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08-0902_VICTOR'S CUSTOM CHRISTMAS TREES, INC_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 2nd day of September, 2008, by and between the Cityof San Juan Capistrano (hereinafter referred to as the "City") and Victor's Custom Christmas Trees, Inc. (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide and decorate holiday tree; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services; NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Contractor shall consist of those tasks as set forth in the Scope of Work, attached hereto as Exhibit "A" and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in the Scope of Work and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than January 12, 2009. Section 3. Compensation. For the services rendered pursuant to this Agreement, the Contractor shall be compensated by the City the Not to Exceed amount of FIVE THOUSAND DOLLARS ($5,000.00). Section 4. Independent Contractor. It is agreed that Contractor shall act as and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. 0 0 Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Contractor undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Contractor's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Contractor warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the proposed construction site, including the location of all utilities, and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the 2 0 0 performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 11. Copies of Work Product. At the completion of the work, Contractor shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Contractor's findings, conclusions, and recommendations with any support documentation. All reports submitted to the City shall be in reproducible format. All services to be rendered hereunder shall be subject to the direction and approval of the City. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Contractor in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Contractor agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Contractor's professional services. Section 13. Indemnity. Contractor agrees to protect, defend and hold harmless City, its elected and appointed officials and employees from any and all claims, liabilities, expenses or damages of any nature, including attorneys' fees, for injury or death of any person or damage to property or interference with use of property and for damages arising from or in any way connected with the negligence, recklessness, or willful misconduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in Contractor's performance of this Agreement. Section 14. Insurance. Upon or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry and maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating ofA- Class VII or better. 3 0 0 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non - owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Contractor intends to employ employees to perform services under this Agreement, Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Contractor shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired, or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.6 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 0 0 0 14.7 Terms of Compensation. Contractor shall not receive any compensation until all insurance provisions have been satisfied and invoices received. 14.8 Notice to Proceed. Contractor shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Contractor has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Contractor. In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Community Services To Contractor: Victor A. Serrao 24036 Broadhorn Drive Laguna Niguel, CA 92677 Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 0 0 Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 20. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the parties are formally bound. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: C -::F (NA, Dave Adams, City Manager VICTOR'S CUSTOM CHRISTMAS TREES, INC. >r A. Se ao APPROVED AS TO FORM: O ati�Lhn A, Omar Sandoval, City Attorney 11 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www. sanjuancapistrano. org TRANSMITTAL TO: a 0 �'A iii IAf01A�101AfF1 • IS1A1lI5A11 I 1i61 1776 Victor A. Serrao Victor's Custom Christmas Trees, Inc. 24036 Broadhorn Drive Laguna Niguel, CA 92677 DATE: September 22, 2008 FROM: Maria Morris, Deputy City Clerk MEMBERS OF THE CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO RE: Personal Services Agreement — Holiday Tree Thank you for providing documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please me at (949) 443-6309. If you have questions concerning the agreement, please contact Cynthia Alexander, Community Services Manager. An original agreement is enclosed for your records. Cc: Cynthia Alexander, Community Services Manager San Juan Capistrano: Preserving the Past to Enhance the Future ell, printed on 100% recycled paper