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HomeMy WebLinkAboutTK CREATIVE, LLCINSURANCE ON FILE WORK MAY PROCEED UNTIL INS (]�VGEEXPIRES CITY CLERK �]CI DATE: N-2023-212 AGREEMENT WITH TK CREATIVE, LLC, FOR GRAPHIC DESIGN SERVICES 0'.CD,ft a) �S GGsiY7)f THIS AGREEMENT is made and entered into on this 1 st day of July, 2023 by and between TK Creative, LLC, an Arizona limited liability company ("Consultant"), and the City of Santa Ana, a N charter city and municipal corporation organized and existing under the Constitution and laws of © the State of California ("City"). City and Consultant shall hereinafter collectively be referred to as the Parties. N r7 RECITALS A. The City desires to retain a consultant to provide graphic design services for various projects for City's Community Development 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 consulting 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, as needed, 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 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 the terms of this Agreement, the rates and charges identified in Exhibit B. The total amount to be expended during the term of this Agreement, including any extension periods, shall not exceed Twenty -Five Thousand Dollars and Zero Cents ($25,000.00). 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. 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 City. ft�l '.i I This Agreement shall commence on the date first written above and continue until June 30, 2025, unless terminated earlier in accordance with Section 15, below. The term of this Agreement Page 1 of 8 may be extended for two (2), one-year periods upon a writing executed by the City Manager and City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant 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. 5. 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. 6. 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. Minimum Scope and Limit of Insurance (1) Professional Liability (Errors and Omissions): insurance appropriate to the Consultant's profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. (2) Broader Coverage: if the Consultant 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 Consultant. Any available insurance proceeds in excess of the specified Page 2 of 8 minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions (1) Primary Coverage: For any claims related to this contract, the Consultant'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 Consultant's insurance and shall not contribute with it. (2) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (3) 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 AXII, unless otherwise acceptable to the City. (4) Claims Made Policies (applicable only to professional liability): 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 Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of work. (5) Verification of Coverage: Consultant 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 CGLpolicy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant'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. (6) Subcontractors: Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant Page 3 of 8 shall ensure that City is an additional insured on insurance required from subcontractors. (7) Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances. 7. INDEMNIFICATION Consultant 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 Consultant, 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 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 out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant 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 Consultant to the City pursuant to this Agreement. 9. 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 minimum 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 Page 4 of 8 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. 10. 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 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; (c) 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. 11. CONFLICT OF INTEREST CLAUSE Consultant 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. 12. NON-DISCRIMINATION Consultant 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 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 Page 5 of 8 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. 14. 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. 15. 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, subject 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(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 Consultant 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. 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. 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 18. 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. 19. 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: City Clerk City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6549 With courtesy copies to: Executive Director, Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 Fax:714-571-4211 To Consultant: TK Creative, LLC Attn: Tyson Koerper 42220 N La Plata Road Cave Creek, AZ 85331 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 Page 7 of 8 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. 20. 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: ennifer 11 City Clerk APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Bra on Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL: 2y� Michael Garcia Executive Director Community Development Agency CITY OF SANTA ANA Kstine Ridge City Manager CONSULTANT: ysou I o rper TK Creative, LLC Page 8 of 8 EXHIBIT A EXHIBIT A — Scope of Work TK Creative, LLC Graphic Design • Graphic Design • Print Design o Full branding initiatives o Ads o Brochures o Publications o Logos o Car wraps o Posters o Flyers • Design for Web o Graphics for web such as: banners, headers, social media posts, buttons, etc. • Exclude full website design and back end web development or site mapping • Able to recommend clients to full web design experts o Banners o App support graphics o On-line business branding • Illustration o Publishing ■ Exclude publications larger than 20+ page magazines, directories, or catalogs, newspapers, etc. ■ Able to provide graphic support for cover designs o Gaming o Decorative o Infographics o Commissioned art work • Graphic design for: o Print o Web o Branding o Logo • Production assistance o Technical work that does not require creative design o Resizing of logos or graphics or adjustments to color of designs EXHIBIT B Exhibit B — Fee Schedule • Regular Rate: $75 per hour • Rush Rate: $100 per hour Castro, Julie From: City of Santa Ana <certificate-request@ctraxjdidata.com> Sent: Friday, August 11, 2023 12:17 PM To: Castro, Julie; tkoerper@gmail.com Subject: Internal Notice of Compliance NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor TK Creative LLC Name: Project TBD (030) Number: Project Agreement With TK Creative, LLC, For Graphic Design Services 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 PROFESSIONAL LIABILITY Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 8/11/2023 3:16 PM POLICY NUMBER EXPIRATION DATE WAIVER 08/03/2024 COI DATE FILE NAME Letter- Prof 08/09/2023 Liablity Insu - TK Creat ive. pdf TYSON E. KOERPER tkle�'mi ART DESIGN . ILLUSTRATION OWNER, TK CREATIVE, LLC 42220 N. La Plata Rd. • Cave Creek, AZ 85331 • (480) 309.4482 Design: http://www.tkoerper.com Fine Art: https://tkoerper.myl2ortfolio.com August 3, 2023 City of Santa Ana Risk Management Division 20 Civic Center Plaza Santa Ana, CA 92702 Re: Professional Liability Insurance Requirement. Dear City of Santa Ana Risk Management Division: TK Creative, LLC has intent to enter into an agreement with the City of Santa Ana. Throughout the course of this agreement, TK Creative, LLC attests that I am not a licensed professional and will not employ a licensed professional during the course of my contract with the City of Santa Ana. By signing below, I attest that I possess the legal authority to enter into an agreement with the City of Santa Ana as well as the legal authority to attest to the statements above. If at any time it is found that TK Creative, LLC is not adhering to any/all statements in this document, the contract will be considered null and void and the company will be held fully liable for any and all damages. Tys oer ner, TK Creative, LLC 480.309.4482 tkoerper@gmail.com