16498.00001\44594163.1
1 CITY OF FONTANA
PROFESSIONAL SERVICES AGREEMENT
BS-26-191-SP
This professional services agreement (“ Agreement”) is made and entered into as of August 26, 2026 (“Effective Date”), by and between the City of Fontana, a public agency organized and operating under the laws of the State of California with its principal place of business at 8353 Sierra Avenue, Fontana, California 92335 (“City”), and 86Graffiti, with its principal place of business at 16813 Ceres Ave, Fontana CA 92335 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Graffiti Removal Services
(hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing professional services for [INSERT CONSULTANT DUTIES], and possesses the necessary expertise, resources, and personnel to complete the Project in a timely and professional manner as specified herein.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals.
The recitals above are true and correct, and are hereby incorporated herein by this reference.
2. Services.
Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” In the event of any inconsistency between the terms of Exhibit “A” and this Agreement, the terms of this Agreement shall govern.
3. Professional Practices.
All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any 16498.00001\44594163.1
2 changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $ 200,000 per fiscal year . This amount is to cover all printing and related costs for the duration of the term, and the City will not pay any additional fees for printing expenses.
c. Consultant may submit invoices to City for approval. Each invoice shall reflect only those services that have been completed to the City’s sole satisfaction and shall include a detailed desci0tion of the work performed. . City shall pay Consultant’s invoice within thirty (30)days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional S ervices” and shall identify the number of the authorized change order, where applicable, on all invoices.
c. Consultant shall not be reimbursed for any expenses unless authorized in writing by City.
5. Additional Work.
If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Maintenance of Records.
a. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles from the commencement of this Agreement until four (4) years after the termination or completion of the Agreement, and shall be made available to City for inspection and/or audit at mutually convenient times during that period.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
7. Term
The term of this Agreement shall begin on 9/1/2026 and shall end on 8/31/2031, unless earlier terminated as provided herein. The Parties may, by mutual, written consent, extend the 16498.00001\44594163.1
3 term of this Agreement if necessary to complete the Project. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed The Notice to Proceed shall set forth the date of commencement of work.
8. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that material affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, and rules to protect the public health, welfare, and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other P arty describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
9. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
10. Standard of Care.
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under sim ilar conditions.
Consultant’s performance shall conform in all material respects to the requirements of the Scope of Work.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the services. Consultant warrants that all employees and subconsultants shall have 16498.00001\44594163.1
4 sufficient skill and experience to perform the services assigned to them. Consultant represents that it, its employees, and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions w hich are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the services in a manner acceptable to the Cit, shall be promptly removed from working on the Project by the Consultant and shall not be re-employed to perform any of the Services.
11. Conflicts of Interest.
During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
12. Assignment and Subconsultant.
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
13. Independent Contractor.
Consultant is retained as an independent contractor and is not an employee of City . No employee or agent of Consultant shall become an employee of City . The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, sal aries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
14. Insurance.
Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
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5 The City, its elected and appointed officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
b. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Agreement (8) Property Damage
(9) Independent Contractors Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City , its elected and appointed officials, officers, employees, agents and City -designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City , and provided that such deductibles shall not apply to the City as an additional insured. c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
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6 (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City , its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City , the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein.
This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches; (2) system breaches; (3) denial or loss of service; and the (4) introduction, implantation, or spread of malicious software code in a form and with insurance companies acceptable to the City. g. Reserved
h. Minimum Policy Limits Required
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7 (i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and aggregate
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. i. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (ACORD Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
j. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
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8 (iii) The retroactive date (if any) of each policy is to be no later than the Effective Date . Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanc ed past the Effective Date ; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the Effective Date . (iv) All required insurance coverages , except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and City-designated volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
k. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
l. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. 16498.00001\44594163.1
9 (iv) Neither the City nor any of its elected and appointed officials, officers, employees, agents or volunteers shall not be personally responsible for any liability arising under or by virtue of this Agreement.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further, the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of this Agreement or law.
(vi) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the services under this Agreement.
m. Subconsultant Insurance Requirements.
Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this s ection. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
15. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by City ), indemnify and hold the City, its elected and appointed officials, officers, employees, authorized volunteers, and agents free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death (“Claims”), in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees and attorneys ’ fees and other related costs and expenses.
This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, receiv ed by the City, the City Council, members of the City Council, officials, officers, employees, agents, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement.
b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
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10 16. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects . If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City , its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws . It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1) . The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.
17. Verification of Employment Eligibility.
By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
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11 18. Reserved.
19. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of California.
If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
20. Termination or Abandonment.
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
c. If the Agreement is terminated prior to its completion for any reason, Consultant shall refund the monthly prorated cost of the incomplete term.
21. Ownership of Documents and Confidential Information. a. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the sole property of the City. b. Consultant may receive written or verbal information from City not in the public domain during the course of the performance of this Agreement. Such information may include City’s knowhow, trade secrets, and other proprietary and confidential information; and Consultant agrees to treat such information as confidential information belonging to City.
Consultant agrees that neither it, nor its officers, employees, representatives, agents, successors, or assigns, will disclose such information to any third party or use the same in any manner without the prior written consent of City. Consultant further agrees to safeguard such proprietary and confidential information from unauthorized disclosure and/or use exercising the same degree of care it uses to protect its own proprietary and confidential information, but not less than a reasonable standard of care. In the event that disclosure of such information is sought pursuant to any law or regulation, Consultant shall promptly notify City of such fact to allow Ci ty to assert whatever exclusions or exemptions may be available to it under applicable law or regulation. 16498.00001\44594163.1
12 22. Responsibility for Errors.
Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisf action of the City and to participate in any meeting required with regard to the correction.
23. Attorneys’ Fees.
In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
24. Organization.
Consultant shall assign Willie Nakatani Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
25. Prohibited Employment.
Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
26. Costs.
Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder excep t as expressly provided herein.
27. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described above.
28. Notice.
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:
16498.00001\44594163.1
13 CITY:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn: Jason Barber
CONSULTANT:
86Graffiti
16813 Ceres Ave.
Fontana, California 92335
Attn: Willie Nakatani
and shall be effective upon receipt thereof.
29. Third Party Rights.
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
30. Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
31. Entire Agreement.
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each P arty acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.
32. Severability.
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance; and the remaining provisions of this Agreement shall remain in full force and effect.
33. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, admi nistrators and assigns of each P arty to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
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14 34. Non-Waiver.
The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
35. Time of Essence.
Time is of the essence for each and every provision of this Agreement.
36. Headings
Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
37. Amendments.
Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
38. City’s Right to Employ Other Consultants.
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
39. Prohibited Interests.
Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City , during the term of his or her service with City , shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
40. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
41. Survival.
16498.00001\44594163.1
15 All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
42. Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
43. Electronic Signature.
Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. [SIGNATURES ON FOLLOWING PAGE]
16498.00001\44594163.1
16 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
CITY OF FONTANA
By:
Matthew C. Ballantyne
City Manager
86Graffiti
By:
Willie Nakatani
Attest:
By:
Germaine McClellan Key
City Clerk
By:
Deputy City Manager
Approved as to form:
Best Best & Krieger LLP
City Attorney
By: _____________________________
Department Head
Title
IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS
By: ______________________________
Human Resources & Risk Management Director
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDURES
___________________________________
Chief Financial Officer
Purchasing Manager
16498.00001\44594163.1
Exhibit A-1
EXHIBIT A
Scope of Services
2.1 INTRODUCTION:
The City of Fontana (“City”) requests proposals from California licensed contractors that are qualified to abate graffiti from private properties for the City. The successful contractor(s) shall comply with the requirements stated in this Request for Proposals (“RFP”).
After reviewing the information submitted in response to this RFP , the City expects to identify a contractor or contractors capable of meeting the City's requirements. If more than one contractor is selected and contracted, a list of pre-contracted, graffiti removal contractors will be created by the City and the list will be used on a rotating basis, although the City reserves the right to use any contractor on the list at any time. It is the intent of the City to contract for services for a five (5) year period.
2.2 PROJECT DESCRIPTION
Graffiti removal services are needed by the City for privately owned properties, with consent and signed waiver from the property owner. Contractor will not remove any graffiti until the City has emailed a copy of the signed waiver and a photograph of the graffiti that needs to be removed.
2.3 GRAFFITI ABATMENT SERVICES
The contractor shall:
• Ensure that personnel shall wear appropriate attire that displays the contractor’s business name or logo; and all service vehicles being used shall be clearly marked with the Contractor’s business name • Remove all graffiti using appropriate methods based on surface type, but not limited to:
o Pressure washing (hot/cold water)
o Chemical removal agents
o Sand blasting
o Painting over (color blocking- no outlining)
o Must match the existing paint color
o Ensure removal methods do not damage underlying surfaces o Dispose of all waste materials in compliance with local regulations o Restore affected surfaces to the closest possible original condition 16498.00001\44594163.1
Exhibit A-1
2.4 REQUIREMENTS
• Graffiti shall be removed 24- 48 hours after being notified. Failure to arrive within 24-48 hours will result in a 10% reduction in the overall cost of the call-out job.
• Graffiti removal completion rate- 100% removal
1. Contractor must have cellular telephone and email address for daily notification. • Normal working hours under this agreement shall be considered Monday through Friday from 7:00 a.m. to 5:00 p.m.
2. All work under this order shall be coordinated with and approved by the Code Compliance Manager/Supervisor as a condition precedent to contract compliance and payment for services.
3. Invoices for services shall be understood in presentation to avoid confusion, shall furni sh a good audit under standing and shall be applicable to the contract invoiced. Invoices shall be itemized for each activity and shall include the following information, as applicable:
• All invoices must be submitted within 30 days of the date of service • Date of Service
• Time of Service (i.e. Regular or Overtime)
• Date of Invoice
• Site address
• Total square footage of the removal of graffiti
• Name of City representative requesting service
• Must attach before/after photos
• List the cost for each service trip to include the base removal or painting fee, add in each of the call out charges that apply to that particular service call. Example: 100 sq removal: $xxx, Qty 1 After Hours Call Out Charge Weekday. Etc.
4. Contractor must have a valid Contractors License that is closely related to the services requested and obtain a City Business License.
5. The Code Compliance Manager/Supervisor or his/her designee must approve special equipment rental fees and speci al material fee in advance. Failure to obtain prior approval will result in denial of payment for said equipment or material.
6. Only one after-hours call-out charge will be assessed if services are required from contractor and contractor is on scene from original call-out.
Weekend call out charge is to meet the DIR requirement for Saturday and Sunday pay for prevailing wage which is added to the base cost.
16498.00001\44594163.1
Exhibit A-1
7. Emergency Services (vulgar, threatening, or offensive) determined by the City of Fontana, the contractor will have the ability to respond within 2 hours of receiving the request, seven days a week.
16498.00001\44594163.1
Exhibit B-1
EXHIBIT B
Schedule of Charges/Payments
Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials contract.
16498.00001\44594163.1
Exhibit C-1
EXHIBIT C
Activity Schedule
Revised Pricing Quote – Graffiti Bid BS-26-191-SP
1. Graffiti Cover Up (Paint)
Day Call Out Rate Price per sq ft *
1-50 51-100 101-250 251-500 501-750 751-1000 1001+
Regular Day (Mon-Fri, 7am-5pm) $ $ $ $ $ $ $ $
Saturday $ $ $ $ $ $ $ $
Sunday $ $ $ $ $ $ $ $
Holiday $ $ $ $ $ $ $ $
2-Hour Emergency (Added on top of regular
call out) $
Cancellation Fee Charge $
2. Graffiti Removal (Non-Paint)
Day Call Out Rate Price per sq ft *
1-50 51-100 101-250 251-500 501-750 751-1000 1001+
Regular Day (Mon-Fri, 7am-5pm) $ $ $ $ $ $ $ $
Saturday $ $ $ $ $ $ $ $
Sunday $ $ $ $ $ $ $ $
Holiday $ $ $ $ $ $ $ $
2-Hour Emergency (Added on top of regular
call out) $
Cancellation Fee Charge $
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
8.00 8.00
250.00
350.00
450.00
550.00
550.00
250.00
550.00
1.50 1.50
1.50 1.50
1.50 1.50
1.50 1.50
550.00
450.00
125.00
350.00
125.00
1.25 1.25
1.25 1.25
1.25 1.25
1.25 1.25
1.25 1.25
1.25 1.25
1.25 1.25
1.25 1.25
1.00 1.00
1.00 1.00
86Graffiti
*Important Note on Pricing: Billing is tier-bracketed, not cumulative. The total square footage places the entire job into a single rate bracket.
• Correct Calculation Example (105 sq ft): Call Out Flat Rate + (105 sq ft × Rate for the 101–250 sq ft tier) • Incorrect Calculation Example: Call Out Flat Rate + (50 sq ft × 1–50 Rate) + (50 sq ft × 51–100 Rate) + (5 sq ft × 101–250 Rate) Note: Invoices submitted using progressive/cumulative pricing will be rejected.
DIR prevailing wage, the highest rate will be used if the event happens on a holiday and a Saturday or Sunday. 2 hour emergency call out charge is applied on top of the regular call out charge.
Fontana Code Compliance staff are only allowed to authorize any work to be completed. All work shall be completed during standard working hours within the 48-hour period, if work requests issued on a Friday and the work cannot be completed that day, the work shall not be completed until the following Monday (Regular Day) unless Code Compliance provides specific written notice they want the work completed on a holiday, Saturday, Sunday or it is 2 hour emergency.
Only Fontana Code Compliance staff may authorize work. All work must be completed on a Regular Day within a 48-hour period. If a work request is issued on a Friday and cannot be finished that same day, work must pause until the following Monday. Exceptions require specific written authorization from Code Compliance for work to be complete on a Saturday, Sunday, Holiday , or 2-hour emergency.
City will allow only one call out per calendar day, if multiple work orders are received the contractor has discretion on when to complete the work within the allowed time frame.
If your company cannot complete the work order due to time constraints or insufficient expertise, you must immediately notify the Code Compliance officer who issued the order and formally decline the assignment.
Definition of graffiti removal means that the paint shall be removed to the extent that it is completely erased to the level of not recognizable that the surface previously had writing on it or the surface dulled where the writing once was.
List of applicable Holidays observed that would be billed under the Holiday rate:
• New Year’s Day
• Martin Luther King Jr. Day
• President’s Day
• Memorial Day
• Independence Day
• Labor Day
• Veterans Day
• Thanksgiving Day
• Christmas Eve
• Christmas Day
Revision of wording from the RFP related to invoicing (replaces RFP Item 2.4 item 3):
Invoice Requirements: Invoices for services rendered must be clear, easy to audit, and directly applicable to the specific contract being invoiced.
• Submission Deadline: All invoices must be submitted within 30 days of the date of service. • Invoice Frequency & Structure: Submit only one invoice per calendar day, itemized by each property visited on that date.
Required Invoice Itemization:
• Date of Service
• Time of Service
• Date of Invoice
• Type of Call-Out (Regular, Saturday, Sunday, or Holiday) • Type of Service (Cover-up or Removal)
• Site Address
• Total Square Footage of Graffiti Removal
• Name of the City Representative Requesting Service
• Before and After Photos
• Cost Breakdown (Work performed and call-out fee)