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HomeMy WebLinkAboutContract 1632 16&49,2) SERVICE PROVIDER AGREEMENT BY AND BETWEEN THE CITY OF CATHEDRAL CITY AND GRAFFITI PROTECTIVE COATINGS, INC. FOR GRAFFITI ABATEMENT SERVICES THIS SERVICE PROVIDER AGREEMENT ("Agreement"), is made and entered into this 12th day of August, 2015, by and between the City of Cathedral City, a municipal corporation located in the County of Riverside, State of California, hereinafter referred to as the "City", and Graffiti Protective Coatings, Inc. (GPC), for Graffiti Abatement, a California contractor, hereinafter referred to as "Service Provider". RECITALS: WHEREAS, The City of Cathedral City desires to retain consulting services to perform the following services: to provide graffiti abatement services throughout the City of Cathedral; and WHEREAS, Service Provider represents that it is specially trained, experienced and competent to perform the services that will be required by this Agreement; and WHEREAS, Service Provider possesses the skills, experience, ability, background, certification and knowledge to provide the professional and technical services described by this Agreement on the terms and conditions described therein; and WHEREAS, the City desires to retain Service Provider to render professional graffiti abatement services in order to assist the Public Works Division of the City's Community Development Department in patrolling, responding, and removing graffiti as more particularly described in the Scope of Services attached hereto as Exhibit "A" (hereafter, "Services"). Now therefore, in consideration of the covenants, conditions and promises contained herein, the parties agree as follows: Section 1. SCOPE OF SERVICES Service Provider shall provide to the City those services as set forth in the "Scope of Work", attached hereto as Exhibit "A", and incorporated herein by this reference. The Scope of Work shall also be defined by reference to Service Provider's Proposal for Graffiti Abatement Services, attached hereto as Exhibit "B" and incorporated herein by this reference. Section 2. TERM Service Provider shall perform those services set forth in the Scope of Services during the term of this Agreement, which shall be effective as of the date in the opening paragraph of this Agreement, and shall terminate June 30, 2016. Section 3. COMPENSATION For the services rendered by Service Provider pursuant to this Agreement, Service Provider shall be paid compensation in accordance with the Scope of Services, which in any event, shall not exceed Six Thousand Dollars ($6,000.00) per month, in accordance with the "Schedule of Charges" attached hereto as Exhibit ""C" and incorporated herein by this reference. Section 4. METHOD OF PAYMENT a. Service Provider shall submit monthly billings to the City describing the work performed during the preceding month. Service Provider's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. The City shall pay Service Provider no later than thirty (30) days after approval of the monthly invoice by City staff, provided that the services reflected in the invoice were performed to the reasonable satisfaction of the City in accordance with the terms of this Agreement, provided further that all expenses, rates and other information set forth in the invoice are consistent with the terms and conditions of this Agreement. c. The Service Provider shall submit invoices under this Agreement to: Pat Milos Community Development Director City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 Telephone: (760) 770-0319 Facsimile: (760) 202-1460 Section 5. EXTRA WORK At any time during the term of this Agreement, the City may request that Service Provider perform Extra Work. As used herein, "Extra Work" means any work which is determined by the 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. Service Provider shall not perform, nor be compensated for, Extra Work, without written authorization from the City. Section 6. CIVIL CODE SECTION 1542 WAIVER Service Provider expressly waives any and all rights and benefits conferred upon it by the provisions of section 1542 of the California Civil Code which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This waiver shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind that are known or unknown, or suspected or unsuspected, including, without limitation, claims of entitlements under the California Public Employees' Retirement System (CaIPERS) that are only afforded to employees and not independent contractors. Service Provider further represents and warrants that it understands this waiver and that if it does not understand this waiver, it shall seek the advice of a qualifie attorney before executing this Agreement. Initials Section 6. TERMINATION This Agreement may be terminated by the City immediately for cause. The City may terminate this Agreement without cause upon fifteen (15) calendar days' written notice of termination. Upon termination, Service Provider shall be entitled to compensation for services performed up to the effective date of termination. Section 7. OWNERSHIP OF DOCUMENTS All plans, studies, documents and other writings prepared by and for Service Provider, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Service Provider for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Service Provider or to any other party. Service Provider shall, at its expense, provide such reports, plans, studies, documents and other writings to the City upon written request. Section 8. CONFIDENTIALITY a. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Service Provider in connection 9 with the performance of this Agreement shall be held confidential by Service Provider. Such materials shall not, without prior written consent of the City, be used by Service Provider for any purposes other than the performance of the services under this Agreement, nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Service Provider which is otherwise known to Service Provider or is generally known, or has become known, to the related industry shall be deemed confidential. b. Service Provider shall not use the City's name or insignia, photographs relating to the project for which Service Provider's services are rendered, or any publicity pertaining to the Service Provider's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the City. Section 9. SERVICE PROVIDER'S BOOKS AND RECORDS a. Service Provider shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a minimum period of three years, or for any longer period required by law, from the date of final payment to Service Provider pursuant to this Agreement. b. Service Provider shall maintain all documents and records which demonstrate performance under this Agreement for a minimum of three years, or for any longer period required by law, from the date of termination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Service Provider's address indicted for receipt of notices in this Agreement. d. Where the City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Service Provider's business, the City may, by written request of any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Service Provider, Service Provider's representatives, or Service Provider's successor-in-interest. imminor Section 10. INDEPENDENT CONTRACTOR'S STATUS: NOT AGENT OF CITY Service Provider shall at all times during the term of this Agreement remain, as to the City, a wholly independent contractor and shall perform the services described in this Agreement as an independent contractor, and hereby waives any claims for any compensation or benefits afforded to City employees and not to independent contractors. Neither the City nor any of its agents shall have control over the conduct of Service Provider or any of Service Provider's employees, except as herein set forth. Nothing contained in this Agreement shall be deemed, construed or represented by the City or Service Provider or by any third person to create the relationship of principal and agent and Service Provider shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. Service Provider shall have no authority, expressed or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Service Provider have any authority, expressed or implied, to bind the City to any obligation whatsoever. Section 11. REPRESENTATIONS AND ACKNOWLEDGMENTS REGARDING INDEPENDENT CONTRACTOR'S STATUS OF SERVICE PROVIDER a. Service Provider represents and acknowledges the following: (1) The City is not required to provide any training or legal counsel to Service Provider or its employees in order for Service Provider to perform the services described in this Agreement. (2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City. (3) The services described in this Agreement can be performed without the use of City equipment, materials, tools or facilities. (4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Service Provider on a continuing basis after termination of this Agreement. (5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage or other such compensation to any person employed by Service Provider to perform the services described in this Agreement. (6) Service Provider shall not at any time or in any manner represent that it or any of its officers, employees, or agents are "employees" of the City. b. The City represents and acknowledges the following: (1) Service Provider is not required to comply with daily instructions from City staff with respect to when, where or how Service Provider must perform the services set forth in this Agreement. (2) Service Provider is solely responsible for determining who, under the supervision or direction of Service Provider, will perform the services set forth in this Agreement. (3) The City will not hire, supervise or pay any assistants working for Service Provider pursuant to this Agreement. (4) Nothing in this Agreement shall be interpreted to imply that the Service Provider must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement. (5) It is the sole responsibility of Service Provider to set the hours in which Service Provider performs or plans to perform the services set forth in this Agreement. (6) Service Provider is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement. (7) Unless deemed necessary under certain circumstances, Service Provider is not required to perform the services set forth in this Agreement at City Hall or on City-owned property. (8) Other than attendance at required public meetings and public hearings and complying with procedural requirements set forth by law, Service Provider is not required to perform the services set forth in the Agreement in any particular order or sequence. (9) Nothing in this Agreement shall be interpreted to preclude Service Provider from working for other persons or firms, provided that such work does not create a conflict of interest. Section 12. CONFLICTS OF INTEREST a. Service Provider (include principals, associates and professional employees) covenants and represents that it does not have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source or income, interest in real property or investment which would be affected in any manner or degree by the performance of Service Provider's services hereunder. Service Provider further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. yY b. Service Provider is not a designated employee within the meaning of the Political Reform Act because Service Provider: (1) Does not make or participate in: (i) the making of any governmental decisions regarding approval of a rate, rule, or regulation, the adoption or enforcement of laws; (ii) the issuance, denial, suspension or revocation of permits, licenses, applications, certificates, approvals, orders, or similar authorization or entitlement; (iii) authorizing the City to enter into, modify, or renew a contract; (iv) granting City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract; (v) granting City approval to a plan, design, report, study, or similar item; (vi) adopting, or granting City approval of, policies, standards, or guidelines for the City or for any subdivision thereof. (2) Does not serve in a staff capacity with the City and in that capacity participate in making a governmental decision or otherwise perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City of Cathedral City's or City's Conflict of Interest Code or under Government Code Section 87302. c. In the event the City officially determines that Service Provider must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Service Provider shall file the subject Form 700 with the City Clerk's Office pursuant to the written instructions provided by the Office of the City Clerk. Section 13. PROFESSIONAL ABILITY OF SERVICE PROVIDER; WARRANTY; FAMILIARITY WITH WORK a. Service Provider represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement, including a City of Cathedral City business license. r b. Service Provider warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services. c. By executing this Agreement, Service Provider warrants that it: (1) has thoroughly investigated and considered the work to be performed; (2) has investigated the issues, regarding the scope of services to be provided; (3) has carefully considered how the work should be performed; and (4) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. d. Should Service Provider discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, it shall immediately inform the City of such fact and shall not proceed except at Service Provider's risk until written instructions are received from the Executive Director or appropriate City representative. Section 14. COMPLIANCE WITH LAWS; LICENSING AND PERMIT REQUIREMENTS a. Service Provider shall comply with all local, state and federal laws and regulations applicable to the services required hereunder, including any rule, regulation or bylaw governing the conduct or performance of Service Provider and/or its employees, officers, or board members. b. Service Provider represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement, including a City business license. Section 27. BACKGROUND CHECKS At any time during the term of this Agreement, the City reserves the right to make an independent investigation into the background of Service Provider's personnel who perform work required in the Scope of Services, including but not limited to their references, character, address history, past employment, education, social security number validation, and criminal or police records, for the purpose of confirming that such personnel are lawfully employed, qualified to provide the subject service or pose a risk to the safety of persons or property in and around the vicinity of where the Services will be rendered. If the City makes a reasonable determination that any of Service Provider's prospective or then current personnel is deemed objectionable, then the City may notify Service Provider of the same. Service Provider shall not use that personnel to perform work required in the Scope of Services, and if necessary, shall replace him or her with another suitable worker. Section 35. CARE OF WORK The performance of services by Service Provider shall not relieve Service Provider from any obligation to correct any incomplete, inaccurate or defective work at no further cost to the City, when such inaccuracies are due to the negligence of Service Provider. Section 15. NONDISCRIMINATION a. Service Provider shall comply with the City's employment related nondiscrimination policies as set forth in the Cathedral City Municipal Code, as it may be amended from time to time. b. Service Provider acknowledges that the City's employment related nondiscrimination policies prohibit discrimination on the basis of an individual's sex, marital status, race, color, religion, ancestry, national origin, physical handicap, sexual orientation, and domestic partner status. Section 16. INDEMNIFICATION a. Service Provider shall defend, indemnify and hold harmless the City of Cathedral City and City, their officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect, (including any and all costs and expenses in connection wherein), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City of Cathedral City and City, their officers, agents, employees or volunteers. b. The City does not, and shall not, waive any rights that it may have against Service Provider under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein. c. Notwithstanding the provisions of subsections a. and b. of this section, Service Provider shall not be responsible for damages or be in default or deemed to be in default by reason of delay caused by strikes, lockouts, accidents, or acts of God, or the failure of the City to furnish timely information or to approve or disapprove Service Provider's work promptly, or by reason of delay or faulty performance by the City, construction contractors, or governmental agencies, or by reason of any other delays beyond Service Provider's control, or for which Service Provider is without fault. Section 17. INSURANCE REQUIREMENTS a. Policies. Service Provider, at Service Provider's own cost and expense, shall procure and maintain, for the duration of this Agreement, the following insurance policies; (1) Workers' Compensation Coverage. Service Provider shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the State of California. In addition, Service Provider shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by the City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against the City, its officers, agents, employees, and volunteers for losses arising from work performed by Service Provider for the City. (2) General Liability Coverage. Service Provider shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. 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. (3) Automobile Liability Coverage. Service Provider shall maintain automobile liability insurance covering bodily injury, personal injury and property damage for all activities of the Service Provider arising out or of in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. b. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language: (1) The City of Cathedral City and the City, their elected or appointed officers, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Service Provider, including materials, parts or equipment furnished in connection with such work or operations. mow (2) This policy shall be considered primary insurance with respect to the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. (3) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (4) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers. (5) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days' written notice has been received by the City. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Service Provider shall demonstrate financial capability for payment of such deductibles or self- insured retentions. d. Certificates of Insurance. Service Provider shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. Section 18. NOTICES a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the parties as follows: To the City: Charles P. McClendon City Manager City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, CA 92234 Telephone: (760) 770-0372 Facsimile: (760) 770-0399 To Service Provider: Barry Steinhart General Manager Graffiti Protective Coatings, Inc. 419 Larchmont Blvd., #264 Los Angeles, CA 90004 Telephone: (323) 464-4472 b. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail. Section 19. ENTIRE AGREEMENT a. This Agreement supersedes any and all other agreements, either oral or written, between the City and Service Provider with respect to the subject matter of this Agreement. b. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement. c. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. Section 20. MODIFICATIONS AND AMENDMENTS This Agreement may be modified or amended only by a written instrument signed by both parties. Section 21. ASSIGNMENT AND SUBCONTRACTING a. The experience, knowledge, capability and reputation of Service Provider, its principals and employees were a substantial inducement for the City to enter into this Agreement. Assignments of any or all rights, duties or obligations of the Service Provider under this Agreement will be permitted only with the written consent of the City. b. Service Provider shall not subcontract any portion of the work to be performed under this Agreement without the written consent of the City. If the City consents to such subcontract, Service Provider shall be fully responsible to the City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between the City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as required by law. Section 22. WAIVER a. No waiver shall be binding, unless executed in writing by the party making the waiver. b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. c. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. Section 23. SEVERABILITY If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein. Section 25. VENUE All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California. Section 26. LITIGATION EXPENSES AND ATTORNEYS' FEES In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. Section 37. SUCCESSORS, HEIRS AND ASSIGNS Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the parties. Section 40. DEFAULT rr a. Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. b. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein. c. Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. d. In the event that a default of any party to this Agreement may remain uncured for more than thirty (30) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. Section 44. EFFECTIVENESS OF AGREEMENT This Agreement shall not be binding upon the City, until signed by the authorized representative(s) of Service Provider, and approved as to form by the City Attorney, and executed by the City Manager or his or her designee. Section 45. NO THIRD PARTY BENEFICIARIES The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any provision of this Agreement be so construed. Section 46. LABOR LAWS a. All work or services performed within the State of California pursuant to this Agreement by Service Provider, Service Provider's employees and independent contractors, or contractor's subcontractors and its subcontractors' employees and independent contractors shall be performed by individuals lawfully permitted to perform such work or services in the State of California and/or the United States of America pursuant to all applicable State and/or Federal labor laws, rules and regulations including, but not limited to, any State or Federal law, rule or regulation prohibiting the employment of undocumented workers or any other person not lawfully permitted to perform said work or services in the State of California or the United States of America. b. Documentation must be promptly submitted to the City at any time, at the request of the City, for the purpose of determining whether or not the work or services provided pursuant to this contract are being provided in compliance with this section. Section 27. EXECUTION IN COUNTERPARTS This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least a copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 28. AUTHORITY TO ENTER AGREEMENT Service Provider 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 to bind each respective party. Section 29. PROHIBITED INTERESTS Service Provider maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Service Provider, to solicit or secure this Agreement. Further, Service Provider 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 Service Provider, 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, the City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of the City, during the term of his or her service with the City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. Section 30. TIME OF THE ESSENCE Time is of the essence in the performance of this Agreement. Section 31. PRINCIPAL REPRESENTATIVES a. General Manager, Barry Steinhart is designated as the principal representative of Service Provider responsible for undertaking, managing and supervising the performance of all of the services set forth in the Scope of Services for this Agreement. 5 1. Unless otherwise authorized by the City in writing the principal representative shall perform all such services, including, without limitation, attending all meetings and public hearings required under the Scope of Services. 2. The Service Provider hereby commits these designated principal representatives to the performance of the Scope of Services, until completion thereof or termination of this Agreement, as provided herein. The experience, knowledge, capability and reputation of these principal representatives were all substantial inducements for the City to enter into this Agreement, and as such, for the purposes of performing the Scope of Services of this Agreement, the duties of the principal representatives shall not be reassigned, without the express written consent of both parties. b. The Public Works Division shall be the principal representative of the City for purposes of communicating with Service Provider on any matter associated with the performance of the services set forth in this Agreement. Section 32. NON-LIABILITY OF CITY OF CATHEDRAL CITY AND CITY OFFICERS AND EMPLOYEES No officer or employee of the City of Cathedral City or the City shall be personally liable to Service Provider, or any successor in interest, in the event of any default or breach by the City of Cathedral City or the City or for any amount which may become due to Service Provider or to its successor, or for any breach of any obligation of the terms of this Agreement. Section 33. INTERPRETATION This Agreement shall not be interpreted against either party on the grounds that one of the parties was solely responsible for preparing it or caused it to be prepared as both parties were involved in drafting it. Section 34. PROTECTION AND CORRECTION OF WORK a. Service Provider shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Service Provider, and the equipment, materials, papers and other components thereof to prevent losses or damages. b. The performance of services by Service Provider shall not relieve Service Provider from any obligation to correct any incomplete, inaccurate or defective work at no further cost to the City, when such inaccuracies are due to the fault of Service Provider. Section 35. CAPTIONS AND HEADINGS The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading. Section 36. GOVERNING LAW The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. Section 37. RIGHTS AND REMEDIES Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. [THIS PORTION IS INTENTIONALLY BLANK] i 1 1 { { IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above. City of Cathedral City: Graff i Prot' ctive Coatings, Inc. By: By: Charles P. McClendon C. la L_!it':ff, President City Mana er By: Tami Sc tt, Risk Manager ATTEST: • By: ♦�'� Gary F. Howe! City Clerk APPROVED AS TO FORM: By: Charles R. Green, City Attorney EXHIBIT "A" SCOPE OF SERVICES The project is citywide. The proposed services include graffiti removal pursuant to the terms of Service Provider's Proposal for Graffiti Abatement Services, attached as Exhibit "B" to the Agreement. Tasks included for the graffiti abatement services are more particularly described and in the proposal dated August 3, 2015. The Service Provider shall provide Graffiti Abatement Services for the Fiscal Year 2015 - 2016. The Service Provider shall provide the equivalent of one full-time worker to the City for this project. EXHIBIT "B" SCHEDULE OF CHARGES Schedule of Charges The Graffiti Protective Coatings, Inc. shall provide Graffiti Abatement Services for the Fiscal Year 2015 - 2016 not to exceed contract amount as listed below. TOTAL NOT TO EXCEED FEE AMOUNT $72,000 Assumptions: 1. The total amount invoiced to the City shall not exceed $6,000 per month. 2. GPC will provide all work identified in the proposal for a flat fee of$15.80 per site cleaned. 3. GPC will abate approximately 378 sites per month. 44 5V ffi