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HomeMy WebLinkAboutSUPER BIRTHDAY, INC.y City of Santa Ana �r Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreement and all amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements have been satisfied prior to signing the termination form. Is the agreement(s) a permanent record? Yes No Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with C©TC Office Use Oni C 20?,3 City of Santa Sena JAN 11 2024 City Clerk's Office ,1 ID I No. ,N-2023-011 was completed on and final payment has been made. (List all amendments. Use space below if needed.) Department: Phone/Exf.:- Signature: Date: [AagreementsVorms1orm - agreement termination form—goidenrod.doc INSURANCE NOT ON FILE N-2023-011 WORK MAY NOT PROCEED N CLERK OF COUNCIL N DATE: r— AMUSEMENT DEVICE PROVIDER AGREEMENT BETWEEN THE CITY OF SANTA ANA AND SUPER BIRTHDAY, INC., DBA MINI EXPRESS —' THIS AGREEMENT is made and entered into this I9 day of January, 2023, by and by& A between Super Birthday, Inc., a California corporation, dba Mini Express ("Provider") 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 provider to famish a trackless train activity for the City Library's Dia de los Nines, Dia de los Libros (Children's Day, Book Day) to be held on April 29, 2023 at the Santa Ana Main Library ("Event"). B. Provider represents that Provider is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in its field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected. 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 Provider shall furnish a trackless train, including setup and teardown, as well as the equipment necessary and at least one (1) staff member to operate the attraction, as more fully described in Exhibit A attached hereto and incorporated by reference. City grants Provider the right to enter its property for the purpose of delivery, set-up, operation, and pick-up. The event shall occur on Saturday, April 29, 2023 from 10:30 a.m. — 2:00 p.m. at the Santa Ana Library, and shall be disassembled and removed by Provider at the conclusion of the Event. 2. COMPENSATION a. City agrees to pay, and Provider agrees to accept as total payment for its services to City, the rates and charges identified in Exhibit A. The total amount to be expended during the term of this AGREEMENT shall not exceed Nine Hundred Dollars and Zero Cents ($900.00). b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to the City's accounting procedures. c. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by the City. Page 1 of 8 3. TERM This term of this Agreement shall commence on April 29, 2023 and end on April 30, 2023, unless terminated earlier in accordance with Section 11 below. 4. INDEPENDENT CONTRACTOR Provider 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 manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider 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. Provider is not an agent, representative or employee of City and Provider shall have no authority to act on behalf of the City. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Minimum Scope and Limit of Insurance: (1) Commercial General Liability ("CGL") Insurance. Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Worker's Compensation Insurance. In accordance with California State law, Provider, if Provider has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. (3) If the Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Page 2 of 8 b. Other Insurance Provisions (1) Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Provider including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Provider's insurance (at least as broad as ISO Form CG 2010 1185 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). (2) Primary Coverage: For any claims related to this contract, the Provider's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Provider's insurance and shall not contribute with it. (3) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (4) Waiver of Subrogation: Provider hereby grants to City a waiver of any right to subrogation that any insurer of said Provider may acquire against the City by virtue of the payment of any loss under such insurance. Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (5) Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require the Provider to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. (6) Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the City. (7) Claims Made Policies: If any of the required policies provide coverage on a claims -made basis: Page 3 of 8 i. The retroactive date must be shown and must be before the date of the contract or the beginning of contract work. ii. Insurance must be maintained and the evidence of insurance myst be provided for at least five (5) years after completion of the contract of work. iii. If coverage is canceled of non -renewed, and noreplaced with another claims -made policy form with a retroactive date prior to the contract effective date, the Provider must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (8) Verification of Coverage: Provider shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Provider's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. (9) Subcontractors: Provider shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Provider shall ensure that City is an additional insured on insurance required from subcontractors. (10) Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 6. INDEMNIFICATION Provider agrees to and shall defend, indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability 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 direct or indirect operations of the Provider or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Provider 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 asserting personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arising by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with Page 4 of 8 respect to its representation in any legal proceeding. This indemnification provision No. 6 shall survive any expiration or termination of this Agreement. 7. CONFLICT OF INTEREST Provider covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 8. 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 Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax (714) 647-6956 With copy to: Executive Director of Library Services City of Santa Ana 20 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 To Provider: Super Birthday, Inc. 1941 California Ave #77591 Corona, CA 92877 714-404-1894 sLipport@miniext)ress.com 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 set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Page 5 of 8 9. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Provider 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 attachments 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 Provider. 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 Provider 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 is not embodied herein. 10. ASSIGNMENT The experience, knowledge, capability and reputation of Provider were a substantial inducement for City to enter into this Agreement. Therefore, Provider 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. 11. TERMINATION This Agreement may be terminated by the City upon ten (10) days written notice of termination. In such event, Provider shall be entitled to receive, and City shall pay Provider, compensation for all services rendered prior to the effective date of termination. 12. RECORDS Provider shall keep records and invoices in connection with the work to be performed under this Agreement. Provider 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 minimum period of three (3) years, or for any longer period required by law, from the date of final payment to City under this Agreement. Provider 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 City under this Agreement. 13. NON-DISCRIMINATION Provider shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. Page 6 of 8 N-2023-011 14. 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. 15. LICENSES Provider 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. 16. SEVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 17. EXIIIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 18. AUTHORITY The person(s) executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that be so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: ,. Norma OrozccQ Acting Clerk of the Council CITY OF SANTA ANA K insf e Ridge City Manager [signatures continued on next page] Page 7 of 8 APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: randon Salvatierra Deputy City Attorney RECO NDED FOR APPROVAL: Brian Sternberg Executive Director of Library Services PROVIDER: Jesse N (Jan 10, 2023 15:12 PST) Jesse Nava Owner Page 8 of 8 EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Super Birthday, Inc. 1941 California Ave # 77591 Corona, CA 92877 Main Office: 714-404-1894 Email: support@theminiexpress.com www.theminiexpress.com EVENT: Dia de los Nihos, Dia de los Libros (Children's Day, Book Day) SERVICE DATE(S): Saturday, April 29, 2023 COMPENSATION: Not to exceed $900.00 DESCRIPTION: The vendor Super Birthday, Inc. will provide a trackless train (Mini Express) for a one -day outdoor event on Saturday, April 29, 2023 at the Main Library, 26 Civic Center Plaza, Santa Ana CA 92701. Super Birthday, Inc. will provide the trackless train from 10:30am-2:OOpm. The vendor will setup the train on the day of the event and provide one attendant to run the train for the duration of the Dia de los Ninos, Dia de los Libros (Children's Day, Book Day) event. The amount shall not exceed $900.00 total for services provided. The City will be responsible for setting up the space for the patrons attending and advertising the program. Vendor will be responsible for providing all equipment, materials, and personnel necessary to provide the service. City staff will be present during entire service period. NOTICE OF COMPLIANCE CITY t„„ . "A ,AM I1111RINT I'III I IPi I1111 AGL ,CLL INCLUDE Ck I 111 1AGREEMENTTOT111IL CLERK CAL MIL COUNCIL IL Contractor Super Birthday, Inc. Name: Project N-2023-011 Number: Project N-2023-011 Name: The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the insurance requirements. No further action is required at this time. The compliant coverage(s) are: TYPE OF INSURANCE GENERAL LIABILITY WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 4/3/2023 1:21 PM POLICY EXPIRATION NUMBER DATE 01855800000 10/24/2023 WAIVER 03/02/2024 COI DATE FILE NAME 03/02/2023 City of Santa Ana.pdf 03/08/2023 WC.pdf