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14-0820_VICTOR'S CHRISTMAS TREES, INC._Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this Z � day of , 2014, by and between the City of City of San Juan Capistrano (hereinafter referre 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 regarding the City's proposal to provide decorations and decorate a 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 I. Scope of Work. The scope of work to be performed by Contractor shall consist of those tasks as set forth in Exhibit' A," attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" 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 continue for a three year period. The Agreement will terminate on August 31, 2017. Section 3. Compensation. fiscal year. 3.1 Amount. Total compensation for the services hereunder shall not exceed $6,000 per 3.2 Method of Payment. Subject to Section 3.1, annually Contractor shall receive initial deposit of $1,500 by September 1, $3,500 to be paid upon completion of decoration installation, and $1,000 to be paid upon removal of decorations. Section 4. Independent Contractor. It is agreed that Contractor shall act 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. Section 5. LimitationsUpon 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 omiss.ions.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. FarniliarRy.,with Work and/or Construction Site. By executing this Agreement, Contractor warrants that: (1) it has investigated the work to be performed; (2) it has investigated the work site(s), 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 17 performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 11. f RESERVEDi. Section 12. RESERVED]. Section 13. Indemnity. To the fullest extent permitted by law, Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, 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 damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in the performance of the Agreement. The only exception to Contractor's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Section 14. Insurance. On 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, 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 of A- Class VII or better. 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 3 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 Workers' Compensation. If Contractor intends to employ employees to perform services under this Agreement, Contractor shall obtain and maintain, during the term of this Agreement, Workers' Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Priorto beginning any work underthis Agreement, Contractor shall submitthe 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. 14.5 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. 14.6 Terms of Compensation. Contractor shall not receive any compensation until all insurance provisions have been satisfied. 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 C1 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 rocess: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Jill Thomas, Senior Management Analyst To Contractor: Victor A. Serrao Victor's Custom Christmas Trees 24036 Broadhorn Drive Laguna Niguel, CA 92677 5 Section 17. Prevailing Wages. Contractor hereby expressly acknowledges and agrees that the City has not previously affirmatively represented to the Contractor in writing or otherwise, in a call for bids or otherwise, that the work to be covered by this Agreement is nota "public work,, as defined in Section 1720 of the Labor Code. Contractor shall indemnify, protect, defend and hold harmless the City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable attorneys' fees, court and litigation costs, and fees of expert witnesses) which, in connection with the work contemplated by this Agreement, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (1) the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages and hire apprentices); (2) the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (3) failure by Contractor to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the parties that, in connection with the work contemplated by this Agreement, including, without limitation, any and all public works (as defined by applicable law), Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. "Increased costs," as used in this paragraph, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the work by Contractor. 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. [SIGNATURE PAGE FOLLOWS] 0 IN WITNESS WHEREOF, the parties hereto have executed this; Agreement. 'ZI Victor A. Serr ikPfWdent ATTEST: Miri4j_K0rdS,City APPR,OVED AS TO FORM: v Nol TM�� 24036 Broadhera Dr; Laguna. Niguel, CA 92677 (949) 241733 Office (949) 49.6-3638 Fax wwwMetorschristmastrees.det vcct@Wbell.net AGREEMENT Victor's Custom Christmas Trees, Inc. hereinafter called-VTCTOR'S City of San Juan. Capistrano hereinafter called-CSJC VICTOR'S agrees to: Dmorate existing live tree designated as City Christmas tree. Christmas tree to, be decorated with approximately 3,000lights, ornaments and bows (lights, ornaments and bows to be mulfloolor). Christmas tights to be LED lights owned by City of San Juan Capistrano. Christmas hristmas ornaments and bows are provided on a ]eased basis only and remain -the property of VICTOR'S. VICTOR'S agrees to decorate Christmas tree at own expense and to. supply own 40' man lift for decorating arid takedown at own expense. VICTOR'S shall not be responsible for Christmas tree due to acts of nature such as high winds, lightning, fires doe to fl&nirig, etc. VICTOR'S agrees to maintain said decorations during term of contract excluding. vandalism. VICTOR' S agrees to produce said tree in a workmanlike manner. Limits of liability insurance nsurance will be two million ($2,000,000). Property damages will be taker out by VICTOR'S at no expense, to the CSJC` a . nd CSJC shall be named as insured. CSJC agrees to supply appropriate ground amass and sufficient electrical power. CSJC agrees to provide all neoessary encroachment permits and electrical permits. VICTOR'Sagrees to have tree fully decorated and functioning by deadline. CSJC agrees that VICTOR'S if necessary, may work on decorating and take down of Christmas tree -decor during AM and PM hours to meet completion/removal deadlines. If CSJC peels contract after signing, 1/3 of eontraet price will be due (30) days after cancellation of contract. WNU� This agreement price is based on three (3) year 2014-2016. 83= InstallAon date: Removal date: Victor's Custom Christmas Trees, Inc. City Of San Juan Capistrano 0 wo Datc Date: