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HomeMy WebLinkAboutTACOS EL GRINGO, LLC (2)INSURANCE NOT ON FILE WORK MAY NOT PROCEED N-2023-036 CLERK OF COUNCIL DATE: r AGREEMENT TO PROVIDE ON -CALL FOOD VENDING AT CITY LIBRARY EVENTS 0 N .r� THIS AGREEMENT is made and entered into on this 12s' day of January, 2023 by and between Tacos El .—� Gringo LLC, a California limited liability corporation, ("Vendor"), and the City of Santa Ana, a charter n city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS (£llaS•)(AV) A. The City desires to retain a Vendor having special skill and knowledge in the field of providing quick service food vending for City public library events. B. Vendor represents that Vendor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in its field and that any services performed by Vendor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting fain in the field. D. The Parties acknowledge that the City intends to provide events to the public but must balance the need to comply with all COVID-19 guidance and restrictions. 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 On an on -call basis, and at the City's sole discretion, Vendor shall perform the tasks and obligations set forth in Exhibit A, attached hereto and incorporated by reference. Such obligations include, but are not limited to, providing food servings to attendees at the Dia de los Nihos, Dia de los Libros community outreach event at the Main Library on April 29, 2023 from 10:30am — 2:30pm, for which actual food quantities will be determined as needed per direction of City staff. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Vendor under this agreement. Vendor shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit A. The total amount to be expended during the term of this Agreement shall not exceed Five Thousand Dollars and Zero Cents ($5,000.00). 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 which may reasonably be expected by City. Page 1 of 8 3. TERM This Agreement shall commence on April 1, 2023 and will terminate on June 30, 2024, unless terminated earlier in accordance with Section 13 below. 4. INDEPENDENT CONTRACTOR Vendor 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 Vendor performs the services which are the subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Vendor 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. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Vendor 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 Insurance (CGL): 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 as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 3. If the Vendor 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 contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions 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 Vendor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the Page 2 of 8 form of an endorsement to the Vendor's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). 2. Primary Coverage: For any claims related to this contract, the Vendor's insurance coverage shall be primary insurance primary coverage at least as broad as ISO CG 20 01 04 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 Vendor'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: Vendor hereby grants to City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss under such insurance. Vendor 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. Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require the Vendor 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. 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. Verification of Coverage: Vendor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by 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 Vendor'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. 8. Subcontractors: Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. Page 3 of 8 9. 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. 10. Claims Made Policies: If any of the required policies provide coverage on a claims -made basis: 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 evidence of insurance must be provided for at least five (5) years after completion of the contract of work. iii. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Vendor must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. 6. INDEMNIFICATION Vendor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, 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 Vendor, its subcontractors, agents, employees, or other persons acting on its 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 Vendor 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 Vendor'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 out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Vendor. 7. INTELLECTUAL PROPERTY INDEMNIFICATION Vendor shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Vendor to the City pursuant to this Agreement. Page 4 of 8 8. RECORDS Vendor shall keep records and invoices in connection with the work to be performed under this Agreement. Vendor 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 Vendor under this Agreement. All such records and invoices shall be clearly identifiable. Vendor 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. Vendor 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 Vendor under this Agreement. 9. CONFIDENTIALITY If Vendor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Vendor agrees that it shall not use or 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 Vendor disclosed in a publicly available source; (c) is in rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Vendor without reference to information disclosed by the City. 10. CONFLICT OF INTEREST CLAUSE Vendor 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. 11. NON-DISCRIMINATION Vendor 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. Vendor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Vendor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict Page 5 of 8 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 Vendor. 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 Vendor 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. 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Vendor, Vendor 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 contractors retained by City. 14. TERMINATION This Agreement may be terminated by the City upon thirty (30) calendar days written notice of termination. In such event, Vendor shall be entitled to receive and the City shall pay Vendor compensation for all services performed by Vendor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Vendor to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Vendor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 15. 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. 16. 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. Page 6 of 8 17. PROFESSIONAL LICENSES Vendor 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. Vendor 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. 18. 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 Fax: 714- 647-6956 With courtesy copies to: Executive Director, Brian Sternberg Library Services City of Santa Ana 20 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 Fax:714-571-4261 To Vendor: Tacos El Gringo, LLC 313 S. Nutwood Street Anaheim, California 92804 Attn: Ryan Lane (Owner/Operator) 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 Page 7 of 8 N-2023-036 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. 19. 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. The Agreement is the final and complete agreement and any prior or contemporaneous agreements for similar services between the parties is superseded by this Agreement. This shall not apply where the Parties are currently engaged and Vendor is providing services not contemplated by this Agreement C. 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: Norma Orozco ' Acting Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By. ,Jalnathan T. Martine Assistant City Attorney RECOMMENDED FOR APPROVAL: Brian Sternberg Library Services Director Library Services CITY OF SANTA ANA Kristine Ridge City Manager VENDOR: Name: RVan Lane Title: ner/Operator Page 8 of 8 Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Tacos El Gringo LLC Contact: Ryan Lane 313 S Norwood Street Anaheim, CA 92804 Phone:714-260-3696 Email: www.tacoselgringo.net EVENT: Santa Ana Public Library Services Department Events LOCATIONS: Main Library, 26 Civic Center Plaza, Santa Ana CA 92701 and the Newhope Library, 122 N. Newhope Street, Santa Ana, CA 92703 TERM: April 1, 2023 through June 30, 2024 COMPENSATION: Not to exceed $5,000 DESCRIPTION: Vendor shall provide food truck services for participants in the department's city sponsored events at the Santa Ana Public Library sites. Tacos El Gringo LLC will provide its services on Saturday, April 29, 2023 from 10:30 a.m. to 2:30 p.m. during the Dia de los Nihos, Dia de dos Libros community outreach event. Food items will be provided for a price of $6.00 per person. Quantities and future event dates will be determined as needed per direction of department staff. The City will be responsible for setting up the space for the patrons attending, and advertising the events. Vendor will be responsible for providing all equipment, materials, supplies and personnel necessary to provide the service. City staff will be present at all times during the service.