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HomeMy WebLinkAbout2020-12-08; City Council; ; Approve an Agreement with LMUU, Inc., dba Sparkle Freshness, for As- Needed Disinfecting ServicesMeeting Date: Dec. 8, 2020 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Shawn Gaskari, Management Analyst shawn.gaskari@carlsbadca.gov, 760-434-2925 Barney Dresman, Public Works Supervisor barney.dresman@carlsbadca.gov, 760-434-2862 Subject: Approve an Agreement with LMUU, Inc., dba Sparkle Freshness, for As- Needed Disinfecting Services Recommended Action Adopt a resolution approving an agreement with LMUU, Inc., a California corporation, dba Sparkle Freshness (“Sparkle Freshness”), for as-needed disinfecting services for city facilities in response to the COVID-19 pandemic in an amount not to exceed $310,758. This agreement is for an initial one-year term and authorizes the city manager to approve two one-year term extensions, as well as terminate the agreement during the initial term or during any extension of the term, as needed. Executive Summary The Public Works Branch’s Fleet and Facilities Department, in consultation with other public- facing departments, has determined the best interests of the city and public health are served by entering into a contract with Sparkle Freshness to provide disinfecting activities targeted at reducing the spread of the COVID-19 virus, which can be transmitted through surfaces. This contract is submitted for approval in anticipation of further reopening of city facilities to the public, including libraries, city hall and community centers. As these facilities begin to reopen and allow greater numbers of people indoors, the city will be able to use the services of Sparkle Freshness. These activities will include, but are not limited to, regular and repeated disinfecting of various surfaces with an Environmental Protection Agency-approved disinfecting formula that the agency has verified is effective against the COVID-19 virus. Staff is requesting City Council authorization for the city manager to execute the term extensions and authorization to terminate the agreement during the initial term or during any term extension as needed. Discussion Due to concerns about the spread of COVID-19, certain public-facing facilities, such as libraries and community centers, have been fully or partially closed to the general public. Staff seeks to reduce the possibility of contracting COVID-19 through contact with contaminated surfaces by engaging the services of a contractor dedicated solely to disinfecting high-touch surfaces. CA Review RMC Dec. 8, 2020 Item #4 Page 1 of 23 In compliance with State of California and San Diego County reopening plans and requirements, staff regularly evaluates reopening city facilities to the public and may find it necessary to open facilities with safeguards to protect against the spread of COVID-19. It will likely be deemed necessary to engage the services of a contractor capable of providing disinfecting services in facilities that have been or will be reopened to the public. This contract will address the need for regular disinfecting of high-touch surfaces in facilities that have been opened or may soon open. The general purpose of this contract is to identify facilities that will require disinfecting services and utilize contracted personnel to disinfect these facilities. The contractor will develop a checklist of areas that would need various levels of disinfecting. High-touch and high-traffic areas will receive more frequent disinfecting, while other areas will receive a frequency of disinfecting commensurate with the frequency of use or travel in that area. The contractor will be required to use a disinfecting chemical approved for use on COVID-19 by the EPA and the public works superintendent. The disinfecting chemical will be provided by the Facilities Division. All other equipment, such as spray bottles, rags and personal protective equipment will be provided by the contractor. Carlsbad Municipal Code Section 3.28.070 provides definitions and guidelines for the award, use and evaluation of professional services contracts. On Sept. 25, 2020, a formal bidding process for the contract was completed. The city received 17 bids in response. Staff rated each bid based on factors that were communicated in the bid requirements. These included cost of service, responsiveness, experience and knowledge of job requirements. Based on these evaluations, staff selected Sparkle as the lowest responsible and responsive bidder and is seeking City Council approval to enter into a contract with them for as-needed disinfecting services for the city. Staff recommends awarding the contract to Sparkle Freshness in an amount not to exceed $310,758 for an initial one-year term. The agreement allows for two additional one-year term extensions as needed by the city and authorizes the city manager to terminate the Agreement during the initial term or during any term extension. Fiscal Analysis According to the current scope of work, staff anticipates a cost of $310,758 during the initial one-year term of the agreement to complete as-needed disinfecting. The agreement allows for two additional one-year term extensions as needed by the city. Staff expects costs of $320,081 and $329,684 representing a 3% increase each year for the two additional one-year term extensions. The contractor is expected to notify the city of increases 60 days prior to renewal and provide justification for those increases. Staff will confirm funding availability with the Finance Department during those fiscal years before executing the extensions. A summary of the agreement’s maximum annual costs is shown in the table below: Dec. 8, 2020 Item #4 Page 2 of 23 Maximum annual costs – Sparkle Freshness Initial year $310,758 Second year (3% increase) $320,081 Third year (3% increase) $329,684 Total not-to-exceed amount $960,523 The cost of this contract will be tracked and recorded as a COVID-19 expense and will be covered with funding appropriated from the General Fund reserve previously allocated for COVID-19 expenses. COVID-19 funding is currently available for this contract. All COVID-19- related expenses will be considered for state and federal government reimbursement as applicable. Next Steps With the City Council’s approval, the Facilities Division will move forward with completion and execution of the contract. The contractor will then begin performing as-needed disinfecting services as requested by the public works superintendent. Environmental Evaluation (CEQA) This action does not constitute a “project” within the meaning of the California Environmental Quality Act under Public Resources Code section 21065 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore does not require environmental review. Public Notification and Outreach Public notice of this item was posted in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibit 1. Resolution Dec. 8, 2020 Item #4 Page 3 of 23 RESOLUTION NO. 2020-227 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH LMUU, INC., A CALIFORNIA CORPORATION, DBA SPARKLE FRESHNESS, FOR AS-NEEDED DISINFECTING SERVICES FOR CITY FACILITIES IN RESPONSE TO THE COVID-19 PANDEMIC IN AN AMOUNT NOT TO EXCEED $310,758 FOR AN INITIAL ONE-YEAR TERM WHEREAS, the City Council of the City of Carlsbad, California has determined that in order to adhere to the County of San Diego Public Health Order and associated protocols specific to the impacts of COVID-19, the city must ensure its publicly accessible facilities are disinfected regularly or on an as-needed basis as determined by frequency of use; and WHEREAS, disinfecting services to address the impacts of COVID-19 are considered an additional service and are beyond the scope of existing custodial and cleaning services; and WHEREAS, it is necessary to enter into a contract with a contractor that is equipped and trained to disinfect city facilities per city, county, state and federal guidelines; and WHEREAS, staff advertised for and received 17 competitive bids for disinfecting city facilities for COVID-19; and WHEREAS, LMUU, Inc., dba Sparkle Freshness ("Sparkle Freshness"), was evaluated by staff and determined to be the lowest responsible and responsive bidder; and WHEREAS, staff recommends approving an Agreement with Sparkle Freshness in an amount not to exceed $310,758 for an initial one-year term; and WHEREAS, the City Manager is authorized to amend and extend the Agreement for two additional one-year terms, as well as terminate the Agreement during the initial term or any extension of the term; and WHEREAS, the amendments for the second and third years following the initial one-year term shall not exceed $320,081 and $329,684, respectively, for a total not-to-exceed amount of $960,523 over three years; and WHEREAS, the deputy city manager, administrative services, or designee is authorized to appropriate the corresponding additional funds, based on the city's needs and the satisfactory performance of Sparkle Freshness; and WHEREAS, sufficient funding is currently available; and Dec. 8, 2020 Item #4 Page 4 of 23 WHEREAS, the cost of this contract will be tracked and recorded as a COVID-19 expense and will be covered with budget appropriated from the General Fund reserve previously allocated for COVID-19 expenses. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the mayor is authorized and directed to execute an Agreement with LMUU, Inc., a California corporation, dba Sparkle Freshness, for citywide disinfecting services, in an amount not to exceed $310,758 for an initial one-year term, attached hereto as Attachment A. 3. That the City Manager is authorized to execute amendments to said Agreement deemed to be in the best interest of the city, and, if the city so chooses, to extend it for two additional one-year terms not to exceed $320,081 and $329,684, respectively. 4. That the City Manager is authorized to terminate the Agreement during the initial term, or during any extension of the term, if the City Manager deems such termination to be in the best interest of the city. 5. That the deputy city manager, administrative services, or designee, is authorized to cover the cost of this expense with budget appropriated from the General Fund reserve previously allocated for COVID-19 expenses. // // // // // I- II // // // // Dec. 8, 2020 Item #4 Page 5 of 23 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 8th day of December, 2020, by the following vote, to wit: AYES: Hall, Blackburn, Acosta, Bhat-Patel, Schumacher. NAYS: None. ABSENT: None. -1/cp#71d( MATT HALL, Mayor \--11AA,-uavoelvtil BARBARA ENGLESON, City Clerk (SEAL) Dec. 8, 2020 Item #4 Page 6 of 23 DocuSign Envelope ID: 970F03/33-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC AGREEMENT FOR AS-NEEDED DISINFECTING SERVICES LMUU INC. DBA SPARKLE FRESHNESS THIS AGREEMENT is made and entered into as of the 8th day of December , 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and LMUU INC., a California corporation, dba Sparkle Freshness, ("Contractor"). RECITALS A. City requires the professional services of a consultant that is experienced in sanitizing services. B. Contractor has the necessary experience in providing professional services and advice related to sanitizing services. C. Contractor has submitted a proposal to City under RFP21-1180FAC and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A" and Exhibit "B", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will not exceed three hundred ten thousand seven hundred fifty-eight dollars ($310,758). City Attorney Approved DBE Version 6/12/18 1 Dec. 8, 2020 Item #4 Page 7 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed three hundred twenty thousand eighty-one dollars ($320,081) for the second Agreement year and three hundred twenty-nine thousand six hundred eighty-four dollars ($329,684) for the final Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". If an increase in compensation for service in succeeding option years is requested, the Contractor must provide detailed supporting documentation to justify the requested rate increase. The requested increase will be evaluated by the City, and the City reserves the right to accept or reject the Contractor's requested compensation increase, which may not increase by more than 3% per extension. Requests for price changes must be made by the Contractor in writing sixty (60) days before the end of the then-current agreement year and is subject to negotiation or rejection by the City. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by City Attorney Approved DBE Version 6/12/18 2 Dec. 8, 2020 Item #4 Page 8 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non- admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general City Attorney Approved DBE Version 6/12/18 3 Dec. 8, 2020 Item #4 Page 9 of 23 DocuSign Envelope ID: 970F0363-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability Workers' Compensation limits as required by the California Labor Code. Workers' Compensation insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. City Attorney Approved DBE Version 6/12/18 4 Dec. 8, 2020 Item #4 Page 10 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Barney Dresman Name Stephanie Barneburg Title Public Works Supervisor Title Project Manager Department Public Works Address 3129 Tiger Run Ct., Suite 217 City of Carlsbad Carlsbad, CA 92010 Address 405 Oak Ave. Phone No. 858-352-9860 Carlsbad, CA 92008 Email info@sparklefreshness.com Phone No. 760-331-8272 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes El No City Attorney Approved DBE Version 6/12/18 5 Dec. 8, 2020 Item #4 Page 11 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 17-A. FEMA REQUIRED PROVISIONS The City and Contractor shall comply with all applicable requirements of the Federal Emergency Management Agency (FEMA) which are outlined in Exhibit "B", which is attached and incorporated by this reference. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION The City has established the contract DBE goal of zero for this Agreement due to the extremely limited subcontracting opportunities for a contract of this size and scope. However, Contractor shall be fully informed respecting Part 26, Title 49, Code of Federal Regulations (CFR), which is incorporated by reference, and is urged to obtain DBE participation should a clearly defined portion of the work become available. A. It is the policy of City that certified DBE firms shall have the maximum opportunity to participate in the performance of Agreements financed in whole or in part with federal funds. Contractor shall ensure that certified DBE firms, as defined in the CFR, have the maximum opportunity to participate in the performance of this Agreement and shall take all necessary and reasonable steps, as set forth in CFR, Part 26, for such assurance. Contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of DOT-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract, or such other remedy as recipient deems appropriate. B. If DBE participation is obtained, Contractor shall maintain records of all subcontractor agreements entered into with DBE subcontractors and records of materials purchased from DBE suppliers. Such records shall show each subcontractor's and vendor's name and address, and the actual dollars paid to each. Upon completion of the Agreement, a summary of City Attorney Approved DBE Version 6/12/18 6 Dec. 8, 2020 Item #4 Page 12 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC these records shall be prepared, certified correct and submitted on the form "FINAL REPORT - UTILIZATION OF DISADVANTAGED BUSINESS ENTERPRISES (DBE), FIRST - TIER SUBCONTRACTORS", or equivalent, by Contractor or his authorized representative to the City of Carlsbad's Contract Manager showing total dollars paid to each DBE subcontractor and supplier. Any DBE firm working as a subcontractor under this Agreement must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing, and supervising the work. D. Contractor shall make every reasonable effort to replace a certified DBE firm that is unable to perform the provisions of this contract with another certified DBE firm. E. Prompt Progress Payment to Subcontractors — Attention is directed to Section 7108.5 of the California Business and Professions Code, which requires a prime contractor to pay any subcontractor not later than ten (10) days of receipt of each progress payment, unless otherwise agreed to in writing. Section 7108.5 of the California Business and Professions Code also contains enforcement actions and penalties, which apply to both DBE and non-DBE subcontractors. F. Prompt Payment of Withheld Funds to Subcontractors — For this agreement, the City will not withhold retainage from the prime contractor and the City prohibits the prime contractor from withholding retainage from subcontractors. 20. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 21. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, the City Manager may terminate this Agreement for nonperformance by notifying Contractor City Attorney Approved DBE Version 6/12/18 7 Dec. 8, 2020 Item #4 Page 13 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, the City Manager may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event, the City Manager may terminate this Agreement on behalf of City. Upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 22. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 23. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. City Attorney Approved DBE Version 6/12/18 8 Dec. 8, 2020 Item #4 Page 14 of 23 DocuSign Envelope ID: 970F0363-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC 24. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 25. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 26. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// City Attorney Approved DBE Version 6/12/18 9 Dec. 8, 2020 Item #4 Page 15 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC 27. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California LMUU INC., a California corporation, dba SPARKLE FRESHNESS By: By: gtf6A,it. bantd•Wro (sign here) Stephanie Denise Barneburg, President/CEO/Secretary (print name/title) Matt Hall, Mayor By: (sign here) (print name/title) ATTEST: 7- Pe. 711,a4, es, for Barbara Engleson, City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney By: Assistant City Attorney City Attorney Approved DBE Version 6/12/18 10 Dec. 8, 2020 Item #4 Page 16 of 23 DocuSign Envelope ID: 970F0363-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC EXHIBIT "A" SCOPE OF SERVICES Contractor shall provide all labor, equipment and materials necessary to perform disinfecting services as outlined in this contract at the rate of $24.50 per staff hour. 1. Provide as-needed disinfecting services at the following locations: Shift Location(s) Address Days of Service Hours of Service (not to exceed) 1 City Hall, Cole Library Library Learning Center 1200 Carlsbad Village Dr. 1250 Carlsbad Village Dr. 3368 Eureka Place Mon-Fri Sun-Sat Sun-Sat 10 a.m. to 5 p.m. 10 a.m. to 8 p.m. 10 a.m. to 8 p.m. 2* Senior Center Pine Community Center 799 Pine Avenue 3209 Harding Street Mon-Fri Sun-Sat 10 a.m. to 5 p.m. 10 a.m. to 8 p.m. 3 Faraday Building 1635 Faraday Avenue Mon-Fri 10 a.m. to 5 p.m. 4 Dove Library 1775 Dove Lane Sun-Sat 10 a.m. to 8 p.m. *Shift 1 and 2 include multiple facilities a. One person required at each location during hours specified. b. Shifts may be split to utilize multiple personnel. c. Cost of any overtime shall not be charged to the City. d. At the discretion of the City, hours specified may be reduced or eliminated as conditions change. e. Cost of transportation between Cole Library and Library Learning Center is included on the scope of work. Actual working hours may vary according to the building hours of opening. As directed by the City, if as-needed sanitizing services require the Contractor to travel between locations not included in a shift, City will reimburse Contractor the current IRS established mileage rate for all miles traveled between locations. 2. Scope of Work a. All supplies and equipment to be provided by Contractor unless otherwise specified. b. Contractor shall disinfect high touch surfaces using spray bottle and wipe cloth: i. Door handles (includes exterior door handles and push plates) ii. Handrails City Attorney Approved DBE Version 6/12/18 11 Dec. 8, 2020 Item #4 Page 17 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC iii. Grab bars iv. Push plates v. Surfaces (tables, desks, counters) used by multiple people vi. Restrooms: 1. Sinks/faucets. 2. Door handles. 3. Counters. 4. Toilet valves. 5. Toilet paper, towel and soap dispensers. 6. Changing tables. c. Contractor shall rotate through public areas disinfecting public restrooms, conference rooms, break rooms, coffee stations, and staff common spaces (corridors, stairwells, etc.). d. Contractor shall bypass areas that are in use or occupied in order to maintain any mandated physical distancing requirements. e. Rags: i. Use laundered nnicrofiber rags. ii. Use 1/4 fold method to help prevent cross contamination. iii. Replace rag every 15 minutes of use. f. Disinfectant: i. Disinfectant solution to be provided by City of Carlsbad. ii. Small garden pump sprayer is recommended. iii. Adjust nozzle to maintain a coarse mist. iv. Spray surface and allow to sit before wiping. v. Wipe surface but do not wipe dry (spray dry towels to help avoiding surfaces drying too quickly). g. Uniforms/Personal Protective Equipment (PPE): The Contractor shall require personnel to adhere to basic professional working attire including uniform shirts and/or vests clearly marked with the Contractor's company name and City provided Contractor name badges. Sufficient changes shall be provided to present a neat and clean professional appearance of the Contractor's personnel at all times. Contractor's personnel shall be equipped with proper PPE (gloves, shields, masks, boots) and other gear required by State safety regulations. h. Personnel: i. All personnel working on site shall pass a Live Scan background check before working in City buildings. ii. Contractor shall bear the cost of the background check, currently $32 per person (subject to change). iii. Contractor shall provide for enough staff for regular shifts and back up to cover absence. City Attorney Approved DBE Version 6/12/18 12 Dec. 8, 2020 Item #4 Page 18 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC Additional Requirements: In addition to the initial Live Scan and background check requirements, random background checks may also be administered during the course of the agreement. The City will determine the frequency of background checks and will notify the Contractor in writing of the acceptability of the Contractor's employees. The Contractor agrees the City of Carlsbad will be the sole judge of the suitability of the Contractor's employees to perform any work on City owned or maintained property. Contractor shall not hire temporary type employees hired on the spot through an employment agency that have not been disclosed in the bid documents. Contractor's staff must successfully pass a fingerprinting and background screening and have been properly trained. In no case shall any hires be made without proper background and finger printing checks. The Contractor shall keep 1-9 forms and any required attachment documentation on file for all employed personnel servicing this Contract. In the event such background check reveals an item which the City deems a security problem, City shall request that such individual be removed from the list of personnel authorized to provide custodial services under this Contract. Contractor shall immediately notify the City when Contractor's staff has been terminated and shall recover all City-issued keys from the terminated staff. City Attorney Approved DBE Version 6/12/18 13 Dec. 8, 2020 Item #4 Page 19 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC Exhibit B Additional Terms and Conditions for FEMA Funded Agreements The following provisions are incorporated into the Agreement: 1. The Contractor acknowledges Federal Emergency Management Agency (FEMA) financial assistance will be used to fund the Contract only. The Contractor will comply will all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives. 2. The Contractor shall not use the Department of Homeland Security (DHS) seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval. 3. The federal government is not a party to this Contract and is not subject to any obligations or liabilities to the City of Carlsbad, Contractor, or any other party pertaining to any matter resulting from the Contract. 4. The Contractor acknowledges that 31 U.S.C. Sections 3801-3812 (Administrative Remedies for False Claims and Statements) applies to the Contractor's actions pertaining to this Contract. 5. Access to Records. The following access to records requirements apply to this Contract: (A) The Contractor agrees to provide the City of Carlsbad, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (B) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (C) The Contractor agrees to provide the FEMA Administrator or authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. (D) In compliance with the Disaster Recovery Act of 2018 (Pub. L. No. 115- 254, §§ 1201-1246 (2018)), the City of Carlsbad and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States. 6. Suspension and Debarment (A) This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the Contractor is required to verify that City Attorney Approved DBE Version 6/12/18 14 Dec. 8, 2020 Item #4 Page 20 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC neither the Contractor nor its principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (B) The contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (C) This certification is a material representation of fact relied upon by the City of Carlsbad. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the State of California or the City of Carlsbad, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (D) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 7. Clean Air Act and Water Pollution Control Act Clean Air Act (A) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended (42 U.S.C. § 7401 et seq.). (B) The contractor agrees to report each violation to the City of Carlsbad and understands and agrees that the City of Carlsbad will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office. (C) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. Federal Water Pollution Control Act (A) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq.) (B) The contractor agrees to report each violation to the City of Carlsbad and understands and agrees that the City of Carlsbad will, in City Attorney Approved DBE Version 6/12/18 15 Dec. 8, 2020 Item #4 Page 21 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office. (C) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 8. Byrd Anti-Lobbying Amendment (A) Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who will forward the certification(s) to the awarding agency. Required Certification. Contractors must sign and submit to the City of Carlsbad the following certification: APPENDIX A, 44 C.F.R. PART 18 — CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or City Attorney Approved DBE Version 6/12/18 16 Dec. 8, 2020 Item #4 Page 22 of 23 DocuSign Envelope ID: 970F03B3-82DD-40EB-9D8A-31D893FFABBO PSA21-1310FAC employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Contractor, LMUU, Inc. dba Sparkle Freshness, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any. gtiumAit,t5airt&diwel Signature of Contractor's Authorized Official Stephanie Barneburg CEO 12/2/2020 Name and Title of Contractor's Authorized Official Date 9. To the extent that any federally mandated provisions incorporated by Exhibit B conflict with other terms and provisions of this Agreement, the federally mandated provision(s) shall prevail. City Attorney Approved DBE Version 6/12/18 17 Dec. 8, 2020 Item #4 Page 23 of 23 Shawn Gaskari, Management Analyst Barney Dresman, Public Works Supervisor Dec. 8, 2020 Agreement with LMUU Inc., dba Sparkle Freshness, for As-Needed Disinfecting Services Recommended Action Adopt a resolution approving an agreement with LMUU, Inc., dba Sparkle Freshness (“Sparkle Freshness”), a California corporation, for as- needed disinfecting services for city facilities in response to the COVID-19 pandemic Background •Due to COVID-19, the city has closed or otherwise restricted access to certain public-facing facilities such as libraries and community centers •Re-opening may require that certain safeguards be in place to ensure public safety, including disinfecting services •Entering into an agreement with a disinfecting services provider now ensures that this service will be ready and in place when the city requires it Job Requirements Contractor is expected to: •Regularly disinfect various surfaces, paying close attention to high-traffic, high-touch areas •Follow all mandated guidelines regarding disinfecting and personal protection equipment (PPE) •Use an Environmental Protection Agency (EPA) approved disinfectant proven effective against COVID-19 Vendor Selection •Sparkle Freshness was selected through a competitive bid process •17 bidders participated in the bidding •Sparkle Freshness was selected as the preferred vendor Cost and Funding •Initial cost for the first year will not exceed $310,758 with a year-over-year expected increase of 3% per year after that •Costs will be tracked as a “COVID-19 expense” to be covered by the General Fund reserve previously allocated for COVID-19 related expenses •Future funding sources in subsequent years, if necessary, will be determined in conjunction with the Finance Department •City Manager will be authorized to execute amendments and extend contract for two additional one-year terms, if needed Next Steps •City will enter into an agreement with Sparkle Freshness •Staff will identify facilities that require disinfecting services as they re-open •Sparkle Freshness will be deployed to provide disinfecting services in identified facilities Recommended Action Adopt a resolution approving an agreement with LMUU, Inc., dba Sparkle Freshness (“Sparkle Freshness”), a California corporation, for as- needed disinfecting services for city facilities in response to the COVID-19 pandemic Thank you