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HomeMy WebLinkAboutC-4008 AMENDMENT NO. 3 TO AGREEMENT REGARDING PROFESSIONAL °0p GRAFFITI REMOVAL AND NUISANCE ABATEMENT SERVICES \\M 0 URBAN GRAFFITI ENTERPRISES, INC. This Amendment No. 3 ("Amendment No. 3") is hereby entered into by and between the City of Arcadia, a charter city organized under the Constitution and laws of the State of California, and Urban Graffiti Enterprises, Inc., Graffiti Removal and Nuisance Abatement Contractor, a Partnership, with respect to that certain Professional Services Agreement between the parties dated December 19, 2016, as amended by Amendment No. 2 dated October 20, 2020 ("Agreement"). The parties agree as follows: 1. Pursuant to Section 3.1.2 of the Agreement is amended by extending the Term from December 20, 2021 through December 19, 2022 ("Extended Term"). 2. All terms and provisions of the Agreement not amended by this Amendment No. 3 are hereby reaffirmed. In witness whereof the parties have executed this Amendment No. 3 on the date set forth below. CITY OF ARCADIA URBAN GRAFFITI ENTERPRISES, INC. By By Dominic Lazzarett Signature City Manager Date: '1 1:0\ `3 2t)2) Juan Reinoso - President Print Name and Title ATTEST: Date: 10/29/21 d/z,t4i-Lik/aul City ClerkSignature Signature APPROVED AS TO FORM: Maria Gutierrez - Secretary/Treasurer Print Name and Title .-6 Date: 10/29/21 Stephen P. Deitsch City Attorney CONCUR: son Kru eberg Assistant City Manager/ evelopment Services Director C'`—1 t OO AMENDMENT NO. 2 TO AGREEMENT REGARDING PROFESSIONAL \1OD.y® GRAFFITI REMOVAL AND NUISANCE ABATEMENT SERVICES URBAN GRAFFITI ENTERPRISES, INC. This Amendment No. 2 ("Amendment No. 2") is hereby entered into by and between the City of Arcadia, a charter city organized under the Constitution and laws of the State of California, and Urban Graffiti Enterprises, Inc., Graffiti Removal and Nuisance Abatement Contractor, a Partnership, with respect to that certain Professional Services Agreement between the parties dated December 19, 2016, as amended by Amendment No. 1 dated December 11 , 2019 ("Agreement"). The parties agree as follows: 1. Pursuant to Section 3.1.2 of the Agreement is amended by extending the Term from December 20, 2020 through December 19, 2021 ("Extended Term"). 2. All terms and provisions of the Agreement not amended by this Amendment No. 2 are hereby reaffirmed. In witness whereof the parties have executed this Amendment No. 2 on the date set forth below. CITY OF ARCADIA URBAN GRAFFITI ENTERPRISES, INC. By sit , By Do�nrazzarette 'b Signature City Manager Date: C3c.i\-p\ 20 i �2Q Juan Reinoso / President Print Name and Title ATTEST: Date: 09/18/20 7 • j/d tet jr/a/t By City Clerk Signature APPROVED AS TO FORM: Maria Gutierrez/ Secretary-Treasurer Print Name and Title P Date: 09/18/20 Stephen P. Deitsch . City Attorney CONCUR: son Kru eberg Assistant City Manager/De elopment Services Director Rachelle Arellano From: Stephen Deitsch <Stephen.Deitsch@bbklaw.com> Sent: Monday, October 12, 2020 2:01 PM To: Rachelle Arellano Subject: RE: City Attorney review - October 6, 2020 Thanks Rachelle. I have reviewed Amendment No. 2 to the Graffiti Removal Contract, and approve it as to form. You may use my stamped signature for this purpose. However, I note for future reference that the name of the Contractor in the opening paragraph seems odd. Also, Section 1 is poorly worded, and probably should have simply started with "Section . . . ." But no need to make any changes for now, since the other party has already signed it. Steve Stephen Deitsch Partner stephen.deitsch@bbklaw.com T:(909)483-6642 C:(951)662-9343 www.BBKlaw.com EJ-CJ- Stay at home and public health orders issued in multiple counties across the U.S. require our offices to be physically closed. Because all staff are working remotely, all documents(including correspondence, pleadings, and discovery) will be served via e-mail until further notice.Because 1e may not reciv rcr mail or other deliveries during this period of time, please e-mail copies of anything you send by regular mail or delivery. Send all e-served documents in your case to the e-mail addresses for any Best Best&Krieger LLP attorney who has appeared in your case, or who has communicated with you by e-mail on your matter. From: Rachelle Arellano [mailto:rarellano@arcadiaca.gov] Sent: Monday, October 12, 2020 11:04 AM To: Stephen Deitsch Subject: RE: City Attorney review - October 6, 2020 <W u. rtYa CAUTION -EXTERNAL SENDER. Hi Steve, Attached is the PDF version of the Graffiti Removal Contract. Thank you, Rachelle Arellano 00400(1 Deputy City Clerk I City Clerk i City of Arcadia 240 W. Huntington Drive I Arcadia, CA 91006 (626)574-5453 I rarellano( arcadiaca.gov 1 AMENDMENT NO. 1 TO AGREEMENT REGARDING PROFESSIONAL \1M' GRAFFITI REMOVAL AND NUISANCE ABATEMENT SERVICES URBAN GRAFFITI ENTERPRISES, INC. This Amendment No. 1 ("Amendment No. 1") is hereby entered into by and between the City of Arcadia, a charter city organized under the Constitution and laws of the State of California, and Urban Graffiti Enterprises, Inc., Graffiti Removal and Nuisance Abatement Contractor, a Partnership, with respect to that certain Professional Services Agreement between the parties dated December 19, 2016 ("Agreement"). The parties agree as follows: 1. Pursuant to Section 3.1.2 of the "Agreement", the term is hereby extended from December 20, 2019 to December 19, 2020 ("Extended Term"). 2. All of the remaining terms and provisions of the Agreement are hereby reaffirmed. In witness whereof the parties have executed this Amendment No. 1 on the date set forth below. CITY OF ARCADIA URBAN GRAFFITI ENTERPRISES, INC. �7— By By u Dominic Lazzar- Signtf City Manager 8 t\ ZA t Juan Reinoso/ President Date: Print Name and Title ATTEST: Date: 12/09/19 U5 na re C10111(110 tCler c g Maria Gutierre / Secretray/Treasurer APPROVED AS TO FORM: Print Name and Title l -P JL4jAj Date: 12/09/19 Stephen P. Deitsch CONCUR: City Attorney =' Kr keberg Assistant City Manage Development Services Director ik0c, J PROFESSIONAL SERVICES AGREEMENT FOR GRAFFITI REMOVAL AND NUISANCE ABATEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 1T day of , 2016 by and between the City of Arcadia, a charter city organized under the Constitution and laws of the State of California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91066-6021 ("City") and Urban Graffiti Enterprises, Inc., a corporation with its principal place of business at 1280 Mountain View Circle, Azusa, California 91702 ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Contractor. Contractor 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. Contractor represents that it is experienced in providing graffiti removal and nuisance abatement services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Contractor to render such services for the graffiti removal and nuisance abatement ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional graffiti removal and nuisance abatement contracting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to,, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Revised 04/13 1 3.1.2 Term. The term of this Agreement shall be three years from the date of execution and subject to three, one-year renewals, unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Contractor. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor's conformance with the Schedule, City shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the prior written approval of City. 3.2.4 Substitution of Key Personnel. Contractor has represented to City that certain key personnel will perform and coordinate the Services Contractor may substitute other personnel of at least equal competence upon prior written approval of City. In the event that City and Contractor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Contractor at the request of the City. The key personnel for performance of this Agreement are as follows: Juan C. Reinoso, President. Revised 04/13 2 3.2.5 City's Representative. The City hereby designates Jason Kruckeberg, Assistant City Manager/Development Services Director, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Contractor's Representative. Contractor hereby designates Juan C. Reinoso, President, or his designee, to act as its representative for the performance of this Agreement ("Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, Contractors and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor's failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub- Contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, 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 City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all Revised 04/13 3 costs arising therefrom. Contractor shall defend, indemnify and hold City, its officials, directors, officers, and employees free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.9.1 Immigration Reform and Control Act. Contractor acknowledges that Contractor, and all subcontractors hired by Contractor to perform services under this Agreement, are aware of and understand the Immigration Reform and Control Act ("IRCA"). Contractor is and shall remain in compliance with the IRCA and shall ensure that any subcontractors hired by Contractor to perform services under this Agreement are in compliance with the IRCA. In addition, Contractor agrees to indemnify, defend and hold harmless the City, its directors, officials, officers and employees, from any liability, damages or causes of action arising out of or relating to any claims that Contractor's employees, or the employees of any subcontractor hired by Contractor, are not authorized to work in the United States for Contractor or its subcontractor and/or any other claims based upon alleged IRCA violations committed by Contractor or Contractor's subcontractor(s). 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section; provided, however, that in lieu thereof, the Contractor may provide evidence to the City that all subcontractors are additional insureds under the Contractor's policies of insurance. 3.2.10.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees, subcontractors and volunteers. Contractor shall also name and obtain insurer's consent to naming City, its directors, officials, officers, and employees as an additional insured with proof of certificate of insurance that they are an additional insured. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be when commercially available (occurrence based) at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage for premises and operations, contractual liability, personal injury, bodily injury, independent contractors, broadform property damage, explosion, collapse, and underground, products and completed operations; (2) Automobile Liability: Insurance Services Office Business Auto coverage for any auto owned, leased, hired, Revised 04/13 4 and borrowed by Contractor or for which Contractor is responsible; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. The City, its directors, officials, officers, and employees shall be listed as additional insured. Any deductibles or self-insured retentions must be declared to and approved by City and conform to the requirements provided in Section 3.2.10.6 herein. (B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, with an aggregate limit of shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.2.10.3 Professional Liability. [Intentionally Omitted] 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, and employees shall be covered as additional insured with respect to liability arising out of Services operations and for completed operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor 's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, and employees shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, and employees Revised 04/13 5 shall be excess of the Contractor's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, and employees for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested of cancellation, of intended non-renewal or endorsement reduction in limit or scope of coverage; provided, however, that in the event of cancellation due solely to non-payment of premium, ten (10) days notice of cancellation for non-payment of premium may instead be given to the City.; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, and employees. 3.2.10.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, and employees. 3.2.10.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, and employees; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, admitted or approved to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Contractor shall furnish City with complete and accurate copies of current certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. Copies of all certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. Revised 04/13 6 3.2.10.9 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.2.10.10 Material Breach. Lack of insurance does not negate Contractor's obligations under this Agreement. Maintenance of proper insurance coverage is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of the Agreement. 3.3 Fees and Payments. 3.3.1 Compensation. Contractor shall receive compensation, including reimbursements which receive the City's prior written authorization, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed THE FIXED MONTHLY AMOUNT OF TWO-THOUSAND DOLLARS AND NO CENTS ($2,000) FOR GRAFFITI REMOVAL SERVICES AND FOR NUISANCE ABATEMENT SERVICES ON A CASE-BY-CASE BASIS without written approval of the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless prior written authorization is obtained from the City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Revised 04/13 7 Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work without prior written authorization from City's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. A termination without cause by City shall not act as or be deemed a waiver of any potential known or unknown City claims associated with Contractor's performance prior to the date of termination. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Revised 04/13 8 Contractor: Urban Graffiti Enterprises, Inc. 1280 Mountain View Circle Azusa, CA 91702 City: City of Arcadia 240 West Huntington drive Arcadia, CA 91007 Attn: Jason Kruckeberg, Assistant City Manager/Development Services Director Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Contractor under this Agreement ("Documents & Data"). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Contractor or provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentiality. Except as otherwise required by California law, all ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor. Such materials shall not, without the prior written consent of City, be used by Contractor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Contractor which is otherwise known to Contractor or Revised 04/13 9 is generally known, or has become known, to the related industry shall be deemed confidential. Contractor shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Indemnification. 3.5.5.1 To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, officers, and employees free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, Contractors and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorney's fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Contractor shall defend with Legal Counsel of City's choosing, at Contractor's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, and employees. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, and employees, in any such suit, action or other legal proceeding arising from Contractor's performance of the Services, the Project or this Agreement; except to the extent that liability is caused by the active negligence or willful misconduct by the City or its directors, officials, officers, and employees. Contractor's shall reimburse City and its directors, officials, officers, and employees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, and employees, and shall take effect immediately upon execution of this Agreement. 3.5.5.2 The duty to defend and to hold harmless, as set forth above, shall include the duty to defend as established by Section 2778 of the California Civil Code, and the duty to defend shall arise upon the making of any claim or demand against the City, its respective officials, officers, agents, employees and representatives, notwithstanding that no adjudication of the underlying facts has occurred, and whether or not Contractor has been named in the claim or lawsuit. Revised 04/13 10 3.5.6 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. 3.5.7 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and all other costs of such action. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Contractors. City reserves right to employ other Contractors in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 3.5.12 Assignment or Transfer. Contractor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, and employees except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. Revised 04/13 11 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor 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 Contractor, 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 member, 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. 3.5.19 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation or age. 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. Contractor shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. Revised 04/13 12 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.5.23 Exhibits and Recitals. All Exhibits and Recitals contained herein are hereby incorporated into this Agreement by this reference. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. In witness whereof the Parties have executed this Professional Services Agreement on the date set forth below. CITY OF ARCADIA URBAN GRAFFITI ENTERPRISES, INC. By ' _ —ArIP, — By Dominic azzarett• ignature City Manager .moo n c� dk ,2�t� Date: i ov - 9 L ( 4 Print Name and Title ATTEST: Date: / 1/9// IAl I 11 l rk S/-- /z,./61 APPROVED AS TO FORM: /tia C/lUli�fixe LJs(r014,/y Print Name and Title Date: i j Ll//!a Stephe P. Deitsch City Attorney CONCUR: a e Kru eberg Assistant City Manager/Dev opment Services Director Revised 04/13 13 EXHIBIT"A" SCOPE OF SERVICES Graffiti Removal Service Contractor shall furnish at its own expense, all labor, equipment and materials necessary for the satisfactory performance of graffiti removal as set forth herein. Contractor shall commence work within 36 hours from the time the Contractor is notified. Contractor shall inspect all referrals to determine the method to be used for the graffiti removal. Methods of removal may include sandblasting or other pressurized removal systems, matching existing painted surfaces or other eradication procedures as approved by the City. Contractor shall determine the most effective method(s) for removal of the graffiti at each location. The method(s) of removal will vary depending upon the type of graffiti and condition of the surface. Contractor must use care to avoid damages to existing improvements. Existing improvements damaged by Contractor shall be repaired at Contractor's sole expense to the satisfaction of the City. Nuisance Abatement Service Contractor shall provide all equipment, supplies, and personnel needed to conduct weed abatement, landscape maintenance, on-site and off-site debris removal/cleanup, installation of construction fencing, securing of unsecured buildings, and pumping/removal of standing water (e.g., green swimming pools) in a timely and efficient manner in accordance with all appropriate state and federal regulations governing such work. Contractor shall arrange for all waste disposal and recycling in accordance with all applicable State and federal regulations. Contract shall prepare manifests, inventories, receipts and other relevant documentation, including cubic yards or tonnage of solid waste removed from each site, and the number of tires, appliances, and other debris. A-1 • Exhibit "B" SCHEDULE OF SERVICES Graffiti Removal Service All graffiti removal shall be performed by the Contractor in accordance with requests for services authorized by the Code Services Officer. Contractor shall promptly respond to requests for service with work to be commenced within 36 hours from notice. Graffiti that is determined to be obscene or contains vulgarity or profanity shall be removed within 24 hours of the request for services. Saturday and Sunday.or Holidays shall not be counted in computing the 36 hour response period. Work shall not be permitted on Sunday or Holidays, unless otherwise authorized. Authorized working hours to be between 7:00 a.m. and 7:00 p.m. Nuisance Abatement Service Contractor shall submit to Code Services a maximum cost estimate within 48 hours after an on-site visit with the Code Services Officer. Once the Officer approves the estimate and authorizes the work, the Contractor will have one (1) week to complete the abatement. Contractor must coordinate with the Officer all dates and times of operations. Once started, the abatement must be completed on consecutive days, •excluding Sundays and/or Holidays, unless authorized by the Officer. Contractor is not to go to the properties without the Code Services Officer, unless authorized to do so. B-1 Exhibit "C" COMPENSATION Contractor shall be paid for services rendered upon receipt of invoice from the Contractor. The City will pay Contractor for services in accordance with this agreement. Graffiti Removal Service A fixed monthly amount of$2,000. Nuisance Abatement Service Type of Service Cost Patrol and Pick-up of Illegally Discarded Bulky Items $800/1 day Weed Abatement $85/2h Debris Removal/Cleanup $85/2h Installation of 6' Chain Link Fencing (Rental) $4.10/200 If Securing of Unsecured Buildings (Board-ups) $95/4 openings Pumping/Removal of Standing Water (e.g., green $850/1 pool swimming pools) c-I