AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF FULLERTON
AND GRAFFITI PROTECTIVE COATINGS, INC.
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this 15t" day of October, 2019 by and between the CITY OF FULLERON, a California Municipal Corporation ("CITY"), and GRAFFITI PROTECTIVE COATINGS, INC., a California corporation ("CONSULTANT"). CITY and CONSULTANT may be referred to, individually or collectively, as "Party" or "Parties."
RECITALS
WHEREAS, the City of Bell sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement;
WHEREAS, CONSULTANT, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City of Bell to perform those services; of Bell on the same price and terms as awarded by the City of Bell; and WHEREAS, the Parties desire to formalize the selection of CONSULTANT for and desire th of te terms of that perned and des a parialiy ly in dand describe is gircement
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained hercin and other considcration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, CONSULTANT shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to CITY entering into this Agreement, CONSULTANT represents and warrants that it has the qualifications, experience, and facilities necessary to properly pertorm the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein.
CONSULTANT shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. CONSULTANT covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Consultant's Proposal.
The Scope of Services shall include CONSULTANT's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any 1 inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
CONSULTANT shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of CITY and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 California Labor Law.
If the Scope of Services includes any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seg. and California Code of including the following requirements:
implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. CONSULTANT shall post job site notices, as prescribed by regulation.
Prevailing Wages. CONSULTANT shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and Will be made available to any interested party on request. By initiating any work under this Agreement, CONSULTANT acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and CONSULTANT shall post a copy of the same at each job site where work is performed under this Agreement.
(c)
by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by CONSULTANT or by any subcontractor.
Payroll Records. CONSULTANT shall comply with and be bound by the provisions of Labor Code Section 1776, which requires CONSULTANT and each subconsultant Keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform CITY of the location of the records.
Apprentices. CONSULTANT shall comply with and be bound by the provisions of spont for online in tie formained scion ea
apprenticeable occupations. Prior to commencing work under this Agreement, CONSULTANT 2 shall provide CITY with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, CONSULTANT and each of its subconsultants shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day. CONSULTANT acknowledges that eight (8) hours labor constitutes a legal day's work. CONSULTANT shall comply with and be bound by Labor Code Section 1810.
Penalties for Excess Hours. CONSULTANT shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The CONSULTANT shall, as a penalty to the CITY, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the CONSULTANT or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code.
Pursuant to Labor Code section 1815, work performed by employees of CONSULTANT in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half (1Yz) times the basic rate of pay. (h) Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code Section 186l, CONSULTANT certifies as follows:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
CONSULTANT's Authorized Initials:
CONSULTANT's Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, CONSULTANT shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor tor work under this Agreement. CONSULTANT shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. CONSULTANT shall diligently take corrective action to halt or rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
CONSULTANT shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. CONSULTANT shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or arc necessary for CONSULTANT's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless CITY, its officers, employees or agents of CITY, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against CITY
1.6 Familiarity with Work.
By executing this Agreement, CONSULTANT warrants that CONSULTANT (i) has difficulties and restrictions attending performance of the services under this Agreement. If the commencement of services hereunder. Should the CONSULTANT discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, CONSULTANT shall immediately inform the CITY of such fact and shall not proceed except at CONSULTANT's risk until written instructions are received from the Contract Officer.
1.7 Care of Work.
The CONSULTANT shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by CITY, except such losses or damages as may be caused by CITY's own negligence.
1.8 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.9 Additional Services.
CITY shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the CONSULTANT, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (11) the time to pertorm this Agreement, which said adjustments are subject to the written approval of the CONSULTANT. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken eithe separately or cumulatively, must be approved by the City Council. It is expressly understood by CONSULTANT that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. CONSULTANT hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than CONSULTANT anticipates and that CONSULTANT shall not be entitled to additional compensation therefor. CITY may in its sole and absolute discretion have similar work done by other CONSULTANT. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 4 ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, CITY agrees to pay CONSULTANT the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed $486,000 (Four Hundred Eighty Si› Thousand Dollars) (the "Contract Sum") for the initial three year term of the Agreement, unless additional compensation is approved pursuant to Section 1.9.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (i11) payment for time and materials based upon the CONSULTANT's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the ertormance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is no exceeded; or (iv) such other methods as may be specified in the Schedule of Compensatior
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of CONSULTANT at all project meetings reasonably deemed necessary by CITY.
CONSULTANT is required to attend additional meetings to facilitate such coordination, CONSULTANT shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month CONSULTANT shall furnish to CITY an original invoice for all work performed and expenses incuried during the preceding munth in a form. approved by CITY's Director of Finance. By submitting for payment under this Agreement, CONSULTANT is certifying compliance with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit "C", and shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, matenals, equipment, supplies, and sub- contractor contracts. Sub-contractor charges shall also be detailed by such categories. CONSULTANT shall not invoice CITY for any duplicate services performed by more than one person.
CITY shall independently review each invoice submitted by the CONSULTANT to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by CONSULTANT which are disputed by CITY, or as provided in Section 7.3, CITY will usc its best efforts to cause CONSULTANT to be paid within forty-five (45) days of receipt of CONSULTANT'S correct and undisputed invoice; however, CONSULTANT acknowledges and agrees that due to CITY warrant run procedures, the CITY cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by CITY, the original invoice shall be returned by CITY to CONSULTANT for correction and resubmission.
Review and payment by CITY for any invoice provided by the CONSULTANT shall not constitute a waiver of any rights or remedies provided herein or any applicable law. 5 2.5 Waiver.
Payment to CONSULTANT for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by CONSULTANT.
ARTICLE 3. PERFORMANCESCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
reference. When requested by the CONSULTANT, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majcure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agrcement shall be extended because of any delays due to unforesecable causes the control
CONSULTANT, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, carthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONSULTANT shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall CONSULTANT be entitled to recover damages against the CITY for any delay in the performance of this Agreement, however caused, CONSULTANT'S sole remedy being extension
3.4 (Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement hall continue in full force and effect until completion of the services but not exceeding threc (3 cars from the date hereof, except as otherwise provided in the Schedule of Performance (Exhib "D"). The CITY may, in its sole discretion, extend the Term for two (2) additional one-year terms.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of CONSULTANT ("Principals") are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
6 Carla Lenhoff President
(Name) (Title)
Julio Bonilla Project Manager
(Name) (Title)
Pedro Chavez Field Technician
(Name) (Title)
services hereunder. All personnel of CONSULTANT, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by CONSULTANT without the express written approval of CITY. Additionally, CONSULTANT shall utilize only competent personnel to perform services pursuant to this Agreement.
CONSULTANT shall make every reasonable effort to maintain the stability and continuity of CONSULTANT t's staff and subcontractors, if any, assigned to perform the services required under this Agreement. CONSULTANT shall notify CITY of any changes in CONSULTANT's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Consultant.
CONSULTANT shall have no authority to bind CITY in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by CITY. CONSULTANT shall not at any time or in any manner represent that CONSULTANT or any of CONSULTANT's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither CONSULTANT, nor any of or any the benefits which may ol CONSULTANT's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to CITY's employees. CONSULTANT expressly waives any claim CONSULTANT may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be CITY's Public Works Director, Meg McWade, or such person as may be designated by the City Manager. It shall be the CONSULTANT's responsibility o assure that the Contract Ofticer is kept informed of the progress of the performance of th ervices and the CONSULTANT shall refer any decisions which must be made by CITY to th Contract Officer. Unless otherwise specified herein, any approval of CITY required hercunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the CITY required hereunder to carry out the terns of this Agreement.
4.4 Independent Consultant.
Neither the CITY nor any of its employees shall have any control over the manner, mode or means by which CONSULTANT, its agents or employees, perform the services required 7 herein, except as otherwise set forth herein. CITY shall have no voice in the selection, discharge, supervision or control of CONSULTANT's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONSULTANT shall perform all services required herein as an independent contractor of CITY and shall remain at all times as to CITY a wholly independent contractor with only such obligations as are consistent with that role.
CONSULIANI shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of CONSULTANT in its business or otherwise or a joint venturer or a member of any joint enterprise with CONSULTANT.
4.5 Prohibition Against Subcontracting or Assignment.
The expenence, knowledge, capability and reputation of CONSULTANT, its principais and employees were a substantial inducement for the CITY to enter into this Agreement Therefore, CONSULTANT shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the CITY. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of CONSULTANT, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the CONSULTANT or any surcty of CONSULTANT of any liability hereunder without the express consent of CITY.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting CONSULTANT's indemnification of CITY, and prior to commencement of any services under this Agreement, CONSULTANT shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY.
General liability insurance. CONSULTANT shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $2,000,000 per occurrence. If a general aggregate applies, either the general aggregate shall apply separately to this project or the general aggregate limit shall be twice the required occurrence limit. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted.
Automobile liability insurance. CONSULTANT shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONSULTANT arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(d) Workers' compensation insurance. CONSULTANT shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least S1,000,000).
(e) Subcontractors. CONSULTANT shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor.
All coverages for subcontractors shall include all of the requirements stated herein. 8 Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit "B"
5.2 General Insurance Requirements.
(a) Proof of insurance. CONSULTANT shall provide certificates of insurance to CITY is evidence of the insurance coverage required herein, along with a waiver of subrogatio endorsement for workers' compensation. Insurance certificates and endorsements must bo ipproved by CITY's Risk Manager prior to commencement of pertormance. Current certificatiol of insurance shall be kept on file with CITY at all times during the tern of this Agreement. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
(b) Duration of coverage. CONSULTANT shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by CONSULTANT, its agents, representatives, employees or subconsultants. (c) Primary/noncontributing. Coverage provided by CONSULTANT shall be primary and any insurance or self-insurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before the CITY's own insurance or self-insurance shall be called upon to protect it as a named insured.
City's rights of enforcement. In the event 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.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that 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.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and 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.
Enforcement of contract provisions (non-estoppel). CONSULTANT acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONSULTANT of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the CONSULTANT maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
(i) Notice of cancellation. CONSULTANT agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that CONSULTANT's insurance shall apply separately to cach insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross-liability exclusions. (m) Pass through clause. CONSULTANT agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONSULTANT, provide the same minimum insurance coverage and endorsements required of CONSULTANT. CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility tor ensuring that such coverage is provided in conformity with the requirements of this section. CONSULTANT agrees that upon request, all agreements with CONSULTANTs, subcontractors, and others engaged in the project will be submitted to CITY for (n) Agency's right to revise specifications. The CITY reserves the right at any time luring the term of the contract to change the amounts and types of insurance required by giving he CONSULTANI ninety (90) days advance written notice of such change. If such chango results in substantial additional cost to the CONSULTANT, the CITY and CONSULTANT may renegotiate CONSULTANT's compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.
Timely notice of claims. CONSULTANT shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONSULTANT's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
(q) Additional insurance. CONSULTANT shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work
10 5.3 Indemnification.
To the full extent permitted by law, CONSULTANT agrees to indemnify, defend and hold harmless the CITY, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of CONSULTANT, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which CONSULTANT is legally liable ("indemnitors"), or arising from CONSULTANT's or indemnitors' reckless or willful misconduct, or arısing CONSULTANT's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
CONSULTANT will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith;
(b) CONSULTANT will promptly pay any judgment rendered against the CITY, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of CONSULTANT hereunder; and CONSULTANT agrees to save and hold the CITY, its officers, agents, and employees harmless therefrom;
(c) In the event the CITY, its officers, agents or employees is made a party to any action or proceeding filed or prosccuted against CONSULTANT for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of CONSULTANT hereunder, CONSULTANT agrees to pay to the CITY, its officers, agents or employees, any and all costs and expenses incurred by the CITY, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees.
(d) PERS Eligibility Indemnification. In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, CONSULTANT and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agrec to waive any claims to, any compensation, benefit, or any incident of employment by CITY, including but not limited to eligibility to enroll in PERS as an employee of CITY and entitlement to any contribution to be paid by CITY for employer contribution and/or employee contributions for PERS benefits.
CONSULTANT shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so CONSULTANT shall be fully responsible to indemnify CITY hereunder therefore, and failure of CITY to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of CONSULTANT in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of CITY's sole negligence or willful acts or omissions, but, to the fullest 11 extent permitted by law, shall apply to claims and liabilities resulting in part from CITY's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of CONSULTANT and shall survive termination of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
CONSULTANT shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to CITY and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of CITY, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the CITY shall have access to such records in the event any audit is required. In the event of dissolution of CONSULTANT's business, custody of the books and records may be given fo CITY, and access shall be provided by CONSULTANT's successor in interest. Notwithstanding the above, the CONSULTANT shall fully cooperate with the CITY in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
CONSULTANT shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. CONSULTANT hereby acknowledges that the CITY is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, CONSULTANT agrees that if CONSULTANT becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if CONSULTANT is providing design services, the cost of the project being designed, CONSULTANT shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if CONSULTANT is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials") prepared by CONSULTANT, its employees, subcontractors and agents in the performance of this Agreement shall be the property of CITY and shall be delivered to CITY upon request of the Contract Officer or upon the termination of this Agreement, and CONSULTANT shall have no claim for further employment or additional compensation as a result of the exercise by CITY of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the CONSULTANT will be at the CITY's sole risk and without liability to CONSULTANT, and CONSULTANT's guarantee and warranties shall not extend to such use, reuse or assignment. CONSULTANT may retain copies of such documents for its own use. CONSULTANT shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to CITY of any documents or materials prepared by them, and in the event CONSULTANT fails to secure such assignment, 12 CONSULTANT shall indemnify CITY for all damages resulting therefrom. Moreover, CONSULTAN! with respect to any documents and materials that may qualify as "works made for hire" as delined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the CITY.
6.4 Confidentiality and Release of Information.
All information gained or work product produced by CONSULTANT in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to CONSULTANT. CONSULTANT shall not release or disclose any such information or work product to persons or entitics other than CITY without prior written authorization from the Contract Officer.
CONSULTANT, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the CITY Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided CONSULTANT gives CITY notice of such court order or subpoena.
If CONSULTANT, or any officer, employee, agent or subcontractor of CONSULTANT, provides any information or work product in violation of this Agreement, then CITY shall have the right to reimbursement and indemnity from CONSULTANT for any costs and fees, including attorney's fees, caused by or incurred as a result of CONSULTANT's conduct.
CONSULTANT shall promptly notify CITY should CONSULTANT, its officers, employees, agents or subcontractors 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 party regarding this Agreement and the work performed there under. CITY retains the right, but has no obligation, to represent CONSULTANT or be present at any deposition, hearing or similar proceeding. CONSULIANI agrees to cooperate fully with CITY and to provide CITY with the opportunity to review any response to discovery requests provided by CONSULTANT. However, this right to review any such response does not imply or inean the right by CITY to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed 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 Orange County, State of California, or any other appropriate court in such county, and CONSULTANT covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the Orange County, Statc of California.
7.2 Disputes: Default.
In the event that CONSULTANT is in default under the terms of this Agreement, the CITY shall not have any obligation or duty to continue compensating CONSULTANT for any work performed after the date of default. Instead, the CITY may give notice to CONSULTANT of the default and the reasons for the default. The notice shall include the timeframe in which CONSULTANT may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that 13 CONSULTANT is in default, the CITY shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the CITY may, in its sole liscretion, elect to pay some or all of the outstanding invoices during the period of default. It CONSULTANT does not cure the default, the CITY may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the CITY to give notice of the CONSULTANT's default shall not be deemed to result in a waiver of the CITY's legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
CONSULTANT hereby authorizes CITY to deduct from any amount payable to CONSULTANT (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate CITY for any losses, costs, liabilities, or damages suffered by CITY, and (ii) all amounts for which CITY may be liable to third parties, by reason of CONSULTANT's acts or omissions in performing or tailing to by a third party, the amount or validity of which is disputed by CONSULTANT, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, CITY may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of CITY to exercise such right to deduct or to withhold shall not, however, affect the obligations of the CONSULTANT to insurc, indemnify, and protect CITY as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by CITY of any work or services by CONSULTANT shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-detaulting party on any detault shall impair such right or remedy or be construed as a waiver. Any waiver by cither party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, CONSULTANT shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The CITY reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to 14 CONSULTANT, except that where termination is due to the fault of the CONSULTANT, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the CONSULTANT reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to CITY, except that where termination is due to the fault of the CITY, the period of notice may be such shorter time as the CONSULTANT may determine. Upon receipt of any notice of termination, CONSULTANT shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer, Except where the CONSULTANT has initiated termination, the CONSULTANT shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the CONSULTANT has initiated termination, the CONSULTANT shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section
7.8 Termination for Default of Consultant.
If termination is due to the failure of the CONSULTANT to fulfill its obligations under this Agreement, CITY may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the CONSULTANT shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the CITY shall use reasonable efforts to mitigate such damages), and CITY may withhold any payments to the CONSULTANT for the purpose of set-off or partial payment of the amounts owed the CITY as previously stated.
7.9 Attornevs' Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the CITY shall be personally liable to the CONSULTANT, or any successor in interest, in the event of any default or breach by the CITY or for any amount which may become due to the CONSULTANT or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
CONSULTANT covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of CITY or which would in any way hinder CONSULTANT's performance of services under this Agreement. CONSULTANT further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. 15 CONSULTANT agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of CITY in the performance of this Agreement.
No officer or employee of the CITY shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnershıp or association in Which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The CONSULTANT warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
CONSULTANT covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. CONSULTANT shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8.4 Unauthorized Aliens.
CONSULTANT hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should CONSULTANT so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against CITY for such use of unauthorized aliens, CONSULTANT hereby agrees to and shall reimburse CITY for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by CITY.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 16 9.4 Integration: Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto attecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the CONSULTANT and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hercunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of CITY has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of CITY participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5.
CONSULTANȚ warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any CITY official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. CONSULTANT further warrants and represents that (s)he it has not engaged in any acts), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any CITY official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. CONSULTANT is aware of and understands that any such acts), omission(s) or other conduct resulting in such payment of money, consideration, dr other thing of value will render this Agreement void and of no force or effect.
CONSULTANT's Authorized Initials:
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
CITY
City of Fullerton
One
enneth A. Domer, City Manager
ATTEST:
By:
Clinams, City Clerk
APPROVED AS TO FORM:
JONES STAYER
Richard D. Jones, City Attorney
By:
Cafla Lenhoff
By:
Steven Lenhoff
Address: 419 N. Larchmont #264
Los Angeles, CA 90004
Two corporate officer signatures required when CONSULTANT is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE JN.CLUDED AS MAY BE REQUIRED BY
THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
18 ACKNOWLEDGMENT
State of California
County of Los ANgeles
On 11-18-7019 before me, Michelle Lee, Notary Public
(insert name and title of the officer)
CarlA LeNhoff And Stever Lenhaff
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. MICHELLE LEE
Comm. #2198624
a Notary Public - California #
Los Angeles County
Comm expires fun 20, 2021 F
Signature (Seal)
EXHIBIT "A"
SCOPE OF SERVICES
CONSULTANT will perform the following graffiti removal services on public property, as well as private property visible from the public right-of-way, within the CITY (the Services), as follows:
Graffiti Removal. The CONSULTANT shall remove graffiti from all CITY-owned properties, and private residential, commercial, and industrial structures, up to forty feet (40') in height. CONSULTANT will remove graffiti upon request by CITY or CITY's residents by (1) calling the CITY's graffiti hotline, (2) submitting a request through the CITY's website, or (3) submitting a request through the CITY's app ("myFullerton App"), and will regularly patrol the CITY to look for and abate new graffiti, in accordance with Exhibit "D," Schedule of Performance.
CONSULTANT shall inspect all requests to determine the method to be used for graffiti removal. Methods of removal may include water blasting, sandblasting, or other pressurized removal systems, matching existing painted surfaces or other eradication procedures as approved by the CITY. CONSULTANT shall determine the most effective method(s) for removal of graffiti at each location.
The method(s) of removal will vary depending upon the type of graffiti and condition of the surface. CONSULTANT must use care to avoid damaging existing structures (ele structures damaged by walls, etc.). Existing
CONSULTANT shall be repaired at the CONSULTANT's sole expense to the satisfaction of the CITY.
"Graffiti" shall mean any unauthorized inscription, word, figure, symbol, configuration of letters and/or numbers or design that is marked, written, etched, scratched, drawn, scribed, i, stuck on, affixed or adhered to by any means whatsoever or painted on any surface of public or private real or personal property, including but not limited to, buildings, walls, windows, signs, structures, places, rocks, landscape materials, or other surfaces and/or the interior or exterior of any other structure, regardless of the nature of the material of which the surface is composed
B. Processes, Materials, and Equipment.
Preparation: CONSULTANT shall properly prepare all stucco, masonry, metal, wood or other exterior surfaces in a manner that will result in an acceptable bonding of the exterior surface and applied paint and deter the visibility of graffiti. CONSULTANT will use new and/or recycled water-based paint. The CITY encourages the use of recycled paint. No lead-based paint shall be used.
Application Quality: CONSULTANT shall apply materials in such a manner to ensure smooth, even, uniform coats free of dirt, drips, ridges, waves, cleaned of all debris, residue and excess paint immediately after completion of work.
Application Process: CONSULTANT shall apply paint under dry, dust free conditions and paint shall not be applied when the temperature is below 40 degrees Fahrenheit. All primer and intermediate coats of paint shall be 19 shall be neatly feathered in all areas. If residents/businesses request a specific color, CONSULTANT may provide labor as long as paint has been provided by the resident/business.
4. Supplies and Equipment: The CONSULTANT shall provide its own vehicle, equipment, supplies and materials necessary to perform the work outlined Further, the CONSULTANT shall have an aerosol spray unit (minimum 2500 p.s.i.) and standard extension ladder on the CONSULTANT vehicle and such other equipment as may be necessary to pertorm gratiti removal (e.g., brushes, etc.).
The CONSULTANT shall have the ability to remove graffiti from difficult locations. The CONSULTANT must have extension ladders on every vehicle and 24 hours a day, seven days a week, access to a bucket truck with a minimum extension height of forty (40) feet.
Manufacturer Directions: Manufacturer's recommendations for mixing, thinning, applying, type of exposure, surface to be covered, and type of surface wear to which the paint will be subjected shall be explicitly followed by the CONSULTANT.
Paint Match: The CONSULTANT shall verify, to the satisfaction of the CITY, its method for matching paint. All repainted surfaces shall reasonably match wall color to the satisfaction of the Contract Officer or designee.
CONSULTANT's Responsibility. The CONSULTANT is shall assume the responsibility for all work, and for all tenant and property owner relations.
D. Right of Entry.
1. Private Property: Graffiti removal from private property will require a release trom the property owner consenting , to graffiti removal. The CONSULTANT shall obtain written approval from the property owner to enter as well as a release of liability prior to starting graffiti removal. Graffiti to be removed from private property must be visible from the public right-of- way.
2. Public Right-of-Way Property: Authorization shall be given by the Contract Officer for the removal of graffiti on public property.
E. Commercial Signage. Graffiti found on commercial signage shall only be removed with the owner's/occupant's specific, written approval and with the owner's/occupant's understanding that the CONSULTANT is not responsible, under this Agreement, for replacing any original lettering, pictures, etc., on a commercial sign. With:
the owner's/occupant's approval, the CONSULTANT shall proceed with diligence to remove the graffiti with as little damage to the commercial sign as possible. Graffiti to be removed from private commercial property must be visible from the public right-of-way.
F. Clean-Up. All finished surfaces of the building shall be left clean and reasonably dust free. At completion of work, CONSULTANT shall clean all exposed surtaces soiled by the work; repair all damage caused by the work at no extra cost to the property owner or the CITY; remove all debris created as a direct result of the work from the job site; and leave the entire installation ready for use. shall wear clean clothing in the performance of their duties, and equipment shall be clean the Contract Officer. All personnel shall always wear appropriate safety gear while removing graffiti in the CITY.
20 Air and Water Pollution. The CONSULTANT shall be required to conform to all current regulations of the South Coast Air Quality Management District. The CONSULTANT is also required to adhere to the provisions of the Federal Clean Water Act as regulated by the U.S. Environmental Protection Agency, as codified in Parts 122 through 124 of Title 40 of the Code of Federal Regulations, the Porter- Cologne Act codified in Water Code Section 13000 et seq., and the National Pollutant Discharge Elimination System, codified in Part 122 of Title 40 of the Code of Federal Regulation, requirements. Suitable Best Management Practices ("BMPs") shall be applied to prevent any chemical, debris or any non-storm water discharges from entering the storm drain system (storm drains and gutters).
1. Technology.
1. The CONSULTANT shall receive work orders via the CITY's web- based app/work order system, "myFullerton App" only. It shall be the CONSULTANT's responsibly to ensure they use the CITY's app "myFullerton App"
CONSULTANT shall develop and work with CITY Staff and
CITY's IT CONSULTANT to merge CONSULTANT's "App-Order" with CITY's app, "myFullerton App" at no cost to the CITY. If merger of the two Apps is not possible, it shall be the CONSULTANI's responsibility to develop a work order system within the CITY's myFullerton App, as approved by the Contract Officer or designee, at no cost to the CITY.
All requests will be electronically submitted in the CITY's app "myFullerton App" and assigned to a work order number.
Anti-Graffiti Campaign.
CONSULTANT shall assist the CITY in establishing an Anti- Campaign to discourage graffiti activities throughout the CITY by conducting outreach at schools, businesses, neighborhood block clubs, non-profit organizations, and religious institutions.
CONSULTANT shall host three (3) public events (per year) to discuss and discourage graffiti activity and provide alternative solutions to graffiti activities on public and private property.
Weekly Meetings. CONSULTANT shall attend weekly CITY Public Works Department meetings;
Retention of Financial Records. CONSULTANT agrees to maintain financial records and accounts for a period of five (5) years. These records and accounts shall include, but not be limited to, the following:
A double-entry general ledger that supports the costs charged to all related accounts;
Records documenting procurement of goods and services;
Lease or rental agreements;
4. Invoices;
Billing statements;
21 Cancelled checks;
Timecards signed by employees and supervisors;
Personnel authorization records;
Payroll registers;
10. Payroll tax records;
11. Bank statements;
12. Bank reconciliations; and
13. Documentation to support the allocation of costs
As part of the Services, CONSULTANT will prepare and deliver the following tangible work products to the CITY:
Photographic Documentation. The CONSULTANT shall photographically document all locations prior to removal of graffiti and shall maintain said photographs.
Upon removal of graffiti, the CONSULTANT shall take an additional photograph of the same area. Digital photos of the abated sites and an accompanying photo disk are to be provided along with the monthly reports. The CITY prefers a web-based photo system that updates in real time while in the field.
B. Best Practices Report. The CONSULTANT shall draft a written report for best practices dealing with graffiti activities.
In addition to the requirements of Section 6.2, during performance of the Services, CONSULTANT will keep the CITY appraised of the status of performance by delivering the following status reports:
A. Daily Logs. Daily logs shall be maintained identifying graffiti removal site by census tract and block group. Information on total graffiti removal in square feet and number of sites shall be provided. Should Target Areas, as defined in Exhibit D, Section I, Subsection A, not be met, the daily report shall include steps to remedy the situation along with an implementation schedule.
Monthly Reports. Information on total graffiti removal in square feet and umber of sites shall be provided. Should Target Areas, as defined in Exhibit D, Section I Subsection A, not be met, the monthly report shall include steps to remedy the situation All work product is subject to review and acceptance by the CITY, and must be revised by the CONSULTANT without additional charge to the CITY until found satisfactory and accepted by CITY.
V. CONSULTANT will utilize the following personnel to accomplish the Services:
A. Julio Bonilla, Project Manager; and
B. Pedro Chavez, Field Technician
22 EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
Added text is indicated in bold italics, deleted text is indicated in strikethrough.
I. Section 1.11, "Storm Water and Urban Run Off Pollution Prevention," is hereby added as follows:
1.11 Storm Water and Urban Run Off Pollution Prevention. ven set of editions to a rage ique casty ad simprove ice nurality of stuse ware iven set of conditions to manage the
runoff in the most cost- effective manner. " Stormwater BMPs shall be used to control trained and understand the BMPs.
Stormwater BMPs shall include, but not be limited to:
(a) Transport paint and materials 1o and from job sites in containers with secure lids and tied down to the transport vehicle;
(b) Not transfer or load paint near storm drain inlets or watercourses; Test and inspect spray equipment prior to starting to paint. Tighten all hoses and connections and not overfill paint container; (d) Capture all clean-up water, and dispose of clean-up water properly; (e) Not remove graffiti during a rain event;
Protect nearby storm drain inlets prior to removing graffiti from walls, signs, sidewalks, or other structures needing graffiti abatement. Clean up afterwards by sweeping or vacuuming thoroughly, and or by using absorbent and properly disposing of the absorbent;
Direct runoff from sand blasting and high pressure washing (with no cleaning agents) into a landscaped or dirt area. If such an area is not available, filter runoff:
(h) Through an appropriate filtering device (e.g. filter fabric) to keep sand, particles, and debris out of storm drains;
Plug nearby storm drains and vacuum/pump wash water to the sanitary sewer if a graffiti abatement method generates wash water containing a cleaning compound (such as high pressure washing with a cleaning compound); and (i) Consider using a waterless and non-toxic chemical cleaning method for graffiti removal (e.g. gels or spray compounds).
Stormwater BMPs may also include, if applicable:
Plug nearby storm drain inlets prior to the start of painting where there is significant risk of a spill reaching storm drains. Remove plugs when job is completed. 23 (1) Cover nearby storm drain inlets if sand blasting is used to remove paint, prior to starting work.
(m) Use a sander with a vacuum filter bag.
Il. Section 1.12, "Community Development Block Grant (CDBG) Program, " is hereby added as follows:
1.12. Community Development Block Grant Program.
The following federal requirements shall apply to this Agreement and shall supersede any other provision to the contrary.
Source of Funds. The CITy has applied for and received funds from the United States Government under Title I of the Housing and Community Development Act of 1974, Public Law 93-383 through the Community Development Block Grant ("CDBGJ Program. CDBG funds will be utilized to fund CDBG eligible areas only Non-CDBG eligible areas will be funded with other funds.
(b) Record Keeping and Reporting. Pursuant to 24 C.F.R. Section
85.36(i)(JO), the CONSULTANT shall maintain all books, documents, papers, and records that are directly pertinent to the Agreement for the purpose of making audits, examinations, excerpts and transcripts. All documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible.
Pursuant to 24 C.F.R. Section 85.36(i)(II) and the Los Angeles County Development Commission's Project Description and Activity Budget for the Graffiti Removal Proiect (601870-17) CONSULTANT shall retain all records for a period of five (3) years ajler the CITY makes final payments and all other pending matters are closed.
At any time during normal business hours and as often as the CITY, Orange County ("'County'), the State of California, the U.S. Department of Housing and Urban Development ("HUD) and/or the Comptroller General of the United States ("Comptroller') may deem necessary, the CONSULTANT shall make available to the aforementioned entities or their representatives or agents for examination all of CONSULTANT's records with respect lo all matters covered by this Agreement.
CONSULTANT will permit the CITY, the County, the State, HUD, the Comptroller and/or any of their representatives or agents to audit, examine and make excerpts or transcripts from such records, including contracts, invoices, materials, payrolls, records of personnel. this Agreement.
CDBG Regulations. CONSULTANT agrees 1o comply with the
requirements of Part 570 of Title 24 of the Code of Federal Regulations, which states HÜD's CDBG regulations, and all federal regulations and policies promulgated pursuant to these regulations.
Fair Employment Practices/Equal Opportunity Acts. In the performance of (e) Labor Standards and Civil Rights. CONSULTANT agrees to comply with 24 the requirements of the U.S. Secretary of Labor and the latest amendments to: Executive Jrders 11246 and 11375, as supplemented in Department of Labor regulations (41 C.F.R.chapter 60); the Copeland "Anti-Kickback" Act (18 U.S.C. 847) as supplemented in Department of Labor regulations (29 C.F.R. part 3); Section 3 of the Housing and Urban Development Act of 1908 (12 U.S.C. 1701 et seq.); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000); Section 109 o) Title / of the Housing and Community Development Act oj 1974 (42 U.S.C. 9301 et seq.); the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.); and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.).
CONSULTANT agrees to comply with the requirements of all other applicable federal, State and local laws and regulations.
nvironmental Conditions. Pursuant to 24 c.t.k. Section 85.361 'ONSULTANT agrees to comply with the mandatory standards and policies relating ! energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub.L. 94-163, 89 Stat. 871).
Lobbving. Certification. CONSULTANT certifies that it is familiar with the requirements of Section 1352 of Title 31 of the United States Code, the Federal Lobbyist Requirements Certification. CONSULTANT shall complete and file this Certification with the Contract Officer prior to commence of performance. Current certification shall be kept on file with CITY at all times during the term of this Agreement. (h) Conflict of Interest. CONSULTANT agrees, on behalf of itself and its family, and its members, officers, employees and agents and their families, not to accept any employment or representation or otherwise obtain a financial interest or benefit during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Čode Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. CONSULIANT shall comply with all applicable federal, State, and County laws and regulations governing conflict of interest including but not limited to 24 C.F.R. Part 570.611 and 24 C.F.R. Part 85, Section 85.36(b).
CONSULTANT shall take appropriate steps to assure compliance with paragraph (a) of this section, and will incorporate the following provision into every sub-contract:
"Interest of Subcontractor and Employees. The Subcontractor covenants that no person who presently exercises any functions or responsibilities in connection with the Community Development Block Grant Program has any personal financial interest, direct or indirect, in this Contract. Any interest on the part of the Subcontractor or his employees must be disclosed to the Recipient and the CITY, provided, however, that this paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory requirement that maximum opportunity be provided for employment of and participation by residents of the area. 25 EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. CONSULTANT shall perform the following tasks at the following rates:
CONSULTANT shall perform the Services for an annual tee of $162,000 mileage. The first invoice will be submitted following the first month of Services, and all The CITY will compensate CONSULTANT for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Monthly charge;
B. Work order number;
Date order was received;
D. Address where graffiti is located;
E. CITY's census track;
Description of the graffiti location (i.e. window, sign, curve, wall, etc.); G. Method(s) used to remove the graffiti; and
H. Square feet of graffiti removed
The total compensation for the Services shall not exceed the Contract Sum as provided in Section 2.1 of this Agreement.
26 EXHIBIT "D"
SCHEDULE OF PERFORMANCE
schedule: CONSULTANT shall perform all services timely in accordance with the following B CONSULTANT shall isolate areas that are vandalized consistently on Fridays after 1:00 p.m., but before the end of normal CITY operation hours, and re-patrol and clean those specific areas as needed.
CONSULTANT shall patrol parks and park interiors seven days a week, 365 days a year.
related to the seriess. CONSULTANT shall also fulfill any additional requests from the CITY CONSULTANT shall begin performing services at 6:00 a.m. daily before heavy morning traffic.
CONSULTANT will be available to the CITY 24 hours a day, 365 days a year, regardless of holidays or time, and will provide the following response times:
Emergencies (i.e. removal of vulgar, racial, hate, pornographic images as requested by CITY): Less than 60 minutes.
B. During routine patrol: Clean immediately upon spotting graffiti.
Citizen or CITY reported incidents: Less than one (1) hour from notification during normal CITY operation hours. No more than 24 hours after normal the following dates CONSULTANT shall deliver the following tangible work products to the CITY by A. Monthly Reports. Within five (5) days of the end of each month B. Photographic Documentation. With Monthly Reports
C. Best Practices Report. Quarterly
D. Daily Logs. With Monthly Reports
The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2.
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