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Home My WebLink AboutPLAY-WELL TEKNOLOGIES (2)INSURANCE ON FILE N-2023-31 7 WORK MAY PROCEED UNTIL INSURANCE EXPIRES CITY CLERK DAA: AGREEMENT WITH PLAY -WELL TEKNOLOGIES SERVICES FOR STEM p9-CC RPf INSPIRED PROGRAMMING FOR SPECIAL EVENTS FOR &0 p rd) fA THE CITY OF SANTA ANA THIS AGREEMENT is made and entered into on this 20th day ofNovember, 2023 by and between r�s Play -Well TEKnologies, a California limited liability company ("Contractor"), 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"). CD 7 RECITALS 0 A. The City desires to retain a contractor having special skill and knowledge in the field of STEM inspired special event programming, including the City's Winter Village Event. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor 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 As needed, Contractor shall perform during the term of this Agreement, 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, at dates and times mutually agreed upon by the parties in a signed writing. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A. The total amount to be expended during the tern of this Agreement shall not exceed Twenty Seven Thousand, Five Hundred Dollars ($27,500). This includes (1) a base amount of $25,000 and (2) a 10% contingency of $2,500 for any additional work as requested in the sole discretion of the City. 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. Page 1 of 9 #19793v4 3. TERM This Agreement shall commence on the date first written above and terminate on November 19, 2026, unless terminated earlier in accordance with Section 15, below. 4. INDEPENDENT CONTRACTOR Contractor 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 not 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor 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, speciPrcations, 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 Contractor under this Agreement ("Documents & Data"). Contractor 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 rider this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below for the duration of this Agreement: a. Minimum Scope and Limit of Insurance (1) Commercial General Liability (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 Page 2 of 9 #19793v4 general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CO 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Workers' Compensation. 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) Sexual Abuse or Molestation (SAM) Liability. If the work will include contact with minors, and the CGL policy referenced above is not endorsed to include affirmative coverage for sexual abuse or molestation, Contractor shall obtain and maintain a policy covering Sexual Abuse and Molestation with a limit no less than $1,000,000 per occurrence or claim. (4) Broader Coverage. If the Contractor 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 (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 Contractor including materials, parts, or equipment furnished in connectionwith such work or operations, General liability coverage can be provided in the fonn of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or if not available, through the addition of both CG 20 10, CG 20 26, CO 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 Contractor'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 Contractor's insurance and shal I 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. Contractor hereby grants to City a waiver of any right to subrogation that any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance, Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of Page 3 of 9 #19793v4 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 Citymay require the Contractor 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) Verification of Coverage. Contractor 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 COL policy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor'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. Contractor 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. (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. 7. INDEMNIFICATION Contractor 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 ari,sin.g out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, 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 Page 4 of 9 #19793v4 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 Contractor 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 Contractor'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 Contractor. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor 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 Contractor to the City pursuant to this Agreement, 9. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable, Contractor 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. Contractor 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 Contractor under this Agreement. 10. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) Page 5 of 9 #19793v4 is independently developed by the Contractor without reference to information disclosed by the City. It. CONFLICT OF INTEREST CLAUSE Contractor 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 Contractor 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, Contractor 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 Contractor, 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 Contractor, 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 Contractor 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. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without fire 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 that are the subject to this Agreement performed by City personnel or by other Contractors retained by City, 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of Page 6 of 9 #19793v4 termination, subject to the following conditions: a, As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work products) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate, h. 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 writng 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 Califortia. 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. 18. PRO I SSIONAL LICENSES Contractor 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 govermnental agencies. Contractor 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: Page 7 of 9 419793v4 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 Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 To Contractor: Play -Well TEKnologies Attn: Chrissy Close, Area Manager 216 Greenfield Ave, San Anselmo, CA 94960 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. 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 filly set forth in the body of this Agreement. [signature page followsl Page 8 of 9 #19793v4 N-2023-317 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: ndon Salvatierra Deputy City Attorney FOR APPROVAL: and Community Service CITY OF SANTA ANA Tom Hatch Interim City Manager CONTRACTOR: chirlsw CIO. re Chrissy Close ov 20. 20 311:33 PST) Chrissy Close Area Manager Page 9 oF9 #19793v4 1 *414 0111 U I' I M Play -Well TEKnologies 0 n;i, plav ( 216 Greenfield Avenue every San Anselmo, CA 94960 day. Come plan www.play-well org well witb us! 415.460,5210 October 27, 2023 City of Santa Ana To Whom it May Concern, Here is the quote for the special events running in 2023 — 2024. Special Event: Build Santa's $300 (1 instructor) $100 per instructor per hour Village/Winter Village in LEGO® $500 (2 instructors) General Special Event $300 (l instructor) $100 per instructor per hour $500 (2 instructors) Total for all programming will be dependent upon total number of sessions scheduled, length of each session, and number of instructors needed. Cnnhrissy Close l W_ ("- Area Manager ch rissvan lav-well. ore (949)504-2257 Orozco, Norma From: City of Santa Ana < certificate- request@ctrax.jdidata.com> Sent: Wednesday, November 29, 2023 10:35 AM To: Hoang, Julie; chrissy@play-well.org; Frankston, Emerson; Mike@4apolicy.com; Leon, Monique Subject: Internal Notice of Compliance NOTICE OF COMPLIANCE CIT% STAFF: PRIiNT THIS PACE AND INCLUDE VNITH AGREEIVI ENT TOTE] E CLERK OF THE COUNCIL Contractor play -Well TEKnologies Name: Project TBD (016) Number: Project Agreement With Play -Well TEKnologies Services For STEM Inspired Name: Programming For Special Events For The City Of Santa Ana 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 POLICY EXPIRATION COI DATE FILE NAME NUMBER DATE ABUSE/MOLESTATION AND City of Santa PHPK2603446 10/01/2024 09/19/2023 PROFESSIONAL LIABILITY Ana (1).pdf GENERAL LIABILITY PHPK2603446 10/01/2024 09/19/2023 City of Santa Ana (1).pdf WORKERS COMPENSATION AND City of Santa 57WECKZ9403 10/01/2024 09/19/2023 EMPLOYERS' LIABILITY Ana (1).pdf Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 11/29/2023 1:34 PM 1