HomeMy WebLinkAboutItem 2c - Holiday Decorations for the 2017 Holiday Season
DATE: September 19, 2017
TO: Honorable Mayor and City Council
FROM: Dominic Lazzaretto, City Manager By: Michael Bruckner, Assistant to the City Manager
SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH TROVAO AND
ASSOCIATES, INC. DBA THE CHRISTMAS LIGHT GUY COMPANY TO
PROVIDE HOLIDAY DECORATIONS FOR THE 2017 HOLIDAY SEASON IN THE AMOUNT OF $40,500 Recommendation: Approve
SUMMARY
For several years the City has contracted with a vendor to install holiday decorations on Huntington Drive between Santa Clara Street and Fifth Avenue, and more recently at the
Transit Plaza, and on First Avenue between Huntington Drive and Wheeler Avenue. This
year the Holiday Decoration Program will be extended to include First Avenue from
Huntington Drive south to California Street where the 2017 DAIA Holiday Market will be held. The City submitted a Request for Proposal (“RFP”) and received and received four responses, of which three firms submitted bids. The lowest bidder, Dekra-Lite, was found
to be unresponsive as they did not provide the entire scope of work requested. In addition,
the City contracted with Dekra-Lite several years ago and was not pleased with their
service. Given the significant visibility of the decorations to the community and the Downtown in particular, the second lowest vendor is being selected due to their responsiveness to the bid and track record of success. Therefore, it is recommended that
the City Council reject the lowest bid and approve a Professional Services Agreement with
Trovao and Associates, Inc., DBA The Christmas Light Guy Company to provide, install,
maintain, and remove holiday decorations for the 2017 holiday season in the amount of $40,500.00.
DISCUSSION
A Request for Proposals (“RFP”) for Holiday Decorations was submitted on June 21, 2017. Several vendors were contacted and asked to provide design and decoration options available within the budgeted amount of $43,000 for this fiscal year. Proposals were due
on August 7, 2017. The City received responses from four companies, of which three
submitted bids as follows:
2017 Downtown Arcadia Holiday Decorations September 19, 2017
Page 2 of 3
Firm Bid Amount
Dekra-Lite $37,659
The Christmas Light Guy Co. $40,500
Harrington Decorating Company $43,000
Display Sales No bid
After reviewing the three proposals received, it is recommended that Trovao and
Associates, Inc. DBA The Christmas Light Guy Company be selected. The City has
contracted with The Christmas Light Guy Company for the fast five years and has been
pleased with their service, quality of work, and professionalism. Although they are not the lowest bidder, given the significance of the contract and the visibility of service provided in the Downtown area during the holidays, The Christmas Light Guy Company was selected
as the preferred vendor for this project due to their previous track record of success,
customizing decorations to fit with the City’s electrical capacity, including proposed
decoration and lighting of 16 trees on First Avenue, as well as fully decorating the main tree at the Arcadia Transit Plaza, where the annual Christmas Tree Lighting event will be held.
The lowest bidder was Dekra-Lite who the City contracted with for a 3 year lease
beginning in 2008, for decorations. In their current proposal, Dekra-Lite did not include decoration of the main city tree at the Arcadia Transit Plaza which is the focal point for the Annual Christmas Tree lighting event, nor of lighting any of the trees on First Avenue. In
addition, Dekra-Lite provided overall poor customer service; lighted decorations on street
poles were not compatible with the City’s electrical causing the decorative lights and the
City street lights to malfunction, requiring additional equipment to be purchased to make decorations compatible with city light poles. Therefore, decorations were not lit for the majority of the first holiday season under contract with Dekra –Lite.
The recommended proposal from the Christmas Light Guy Company includes the following
holiday decorations:
Huntington Drive between Santa Clara Street and Fifth Avenue:
• 14” (wide) x 20’ (long) pre-lit garland with LED C6 multi-colored lights installed
on 98 decorative light poles. Garland will wrap around the full length of the poles from top to bottom (end 2 ft. from ground). Two 18” red bows will be
installed on top of each pole. Current City banners will remain on decorative
light poles. See Figure 1 attached.
• Decorations for two monuments at Huntington Drive and Fifth Avenue to
include 4 oversized 26” stacked glitter ball ornaments (in color of choice) to
sit on snow covered custom made platform atop each monument. LED
spotlights will shine on decorations. See Figure 2 attached.
• Custom light and props display on top of monument at Huntington Drive and
Santa Clara Street to include scene with gingerbread house, gingerbread
2017 Downtown Arcadia Holiday Decorations September 19, 2017
Page 2 of 3
kids, illuminated snowman, and white picket fence (includes LED lights and decorations).
• 1 tri-candle wreath skyline illuminated banner to hang across Huntington
Drive near First Avenue.
First Avenue between Wheeler Avenue and California Street: (New)
• 14” (wide) x 20” (long) pre-lit garland with LED C6 multi-colored lights installed on 37 decorative poles. Garland will wrap around the full length of
the poles from top to bottom (end 2 ft. from ground). Two 18” red bows will
be installed on top of each pole. Current City banners will remain on
decorative light poles. See Figure 1 attached.
• Trunks and branches of 16 trees located on First Avenue wrapped with LED
mini lights.
Arcadia Station Transit Plaza:
• 14” (wide) x 20” (long) pre-lit garland with LED C6 multi-colored lights
installed on 7 decorative poles. Garland will wrap around the full length of the
poles from top to bottom (end 2 ft. from ground). Two 18” red bows will be installed on top of each pole. Current City banners will remain on decorative
light poles. See Figure 1 attached.
• 14” (wide) x 20” (long) garland installed on 5 decorative light poles located in plaza. Garland will wrap around the full length of the poles from top to bottom
(end 2 feet from ground). Two 18” red bows will be installed on top of each
pole and garland will be fully decorated with ball ornaments in candy cane
color scheme. See Figure 4 attached.
• Trunks and branches of 3 trees located in plaza wrapped with LED mini
lights.
• Small trees located in plaza decorated with multi sized ball ornaments in
candy cane color scheme to match main tree decorations and pole mounts.
• Main large tree located in corner of plaza fully decorated with vertical LED light strands over the live tree. White, multi-colored, or color of choice
multiple LED star decorations placed throughout the tree. LED star topper
will be installed on top of tree. See Figure 5 attached.
• 1 set of 4 and 1 set of 3 (5-6) foot caroler displays located in two areas in
plaza.
2017 Downtown Arcadia Holiday Decorations September 19, 2017
Page 2 of 3
The visual impact of the design will be effective during the day and night. The gingerbread and multi-colored holiday theme on Huntington Drive, and the winter wonderland and
candy cane theme on First Avenue are universal in appeal, and will create a festive look
for the community to enjoy. -The decorated transit plaza, including the Christmas tree, is
the perfect setting for our annual Christmas tree lighting event. All lights and displays will be LED. The time frame for installation is during the period of November 24, 2017 – December 1, 2017 and decorations will be removed shortly after January 1, 2018. The
Christmas Light Guy Company will inspect and maintain decorations on a weekly basis,
and respond to any service call within 24 hours and/or the same day. Additional materials
can be purchased and/or leased as requested. ENVIRONMENTAL ANALYSIS
The proposed action does not constitute a project under the California Environmental
Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA.
FISCAL IMPACT
Funds in the amount of $43,000 for Fiscal Year 2017-18 have been budgeted in the Development Services Department budget for holiday decorations. Therefore, funds are available to cover the selected proposal.
RECOMMENDATION
It is recommended that the City Council authorize and direct the City Manager to execute a Professional Services Agreement with Trovao and Associates, Inc. DBA The Christmas
Light Guy Company to provide holiday decorations for the 2017 holiday season in the
amount of $40,500.
Attachment: Proposed Professional Services Agreement
Revised 04/13 1
PROFESSIONAL SERVICES AGREEMENT REGARDING DOWNTOWN HOLIDAY DECORATIONS FOR THE 2017 HOLIDAY SEASON
1. PARTIES AND DATE.
This Agreement is made and entered into this ____ day of ______________, 2017 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 91007 ("City") and Trovao & Associates Inc.
DBA The Christmas Light Guy Co. with its principal place of business at 12600 Westminster Avenue, Unit B, Santa Ana, Ca 92706 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth
in this Agreement. Consultant represents that it is experienced in providing holiday decoration installation, maintenance, and removal 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 Consultant to render such services for the Downtown Holiday Decorations program (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant 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 installation of holiday decorations necessary for the Downtown Holiday Decorations 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 2
3.1.2 Term. The term of this Agreement shall be from November 24, 2017 through January 7, 2018 unless earlier terminated as provided herein. Consultant
shall complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant 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 Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant 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. Consultant 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. Consultant 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. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, City shall respond to Consultant's
submittals in a timely manner. Upon request of City, Consultant 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
Consultant shall be subject to the prior written approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon prior written approval
of City. In the event that City and Consultant 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 Consultant at
the request of the City. The key personnel for performance of this Agreement is: Mary Buttice, Executive Assistant, City Manager’s Office.
Revised 04/13 3
3.2.5 City’s Representative. The City hereby designates Dominic
Lazzaretto, City Manager, 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. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Frank
Trovao, or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant’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. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff,
consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant 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. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Finally, Consultant 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, Consultant 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 Consultant’s failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub-
consultants 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 Consultant
and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant 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. Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and
Revised 04/13 4
without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant 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. Consultant
acknowledges that Consultant, and all subcontractors hired by Consultant to perform
services under this Agreement, are aware of and understand the Immigration Reform
and Control Act ("IRCA"). Consultant is and shall remain in compliance with the IRCA and shall ensure that any subcontractors hired by Consultant to perform services under this Agreement are in compliance with the IRCA. In addition, Consultant 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 Consultant's employees, or the employees of any subcontractor hired by Consultant, are not authorized to work in the United States for Consultant or its subcontractor and/or any other claims based upon alleged IRCA violations committed
by Consultant or Consultant's subcontractor(s).
3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant 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, Consultant
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
Consultant may provide evidence to the City that all subcontractors are additional
insureds under the Consultant’s policies of insurance.
3.2.10.2 Minimum Requirements. Consultant 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 Consultant, its agents,
representatives, employees, subcontractors and volunteers. Consultant 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:
Revised 04/13 5
Insurance Services Office Business Auto coverage for any auto owned, leased, hired, and borrowed by Consultant or for which Consultant 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. Consultant 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 $1,000,000. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit 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. Consultant shall procure and
maintain, and require its sub-consultants to procure and maintain, for a period of three
(3) years following completion of the Project, errors and omissions liability insurance
appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies
shall contain the following provisions, or Consultant 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 Consultant, 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 Consultant’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 Consultant’s insurance and shall not be called upon to
contribute with it in any way.
Revised 04/13 6
(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 Consultant or for which the Consultant 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 Consultant’s scheduled underlying coverage. Any insurance or
self-insurance maintained by the City, its directors, officials, officers, and employees
shall be excess of the Consultant’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 Consultant.
(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.
Consultant 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 Consultant 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. Consultant shall furnish City with complete and accurate copies of current certificates of insurance and
Revised 04/13 7
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.
3.2.10.9 Safety. Consultant shall execute and maintain its
work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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
Consultant’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. Consultant 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 Forty
Thousand, Five Hundred Dollars ($40,500) for the 2017 holiday season, 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. Consultant shall submit to City a
monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. 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.
Revised 04/13 8
3.3.3 Reimbursement for Expenses. Consultant 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 Consultant 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 Project, but which the parties did not reasonably anticipate would be necessary at the
execution of this Agreement. Consultant 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. Consultant shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant 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. Consultant 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 Consultant, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Consultant of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such
termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant 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 Consultant’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 Consultant to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Consultant in
connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
Revised 04/13 9
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:
Consultant: Trovao & Associates, Inc. DBA The Christmas Light Guy Co. 12600 Westminster Avenue, Unit B
Santa Ana, CA 92706
Attn: Frank Trovao, President
City: City of Arcadia 240 West Huntington drive
Arcadia, CA 91007
Attn: Dominic Lazzaretto, City Manager
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 Consultant under
this Agreement (“Documents & Data”). Consultant 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. Consultant
represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant 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,
Revised 04/13 10
descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials
shall not, without the prior written consent of City, be used by Consultant 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 Consultant which is otherwise known to Consultant or
is generally known, or has become known, to the related industry shall be deemed
confidential. Consultant 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, Consultant 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 Consultant, its officials, officers, employees, agents, consultants 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 Consultant’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 Consultant. Consultant shall defend with
Legal Counsel of City’s choosing, at Consultant’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. Consultant 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 Consultant’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. Consultant 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. Consultant’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.
Revised 04/13 11
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 Consultant has been named in the claim or lawsuit.
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 Consultants. City reserves right to employ other consultants 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. Consultant 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 Consultant include all
personnel, employees, agents, and subcontractors of Consultant, 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
Revised 04/13 12
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.
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. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no
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. Consultant 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.
Consultant 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, Consultant 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.
Revised 04/13 13
3.5.21 Authority to Enter Agreement. Consultant 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. 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. Consultant 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.
Revised 04/13 14
In witness whereof the Parties have executed this Professional Services Agreement on the date set forth below.
CITY OF ARCADIA Trovao & Associates, Inc. DBA The
Christmas Light Guy Co.
By __ By ____________________________
Dominic Lazzaretto Signature
City Manager Date: ______________________ ______________________________
Print Name and Title
ATTEST: Date: _________________________
___________________________ By____________________________
City Clerk Signature
APPROVED AS TO FORM: ______________________________
Print Name and Title
___________________________ Date: _________________________ Stephen P. Deitsch City Attorney
A-1
EXHIBIT "A" SCOPE OF SERVICES
Consultant shall provide all labor, tools, equipment, materials, and insurance to furnish,
store, maintain, install and remove various holiday decorations in the downtown area on Huntington Drive between Santa Clara and Fifth Avenue, at the Transit Plaza, and on First Avenue between Wheeler Avenue and California Street.
B-1
Exhibit "B"
SCHEDULE OF SERVICES
Decorations shall be installed between November 24 and November 30, 2017.
Decorations shall be removed between January 1 and January 7, 2017.
C-1
Exhibit "C"
COMPENSATION
For Fiscal Year 2017 - 2018 Project Cost: $40,500.00