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AGR-3876.J - DAVID OLDFIELD PRODUCTIONS - 2020 & 2021 HOLIDAY DECORATIONS AND LIGHTINGR-3'71. PROFESSIONAL SERVICES AGREEMENT nstallation of Holiday Decorations] THIS PROFESSI4NAL SERVICES AGREEMEN'T (the "Agreement"} is made at Orange, California, on this lO day of o Xn 2020 (the "Effective Date") by and between the CITY OF ORANGE, a municipal corporation ("City"), and DAVYD OLDFIELD, doin; business as DAVID OLDFIELD PRODUCTIONS, a sole proprietor ("Contractor"), who agree as follows: 1. Services. Subject to the ternis and conditions set forth in this Agreement, Contractor shall provide ta the reasonable satisfaction of City the services set forth in Exhibit"A," which is attached hereto and i corporated herein by reference. As a material inducement to City to enter into this Agreement,Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the worl. The services which are the subject of this Agreement are not in the usual course of City's business. City has determined that certain specialized services are needed to perform the work described in E iibit "A" and, therefore desires to retain the services o the Contractor to furnish the necessary equipment, labox, materials and tools. City relies on Contractor's representation that it is independently engaged in the business of providing such services and is experienced an performing the work. Contractflr shall perform all services in a manner reasonably satisfactory to City and in a manner in conformance with the standards of quality normally observed by an entity providing such services to a municipal agency. All services provided shall conform to all federal, state and local laws, niles and regulatioiis and to the best professional standards and practices. The terms and conditions set forth in this Aa eeinent sha1l control over any tezms and conditions in Exhibit "A" to the contrary. Paul Miller, Parks Supervisor ("City's Project Manager"), shall be the person to whom Contractor will report for the perf rmance of services hereunder. t is understaod that Contractor's performance hereunder shall be under the supezvision of Ciry's Project Manager (or his/her designee), that Contractor shall coordinate its services hereunder with City's Project Mana;er,to the extent required by City's Praject Manager, and that all performances required hereunder by Contractor shall be performed to the satisfaetion of Ciry's Project Manager and the Ciry Manager. 2. Co nensation and Fees_. a. Contractor's total compensation for all services performed under this Agreement, shall not exceed TWENTY-EIGHT THOUSAND THREE HUNDRED FORTY- FOUR DOLLARS and 00/100(28,344.00),with a contingency for additional costs in the amount of ONE THOUSAND FOUR HLTNDRED SEVENTEEN DOLLARS and 20/100 ($1,417.20), without the prior written authorization of City. The total not to exceed amount for the two holiday seasons covered by this Agreement shall not exceed T VENTY-NINE THQUSAND SEVEN HLTNDRED SIXTY-ONE DOLLARS and 201100 (29,761.20) b. The above compensanon shall include all costs, including, but not limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental, subsistence and all related expenses. 3. Payment_ a. As scheduled services are coznpleted, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually pezformed or incurred. b. AIl such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed. c.City will pay Contractor the amount invoiced within thirty (30) days after the approval of the invoice. d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice. 4. Change Orders. No payment for extra services caused by a change in the scope or coinplexity of work, or for any other reason, shall be made unless and until such extra services a Id a price therefoz have been previously authorzzed in writing and approved by City as an amendinent to this Agreement. City's Project Manager is authorized to approve a reduction in the services to be perfonned and compensation therefoz. All amendments shall set forth the changes ofwork,extension oftime,and/or adjustment ofthe compensation to be paid by Cityto Contractor atld shall be signed by the City's Project Manager, City Manager or City Council, as applicable. City's Project Manager is authorized to direct a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of rime, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City's Project Manager, City Manager or City Council, as applicable. 5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state vr federal law to perform the work contemplated by tlus A.greement and that Contractor and its subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement. 6. Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. Ciiy shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreern ent. City shall not have the right to control the means by which Contractor accomplishes setvices rendered pursuant to this An eement. Contractor shall, at its sole cost and expense, furnish all facilities, xmaterials and equipment which may be required for fumisl ing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors,agents and employees, including compliance with social sectuity«ithholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that it and any subconixactors, agents or employees employed by Contractor shall not,under any circiunstances,be considered employees of City,and that they shall not be entitled to any of the benefits or rights afforded employees of City,including,but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life,dental, long-term disability or workers' compensation insurance benefits. 7. Contraetor Not A ent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall k ave no authority, express or implied, to bind City to any obli ation whatsoever. 8. Desi nated Persons. Only those qualified persons authorized by City's Project Manager, or as designated in Exhibit"A,"sk all perform work provided for under tlus A eement. It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those desin ated. 9. Assianment or Subcontractin. No assignment or subcontxacting by Contractor . of any part of this flgreement or of funds to be received under this Agreement shall be of any force or effect unless the assignment has the prior written approval of City. City may terminate this Agreement rather than accept any proposed assignment or subcontracting. Such assignment or subcontracting may be approved by the City Manager or his/kaer designee. 10. Tiane of Comnletion. The timing of performance of all or some portion of the Work by the Contractor must, of necessity, be coordinated with that of the contractors to be retai.ned by the City to install and removed the holiday decorations and lighting, but in any event installation and rem.ov l shall acl ere to the following schedule: For the 2020 holidav season Installation shall be started no earlier than November 23, 2020, and shall be conapleted by November 29,2020. Removal s.hall begin no earlier than January 2,2021,and be completed no later than January 10,2021. For the 2021 holiday season Installation shall be started no earlier than November 22, 2021 and shall be completed by November 28, 2021. Removal shall begin no earlier than January 2, 2022 and be completed by January 9, 2022. 11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work. 12. Reserved. 3 13. Delays amd Extensions of Time. Gontractor's sole remedy for delays outside its con rol, other than those delays caused by City, shall be an extension of time. No matter what the cause of the delay,Contractor must document any delay and request an extension of time in writin.g at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the lez gth of the delay outside Contractor's control_ If Contractor believes that delays caused by City will cause it to incur additional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above, absent a written amendment to this Agreement. a.4. Praducts of Contractor. The documents, studies, evaluations, assessments, reports, plans, citations, materials,manuals, technical data, logs,files, designs and other products produced or provided by Contractor or this Agreem.ent shall become the property of City upon receip. Contractor shall deliver all such products to City prior to payment for same. City inay use, reuse or otherwise utilize such products without restriction. 15. Ecdual Emplovment QAUortunitv. During the performance of this Agreement, Contractor agrees as follows: a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex,national origin,mental or physical disability, or any other basis prohibited by applica.ble law. Contractor shall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin,xnental or physical disability, or any other basis prohibited by a plicable law. Such actions shall include,hut not be limited to the following: employment,upgrading,demotion or transfer,recruitment or recruitrnent advertising,layoff or termination,rates of pay or other forms of compensation and selection for txaining,including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discnimination clause. b. Contractor shall, in all solicitations and advertisements foz employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, mental or playsical disability, or any other basis prohibited by applicable law. c.Contractor shall cause the foregoing paragraphs (a)and (b)to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials. 16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a consultant to influence any decision of City in wliich Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. 4 17. Indemnitv. a. To the fiillest extent permitted by law, Contractar agrees to indemnify, defend and hold City, its City Council and each member thereof, and the officers, officials, agents and employees of City(collectively the "Indemnitees") entirely harmless from all liability arising out of: 1} Any and all claixxis under workers' compensation acts and other employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's employees arising out of Contractor's work under this Agreement, including any and all claims under any law pertaining to Contractor or its employees' status as an independent contractor and any and all claims under Labor Code sectioaa 1720 related to the paytnent of prevailing wages for public works praj ects; and 2) Any claim, loss,injury to or death of persons oc damage to property caused by any act, neglect, default, or omission other than a professional act or omission of Contracto.r, ar person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of thetn, arising out of, or in any way connected with the work or services which are the subject of this Agreement, includin; injury or damage either on or off City's property; but not for any loss, injury, death or damage caused by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any and all claims,actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this sitbparagraph. b. Except for the Indemnitees, the indemnifications provided in this Agreement shall not be construed to extend any third party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement. c.The indemnities set forth in this sectivn shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respect to Contractor and its successors. 18. Insurance_ a. Contractor shall carry workers' compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent con.tractor and not entitled to any workers' compensation benefits under any City program. b. Contractor shall maintain during the life of this Agreement the following minimuzn amount of comprehensive general liability i.nsurance or commercial general liability insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the 5 insurance coverage and/or limits canied by or available to Contractor. Said insurance shall cover bodily injury, death and property da.mage and be written on an occurrence basis. c.Contractor shall maintain during the life of this Agreement, the following minimum atnount of autoinotive liability insurance: the greater of(1} a combined single limit of One Million Dollars (1,00a,000); or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shau cover bodily injury, death and property damage for all owned, non-owned and hired vehicles and be written on an occurrence basis. d. Any insurance proceeds in excess of or broader than the m.inimum required covezage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Contractor under this A eement. e. Each policy of general liability and automotive liability shall provide that City, its officers, officials,agents, and employees are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by Contractor under this Abeement. A policy endorsement to that effect shall be provided to City along uTith the certificate of insurance. I i lieu of an endorsement, City will accept a copy of the policy(ies)which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. f.The instirance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy. Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above. g. Before Contractor per.forms any work or prepares oz delivers any materials, Contractoz shall fumish cerkificates of insurance and endorsements, as required by City, evidencing the aforementioned minimum insurance coverages on fvzms acceptable to Ciry,which shall provide that the insurance in force will not be canceled or allowed to lapse without at least ten(10) days' prior written notice to City. h. All insurance mainta.ined by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better hy the latest edition of Best Key Rating Guide. In the case af professivnal liability insurance coverage, such coverage shall be issued by companies either licensed or admitted to conduct business in California so long as such insurez possesses the aforementioned Best rating. i.Contractor shall immediately notify City if any required insurance laps s or is otherwise modified and cease performance of this Agreement unless otherwise directed by City. I i such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and a11 damages resulting therefrom, by way of set-off from any sums owed Contractor. 6 j.Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insura.nce for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contzactor or City with respect to the services of Contractor herein,a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such inswrance. k. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the zequirements stated herein. 19. Termination. City Manager may for any reason terminate this Agreement by givina Contractor not less than five (5) days' written notice of intent to ternunate. Upon receipt of such notice, Contractor shall immediately cease work, unless the notice from City Manager proti ides otherwise. Upan the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this A eement, unless termiziation by City shall be for cause, in which event City may tivithhold any di.sputed compensation. City shall not be liable for any claizn of lost profits. 20. Maintenance and Inspection of Records. In accordance with generally accepted account ng principles, Contractor and its suhcontractors shall main:tain reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the records")pertaining to ihe costs of and completion of services performed under this Agreement. City and its authorized representatives shall have access to and the right to audit and reproduce any of Contraetoz's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three (3) years after termination or completion of this Agreeznent. Contractor agrees to make available all such records for inspection or audit at its o ces duriug nortnal business hours and upon three(3) days'notice fro City,and copies thereof shall be furnished if requested. 21. Compliance with all Laws/ImmiQration Laws. a. Contractor shall be knowledgeable of and comply with all lacal, state and federal laws which may apply to the performance of this Agreement. b. If the work provided for in this Agreement constitutes a"public works," as that term is defined in Section 1720 of the California Labor Code,for wluch prevailing wages m,ust be paid, to the extent Contractor's employees will perform any «ork that falls withi.n any of the elassificatious for which the Department o£Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified prevailing rates of wages to all such workers. The general prevailing wage detenninations for crafts can be located on the website of the Department of Industrial Relations (www.dix.ca_ov/DLSR)_ Additionally,to perform work under this Contract, 7 Contractor must meet all State registration requirements and criteria,including project compliance monitori.ng. c.Contractar represents and warrants that Contractor: 1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without Iimitation, the Immigration Reform and Control Act of 1986 IItCA); and 2) Has not and will not knowingly employ any individual to pezform services under this Agreement wha is ineligible to work in the United States or under the terms of this Agreement; and 3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I-9 for each of Contractor's employees; and 4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Adtninistration. d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c. e.Contractor shall, upon request of City, provide a list of all employees working under this Agreement and shall provide,to the reasonable satisfaction of City,verification ihat all such employees are eligible to work in the United States. All costs associated with such veri cation shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Agreeznent without written notice to City, accompanied by the verification required herein for such employees_ f.Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e. g. lf Contractor or subcontractor knowingly employs an employee providi.ng work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee,that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City. h. Contractor a ees to indemnify and hold City, its officers, officials, agents and employees harmless for,of and from any loss,including but not lunited to fines,penalties and 8 corrective measures City may sustain by reasvn of Contractor's failure to comply with said laws, rules and regulations in connection with the performance of this Agreement. 22. Governin Law and Venu_e. This Agreement shall be construed in accordance with and governed by the laws of the State of Califorrua and Contractor agzees to submit to the jurisdiction of California courts. Venue for an.y dispute arising under this A;reement shall be in Oranpe County, California. 23. inte ration. This Agreement constitutes the entire agreement of the parties. No other agz-eement,oral or written,pertaining to the work to be performed under this Agreement shall be of any£orce or effect unless it is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of tk is Agreement shall not be compensated. 24. Nntice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail, postage prepaid, to each party at the addzess listed below. Either party may change the notice address by notifying the other party in writing_ Notices shall be deemed received upon receipt of same or within three(3) days of deposit in the U.S. Mail,whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission. GONTRACTOR" CITY" David Oldfield Productions City of Oran e 692 E. Fellows Drive 300 E. Chapman Avenue Orange, CA 92865 Orange, CA 92866-1591 Attn.: David Oldfield Attn_: Paul Miller Telephone: 714-283-5854 Telephone: 714-74-6472 E-Mail: davidoldfieldproductions@yahoo.com E-Mail: pmiller@cityoforange.org 25. Counterparts. This Agreement may be executed in one or more cou.nterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instivznent. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures. Remainder of page intentionally left blank; signatures on negt page) 9 Il WITNESS af this Agreement, the parties have entered into this Agreement as of the year and day first above written. CONTRACTOR" CITY" DAVID OLDFIELD, a sole proprietar, CITY OF ORANGE, a municipal cozporation doing business as DAVZD OLDFIELD PRODUCTIONS B .""z,.. By. 2- /2.fl' Y Printed Name: rr% 1= Rick Otto, City Manager APPROVED AS TO FORM: Mary E. g, Sr. Ass a it City Attorney 10 EXHIBIT uF" CONTRACTOR'S PROPOSAL Beneath this sheet.] Exhibit A:Page 1 of 2 avic OCc ie d 1'ror uctions 692 L F'ello vs Drive,Orange,CA 92sC 1'hone:714-283-5854 FAX:714-283-2862 Email:da,-idoldfield rnducdcrns vahoa.r.om Septembc;r 11,2020 l r. Dana Robertson Project Manager City af Orange Community Services Department 230 I:. Chapman Avenue Orange, CA 92866-1506 Dear NIr. Robertson, Enclosed is our proposal foa-the installarion EHoliday c3ecorations f r the 2020 and 2Q21 Holidav Seasons in the Orange Plaza.T}a is is an upgrade from vhat we pro ided last year. Scope of Work 1. "Tree o£Lights" -- the pine t ree in the Northeast quadrant of the Pl.ar.a: a. Provide and install lightinb to cover approximatelp 2/3 0£the tree circumference£rom the lowest branches to the top. The li hts shall be C-9 style LrDs, strung verticall i.n 35 colezmns to the top of the tree using colors of clear, yellow and amber`vith t vinkle lights interspersed. Other light calors can be used if the City desixes. The City's egisting frameivork will be used. The City w-ill need to provide 2 addirional frame arms in order to create a zvider shape at the base. Note: it is recommended that the tree be trixnmed iu areas to present a nnore symmetrical shape. b. Install an illun znated star sculpture to be placed on top of the pine tree. c. Prc vide and install 3Q two dimensional holiday ornaments of various shapes. The ornaxn.ent shapes will be 2'long and cocered in coloxed garland to accommodate viewing the orna xzents dur r g the day. Colors utilized will include green, blue and red with niatching lights so the vill show up at night as uell. d_ Electzical connection will be ta a va ilt oudet at the base of the tree. e. Urnaments uill be attached to the tree branchcs with heavp duty cable ties. These asteners are very reliable ar d will not be affected by wea.ther_ These are the same fastez ers usecl on the same tree last pear a.nd there vere no failures. Exhibit A:Page 2 of 2 2. Pine Tree Trunks: Note: We suggest that the GFI outlets on the light poles be replaced with standazd outlets and GFI cizcuit breakers be installed at the power panel so that if the GFIs trip due to weather,they can bc safely reset at gzound level. This will zesult in more con sistent operation of the]ighting and a safer wor.ng condirion for our cre cv. a. Provide and wrap clear mini L D li hts around the 16 Pine tree trunks from round level to the first set of branches (approx. 20 £eet). Note:V,ANDALISM WARNING! 7Chere is the chance for vandalism. For this reason, should any vancialism occur additional znaintenance charges would be incurred. b. The mini lights will be of a constant burnin;rype. In other words, the strings will remain lit even if lights are removed from the string. c. Electrical connecrion will be to outlets on street light poles adjacent to each pair of trees. 3. Cost for emer ency rnaintenance vill be billed at 35.00 per manhour as necessar5 for repaixs due to vandalism or weather. 4. Proof of insurance and a certificate of coinsurance w-ill be provided vhen the contract is dra z7n. Job Costs Per Season 1. Total installation cost,including labor., equipment, etc. 5060.40 2. Total r.ental of lights,cords,omaments and timers 5622.00 3. Total removal cost 3190.00 Total joU cost 14,172.00 Total cost for 2 seasons 28344.00 Thank you for contacting us and requesti.ng our bid on this pr jec e look forward to worl ing W1T 1 jrUU. Sincerely, David Oldfic.ld President, David Oldfield Praductions