21-0519_VICTOR'S CUSTOM CHRISTMAS TREES, INC._2nd Amd to Maintenance Services Agreement1
SECOND AMENDMENT TO THE MAINTENANCE SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND VICTOR’S CUSTOM CHRISTMAS TREES, INC.
This Second Amendment to the License Agreement (“Agreement”) dated
September 1, 2017, is made and entered by and between the City of San Juan
Capistrano, a California municipal corporation (the “City”) and Victor’s Custom
Christmas Trees, Inc., (“Contractor”) on the _____ day of May 2021, and hereinafter
individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A.On September 1, 2017, the Parties entered the Agreement for
Christmas Tree Light, Ornament Installation, and the term was from September 1,
2017 to June 30, 2020.
B.In March of 2020, the State of California, decla red a state of
Emergency due to the COVID-19 Pandemic. The City was forced to divert time and
resources in response to the impact of COVID -19, non-essential projects, such as
amending agreements were put on hold to address the more pressing needs of the
City and residents.
C.On June 18, 2020, the Parties entered in to a Letter Agreement to
extend the Agreement for an additional year (First Amendment).
D.The Parties now desire to extend the agreement for one additional
year.
E.Pursuant to Section 3.5.18 of the Agreement, “this Agreement may
only be modified by a writing signed by both parties.” Consequently, the Agreement
and the First Amendment attached hereto and incorporated herein by reference,
and are being amended as follows:
1.Section 3.1.2 "Term" is hereby amended and replaced to read as
follows:
"3.1.2. Term. This Agreement shall be effective from September 1,
2017 through June 30, 2022. Contractor shall complete the Services
within the term of this Agreement, and shall meet any other
established schedules and deadlines. The Parties may, by mutual,
written consent, extend the term of this Agreement if necessary to
complete the Services.”
2.Section 3.2.11.2 (B) “Minimum Limits of Insurance” is hereby amended
and replaced to read as follows:
“(B) Minimum Limits of Insurance. Contractor shall
maintain limits no less than: (1) General Liability: $2,000,000.00
per occurrence for bodily injury, personal injury and property
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damage. If Commercial General Liability' Insurance or other form
with general aggregate limit is used including, but not limited to,
form CG 2503, 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:
$1,000,000.00 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 $1,000,000.00 per acciden t
for bodily injury or disease. Defense costs shall be paid in addition
to the limits.”
3.Section 3.3.1 “Compensation” is hereby amended and replaced to
read as follows:
“3.3.1. Compensation. Contractor shall receive compensation,
including authorized reimbu rsements, 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 twenty six thousand eight hundred dollars ($44,040.00) without
written approval of City's Director of Public Works and Utilities. Extra
Work may be authorized, as described below, and if authorized, will be
compensated at the rates and manner set forth in this Agreement.
4.Exhibit C is amended to include the following in the table under “Option
1”.
“FY 21-22
$5,926.25 to be paid upon installation of décor on Christmas Tree.
$2,693.75 to be paid on removal of décor. Total not to exceed
$8,620.”
5.Except as otherwise specifically provided herein, all other provisions of
the Agreement shall remain in full force and effect
CITY OF SAN JUAN CAPISTRANO
MAINTENANCE SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 1st day of September, 2017 by and
between the City of San Juan Capistrano, a municipal corporation organized under the laws of
the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan iCapistrano. California 92675 ("City") and Victor's Custom Christmas Trees, Inc. with its
principal place of business at 32959 Calle Perfecto Suite C, San Juan Capistrano, CA. 92675
Contractor"). City and Contractor are sometimes individually referred to as "Party" and
collectively as"Parties" in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain
maintenance services required by the City on the terms and conditions set forth in this
Agreement. Contractor represents that it is experienced in providing Christmas Tree Light,
Ornament Installation, Maintenance Services to public clients, that it and its employees or
subcontractors have all necessary licenses and permits to perform the Services in the State of
California. and that is familiar with the plans of City. 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.
2.2 Project.
liCitydesirestoengageContractortorendersuchservicesfortheChristmasTreeLight,
Ornament Installation, Maintenance Services project ("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 Christmas Tree Light, Ornament ,
Installation, Maintenance 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.
61147(12100,128888b I MSA page I
the exhibits attached hereto and incorporated herein by reference, and all applicable local, state
and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from September 1, 2017 to
June 30, 2020 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. The Parties may, by mutual, written consent, extend the term of this Agreement if
necessary to complete the Services.
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 \JContractorshallbesubjecttotheapprovalofCity.
3.2.4 City's Representative. The City hereby designates the Director of Public
Works and Utilities. 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 Agreement. Contractor shall not accept direction or
orders from any person other than the City's Representative or his or her designee.
3.2.5 Contractor's Representative. Contractor hereby designates Victor Serrao,
President/Owner, or his or her 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.
61147 02100,1288S815 I MSA page 2
The Contractor's Representative shall supervise and direct the Services, using his best skill and
atteution, and shall be responsible for all meons, medhodn, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor 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.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform
all Services under this Agreement in a skillful and comnpcm:n, monnc,, 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. Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services assigned to
them. Finally, Contractor represents that it. its employees and subcontractors have all |ioeooco,
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 Pject, 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 P 'ecL
3.2.8 Period of Performance and Liquidated Damages. Contractor shall perform
and complete all Services under this Agreement within the to'/// set forth in Section 3.1.2 above
Performance Time-). Contractor shall perform the Services in strict accordance with any
completion schedule or Prject milestones described in Exhibits "A" or "B" attached hereto, or
which may be provided separately in writing to the Contractor. Contractor agrees that if the
Services are not completed within the aforementioned Performance Time and/or pursuant to any
such completion schedule or Project milestones developed pursuant to provisions of this
Agreement. it is understood, acknowledged and agreed that the City will suffer damage.
Pursuant to Government Code Section 53869.85, Contractor shall pay to the City as fixed and
liquidated damages. and not as a penalty, the sum of FIVE HUNDRED DOLLARS (S500.00)
per day for each and every calendar day of delay beyond the Performance Time or beyond any
completion schedule or Project milestones established pursuant to this Agreement.
3.2.9 Disputes. Should any dispute arise respecting the true value of any work
done, of any work ommitted' or of any extra work which Contractor may be required to do, or
respecting the size of any payment to Contractor during the performance of this Agreement.
Contractor shall continue to perform the Work while said dispute is decided by the City. If
Contractor disputes the City's decision, Contractor shall have such remedies as may be provided
by law.
H47 02100\12888815 'MSA page 3
32.10 Laws and Regulations; Em Certifications. Contractor shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any rnuone,affecting the performance of the Project or the Services, including all
Cal/OSHA ,cquircnneoto, 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 costs arising
therefrom. City is a public entity of the State of California subject to certain provisions of the
Health & Safety Code. Government Code, Public Contract Code, and Labor Code of the State. It
is stipulated and agreed that all provisions of the law applicable to the public contracts of a
municipality are a part of this Agreement to the same extent as though set forth herein arid will U
be complied with. These include but are not limited to the payment of prevailing wages, the
stipulation that eight (8) hours' labor shall constitute a legal day's work and that no worker shall
be permitted to work in excess of eight (8) hours during any one calendar day except as
permitted by law. Contractor shall defend, indemnify and hold City. its officials, officers,
employees and agents 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.
32'10.1 Employment Eligibility; Contractor. By executing this
Agreement, Contractor verifies that it fully complies with all requirements and restrictions of
state and federal law respecting the employment of undocumented aliens, including, but not
limited to, the Immigration Reform and Control Act of 1986. as may be amended from time to
time. Such requirements and restrictions ioc|ude' but are not limited to, examination and
retention of documentation confirming the identity and immigration status of each employee of
the Contractor. Contractor also verifies that it has not committed a violation of any such law
within the five (5) years immediately preceding the date of execution of this Agreement, and
shall not violate any such law at any time during the term of the Agreement. Contractor shall
avoid any violation of any such law during the term of this Agreement by participating in an
electronic verification of work authorization program operated by the United States Department 0y
of Homeland Security, by participating in an equivalent federal work authorization program
operated by the United States Department of Homeland Security to verify information of newly
hired *nop|oyocy, or by some other legally acceptable method. Contractor shall maintain records
of each such verifinution, and shall make them available to the City or its representatives for
inspection and copy at any time during normal business hours. The City shall not be responsible
for any costs or expenses related to Contractor's compliance with the requirements provided for
in Section 3.2.10 or any of its sub-sections.
3.2.102 Employment Eligibility; Subcontractors, 8*b-
yubcou ac0nm uod Consultants. To c oum rxm:n und uud r tho same conditions as \
Uk
Contractor. Contractor shall require all ofim subcontractors, sub-subcontractors and consultants
performing any work relating to the Project or this Agreement to make the same verifications
and comply with all requirements and restrictions provided for in Section 3.2.10.1.
32.103 Employment Eligibility; Failure to Comply. Each person '
executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer \
of Contracnod understands that any of the following shall be grounds for the City to \
61147 02100,12883815 I MSA page 4
terminate the Agreement for cause: (1) failure of Contractor or its subcontractors. sub-
subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1
or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such
requirements (including in those verifications provided to the Contractor under Section 3.2.10.2):
or (3) failure to immediately remove from the Project any person found not to be in compliance
with such requirements.
3.2.10.4 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 Workers' 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.
3.2.10.5 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 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.
3.2.10.6 Air Quality. Contractor must fully comply with
all applicable laws, rules and regulations in furnishing or using equipment and/or providing
services, including, but not limited to, emissions limits and permitting requirements imposed by
the California Air Resources Board (CARB). Contractor shall specifically be aware of the
CARB limits and requirements' application to "portable equipment". which definition is
considered by CARB to include any item of equipment with a fuel-powered engine. Contractor
shall indemnify City against any fines or penalties imposed by CARB or any other governmental
or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its
subcontractors, or others for whom Contractor is responsible under its indemnity obligations
provided for in this Agreement.
3.2.10.7 Water Quality.
A) Management and Compliance. To the extent applicable,
Contractor's Services must account for, and fully comply with, all local. state and federal laws,
rules and regulations that may impact water quality compliance. including, without limitation, all
applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the
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California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws,
rules and regulations of the Environmental Protection Agency and the State Water Resources
Control Board; the City's ordinances regulating discharges of storm water; and any and all t
regulations, policies, or permits issued pursuant to any such authority regulating the discharge of
pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground
or surface water in the state.
B) Liability for Non-Compliance. Failure to comply with the
laws, regulations and policies described in this Section is a violation of law that may subject
Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall
01147 0210X\12888815 I MSA page 5
defend. indemnify and hold the City, its officials, officers. employees, volunteers and agents free
and harmless. pursuant to the indemnification provisions of this Agreement. from and against
any and all fines, penalties, claims or other regulatory requirements imposed as a result of
Contractor's non-compliance with the laws, regulations and policies described in this Section,
unless such non-compliance is the result of the sole established negligence, willful misconduct or
active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
C) Training. In addition to any other standard of care
requirements set forth in this Agreement, Contractor warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the Services assigned to them 4
without impacting water quality in violation of the laws, regulations and policies described in
this Section. Contractor further warrants that it, its employees and subcontractors will receive
adequate training, as determined by City. regarding the requirements of the laws, regulations and
policies described in this Section as they may relate to the Services provided under this
Agreement. Upon request, City will provide Contractor with a list of training programs that
meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 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.
3.2.11.2 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 or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same insurance
for the duration of the Agreement. Such insurance shall meet at least the following minimum
levels of coverage:
A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 ); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto);
and (3) WorkersCompensation and Employer's Liability: Workers' Compensation insurance as
required by the State of California and Employer's Liability Insurance. The policy shall not
contain any exclusion contrary to the Agreement. including but not limited to endorsements or
provisions limiting coverage for(1) contractual liability (including but not limited to ISO CG 24
26 or 21 29); or(2) cross liability for claims or suits by one insured against another.
B) Minimum Limits of Insurance. Contractor shall maintain
limits no less than: (1) General Liability: $1,000,000.00 per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability' Insurance or other form
with general aggregate limit is used including, but not limited to, form CG 2503, either the
61147 0210012888815 I MSA page 6
general aggregate limit shall apply separately to this ocation or the general aggregate
limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000.00 per
accident for bodily injury and property damage; and (3) Workers'Compensation andEmployer's
Liability: Workers' Compensation limits as required by the Labor Code of the State of Vr
California. Employer's Liability limits of $8,000,000'00 per accident for bodily injury or
disease. Defense costs shall be paid in addition to the limits.
C) Notices; Cancellation or Reduction of Coverage. At least
fifteen (15) days prior to the expiration of any such policy. evidence showing that such insurance
coverage has been renewed or extended shall be filed with the City. If such coverage is
cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of' written
notice of such cancellation or reduction of coverage. file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided through another
insurance company or companies. In the event any policy of insurance required under this
Agreement does not comply with these specifications or is canceled and not replaced. the City
has the right but not the duty to obtain the insurance it deems necessary and any premium paid
by the City will be promptly reimbursed by Contractor or the City may withhold amounts
sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or
terminate this Agreement.
D) Additional Insured. The City of San Juan Capistrano, its
officials. officers, employees, agents. and volunteers shall be named as additional insureds on
Contractor's and its subcontractors' policies of commercial general liability and automobile V«
liability insurance using the endorsements and forms specified herein or exact equivalents.
3.2.11.3 Insurance Endorsements. The insurance policies shall
contain the following yroviaions, or Contractor shall provide endorsements on forms supplied or V/V
approved by the City to add the following provisions to the insurance policies:
A) General Liability. The general liability policy shall include
or be endorsed (amended) to state that: (|) using ISO CG forms 20 10 and 20 37. or
endorsements providing the exact same coverage, the City of San Juan Capistrano, its officials,
officers, employees, agents. and volunteers shall he covered as additional insured with respect to
the Services or ongoing and complete operations performed by or on behalf of the Contractor,
including materials, parts or equipment furnished in connection with such work; and (2) using
ISO form 20 01. or endorsements providing the exact same coverage. the insurance coverage
shall be primary insurance as respects the City. its officials, officers, employees, agents, arid \
volunteers, or if excess. shall stand in an unbroken chain of coverage excess of the Contractor's
scheduled underlying covcru2c. Any excess insurance shall contain a provision that such
coverage shall also apply on a primary and noncontributory basis for the benefit of the City,
before the City's own primary insurance or self-insurance shall be called upon to protect it as a
named insured. Any insurance or self-insurance maintained by the City, its officials, officers,
cnuployoco, agents, and volunteers shall be excess of the Contractor's insurance and shall not be
called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in
Section 3.2.11.2(B). any available insurance proceeds in excess of the specified minimum limits
of coverage shall be available to the parties required to be named as additional insureds pursuant
to this Section 3.2.1 |.](&).
61147 02100,12888815 I MSA page 7
B) Automobile Liability. The automobile liability policy shall
include or be endorsed (amended) to state that: (1) the City. its officials, officers, employees.
agents, and volunteers 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 officials, officers, employees, agents, and
volunteers, 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
officials, officers, employees, agents, and volunteers shall be excess of the Contractor's
insurance and shall not he called upon to contribute with it in any way. Notwithstanding the
minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of
the specified minimum limits of coverage shall be available to the parties required to be named
as additional insureds pursuant to this Section 3.2.1 1.3(B).
C) Workers' Compensation and Employer's Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officials,
officers, employees, agents, and volunteers 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 suspended. voided, reduced
or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written
notice by certified mail, return receipt requested, has been 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 officials, officers, employees, agents, and
volunteers. 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 officials. officers,
employees, agents and volunteers, or any other additional insureds.
3.2.11.4 Separation of Insureds; No Special Limitations; Waiver of
Subrogation. 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 officials. officers, employees, agents, and volunteers. All
policies shall waive any right of subrogation of the insurer against the City. its officials, officers,
employees, agents, and volunteers, or any other additional insureds, or shall specifically allow
Contractor or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery
against City. its officials, officers. employees. agents, and volunteers, or any other additional
insureds, and shall require similar written express waivers and insurance clauses from each of its
subcontractors.
3.2.11.5 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 officials. officers, employees,
agents. and volunteers; or(2) the Contractor shall procure a bond guaranteeing payment of losses
and related investigation costs, claims and administrative and defense expenses.
61147 02 K012888815 1 MSA page 8
3.2.11.6 Subcontractor Insurance Requirements. Contractor shall
not allow any subcontractors to commence work on any subcontract relating to the work under
the Agreement until they have provided evidence satisfactory to the City that they have secured
all insurance required under this Section. If requested by Contractor, the City may approve
different scopes or minimum limits of insurance for particular subcontractors. The Contractor
and the City shall be named as additional insureds on all subcontractors' policies of Commercial
General Liability using ISO form 20 38,or coverage at least as broad.
3.2.11.7 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than licensed to do business in
California, and satisfactory to the City.
3.2.11.8 Verification of Coverage. Contractor shall furnish City
with original 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. 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.
3.2.11.9 Reporting of Claims. Contractor shall report to the City. in V
addition to Contractor's insurer, any and all insurance claims submitted by Contractor in
connection with the Services under this Agreement.
3.2.12 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 1
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 lifesaving
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.
3.2.13 Bonds.
3.2.13.1 Performance Bond. Not required for this contract
3.2.14 Accounting Records. 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,
0114702100,1,2888815 MSA page 9
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.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements. 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,1
shall not exceed twenty six thousand eight hundred dollars ($26,800.00) without written\
approval of City's Director of Public Works and Utilities. 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 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 \IexpensesunlessauthorizedinwritingbyCity.
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 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 written authorization
from City's Representative.
3.3.5 Prevailing Wages. Contractor is aware of the requirements of California
Labor Code Section 1720, et aq., and 1770, et seq., as well as California Code of Regulations,
Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of
prevailing wage rates and the performance of other requirements on -public works" and
maintenance" projects. Since the Services are being performed as part of an applicable -public
works" or "maintenance" project. as defined by the Prevailing Wage Laws. and since the total
compensation is $1.000 or more. Contractor agrees to fully comply with such Prevailing Wage
Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in
effect at the commencement of this Agreement. Contractor shall make copies of the prevailing
rates of per diem wages for each craft, classification or type of worker needed to execute the
Services available to interested parties upon request. and shall post copies at the Contractor's
principal place of business and at the project site. Contractor shall defend, indemnify and hold
the City, its officials, officers, employees and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.3.6 Registration. Since the Services are being performed as part of an 1 i 11
applicable "public works" or "maintenance" project. then pursuant to Labor Code Sections \J I
61147 02I0Ch12888813 I MSA page 10
1725.5 and 1771.1, the Contractor and all subcontractors must be registered with the Department
of Industrial Relations. Contractor shall maintain registration for the duration of the Project and
require the same of any subcontractor. This Project may also be subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor's
sole responsibility to comply with all applicable registration and labor compliance requirements.
See Exhibit D"Certificate of Compliance".
3.4 Termination of Agreement.
3.4.1 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.
3.4.2 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.
3.4.3 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 General Provisions.
3.5.1 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:
Contractor:
Victor's Custom Christmas Trees, Inc.
32959 Calle Perfecto Suite C. San Juan Capistrano. CA. 92675 Vi
Atm: Victor Serrao, President/Owner
City:
City of San Juan Capistrano
t432400PaseoAdelanto
San Juan Capistrano, CA 92675
Attn: Director of Public Works and Utilities
Such notice shall be deemed made when personally delivered or when mailed. I,
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.
61147 02100\12888815 I MSA page 11
3.5.2 Indemnification.
3.5.2.1 Scope of Indemnity. To the fullest extent permitted by law,
Contractor shall defend, indemnify and hold the City, its officials, officers, employees,
volunteers and agents free and harmless from any and all claims, demands, causes of action.
costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any
alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors.
consultants or agents in connection with the performance of the Contractor's Services, the
Project or this Agreement, including without limitation the payment of all consequential
damages, expert witness fees and attorneys' 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.
3.5.2.2 Additional Indemnity Obligations. Contractor shall defend, with
Counsel of City's choosing and at Contractor's own cost, expense and risk, any and all claims,
suits, actions or other proceedings of every kind covered by Section 3.5.2.1 that may be brought
or instituted against City or its officials, officers. employees, volunteers and agents. Contractor
shall pay and satisfy any judgment, award or decree that may be rendered against City or its
officials. officers. employees, volunteers and agents as part of any such claim, suit, action or
other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by '
City or its officials, officers, employees, agents or volunteers as part of any such claim, suit, \i
action or other proceeding. Such reimbursement shall include payment for City's attorneys' fees
and costs, including expert witness fees. Contractor shall reimburse City and its officials,
officers, employees, agents, and/or volunteers, 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 survive expiration or termination of this Agreement.
and shall not be restricted to insurance proceeds. if any. received by the City, its officials
officers, employees, agents, or volunteers.
3.5.3 Governing Law; Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Orange County,
California. In addition to any and all contract requirements pertaining to notices of and requests
for compensation or payment for extra work, disputed work, claims and/or changed conditions,
Contractor must comply with the claim procedures set forth in Government Code sections 900 et
seq. prior to filing any lawsuit against the City. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to those matters
that remain unresolved after all procedures pertaining to extra work, disputed work, claims,
and/or changed conditions have been followed by Contractor. If no such Government Code
claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as
specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against
the City.
61147 02100,1288881i 1 MSA page 12
3.5.4 Time of Essence. Time is of the essence for each and every provision of V
this Agreement.
3.5.5 City's Right to Employ Other Contractors. City reserves right to employ
other contractors in connection with this Project.
3.5.6 Successors and Assigns. This Agreement shall be binding on the vtsuccessorsandassignsoftheparties.
3.5.7 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 1
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.
3.5.8 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
1termreferencingtime, 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 officials, officers, employees, agents, and volunteers 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.
3.5.9 Amendment; Modification. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.10 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.
3.5.11 No Third Party Beneficiaries. Except to the extent expressly provided for If
in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed V
by the Parties.
1141
3.5.12 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.
3.5.13 Prohibited Interests. Contractor maintains and warrants that it has not
employed nor retained any company or person. other than a bona tide 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. Contractor further
5114702100\128888151 MSA page 13
agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic
Interest with the City's Filing Officer as required under state law in the performance of the
Services. 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.
3.5.14 Cooperation: Further Acts. The Parties shall fully cooperate with one \Ianother, 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.
3.5.15 Attorneys' Fees and Costs. If any action in law or equity, including an
action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement,
the prevailing Party shall be entitled to recover from the losing party attorney's fees and costs in
an amount determined to be reasonable by a court of competent jurisdiction.
3.5.16 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 V I
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.
3.5.17 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
it3.5.18 Entire Agreement. This Agreement contains the entire Agreement of the \Ipartieswithrespecttothesubjectmatterhereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both parties.
3.5.19 Federal Provisions. N/A
SIGNATURES ON NEXT PAGE]
61147 02100‘12888X13 I MSA page 14
SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND VICTOR'S CUSTOM CHRISTMAS TREES, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the 1st
day of September,2017.
CITY OF SAN JUAN C PISTRANO Victor's Custom Christmas Trees,Inc.
Approve. By
leg; Signature
City Mana•er it rg a
j Name
Date
A - .;e, ;y:4110 Title
4. I
f:
U eon
Mari-Mari. Morris, City 7 Ie Date
Approved As To Form:
C4VAttorne Y
61147 02100\12888815 MSA page 15
EXHIBIT "A"
Scope of Services
General:
Install, maintain and remove various Christmas tree lights and ornaments/decorations on the
existing 45' +/-tall Cedrus deodara tree at San Juan Capistrano's Historic Town Center(HTC)
park, 31867 El Camino Real.
Special:
1. All lights, ornaments and bows(aka decorations) shall be supplied by the Contractor.
NOTE: The Contractor may bid this RFP by providing all new LED lights.or by offering
a credit in an alternate bid for obtaining/using& storing the City's existing LED lights.
See option 1 or 2. in Exhibit C -Compensation.
2. Decorations shall consist of a combination of a minimum of 3,000 lights, ornaments and
bows.
a. Lights shall be LED, includirw top ornament and shall function on a dawn/dusk
photo sensor.
b. All lights, ornaments and bows shall be multi-color. City and Contractor must
tirst agree to decoration scheme, prior to installation. See attached photos for past
examples of tree/decoration, for reference only.
c. Top ornament shall be star shaped. transparent or white opaque and be lit.
d. Ornaments shall also be as light-weight as possible and should he made of plastic
or other non-breakable material.
3. Contractor shall install and remove all decorations and coordinate same with City Public
Works staff.
a. Include all necessary equipment, pemonoe|- safety devices. person lifts, materials
and labor.
b. Prior to installation and removal, a 6' chain-link safety fence shall be installed and
continuously maintained by the Contractor, around an outer perimeter of the tree
and work zone. Fence shall be removed after all decorations are properly
working/installed or removed, with approval by City.
c. Include daily clean-up of all worklaccess areas and tree while installing and
removing decorations, at Contractors sole cost.
o//4roz/on`/2xxvo/5 / MSA page 16
d. Include repair of any damage to the tree or surrounding facilities, as caused during
installation or removal of decorations. at Contractor's sole cost.
4. Contractor shall not be responsible for damages to the tree which may be caused by acts
of nature (e.g. high winds, lightning, fires due to lightning. etc.).
5. Contractor shall repair or replace any damaged or vandalized decorations,during the term
of this contract, and within 24 hours' notice from City.
6. Contractor shall install all decorations and maintain same in an ongoing and professional
workmanship manner.
7. Contractor shall test, install and remove all decorations, and clean-up or repair damages
by date(s)certain, as noted in Exhibit C.
8. City agrees to assist with defining an appropriate surface access through HTC Park.
However, in all cases, the Contractor shall exercise extreme care against damage to
existing sod or other nearby facilities/appurtenances. The Contractor shall be responsible
for all repair(s) and all costs associated with damages (e.g. ruts, sod, etc.)caused by the
Contractor.
9. City agrees to supply 110v electrical source power from a nearby electrical panel.
However, the Contractor shall provide all necessary extension cords and connection
devices in a safe. secure and UL listed manner. The Contractor shall make sure all
electrical cords and connection devices remain safe and properly connected, during the
entire term of the contract.
10. City agrees to provide all necessary encroachment permits and electrical permits at its
sole expense.
11. City agrees that, if necessary. the Contractor may work on decorations and removals
during early AM and PM hours to meet completion/removal deadlines, as first approved by
the City.
61147 02100,12888S15 I MSA page 17
EXHIBIT"B"
Schedule of Services
Installation date: 2 weeks prior to the first Saturday of December, each year.
Removal date: By the end of the first week of January,each year.
NOTE: Dates may be flexible, pending weather related conditions at Historic
Town Center Park. Actual start dates shall first be approved by the
Director of Public Works and Utilities.
61147 02100\12888815 I MSA page 18
EXHIBIT "C"
Compensation
From: Victor's Custom Christmas Trees,Inc. (CONTRACTOR)
To: Director of Public Works,City of San Juan Capistrano
The undersigned, as proposer, declares he/she has carefully examined the location of the
proposed work and has read all requirements as described in the RFP, and hereby proposes and
agrees, if the proposal is accepted,to complete said contract in accordance with the RFP and
related MSA for the following costs noted herein.
Said amounts are to include and cover all taxes. the performing of all the labor requisite or
proper and the providing of all necessary machinery,tools, apparatus, materials and other means
of maintenance; also, the performance and completion of all the work in the manner set forth,
described and shown in the RFP for the work. As noted in the RFP, Contractor will not be
required to pay for permits on City projects.
Further,the undersigned proposer certifies that he/she has thoroughly checked the figures set
forth in this Exhibit C and that they are correct to the best of his/her knowledge and that they
constitute his/her complete proposal for the work required as noted in the RFP.
NOTE: An pricing shall be based on the full term noted in §3.1.2 of the agreement*
Option 1 —use City's existing lights plus one- Option 2 (less credit for
time PI
rear refurbish price($2,500) and store at obtaining/using/storing City's existing
Victor's (no charge) LED lights)
Total $26,800.00 Total FY 17/18 Total N/A Total FY
price for price for price for price for 17/18
10,600.00
3 years each year 3 years each
year
N/A
FY 18/19 FY
18/19
8,100.00
N/A
FY 19/20 FY
19/20
8,100.00
N/A
611-17 02[00,12888815 I MSA page 19
Option 1 pay schedule: First Year: $8.170.00 to be paid upon satisfactory installation of all
decorations and lights and $2,430.00 to be paid upon complete removal of all decorations,
including clean-up and any repair of damages, net 30. Second and Third years: $5,670.00 to be
paid upon satisfactory installation of all decorations and lights and $2,430.00 to be paid upon
complete removal of all decorations, including clean-up and any repair of damages, net 30.
Option 2 pay schedule: $ N/A
Note: If an individual. so state. If a firm or co-partnership. state the firm name and give the
names of all individual co-partners composing the firm: President, Secretary, Treasurer, and
Manager thereof.
I I p I
Date: 7- ' ZG f ? V I C o r 4 e_u(A O ?(t t(Gf e-.rl'
Contractor name &title (print)
j i
Contractor name (signature)
a 5 `t Ca I`e Per cto C
0r,luaA 0 (1Tra,.a C 2-67 S
Contractor/business address
Contractor/business phone number
9(/ 70z - 02DO
Contractor 24/7 contact phone number
Vec - a patLf(. ., el-
Contractor email
61 147 0210UV 2xnS8I5 MSA page 20
Attachment 2
Bid response summary
Christmas Tree Light, Ornament Installation,Maintenance Services
Company Bid/quote Bid/quote Bid/quote Solicitation/response Comments Bid/quote
solicited via considered for for details award
email responsive, Option 1 Option 2
complete,
on-time
Victor's Yes 26,800.00 No bid Solicitation sent via Well Yes
Custom email on: May 31, prepared,
Christmas 2017 detailed
Trees/Santa's and
Holiday Response received complete.
Lighting via email on:June 19,
2017
Shine Yes 35,337.00 30,012.00 Solicitation sent via Well No
Illumination on: May 31,2017 prepared,
detailed
Response received and
via email on: June complete.
23,2017
Magical No 0 0 Solicitation sent via No No
Holiday on: May 31,2017 response
Designs received
Response received
via email on: None
Christmas No 0 0 Solicitation sent via Company No
Specialists email on: May 31, responded
2017 that they
do not
Response received install
via email on: June 4, outdoor
2017 lighting.
Posted on City Dates posted Confirmed by
Clerk's
webpage
Yes May 31, 2017 to Matisse Reischi
June 23,2017 via email on May
31, 3017