1 PROFESSIONAL SERVICES AGREEMENT
This agreement (“Agreement”) is made as of October 1, 2019 (Effective Date) by and between the City of Commerce, a municipal corporation ("City") and West Coast Arborists, Inc. Incorporated (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.”
R E C I T A L S
WHEREAS, City desires to utilize the services of Contractor as an independent contractor to provide tree maintenance services as set forth in the Scope of Services attached hereto as Exhibit A; and
WHEREAS, Contractor represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows:
1. Company's Scope of Services. The nature and scope of the specific services to be performed by Contractor are as described in Exhibit A.
2. Term of Agreement. The Initial Term of the Agreement will commence on the effective date and will terminate three (3) years thereafter. The City may, upon its sole discretion, extend the term of the Agreement by an additional two (2) year terms, provided there is mutual agreement between the City and the Contractor.
3. Compensation.
A. City agrees to compensate Contractor for services under this Agreement in compliance with the schedule set forth in Exhibit A. Contractor shall submit proper monthly invoices in the form and manner specified by City. Each invoice shall include a monthly breakdown of all monthly services performed. Contractor shall maintain appropriate and necessary documentation supporting the monthly invoices detailing the type of service provided. It shall be available for review by the City at all reasonable times upon request.
B. Total annual payment to Contractor pursuant to this Agreement shall not exceed $193,158.
C. If at the request of the City, Contractor is required to perform additional work which are above and beyond the ordinary expenses associated with performance of this Agreement, Contractor shall be entitled to payment of such expenses.
4. General Terms and Conditions. The General Terms and Conditions set forth DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 2 in Exhibit A and B are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control.
5. Addresses.
City of Commerce
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attn: Edgar P. Cisneros, City Manager
Company
West Coast Arborists
2200 E. Via Burton St.
Anaheim, CA 92806
Attn: Patrick Mahoney, President
6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference.
Exhibit A – Scope of Services and Compensation Schedule (Request for Proposals and awarding proposal)
Exhibit B – Required Insurance
SIGNATURES ON FOLLOWING PAGE
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Ivan Altamirano, Mayor Date
CONTRACTOR
West Coast Arborists, Inc.
By: _______________________________ ________________________ Patrick Mahoney, President Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 5/7/2020
4/28/2020
4/28/2020
5/7/2020
1 EXHIBIT A
SCOPE OF SERVICES and COMPENSATION SCHEDULE
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0
EXHIBIT A
SCOPE OF SERVICES
TREE MAINTENANCE SERVICES
General Terms and Contact Information
Contractor shall assign a Project Area Manager to the City and is responsible for supervising its employees and operations. Contractor shall maintain a dispatch contact telephone number and hours of operation as follows:
Regular hours of operation: 7:00 a.m. – 5:00 p.m. Monday - Friday Gonzalo Regalado, Area Manager (714) 991-1900
Herminio Padilla, Area Supervisor (714) 412-7577
WCA Corporate Office (714) 991-1900
Emergency contact: 24/7 (866) 546-2369
Emergency call out - Contractor must respond within 2 hours of receiving an emergency request for services.
Services and Schedule of Performance
The Contractor shall perform and complete the proposed landscape and/or tree maintenance work in a thorough and professional manner, and provide all labor, tools, equipment, materials and supplies necessary to complete all work in a timely manner to the City’s satisfaction for the following:
City Tree Inventory (Summary)
5,152 trees
927 vacant sites
14 not city planted/maintained
8 stumps
0 poor planting site
The Contractor shall provide a complete digital updated database of the City’s tree inventory and include but not be limited to the following data fields:
• Species
• Size, including DBH, canopy height and canopy spread
• Condition
• No parking dates and times (where applicable)
• Presence of overhead power lines
Current tree pruning cycle (or frequency)
517 Palm Trees (annually)
26 Eucalyptus Trees (annually)
302 Ficus Trees (annually)
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 West Coast Arborists Tree Maintenance Services – Scope of Work
136 Melaluca Trees (annually)
2,066Trees, approx. of 50% of all other trees, (annually) 3,087 Trees trimmed annually
Contractor shall perform the following tree maintenance activities throughout the City:
• Tree pruning/trimming
• Crown restoration or reduction
• Tree removal
• Tree planting and weekly watering of trees up to a year from initial planting as needed with a 90-day warranty
• Root pruning and root barrier installation
• Clean up and disposal and/or recycling of generated greenwaste • Reporting of maintenance activities and greenwaste quantities recycled to the City on a monthly basis.
•
• Tree inventory update and management
• Software installation
• Small tree care
• Arborist services
• Forest Study as needed
Notification of Work
Contractor is to notify the City’s Street and Tree Supervisor of its scheduled work 24 hours in advance of performing work. Contractor is responsible for notifying affected residents and businesses 5 calendar days in advance of work being performed.
Notifications shall be made in the form of door hangers and City-approved No Parking signs shall be posted 24 hours in advance of performing work.
Annual Pruning Program
Contractor shall submit a recommended annual pruning program with suggested time schedules, personnel and vehicles that would be required to complete the annual pruning schedules. Depending on the City’s current and future pruning needs the recommended pruning schedule may require multiple crews to perform concurrently within the same time constraints.
Coordination with Utility Companies
Utility companies are responsible for utility line clearance. Work in the contract area by utility companies may be progressing concurrently with the work under this Agreement’s Scope of Work. It is the responsibility of the Contractor to inform itself of work planned by these parties and to coordinate its work with theirs. Contractor shall also report to the utility companies any need for line clearance.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 West Coast Arborists Tree Maintenance Services – Scope of Work
Best Management Practices (BMPs)
• All vehicular oil spills caused by Contractor’s equipment shall be treated with absorbent material and swept up and disposed of in a lawful manner.
Work performed by the Contractor shall be carried out in a manner consistent with the:
• International Society of Arboriculture Arborist Certification; • California Occupational Safety and Health Administration (Cal/OSHA); • California standard traffic control safety practices; • MS4 Permit (Order R4-2012-0175)1, specifically Part VI.D.9.g. (page129) for landscaped, park and recreational facilities exposed to stormwater, as applicable, Contractor shall implement and maintain activity-specific best management practices (BMPs) listed in Table 18 of the MS4 Permit that are specific to chemical vegetation control, manual vegetation control, landscaped mechanical vegetation control, landscaped tree and shrub pruning, brush chipping, tree and shrub removal, irrigation line repairs, and both potable and non-potable irrigation; and
• Federal Clean Water Act and California Porter Cologne Act; and • City of Commerce Municipal Code Chapter 6.17 - Storm Water and Runoff Pollution Control.
Detailed descriptions of the activity-specific BMPs are provided in the CalTrans Stormwater Quality Handbook Maintenance Staff Guide CTSW-RT-02-057(CalTrans Handbook) available online at:
http://www.dot.ca.gov/hq/env/stormwater/special/newsetup/_pdfs/management_ar_rwp/ CTSW-RT-02-057.pdf. In particular, relevant procedures for Tree Maintenance Operations, Litter and Debris Removal and Emergency Response and Cleanup Practices found in Appendix B pages B-32 through B-36 of the CalTrans Handbook or equally effective procedures such as those identified in the California BMP Handbooks developed by the California Stormwater Quality Association shall be utilized.
On an annual basis, Contractor shall certify that each of Contractor's field staff conducting work for the City of Commerce has received all applicable training.
Documentation of this training shall be provided to the City on an annual basis.
Conduct of Maintenance Operation
No material and equipment shall be stored where it will interfere with the free and safe passage of public traffic. At the end of each day’s work and at all other times, when maintenance operations are suspended for any reason, the Contractor shall remove all equipment and other obstructions from his portion of the roadway and open it for use by public traffic. No equipment will be stored on City streets overnight. 1 Order No. R4-2012-0175 NPDES Permit No. CAS004001 Waste Discharge Requirements for Municipal Separate Storm Sewer System (MS4) Discharges within the Coastal Watersheds of Los Angeles County, except those Discharges Originating from the City of Long Beach MS4.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 West Coast Arborists Tree Maintenance Services – Scope of Work
Equipment and Management
Contractor shall meet all South Coast Air Quality Management District requirements for use and operation of tree maintenance equipment and operations. The Contractor shall use and maintain all vehicles and equipment in a manner that prevents leaks and spills of fluids.
Disposal of Trimmings, Tree Removals, and Debris
The Contractor shall dispose of all trimmings, tree removals, and debris accumulated as a result of maintenance operations and shall not allow any trimmings to remain on the public street or other public property for more than one hour after it is accumulated. All trimmings, removals and debris shall be disposed of in a lawful manner.
Holidays
The following is a list of holidays on which contract service will not be performed:
New Year’s Day
Washington’s Birthday
Memorial Day
Independence Day (July 4th)
Labor Day (First Monday in September)
Thanksgiving Day
The day after Thanksgiving Day
Christmas Day
Special scheduling adjustments will be required when a holiday named herein falls on a weekday (Monday through Friday). During the week of a holiday, the Contractor shall adjust the weekly schedule to include services on Saturday, so as to return to the normal weekly schedule by Monday of the following week. All such adjustments must be submitted to the City representative forty-five (45) days prior to the holiday.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 West Coast Arborists Tree Maintenance Services – Scope of Work
Fees and Costs
Contractor fees for the services rendered shall be as follows and eligible for an increase after one year of satisfactory service per Section 3B of the Agreement – Consideration of Adjustment of Compensation Rates:
I. Fee Schedule based on trimming 3,136 trees every year.
1. Annual cost to trim 3,136 trees annually: $193,158.00 $63.00
Total annual cost
each tree
2. Tree Removal including stump and major roots and
removal of grindings, per inch of tree diameter as
measured 24-inches from ground level:
$40.00 per inch of tree
diameter
3. Stump Removal including major roots and removal of
grindings, per stump:
$25.00 each
4. Emergency Crew Response, 24-hour with 4-hour
Notification:
$115.00 per hour based on
arrival in the City.
5. Crew Response for additional work during regular
works hours:
$89.00 per hour based on
arrival in the City.
6. Storm Clean-up Crew Response, next available
business day:
$105.00 per hour based on
arrival in the City.
7. Root Pruning, per individual tree: $19.00 per tree
8. Tree planting, including 12-months watering, pruning and fertilizing;
15-gallon with root barrier:
15-gallon without root barrier:
24-inch box with root barrier:
24-inch box without root barrier:
$345.00
$320.00
$525.00
$485.00
each
each
each
each
9. Tree planting only, no maintenance;
15-gallon with root barrier
15-gallon without root barrier
24-inch box with root barrier
24-inch box without root barrier
$173.00
$153.00
$325.00
$300.00
each
each
each
each
II. Fee Schedule for additional services
Service Request Palm Tree Pruning
King or Queen palm pruning $63.00 per tree
Washingtonia palm pruning $63.00 per tree
Canary Island Date Palm pruning $243.00 per tree
Palm tree skinning $18.00 per linear foot
Crown Restoration or Reduction $400.00 each
Trees requiring pruning for crown restoration or crown reduction will be performed as directed by the City. These trees, such as Ficus trees, will be pruned in accordance with the Best Management Practices (BMPs) published by the International Society of Arboriculture (ISA).
Tree Removal Only $30.00 per diameter inch
Includes cleanup and removal of all debris.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 West Coast Arborists Tree Maintenance Services – Scope of Work
Crew Rental $267.00 per hour
The standard crew is 3 members, 1 chipper truck, 1 chipper, 1 aerial tower and all necessary hand tools. The crew and equipment can be modified to complete any type of miscellaneous tasks including special projects that may consist of extraordinary work such as hanging flags, changing light bulbs, special projects that are difficult to access with equipment, or trimming specific trees requiring immediate attention prior to their scheduled trim.
Specialty Equipment Rental $183.00 per hour
Contractor can dispatch a variety of specialty equipment including 100-foot crane, 95-foot aerial tower, and/or roll-off trucks with loaders (disposal fees are not included). These pieces of equipment include one operator.
Arborist Services $145.00 per hour
Tree evaluation(s) including written reports with photographs.
Community Forest Study $20,000.00 lump sum
At the option of the City, Contractor may perform a Community Forest Study to provide information on the overall health of the Community Forest while focusing on the following areas of concern:
• The impact of the City’s root pruning and hardscape repair program on existing street trees; • The long range impact of poor or improper pruning practices conducted in previous years and its effect on city trees in today’s environment;
• An evaluation of the City’s mature and over-mature trees and the projected impact of removals and replacements that may be necessary in the next 10 years; • Projected requirements for the release of beneficial insects; and • A hazard evaluation study of all park trees.
Data from the study shall be in a format that will allow the data to be incorporated into the City’s Tree Inventory database.
GPS Tree Inventory $4.00 per tree site
Collect tree attributes including GPS points for each City-owned tree and provide to the City. All data will be owned by the City.
Cooperative Purchasing
It is intended that any other public agency (e.g., city, county district, public authority, public agency, municipality, and other political subdivision or public corporation) shall have the option to participate in any award made as a result of this solicitation at the same prices. The City shall incur no financial responsibility in connection with any purchase by another public agency. The public agency shall accept sole responsibility for placing orders and making payments to the vendor.
Proposal Specifications
All other specifications within the City’s RFP dated July 30, 2019, and WCA’s proposal dated August 29, 2019 shall be incorporated into this Scope of Work by reference.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 1 EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Status as Independent Contractor.
A. Contractor is, and shall at all times remain as to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of the City of Commerce or otherwise act on behalf of Commerce as an agent.
Neither the City of Commerce nor any of its agents shall have control over the conduct of Contractor or any of Contractor’s employees, except as set forth in this Agreement.
Contractor shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City of Commerce.
B. Contractor agrees to pay all required taxes on amounts paid to Contractor under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interests asserted against City by reason of the independent Contractor relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent status of Contractor and the audit in any way fails to sustain the validity of a wholly independent Contractor relationship between City and Contractor, then Contractor agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C. Contractor shall fully comply with the workers' compensation law regarding Contractor and Contractor’s employees. Contractor further agrees to indemnify and hold City harmless from any failure of Contractor to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 1.
D. Contractor represents to the City, and City relies on Contractor’s representations, that Contractor shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Contractor or any of Contractor’s employees, except as otherwise set forth in the Agreement. Contractor may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Contractor’s agents or employees, including the Affordable Care Act coverage requirements. Contractor is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Contractor’s agents and employees. Contractor warrants and represents that the City will not be responsible and will not be held liable for issues related to Contractor’s status as an independent contractor, including Contractor’s failure to comply with Contractor’s duties, obligations, and responsibilities under the Affordable Care Act.
Contractor further agrees to defend, indemnify, and hold the City harmless for any DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 2 and all taxes, claims, and penalties against the City related to Contractor’s obligations under the Affordable Care Act.
2. Standard of Performance
Contractor shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Administrator or his/her designee. No additional or different tasks or services shall be performed by Contractor other than those specified in Exhibit A.
3. Indemnification.
A. Contractor is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Contractor to perform said services and duties.
B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnities") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, defend, protect and hold harmless Indemnities from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnities may suffer or incur or to which Indemnities may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of or allegedly caused by Contractor’s performance of or failure to perform any services under this Agreement or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, subcontractor, sub-Contractor or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, the provisions of this subsection shall not apply to Claims occurring as a result of the City’s sole negligence or willful acts or omissions.
C. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, sub-Contractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Agreement. In the event Contractor fails to obtain such indemnity obligations from others as required in this Section, Contractor agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way serve as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnities as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 3 City.
4. Insurance.
A. Without limiting Contractor’s indemnification of Indemnities pursuant to Section 3 of this Agreement, Contractor shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below:
(I) Contractor shall maintain Commercial General Liability Insurance with coverage at least as broad as Insurance Services Office Commercial General Liability Form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(II) Contractor shall maintain Business Auto Coverage on ISO Business Auto Coverage Form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(III) Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with on a state approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for all covered losses; B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability.
C. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
D. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 4 “Director of Human Resources & Risk Management,” City of Commerce, 2535 Commerce Way, Commerce, California, 90040. Contractor agrees that it will not cancel, reduce or otherwise modify said insurance coverage.
E. Contractor shall submit to City (I) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (II) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City’s appropriate standard forms entitled "Additional Insured Endorsement".
F. Contractor’s insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of Contractor’s insurance and shall not contribute with it.
G. Contractor agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost. City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Contractor’s and the cost of such insurance may be deducted, at the option of City, from payments due Contractor.
5. Release of Information/Confidentiality.
A. Contractor in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Contractor covenants that all data, documents, discussion, or other information developed or received by Contractor or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Contractor without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Contractor, its officers, employees, agents, or subContractors, shall not without written authorization from the City Administrator, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena. Contractor’s covenant under this section shall survive the termination of this Agreement.
B. Contractor shall promptly notify City should Contractor, its officers, employees, agents, or sub-Contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Contractor and/or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 5 provide the opportunity to review any response to discovery requests provided by Contractor. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response
6. Ownership of Work Product.
A. Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by the City that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to the representatives of the City or its designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit the City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
B. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Contractor.
With respect to computer files, Contractor shall make available to the City, at the Contractor's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
7. Conflict of Interest.
A. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Contractor under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Contractor further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Contractor shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement.
B. Contractor covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Contractor’s covenants under this section shall survive the termination of this Agreement.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 6 8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause by serving upon the Contractor at least ten (10) days prior written notice (“Notice of Termination”).
Upon receipt of said notice, the Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination.
Contractor agrees that in the event of such termination, Contractor must refund the City its prorated share, except for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written Notice of Termination, Contractor shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City.
In the event this Agreement is terminated pursuant to this Section, the City shall pay to Contractor the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Contractor will submit an invoice to the City.
9. Personnel. Contractor represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Contractor or under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
Contractor reserves the right to determine the assignment of its own employees to the performance of Contractor’s services under this Agreement, but City reserves the right, for good cause, to require Contractor to exclude any employee from performing services on City's premises.
10. Non-Discrimination and Equal Employment Opportunity.
A. Contractor shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
B. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of Contractor state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 7 C. Contractor will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
11. Assignment. Contractor shall not assign or transfer any interest in this Agreement nor the performance of any of Contractor obligations hereunder, without the prior written consent of City, and any attempt by Contractor to assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
12. Performance Evaluation. For any Agreement in effect for twelve months or longer, the City Manager may require a written annual administrative performance evaluation within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Contractor prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Contractor to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein.
13. Compliance with Laws. Contractor shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Contractor shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Contractor to comply with this Section.
14. Licenses. At all times during the term of this Agreement, Contractor shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder.
15. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
16. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and Contractor.
17. Notices. Any notices, bills, invoices, or reports required by this Agreement shall DocuSign Envelope ID: EC90D97C-3F57-49D9-A053-73A6799CCDF0 8 be deemed received on (a) the day of delivery if delivered by hand during Contractor regular business hours or during Contractor regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.
18. Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California. However, the Parties may agree to submit any dispute to non-binding arbitration.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.
20. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
21. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk.
22. Authority. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he/she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.
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