HomeMy WebLinkAboutCO 2025-011 - XibitzC3ouusign Envelope M. A40743FS-El55-4001®6DA8-E0A8FC9660DA5
AGREEMENTFOR
PROFESSIONAL SERVICES
THIS AGREEMENT is made and enteredinto is thirtyfirst day of
December, 2024, by and betweene City of Rancho Cucamonga, a municipal
corporation ("City") Xibitz, Incorporated,_custom exhibit fabricator
("Consultant").
RECITALS
A. City has heretofore issued its request for proposals to perform the following
professional services4 Provide exhibit supervision ndirection for the removal of an
exhibit theme from the Secondto and Beyondtandinstallation of a new theme in the
Second t and BeyondkV.--m see Exhibit A, Scope of Services and Exhibit B, Schedule
of Performance ("the Project").
B. Consultant submitted a proposal to perform the professional services
described in Recital"A", above, necessary to complete the Project.
C. City desires to engage o s to to complete the Projectin the manner
set forth and more fully described herein.
D. Consultant represents that it is fully qualified and licensed r the laws
of the State of California to performthe services contemplated y this Agreement in a
good ro essio I manner.
THEREFORE,AGREEMENT
in consideration of performance by the parties of the
vial promises, covenants, and conditions ee`r contained, the parties hereto agree as
follows:
1. Consultant's Services.
1.1 Scope and LevelServices. Subject to the terms and conditions
set forth in this Agreement, City hereby engages o sulta t to perform all technical and
professional services described in Recitals "A" a a4 }9 above, including, t not limited
to Consultant's proposal, all as more fully set forth in the Consultant's proposal, dated
December a 2024 and entitled "Scope of Work", attached heretoS Exhibit "A", and
incorporated by reference herein. The nature, scope, and level of the services required t
e performed by Consultant are set forth in the Scope of Work and are referred to herein
s "the Services." In the event of any inconsistencies et ee the Scope of Work and
this Agreement, the terms and provisions of this Agreement shall control.
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1.2 Revisions to Scope of Work. Uponrequest of the City,
the
Consultant ill promptly meet with Citystaff to discussany revisions tote Project
desired y the City.Consultant agrees that the Scope of Work may be amended based
upon said eetis, and, by amendment to this Agreement, the parties may agree on a
revision or revisions toConsultant's compensation ase thereon. evisi pursuant to
is Section that does not increase the total cost payable to Consultant by more than ten
percent (t %) of the total compensation specified in Section3, may be approved in
writing y ity's City Manager without amendment.
1.3 Time for Performance. Consultant shall perform all services under
this ree e t in a timely, regular basis consistent with industry standards for
professional skill and care, and in accordance with any schedule of performanceset forth
in the Scope of Work, or as set forth in a "Schedule of Performance", ifsuch Schedule is
attached hereto s Exhibit dd ".
1.4 Standard of Care. As a material inducement to City to enter into
this Agreement, Consultant hereby represents that it haste experience necessary to
undertake the services to be provided. In lightof such status experience, o s It nt
hereby covenants that its all follow the customary ro essi a standards in performing
the Services.
1.5 Familiaritv withServices. By executing is Agreement,
Consultant represents that, tote extent required y the standard ractice, Consultant
(a) has investigated and considered the scope of services to be performed, ( as
carefully considered ho e services should efo e, a c) understands the
facilities, difficulties and restrictions attending er or ace of the services under this
Agreement. Consultant represents that Consultant, to the extent required by the standard
of practice, has investigated any areas of work, as applicable, and is reasonably
acquainted wi e conditions therein. 0 1 o s lta t discover any latent or
unknownconditions, which will materially affect the performance of services, Consultant
shall immediately inform iy of such fact and shall not proceed except at Consultant's
risk until its instructions are received from the City Representative.
2. Term of Agreement. The term of this Agreement shall be i year(s) and
shall ec effective as of the date of the mutual execution by way of bothparties
signature (the "Effective ate"). No work shall e conducted; service or goods will not
e provided until this Agreement has been executed and requirements have been
fulfilled.-
Parties to this Agreement shall have the option to renew in I year(s) increments to o total
of 3 years, unless sooner terminated as provided in Section14 herein. Options to renew
are contingent upon the City Manager's approval, subject to pricingreview, and in
accordance o all Terms andConditions stated erei less otherwise provided i
writing y the City.
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3. Compensation.
3.1 Comriensation.City shall compensate _ Consultant as set forth i
Exhibit A, provided, however,tat full, total and complete amount payableConsultant
all not exceed 1 , iteen thousand sip hundred dollars and zero cents),
including all out of pocket expenses, unless additional compensation is approved by the
City Manager or City Council. City shall not withhold any federal, state or other taxes,
r other deductions. However, City shall withhold not more than ten percent (1 %) of
any invoice amount pending receipt of any deliverables reflected in such invoices Under
no circumstance shall Consultant be entitled compensation for services not yet
satisfactorily err® e .
The parties furthera re that compensation may be adjusted in accordance
with ectio 1.2 to reflect subsequent changes tote Scope of Services. City shall
compensate s tot ror any authorized extra services as set forth in ExhibitA.
d Method of Payment.
4.1 Invoices. Consultant shall submit to City monthly invoices for the
Services performed pursuant tat is Agreement. The invoices shall describe in detail the
Services rendered duringthe period andshall separately describe any authorized extra
services y invoice claiming compensation ter extra services shall include appropriate
documentation of prior authorization of such services. All invoices shall be remitted t
e City of Rancho Cucamonga, California.
4.2 City shall review such invoices and notifyo s It t in writing
within to (1 business days of any disputed amounts.
4.3 City shall pay all undisputed portions of the invoice within thirty
(3 ) calendar days after receipt of the invoice up tut e not -to -exceed amounts set forth i
Section .
4.4 l records, invoices, time cards, _cast control sheets and other
recurs maintained by Consultant relating to services hereunder shall be available for
review audit by the City®
5. Representatives.
5.1 City Representative. For the purposes of this Agreement, the
contract administrator and Cit 's representative shall be Wess Garcia, or such other
person as designatedin writing e City ("City Representative"). Its all be
Consultant's responsibility to assurethat the City Representative is kept informed of the
progress of the er ace of the services, and Consultantshall refer any decisions that
must be made by City to the City Representative. Unless otherwise specified herein, any
approval of ity required here er shall mean the approval of the City Representative.
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5.2 Consultant o re e tative. For the purposes of this Agreement,
Brandonr is hereby designated as the principale ese t tie of Consultant
authorized to act in its behalf with respect the services specified herei a I
decisions in connection there ith ("Consultant's Representative"). It is expressly
understood that the experience, l e, capability and reputation the Consultant's
Representative ere a substantial inducement i toe ter into this Agreement.
Therefore, the Consultant's Representative shall be responsible during the term of this
Agreement odirecting all activities of Consultant and devotingsufficient i e to
personally supervise the services hereunder. Consultant may not change the Responsible
Principal without the prior written approval of City.
6. Consultant's rs
6.1 All Services shall be performedy Consultant _ r under
Consultant's direct supervision, and all personnel shall possess the qualifications,
permits, and licenses required y State and local law to performsuch e ices, including,
withouti it tip , a City business license as required by the it's Municipal Code.
6.2 Consultant shall be solely responsible for the satisfactory work
performance of all personnel engaged in performing the Services and compliance with
e standard f care set forth in Sections
6.3 Consultantshall be responsible for paymenta all employees'
subcontractors' wages an benefits, and shall comply with all requirements e aini to
employer's liability, workers' compensation, l y e insurance, ocial
Security. By its execution this Agreement, Consultant certifies that it is aware of the
provisions of Section 3700 of the California Labore that require every employer to
e insured against liability for Worker's Compensation or to undertake self-insurance i
accordance it the provisions of that Code, and agreesto comply with such i i s
before commencing the performance of the Services.
. Consultant shall indemnify, fe and holdless City and its
elected officials, officers and employees, servants, designated volunteers, and agents
serving as independent contractors in the role of City officials, from any and ail liability,
damages, claims, costs and expenses any nature to the extent arising from se to 's
violations of personnelpractices and.lor any violation of the California Labor Code. City
shall have the right to offset against the amount of any fees due to Consultantunder this
Agreement any amount due to Cityfrom salt result of Consultant's failure to
promptly pay to City any reimbursement or indemnification arising under this Section.
7. Ownership of Work Product.
®_ ners i . All documents, ideas, ce ts, electronic files,
drawings, photographs and any and all other writings, including dra er , prepared,
created or provided by Consultant in the course of performinge Services, includingany
and all intellectual and proprietaryrights arising from the creation of t Efr me
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license or licenses for City; or modify the Work Productso that it becomes non -
infringing. This covenant shall survive the termination of this Agreement.
. Status as Independent Contractor. Consultant is, and shall at all times
remain as to City, a wholly independent contractor. Consultant shall have no power to
incur any debt, obligation, or liability on behalfit or otherwise act as an agent of
ity, Neither City nor any of its agents shall have control over the conduct sult t
or y� of Consultant's employees, except as set forth in this Agreement, Consultant shall
o, at any time, or in any manner, represent that it or any of its officers, agents o
employees are in any mannere t yee ity. Consultant shall y all required taxes
on amounts ai to Consultant under this Agreement, and to defend, indemnify of
City harmless from any and all takes, assessments, penalties, and interest asserted against
City by reason of the independent contractor relationship created by this Agreement.
Consultant shall fully comply withthe workers' compensation law regarding Consultant
and Consultant's employees.
Confidentiality.9. o s a t may have access to Financial, accounting,
statistical, and personnel data of individuals ity employees. ,Consultant covenants
that all data, documents, discussion, or other information develo e or received by
Consultant or providedfor performance of this Agreement are confidential and shall not
e disclosed by Consultant without prior written authorization by City. City shall grant
such t on a io if applicable law requires disclosure. Ali City data shall be returned to
City upon the termination of this Agreement. Consultant's covenant under this Section
shall survive the termination of this Agreement. This provision shall not apply
infon-nation in whatever form that is in the public domain, nors all it restrict the
Consultant from ivi notices required y law or complying i an order to provide
information or data when such an order is issued y a court, administrative agency or
other legitimate authority, or if disclosure is otherwise permitted by lava and reasonably
necessary o the Consultant to defend itself from any legal action or claim.
Conflict10. t r s.
10.1 Consultant covenants at it presently has no interest shall not
acquire any interest, direct or indirect, which may be affected y the Services, or which
wouldconflict in any manner withe performance of the Services, Consultant further
covenants that, in performance of thisAgreement, no personhaving any such interest
shall be employed i, Furthermore, Consultant shall avoid e appearance of having
any interest, which wouldconflict in any manneri e performance of the Services.
Consultant shall not accept any employment or representation durl the term of this
Agreement is is or may likely make Consultant "financially interested" s provided
in California Government Code §§ 1090 and 87) in any decision made by City on any
matter in connection ith which Consultantas been retained.
10.2 Consultant r represents that it has not employed or retained
any person or entity, other than on employee r i exclusively or C 7
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to solicit or obtain this Agreement. Consultant has not paid or agreed to pay any person
orentity, other than a bonafide employee working exclusively for Consultant, any fee,
commission, gift, percentage, or any other consideration contingent upon the execution of
this Agreement. on any breach or violation oft is warranty, City shall have the right,
at its sole and absolute discretion, to terminate this Agreement without further liability, or
to deduct from any sums payable to Consultant hereunder the full amount or value of any
such fee, commission, percentage or gift.
10.3 Consultant has no knowledge that any officer ore oyee of City
has any interest, whether contractual, noncont ractual, financial, proprietary, or otherwise,
in this transaction or in the business of Consultant, and that if any such interest comes to
the knowledge of Consultant at any time during the to oft is Agreement, Consultant
shall immediately make a complete, written disclosure of such interest to City, even if
such interest would not be deemed a prohibited "conflict of interest" under applicable
laws as described insubsection 10. 1,
11. Indemnification.
11.1 Professional Services. In the connection with its professional
services, the Consultant shall defend, indemnify, and of the City, and its elected
officials, officers, employees, servants, volunteers, and agents serving as independent
contractors in the role of City officials, (collectively, "Indemnitees"), free and harmless
with respect to any and all damages, liabilities, losses, reasonable defense costs or
expenses (collectively, "Claims"), including but not limited to liability for death or injury
to any person and injury to any property, tothe extent the same arise out of, pertain to, or
relate tote negligence, recklessness, or willful misconduct of the Consultant or any of
its officers, employees, subcontractors, consultants, or agents in the performance of its
professional services under this Agreement. Consultant shall pay all reasonable defense
costs and expenses, including actual attorney' fees and experts' costs incurred in
connection with such defense.
11.2 Other Indemnities. In connection with all Claims not covered by
Section 11.1, and tote maximum extent permitted by law, the Consultots all defend,
of harmless and indemnify the Indemnitees with respect to any and all Claims
including but not limited to Claims relating to death or injury to any person and injury to
any property, is arise out of, pertain to, or relate to the acts, omissions, activities or
operations of Consultant or any of its officers, employees, subcontractors, subcobs ultants,
or agents in the performance oft is Agreement. Consultant shall defend Indemnitees in
any action or actions filed in connection with any such Claims with counsel of City's
choice, and shall pay all costs and expenses, including actual attorney's fees and experts'
costs incurred in connection with such defense. The indemnification obligation herein
shall not in any way be limited by the insurance obligations contained in this Agreement
provided, however, that the Contractor shall have no obligation to indemnify for Claims
arising out of the sole negligence or willful misconduct of any oft e Indemnitees.
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11.3 aiye of Rights. Indemnitees do not, and shall not, waive any
rights that they may possess against Consultant because of the acceptance by City, or the
deposit with it , of any insurance policy or certificate required rsuant to this
Agreement.
4 _Waiver of Right of Subrogation. Except as otherwise expressly
provided in this rn e , Consultant, on behalf of itself and all parties claiming e
or through it, hereby waives all rights of subrogation against the Indemnitees, while
acting within the scope oftheir duties, from all claims, losses and liabilities arising out o
r incident to activities or operations performed by or on behalf of the Consultant.
® Survival. The r visio s of this Section 11 shall survive the
termination of the Agreement and are in addition to any other rights or remedies which
In e nitees may have under the law. Payment is not required as a condition rece e t to
an Ina ni ee's right to recover under this indemnity provision, and an entry of judgment
against Consultant shall be conclusive in favor of the In a nitee's right to recover under
this indemnity provision®
12. Insurance.
p Liability Insurance. Consultant shall procure and maintainin full
force and effect for the duration ofthis"reernent, insurance against claims for injuries
to persons or damages to property which may arise from or in connection with the
performanceof the services hereunder by Consultant, and/or its agents, representatives,
employees subcontractors.
12.2 Minimum Scope of Insurance. ess otherwise approved y City,
coverage shall be at lest as broad as:
I Insurance Services Office Commercial General Liability
coverage (occurrence form CG 000 I)®
) Insurance ices Office form number CA 0001 (Ed.
It 7) covering to o ie Liability, code 1 (any auto).
3) Worker's e s do insurance s required_ _y the State
of California, and Employer'sLiability Insurance.
() Professional Liability insurance in s for.... approved y the
City, having, at ity's option, an extended reporting perio
of not less than tree () yearn or professional liability
insurance shall be maintained for a period of three (3) years
after completion of the Services which shall, during the
entire three (3) year period, provide protection against
claims of professional negligence arising o
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Consultant's performance of the Services and otherwise
complying it all applicable ro i io s oft is Section 12e
The policy shall be endorsed o include contractual liability
tote extent insurable.
12.3 Minimum i its of Insurance. Consultants all maintain limits no
lessthan:
(l) Commercial General Liability: $5,000,000 per occurrence
for bodily injury, personal injury property damage.
Commercial eneral Liability Insurance with a general
aggregate limit shall apply separately tot is Agreement or
the general limit shall e trice the required occurrence
limit.
(2) Automobile Lis ility: $3,000,000 per accident for bodily
injury and property damage.
(3)Employer's Liability: $1, per accident and in the
aggregate for bodily injury or disease and Workers'
Compensation Insurance in teamount required by law.
() Professional Liability:
$3,000,000 per claim/aggregate.
(5) . The Insurance obligations under this agreement shall be the
greater of (i) the Insurance coverages and limits carried y
the Contractor; or (ii) the mminimum insurance requirements
shown in this Agreement. Any insurance ro ee s in
excess of the specified limits and coverage required which
are applicable to a given loss, shall be available to the City.
o representation is made that the minimum insurance
requirements oft is Agreement are sufficient to cover the
obligations of the Contractor under this Agreement.
12.4 Deductibles n elf I sured Retentions. Any deductibles or self -
insured ree dos must be declared to and approved the City and shall
not reduce the limits of coverage. City reserves the right to obtain a full
certified copy of any required insurance oicy and endorsements.
12.5 Other Insurance Provisions.
(1) The commercial general liability and automobile liability
policies are to contain the following provisions on a
separate additionally insured o se ent naming the City,
its officers, officials, employees, designated volunteers an
agents serving as independent contractors in theE6 of
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City officials as additional insureds as respects: liability
arising out of activities performed by or on behalf of
Consultant; products and completed eratio s of
Consultant; premises owned, occupied or used by
Consultant; and/or automobiles owned, leased, _hired or
borrowed by Consultant. The coverage shall contain no
limitations on the scene of protectionafforded to City. its
officers. officials, ls, employees, designated volunteers or
agents serving -as indenendent contractors in the role o
Citv officials which are not also 1imftati2aa-AnndgqhjL.Lo
the named insured.
(2)
For any claims related to this Agreement, Consultant's
insurance coverage shall be primary insurance as respects
City, its officers, officials, employees, designated
volunteers and agents serving as independent contractors in
the roe of City or officials. Any insurance or self-
insurance maintained by City, its officers, officials,
employees, designated volunteers or agents serving as
independent on ractors irate role of City officials shall e
excess of Consultant's insurance and shall not contribute
with at.
(3)
Consultant's insurance shall apply separately to each
insured against whom claim is made or suit is brought,
except with respect tote limits of the insurer's liability.
(4)
Contractor shall provide immediate written noticei () any
f the required insurance olicies is terminated; (2) the
limits of any of the required polices are reduced; (3) or the
deductible or self insured retc do is increased. In the
event of any cancellation or reduction in coverage or limits
of any insurance, t cto aI forthwith obtainn
submit proof of substitute insurance, aril o tr ctor
ail to immediately roc re other insurance, asspecified, to
substitute for any canceled policy, the City may procure
such insurance atContractor's scale cost and expense.
()
Each insurance policy, required y this clause shall
expressly wive the insurer's right of subrogation against
City and its elected officials, officers, employees, servants,
attomeys, designated volunteers, and agents serving as
independent contractors in the role of City officials.
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