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
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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
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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.
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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.
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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