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HomeMy WebLinkAboutJOSHUA BOBROVEINSURANCE NOT ON FILE WORK MAY NOT PROCEED N-2021-025 JAI` 2 q 20ZJLERK OF COUNCIL DATE: A LR3EEMENT TO PROVIDE COMMERCIAL PHOTOGRAPHY SERVICES DIN k ( is po,�\l THIS AGREEMENT is made and entered into this 16th day of December, 2020 by and between Joshua Bobrove ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a Consultant having special skill and knowledge in the field of commercial photography services for use by the Public Works Agency. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services — Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit A. The total sum to be expended under the term of this Agreement, including any extension period, shall not exceed $50,000. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on December 15, 2021, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for one 2-year period upon a writing executed by the City Manager and City Attorney. Page 1 of 8 4. PREVAILING WAGES Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant. has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection Page 2 of 8 8. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, Consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimr m period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or Page 4 of 8 disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (e) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 To Consultant: Joshua Bobrove 2419 Vista Del Campo Santa Barbara, CA 93101 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time Page 5 of 8 set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachinents hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subj ect to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance Page 6 of 8 N-2021-025 specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 19. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA u Daisy Gomez — Kri tine Ridge Clerk of the Council City Manager Page 7 of 8 APPROVED AS TO FORM SOMA R. CARVALHO City Attorney By: o ill,. -f,.. L JoYin M. Funk Senior Assistant City Attorney RECOMMENDED FOR APPROVAL Nabil Saba, P.E. Executive Director Public Works Agency CONSULTANT 9eai[ut, g644'4'0' Name. Joshua Bobrove Title: owner Page 8 of 8 Pricing and Rates Half Day Rate (1-5 hours) for Lifestyle/ Location Editorial 800 including retouching of selected images, Full Day Rate (up to 8 hours) for Lifestyle/ Location Editorial 1000 including retouching of selected images. Studio Setup Portrait session (1-4 people) including retouching 800 of selected images. Additional people, per person. 130 All images include unlimited usage rights. Rates may vary depending on the specifics of the shoot, formal proposals will be created for each project. Digitally signed by Francine R. Villareal Francine R. Villareal Date: 2021.01.28 16:59:48 -08'00' DATE (MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 01/15/2021 THISCERTIFICATEISISSUEDASAMATTEROFINFORMATIONONLYANDCONFERSNORIGHTSUPONTHECERTIFICATEHOLDER. THISCERTIFICATEDOESNOTAFFIRMATIVELYORNEGATIVELYAMEND,EXTENDORALTERTHECOVERAGEAFFORDEDBYTHE POLICIESBELOW.THISCERTIFICATEOFINSURANCEDOESNOTCONSTITUTEACONTRACTBETWEENTHEISSUINGINSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT:IfthecertificateholderisanADDITIONALINSURED,thepolicy(ies)mustbeendorsed.IfSUBROGATIONISWAIVED, subjecttothetermsandconditionsofthepolicy,certainpoliciesmayrequireanendorsement.Astatementonthiscertificatedoesnot confer rights to the certificate holder in lieu of such endorsement(s). CONTACT PRODUCER NAME: HILL & USHER INS & SURETY/PHS FAX (866) 467-8730(888) 443-6112 PHONE 59302202 (A/C, No): (A/C, No, Ext): The Hartford Business Service Center E-MAIL 3600 Wiseman Blvd ADDRESS: San Antonio, TX 78251 INSURER(S) AFFORDING COVERAGENAIC# INSURED INSURER A : Sentinel Insurance Company Ltd.11000 PHOTOGRAPHY BY JOSHUA BOBROVE INSURER B : 2419 VISTA DEL CAMPO INSURER C : SANTA BARBARACA93101-4662 INSURER D: INSURER E : INSURER F : COVERAGESCERTIFICATE NUMBER:REVISION NUMBER: THISISTOCERTIFYTHATTHEPOLICIESOFINSURANCELISTEDBELOWHAVEBEENISSUEDTOTHEINSUREDNAMEDABOVEFORTHEPOLICYPERIOD INDICATED.NOTWITHSTANDINGANYREQUIREMENT,TERMORCONDITIONOFANYCONTRACTOROTHERDOCUMENTWITHRESPECTTOWHICHTHIS CERTIFICATEMAYBEISSUEDORMAYPERTAIN,THEINSURANCEAFFORDEDBYTHEPOLICIESDESCRIBEDHEREINISSUBJECTTOALLTHE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSRADDLSUBRPOLICY EFFPOLICY EXP POLICY NUMBER TYPE OF INSURANCELIMITS LTRINSRWVD(MM/DD/YYYY)(MM/DD/Y YYY) EACH OCCURRENCE COMMERCIAL GENERAL LIABILITY $1,000,000 DAMAGE TO RENTED CLAIMS-MADEOCCUR $1,000,000 X PREMISES (Ea occurrence) General Liability $10,000 MED EXP (Any one person) X PERSONAL & ADV INJURY $1,000,000 AX59SBWRV164912/ 202012/19/2021 $2,000,000 GENERAL AGGREGATE GEN'L AGGREGATE LIMIT APPLIES PER: PRO- POLICYLOC $2,000,000 PRODUCTS - COMP/OP AGG X JECT OTHER: COMBINED SINGLE LIMIT AUTOMOBILE LIABILITY $1,000,000 (Ea accident) ANY AUTO BODILY INJURY (Per person) ALL OWNEDSCHEDULED BODILY INJURY (Per accident) A59SBWRV164912/ 19/2021 AUTOSAUTOS HIREDNON-OWNEDPROPERTY DAMAGE XX AUTOSAUTOS(Per accident) OCCUR EACH OCCURRENCE UMBRELLA LIAB CLAIMS- EXCESS LIAB AGGREGATE MADE DED RETENTION$ WORKERS COMPENSATIONPEROTH- AND EMPLOYERS' LIABILITYSTATUTE ER ANY Y/N E.L. EACH ACCIDENT PROPRIETOR/PARTNER/EXECUTIVE N/ A E.L. DISEASE -EA EMPLOYEE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE - POLICY LIMIT If yes, describe under DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES(ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the Insured's Operations. City of Santa Anna, its officers, employees, agents & representatives is an additional insured per the Business Liability Coverage Form SS0008 attached to this policy. Notice of Cancellation will be provided in accordance with Form SS1223, attached to this policy. CERTIFICATE HOLDERCANCELLATION SHOULDANYOFTHEABOVEDESCRIBEDPOLICIESBECANCELLED City of Santa Ana BEFORETHEEXPIRATIONDATETHEREOF,NOTICEWILLBEDELIVERED Risk Management Division IN ACCORDANCE WITH THE POLICY PROVISIONS. 20 Civic Center Plaza, 4th Floor AUTHORIZED REPRESENTATIVE Santa Ana CA 92701 © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03)The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: LOC# : ADDITIONAL REMARKS SCHEDULE 22 Pageof AGENCYNAMED INSURED HILL & USHER INS & SURETY/PHSPHOTOGRAPHY BY JOSHUA BOBROVE POLICY NUMBER 2419 VISTA DEL CAMPO SANTA BARBARACA93101-4662 SEE ACORD 25 CARRIERNAIC CODE SEE ACORD 25 EFFECTIVE DATE:SEE ACORD 25 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM ACORD 25CERTIFICATE OF LIABILITY INSURANCE FORM NUMBER:FORM TITLE: Coverage is primary and noncontributory per the Business Liability Coverage Form SL 00 00, attached to this policy. CITY WILL BE MAILED 30 DAYS WRITTEN NOTICE OF POLICY CANCELLATION AND THE REFERENCES "ENDEAVOR TO" AND "FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES" SHALL BE REMOVED OR CROSSED OUT. ACORD 101 (2014/01)© 2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD THE HARTFORD BUSINESS SERVICE CENTER 3600 WISEMAN BLVD SAN ANTONIO TX 78251January 15, 2021 City of Santa Ana Risk Management Division 20 Civic Center Plaza, 4th Floor Santa Ana CA 92701 Account Information: Contact Us PHOTOGRAPHY BY JOSHUA Policy Holder Details : Business Service Center BOBROVE Business Hours: Monday - Friday (7AM - 7PM Central Standard Time) Phone:(866) 467-8730 Fax:(888) 443-6112 Email:agency.services@thehartford.com Website:https://business.thehartford.com EnclosedpleasefindaCertificateOfInsurancefortheabovereferencedPolicyholder.Pleasecontactusifyouhaveany questions or concerns. Sincerely, Your Hartford Service Team WLTR005 2419 Vista Del Campocall me: 323.868.9639 Santa Barbara Ca 93101info@joshuabobrove.comwww.joshuabobrove.com December 15, 2020 To Whom It May Concern: My company "Photography by Joshua Bobrove" provides photographic services to the City's Water Resources Division. At no time during the lifetime of my contract with the City will I provide: legal services, professional engineering services, and/or architecture services. In addition, my business does not own a company vehicle. The photography services that I provide to the City do not require a business owned vehicle. Sincerely, Joshua Bobrove Joshua Bobrove Photography by Joshua Bobrove 323-868-9639 joshua@joshuabobrove.com C)49 /& S!.4! A NA R ISK M ANAGEMENT a division of H UMAN R ESOURCES Joshua Bobrove I, _____________________________ hereby affirm under penalty of perjury, the ΛbğƒĻΉźƷƌĻΜ following declaration: Photography by Joshua Bobrove I certify on behalf of _________________________________ that during the term Λ/ƚƓƭǒƌƷğƓƷΉ/ƚƒƦğƓǤ bğƒĻΜ Photographic of my contract for ________________________ services with the City of Santa Ana, ˁǤƦĻ ƚŅ ƭĻƩǝźĭĻ ƦƩƚǝźķĻķΜ compensation laws of California, and agree that if I should become subject to the e Labor Code, I shall forthwith immediately. Date: December 15, 2020 Print Name: Joshua Bobrove Print Title: Owner Signature: Telephone: 323-868-9639 WARNING: IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000). IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTIS. Lʹ΍wźƭƉ aŭƒƷ΍LƓƭǒƩğƓĭĻ wĻƨǒźƩĻƒĻƓƷƭ΍‘/ 5ĻĭƌğƩğƷźƚƓ ЉБЊЎЋЉЊВ