provisions in this Agreement do not provide adequate protection for WEST COVINA or the users of ambulance service, WEST COVINA shall have the right to require CONTRACTOR to obtain insurance sufficient in coverage, form, and limits to provide adequate protection, and CONTRACTOR shall promptly comply with such requirement. WEST COVINA's requirements shall not be unreasonable, but shall be adequate in the sole opinion of WEST COVINA to protect against the kind and nature of risks which exist at the time a change of insurance is required, or thereafter, but in no event shall the required limits exceed One Hundred Twenty Percent (120%) of the limits set forth herein. WEST COVINA is authorized to lower or reduce the requirements, limits, terms, and conditions set forth herein, provided that (i) any request to do so from CONTRACTOR is made in writing, (ii) WEST COVINA determines at its sole and absolute discretion that 16 ATTACHMENT NO. 3 such change is in the best interest of WEST COVINA, and (iii) WEST COVINA issues written approval of such changes to CONTRACTOR. SECTION 21. AUDITS A. At any time during normal business hours, and as often as may reasonably be deemed necessary, WEST COVINA's representatives may observe CONTRACTOR's operations and CONTRACTOR shall make available to WEST COVINA for its examination, its records with respect to all matters covered by this Agreement, and WEST COVINA may audit, examine, copy and make excerpts or transcripts from such records, records of personnel, daily logs, conditions of employment, and other data, including but not limited to financial records, related to all matters covered by this Agreement, WEST COVINA representatives may, at any time and without notification, directly observe the CONTRACTOR's operation of the ambulance dispatch center, maintenance facility, or any ambulance post location, and a WEST COVINA representative may ride as an "observer" on any of the CONTRACTOR's ambulance units at any time. B. WEST COVINA's right to observe and inspect operations or records in CONTRACTOR's business office shall be restricted to normal business hours and reasonable notification shall be given CONTRACTOR in advance of any such visit. SECTION 22. DESIGNATION OF AGENTS WEST COVINA's Fire Chief, or his/her designee, shall represent WEST COVINA in all matters pertaining to this Agreement. The Regional Managing Director of CONTRACTOR or his/her designee, shall represent CONTRACTOR in all matters pertaining to this Agreement. SECTION 23. NO THIRD PARTY RIGHTS The parties do not intend to create rights in, or to grant remedies to, any third parry as a beneficiary of this Agreement or of any duty, covenant, obligation or undertaking established herein. I ATTACHMENT NO. 3 SECTION 24. INTEGRATION CLAUSE: CONSENTS A. This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the parties. No modification or revision shall be of any force or effect, unless the same is in writing and executed by the parties hereto. Any document not specifically incorporated herein either by reference or by actual inclusion shall not be considered as part of this Agreement and shall be of no force or effect. B. If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. C. Any consent required pursuant to this Agreement shall not be unreasonably withheld, conditioned, or delayed by the consenting party. SECTION 25. NOTICES Any notice or demand required or permitted to be given by the terms of this Agreement, or by any law or statute may be given by WEST COVINA by depositing said notice or demand in the U.S. Mail, postage prepaid, addressed to CONTRACTOR at CONTRACTOR's address set forth below or any new address provided by CONTRACTOR in writing to WEST COVINA. Service of said notice or demand on CONTRACTOR shall be complete five (5) days after deposit of said notice or demand in the mail as reflected by official U.S. postmark. Any notice or demand required or permitted by the terms of this Agreement or by any law or statute may be given by CONTRACTOR by delivering said notice or demand to the WEST COVINA City Clerk at the address set forth below. Service of said notice or demand shall be completed when received at the Office of the City Clerk. Notices and communications regarding this Agreement shall be sent to the following addresses TO WEST COVINA: City of West Covina 1444 W. Garvey Ave S. West Covina, CA91790 Attn: City Clerk ATTACHMENT NO.1 RESOLUTION NO.2020-55 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, RATIFYING THE CITY MANAGER'S TERMINATION OF THE CONTRACT SERVICES AGREEMENT BETWEEN THE CITY AND NATIONWIDE ENVIRONMENTAL SERVICES, DATED JUNE 18, 2002, AS AMENDED WHEREAS, the City was recently listed by the California State Auditor as a fiscally challenged city based on criteria that ranked the fiscal health of over 470 California cities across the State; and WHEREAS, over the course of the past five (5) years, the City's unassigned General Fund balance has continuously declined: in Fiscal Year (FY) 2014-15, the unassigned fund balance was $20,531,695, in FY 2015-16, the unassigned fiord balance was $15,032,389, in FY 2016-17, the unassigned fund balance was $14,119,078, in FY 2017-18, the unassigned fund balance was $11,979,653, in FY 2018-19, the unassigned fiord balance was $9,884,913, and for FY 2019-20, the unassigned fund balance is projected to be $1,903,251; and WHEREAS, in order to deliver a balanced budget for FY 2019-20, the City made significant cuts in expenditures, including contracting out the Building & Safety and Engineering functions, not finding vacancies in nine (9) positions citywide, layoff of eight (8) employees, shifting some eligible salaries and benefits to special funds; and WHEREAS, in order to ensure, to the maximum extent possible, that essential services of the City are not jeopardized, public health and safety are preserved, the City is able to pay its obligations when due, and the City is able to pay its employees for the work they perfomn, the City mast take immediate and comprehensive action to further reduce spending, including, but not limited to, spending on personnel and benefit costs; and WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emergency as part of the State's response to the global novel coronavirus (COVID-19) outbreak; and WHEREAS, on March 16, 2020, the City Manager, acting in the capacity of the City's Director of Emergency Services, declared the existence of a local emergency due to the COVID- 19 pandemic; and WHEREAS, on March 16, 2020, the Los Angeles County Public Health Officer ("Local Health Officer'), issued an Order for the Control of COVID-19, directing, among other things, the immediate closure of: (1) bars and nightclubs that do not serve food, (2) movie theatres, live performance venues, bowling alleys, and arcades, (3) gyms and fitness centers, and (4) wineries, breweries, and tap rooms that provide tastings; and WHEREAS, on March 17, 2020, the City Council adopted Resolution No. 2020-19, ratifying the City Manager's proclamation; and ATTACHMENT NO. 3 Copy to: City of West Covina 1444 W. Garvey Ave S. West Covina, CA 91790 Attn: Fire Chief TO CONTRACTOR Care Ambulance Service, Inc. 1517 W. Braden Court Orange, CA 92868 Attn: Bill Weston SECTION 26. EFFECTIVE DATE AND AUTHORITY CONTRACTOR and CONTRACTOR's signatories represent that the signatories hold the positions set forth below their signatures and that the signatories are authorized to execute this Agreement on behalf of CONTRACTOR and to bind CONTRACTOR hereto. The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signatories hereto. In the event CONTRACTOR fails to set forth a date of execution opposite the name(s) of CONTRACTOR's signatories, CONTRACTOR hereby authorizes WEST COVINA, by and through its representative, to insert the date of execution by CONTRACTOR's signatories as the date said Agreement, as executed by CONTRACTOR, is received by WEST COVINA. SECTION 27. COUNTERPARTS AND ELECTRONIC SIGNATURES This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [Signature page follows.] ATTACHMENT NO. 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth. WEST COVINA: CITY OF WEST COVINA A municipal corporation DATE OF EXECUTION: By DATE OF EXECUTION: David Carmany City Manager ATTEST: Lisa Sherrick Assistant City Clerk APPROVED AS TO FORM: Thomas P. Duarte City Attorney CONTRACTOR: CARE AMBULANCE SERVICE, INC., A California Corporation By Printed Name Title at ATTACHMENT NO.4 RESOLUTION NO.2020-56 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH CARE AMBULANCE SERVICES, INC. FOR AMBULANCE TRANSPORTATION AND BILLING SERVICES WHEREAS, the City was recently listed by the California State Auditor as a fiscally challenged city based on criteria that ranked the fiscal health of over 470 California cities across the State; and WHEREAS, over the course of the past five (5) years, the City's unassigned General Fund balance has continuously declined: in Fiscal Year (FY) 2014-15, the unassigned fund balance was $20,531,695, in FY 2015-16, the unassigned fund balance was $15,032,389, in FY 2016-17, the unassigned fund balance was $14,119,078, in FY 2017-18, the unassigned fiord balance was $11,979,653, in FY 2018-19, the unassigned fund balance was $9,884,913, and for FY 2019-20, the unassigned fund balance is projected to be $1,903,251; and WHEREAS, in order to deliver a balanced budget for FY 2019-20, the City made significant cuts in expenditures, including contracting out the Building & Safety and Engineering fimctions, not fimding vacancies in nine (9) positions citywide, layoff of eight (8) employees, shifting some eligible salaries and benefits to special funds; and WHEREAS, in order to ensure, to the maximum extent possible, that essential services of the City are not jeopardized, public health and safety are preserved, the City is able to pay its obligations when due, and the City is able to pay its employees for the work they perform, the City must take immediate and comprehensive action to fiirther reduce spending, including, but not linked to, spending on personnel and benefit costs; and WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of Emerge nc y as part of the State's response to the global novel coronavirus (COVID-19) outbreak; and WHEREAS, on March 16, 2020, the City Manager, acting in the capacity of the City's Director of Emergency Services, declared the existence of a local emergency due to the COVID- 19 pandemic; and WHEREAS, on March 16, 2020, the Los Angeles County Public Health Officer ("Local Health Officer'), issued an Order for the Control of COVID-19, directing, among other things, the immediate closure of (1) bars and nightclubs that do not serve food, (2) movie theatres, live performance venues, bowling alleys, and arcades, (3) gyms and fitness centers, and (4) wineries, breweries, and tap rooms that provide tastings; and WHEREAS, on March 17, 2020, the City Council adopted Resolution No. 2020-19, ratifying the City Manager's proclamation; and ATTACHMENT NO.4 WHEREAS, on March 19, 2020, Governor Newsom issued Executive Order N-33-20, ordering all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors; and WHEREAS, on March 19, 2020, the Local Health Officer issued a Safer at Home Order for the Control of COVID-19, ordering, among other things, the immediate closure of. (1) non- essential retail businesses, (2) indoor malls and shopping centers, including all stores therein regardless whether they are essential or non -essential businesses, and (3) indoor and outdoor playgrounds for children, except for those located in childcare centers; and WHEREAS, the unforeseen economic impacts of the COVID-19 pandemic have been significant, and the City's approximately 3,278 businesses are experiencing substantial losses; and WHEREAS, the City has experienced an unforeseen significant decline in economic activity due to the decline in business activity and the closure of all non -essential business establishments within the City due to the COVID-19 pandemic, thereby reducing revenues for Fiscal Year (FY) 2019-20 below budget estimates, with similar trends projected for FY 2020-21; and WHEREAS, City staff estimates a potential loss of $2,800,000 in General Fund revenues (ie., sales tax, Transient Occupancy Tax, etc.) for FY 2019-20, and a continuing loss of $2,100,000 in General Fund revenues in FY 2020-21;and WHEREAS, the City Manager sent an all staff memorandum to City employees on April 29, 2020 and May 19, 2020 summarizing the City's need to address its unforeseen emergency costs and strained financial position; and WHEREAS, during the week of May 4, 2020, management met with each of the City's nine labor groups to discuss the City's unforeseen and dire fiscal situation; and WHEREAS, on May 15, 2020, the Los Angeles County Department of Auditor - Controller ("County Auditor -Controller") notified the City that due to delayed payments of property taxes due to the COVID-19 pandemic, the City's May 20, 2020 property tax remittance will be less than expected. On the same date, the County Auditor -Controller notified the Successor Agency that due to delayed payments of property taxes due to the COVID-19 pandemic, the Successor Agency's June 1, 2020 property tax remittance will be less than expected; and WHEREAS, the City's General Fund reserves are insufficient to fully absorb the anticipated loss in revenue that will occur from the COVID-19 pandemic; and WHEREAS, as of May 19, 2020, the City's General Fund deficit was $7,201,514; and WHEREAS, on May 19, 2020, the City Council declared a fiscal emergency through the adoption of Resolution No. 2020-46; and ATTACHMENT NO.4 WHEREAS, in declaring the fiscal emergency, the City Council directed the City Manager to take any and all actions necessary to address the fiscal emergency, including, but not limited to, measures relating to personnel and benefit costs, operations, and reductions in service levels, and reviewing and negotiating changes to labor agreements, service agreements, and franchise agreements, to the extent permitted by law; and WHEREAS, the City is currently experiencing a month -to -month deficit cash flow of approximately $3,225,000; and WHEREAS, the City's on -going monthly operating expenses, including payroll, is approximately $5,900,000; WHEREAS, the City anticipates reviewing its annual budget on June 16, 2020, and it must make significant budget cuts before this date in order to fiscally sustain City services; and WHEREAS, the City Manager has identified contracting with Care Ambulance Services, Inc. for ambulance transportation and billing services as a cost savings measure for the City; and WHEREAS, the City Manager has requested that the City Council authorize the City Manager to enter an agreement with Care Ambulance Services, Inc. for ambulance transportation and billing services for a two-year term (the "Agreement'); and WHEREAS, the Agreement will be at no cost to the City, as Care Ambulance Services, hic. will bill patients for services rendered. The City would only be charged if the City requires ambulance services for work -related injuries of City employees; and WHEREAS, to the extent the Agreement will have impacts on current City employees, the City will meet and confer with current employees regarding such impacts. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council finds that all of the foregoing recitals are true and correct and hereby incorporates and adopts them as findings and determinations by the City Council as if fiilly set forth herein. SECTION 2. The City Council hereby authorizes the City Manager to enter into an agreement with Care Ambulance Services, hic., in a form approved by the City Attorney, for ambulance transportation and being services, for a two-year term SECTION 3. To the extent that the agreement with Care Ambulance Services, hic. will have impacts on current City employees, the City Council directs City management to meet and confer with current City employees regarding such impacts. ATTACHMENT NO.4 SECTION 4. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. APPROVED AND ADOPTED this 2nd day of June, 2020. Tony Wu Mayor APPROVED AS FORM ATTEST Thomas P. Duarte Lisa Sherrick City Attorney Assistant City Clerk I, USA SHERRICK, ASSISTANT CITY CLERK of the City of West Covina, California, do hereby certify that the foregoing Resolution No. 2020-56 was duly adopted by the City Council of the City of West Covina, California, at a regular meeting thereof held on the 2nd day of June, 2020, by the following vote of the City Council: AYES: NOES: ABSENT: ABSTAIN: Lisa Sherrick Assistant City Clerk ATTACHMENT NO.1 WHEREAS, on March 19, 2020, Governor Newsom issued Executive Order N-33-20, ordering all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors; and WHEREAS, on March 19, 2020, the Local Health Officer issued a Safer at Home Order for the Control of COVID-19, ordering, among other things, the innnediate closure of. (1) non- essential retail businesses, (2) indoor malls and shopping centers, including all stores therein regardless whether they are essential or non -essential businesses, and (3) indoor and outdoor playgrounds for children, except for those located in childcare centers; and WHEREAS, the unforeseen economic impacts of the COVID-19 pandemic have been significant, and the City's approximately 3,278 businesses are experiencing substantial losses; and WHEREAS, the City has experienced an unforeseen significant decline in economic activity due to the decline in business activity and the closure of all non -essential business establishments within the City due to the COVID-19 pandemic, thereby reducing revenues for Fiscal Year (FY) 2019-20 below budget estimates, with similar trends projected for FY 2020-21; and WHEREAS, City staff estimates a potential loss of $2,800,000 in General Fund revenues (ie., sales tax, Transient Occupancy Tax, etc.) for FY 2019-20, and a continuing loss of $2,100,000 in General Fund revenues in FY 2020-21;and WHEREAS, the City Manager sent an all staff memorandum to City employees on April 29, 2020 and May 19, 2020 summarizing the City's need to address its unforeseen emergency costs and strained financial position; and WHEREAS, during the week of May 4, 2020, management met with each of the City's nine labor groups to discuss the City's unforeseen and dire fiscal situation; and WHEREAS, on May 15, 2020, the Los Angeles County Department of Auditor - Controller ("County Auditor -Controller") notified the City that due to delayed payments of property taxes due to the COVID-19 pandemic, the City's May 20, 2020 property tax remittance will be less than expected. On the same date, the County Auditor -Controller noticed the Successor Agency that due to delayed payments of property taxes due to the COVID-19 pandemic, the Successor Agency's June 1, 2020 property tax remittance will be less than expected; and WHEREAS, the City's General Fund reserves are insufficient to fully absorb the anticipated loss in revenue that will occur from the COVID-19 pandemic; and WHEREAS, as of May 19, 2020, the City's General Fund deficit was $7,201,514; and ATTACHMENT NO.1 WHEREAS, on May 19, 2020, the City Council declared a fiscal emergency through the adoption of Resolution No. 2020-46; and WHEREAS, in declaring the fiscal emergency, the City Council directed the City Manager to take any and all actions necessary to address the fiscal emergency, including, but not limited to, measures relating to personnel and benefit costs, operations, and reductions in service levels, and reviewing and negotiating changes to labor agreements, service agreements, and franchise agreements, to the extent pennitted by law; and WHEREAS, in declaring the fiscal emergency, the City Council also directed that City management meet with all vendors and franchisees providing services to the City to negotiate and approve cost savings measures, and required that modifications to service agreements be subsequently ratified by the City Council; and WHEREAS, the City is currently experiencing a month -to -month deficit cash flow of approximately $3,225,000; and WHEREAS, the City's on -going monthly operating expenses, including payroll, is approximately $5,900,000; WHEREAS, the City anticipates reviewing its annual budget on June 16, 2020, and it must make significant budget cuts before this date in order to fiscally sustain City services; and WHEREAS, the City has aContract Services Agreement with Nationwide Environmental Services ("Nationwide'), dated June 18, 2002, which was amended by the First Amendment dated on or about June 7, 2006, the Second Amendment dated on or about May 1, 2007, the 'Third Amendment dated on or about March 4, 2008, the Fourth Amendment dated on or about May 9, 2009, the Fifth Amendment dated on or about November 29, 2012, and the Sixth Amendment, dated on or about June 20, 2017 (the Contract Services Agreement and all amendments are collectively referred to herein as the Agreement'); and WHEREAS, pursuant to the Agreement, the City pays Nationwide approximately $561,500 per year for the street sweeping services; and WHEREAS, pursuant to the City Council's direction, the City Manager spoke with the President of Nationwide on May 20, 2020, regarding potential cost savings measures in connection with the Agreement; and WHEREAS, the City Manager determined that the cost savings measures suggested were insufficient; and WHEREAA, due to the COVID-19 pandemic, which is an `irresistible, superhuman cause", as that term is contemplated by California Civil Code section 1511(2), the City is unable to perform its contractual obligations pursuant to the Agreement due to the high cost of the services. 'Therefore, the City Manager provided Nationwide with notice of termination of the ATTACHMENT NO.1 Agreement, effective immediately. The notice of termination is attached hereto as Exhibit A"; and WHEREAS, the City Manager will determine a more cost-effective method of obtaining the street sweeping services; and WHEREAS, the City Manager has requested that the City Council ratify the termination of the Agreement. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEST COVINA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council finds that all of the foregoing recitals are true and correct and hereby incorporates and adopts them as findings and determinations by the City Council as if fiilly set forth herein. SECTION 2. The City Council hereby rates the City Manager's termination of the Agreement with Nationwide Environmental Services. SECTION 3. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. APPROVED AND ADOPTED this 2nd day of June, 2020. Tony Wu Mayor APPROVED AS FORM ATTEST Thomas P. Duarte Lisa Sherrick City Attorney Assistant City Clerk ATTACHMENT NO.1 I, LISA SHERRICK, ASSISTANT CITY CLERK of the City of West Covina., California, do hereby certify that the foregoing Resolution No. 2020-55 was duly adopted by the City Council of the City of West Covina, California, at a regular meeting thereof held on the 2nd day of June, 2020, by the following vote of the City Council: AYES: NOES: ABSENT: ABSTAIN: Lisa Sherrick Assistant City Clerk ATTACHMENT NO. 2 Division of Joe's Sweeping, Inc. 0 May 27, 2020 David Carmany SENT VIA CERTIFIED MAIL & EMAIL City Manager 1444 West Garvey Avenue West Covina, CA 91790 Re: Contract Contract Services Agreement Between the City of West Covina and NES for Street Sweeping (Contract Date 6-18-2002), Project No. SS-02 Subject "Defective" Notice of Termination Dated May 20, 2020 Dear Mr. Carmany: I have reviewed your May 20, 2020, letter with my attorneys and must make Nationwide Environmental Services' ("NES") position clear to The City of West Covina ("City"). The above referenced Contract Services Agreement, including all amendments thereto are hereinafter referred to as the "Sweeping Contract". The purported Notice of Termination dated May 20, 2020 is hereinafter referred to as the "Notice of Termination". Assuming the City had a right to terminate the Sweeping Contract, which it does not, the Notice of Termination dated May 20, 2020, is defective both procedurally and substantively and cannot terminate the Sweeping Contract with NES. Moreover, in your letter you have referenced six (6) amendments to the Sweeping Contract. This is incorrect. There are only five (5) signed amendments to the original Contract Service Agreement June 18, 2002. The proposed Sixth Amendment which you referenced in your letter dated on or about June 20, 2017 was never executed or finalized. In fact, your prior City Attorney had been communicating with my attorney, about that proposed amendment when she went silent and no longer returned emails or phone calls. This occurred in the fall of 2017 through early 2018. The bottom line is NES through my attorney made substantial 11914 Front Street • Norwalk, California 90650 • (562) 860-0604 • Fax (562) 868-5726 www.nes-sweeping.com David Carmany May 27, 2020 Page 2 proposed changes, and reserved the right to make further changes, to the proposed Sixth Amendment which were never responded to by the City. If you have a final signed Sixth Amendment, please forward that to my attention immediately. Putting aside the actual expiration date for the Sweeping Contract which is determined based on the terms of the Sweeping Contract, the City's ability to terminate the Sweeping Contract is defined in the Fifth Amendment at Section 1 Term of Agreement, Section 3.4 which replaced and superseded 7.8, except for 7.8 (a), of the original Contract Services Agreement dated June 18, 2002. In short, the City does not have the right to terminate the Sweeping Contract, but instead pursuant to the Fifth Amendment has the right to terminate only the one-year renewal and extension provision (evergreen provision). Assuming the City correctly provides notice of its intention to terminate the one-year renewal and extension provision as set forth in the Fifth Amendment the Sweeping Agreement would remain in full force and effect for a fifteen (15) year term thereafter. The notion that the City could use the declarations by WHO, Governor Newsome, and Los Angeles County of a public health emergency to terminate what would otherwise be a fifteen -year tern contract is inconsistent with California law, the terms of the Sweeping Contract, and common sense. A fiscal crisis declared by the City cannot, and does not, justify the termination of Sweeping Contract under Civil Code Section 1511 or under any legal theory, including impossibility and frustration of purpose. Moreover, it is irreconcilable that the City would use this excuse to terminate the Sweeping Contract when the residents are already paying for these services through sewer fund assessments. It has been long established that "[E]conomic crises do not excuse performance on a contract. `Facts which may make performance more difficult or costly than contemplated when the agreement was executed do not constitute impossibility."' Kashmiri v. Regents of University of California, 156 Cal.App.4`h 809, 839 (2007)(Rev.den. 2008). Similarly to Glendale Fed. Say. & Loan Assn. v. Marina View Heights Dey, Co., 66 Cal.App.3d 101, 154 (1977), "There [is] simply no evidence that performance was `prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States,...' Civil Code Sec. 1511, subd. (2)." In this case the City is attempting to terminate a contract that would otherwise go into the future for many years based on its self-proclaimed economic crisis that cannot legally support its actions. Furthermore, your letter makes clear that the City's purported termination is not based on Covid-19, but on a previously declared City fiscal crisis which has existed for many years. The fact that the City is still facing a fiscal crisis does not allow the City to use the Covid-19 crisis as an excuse to terminate a valid and enforceable agreement. The City's decision to attempt to terminate the Sweeping