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HomeMy WebLinkAboutYENNY BERNAL DBA UPLIFTING SOULD ART EVENTS-2017$o,)uhFtw%,t vo iIAE N-2017-063 WORK MAY PROCEED It INSURANCE EXFl [R -1 eQ�MENT TO PROVIDE EVENT PERFORMANCE AND WORKSHOP CLER OF COUNCIL COORRINATING SERVICES FOR CINCO DE MAYO FESTIVAL 2017 DA: FRCS (f } ! 120 Silvia Cuevas agreement is made and entered into this 1" day of May, 2017 by and between Yenny Bernal dba Uplifting Soul Art Events ("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"). RECITALS A. The City desires to retain a contractor to coordinate music performances for the Cinco de Mayo Festival 2017 being produced by the City on May 6 and 7, 2017 ("Event"). B. Contractor represents that it 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 Contractor shall coordinate music performances for the Event as set forth in the scope of services attached and incorporated as Exhibit A. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept, as total payment for its services, the total sum of Four Thousand Four Hundred and Seventy Five Dollars ($4,475.00). b. Payment by City shall be made within thirty (30) days following full execution of this agreement, 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. 3. TERM This Agreement shall commence on the date stated above and terminate on May 8, 2017, unless terminated earlier in accordance with Section 12, 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 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 Contractor performs the services which are Page 1 of 7 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. 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: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions, b. Worker's Compensation Insurance. In accordance with California State law, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Page 2 of 7 Contractor agrees to and shall defend, 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 direct or indirect operations of Contractor 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; 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. 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. 7. 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) is independently developed by the Contractor without reference to information disclosed by the City. S. 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. 9. 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 Page 3 of 7 certified mail, postage prepaid, or sent by facsimile 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 Facsimile: 714-647-6956 Copies to: Parks, Recreation & Community Services Agency City of Santa Ana 20 Civic Center Plaza (M-23) Santa Ana, California 92702 Facsimile: 714-571-4221 To Contractor: Yenny Bernal dba Uplifting Soul Art Events 1052 W. Pine Street Santa Ana, CA 90203 Phone: 949-545-1666 Email: upliftingsoulartCcPgmail,coin 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 facsimile, 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor 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 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 nor 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. Page 4 of 7 11. 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 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. 12. TERMINATION This Agreement may be terminated by the City upon seven (7) 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 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, 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 Contractor 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 specified in the Recitals of this Agreement. 13. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, 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. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 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. PROFESSIONAL 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 Page 5 of 7 and all other governmental agencies, including without limitation, the California Bureau of Security and Investigative Services. 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. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow 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: LAMARIA D. Pi UIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CAR.VALHO City Attomey Ey:,,• J0 FLICK, Assistant City Attorney RECOMMENDED FOR APPROV► AL:: GERARDO MQ ET, Executive, Director Parks, Re.creati.a & Community Services Agency CITY OF SANTA ANA .-' % ROBERT C. C 'TEZ Deputy City Manager COTRA.CTOR.:: V"'Ou V dvr %me: Ye.y Bernal d. Uplifting Soul Art: Events. Page 6 of 7' EXHIBIT A 2017 CINCO DE MAYO FESTIVAL MAIN STAGE ENTERTAINMENT Yenny Bernal dba Uplifting Soul Art Events • SCOPE OF SERVICE o Coordination and oversight of the following performances for 2017 Cinco de Mayo Festival on Saturday, May 6, 2017 along the event area on 4th Street in Downtown Santa Ana: ■ Manos de Fuego, drumming performance from 6:00 p.m. - 9:00 p.m. ■ Martin Espino, Sounds of Ancient Mexico, 2:00 p.m. - 8:00 p.m. ■ Three (3) Art Workshops from 2:00 p.m. -8:00 p.m. (6 hrs) including: • Paper Flower Making • Coloring Pages and Tote Decorating • Ceramics ■ Roaming Artists from 2:30 p.m. - 5:00 p.m. (5.5 hrs) to include: • Folklorico dancers • Aztec dancers - Two hour interactive Aztec dance classes from 2:30 p.m. - 4:00 pm. and roaming the event from 4:00 p.m. - 5:00 p.m. o Performers must arrive 15 minutes prior to their performance. o All performers must sign hold harmless waivers, before performances, in favor of the City and in a form acceptable to the City o Food and beverage will not be provided to performers. o Music and dance performers will perform on Spurgeon promenade. No performers are allowed to perform on 4th Street. There cannot be any obstruction of pedestrian traffic at any time. o Performances must keep sound levels low and must not conflict with Main Stage programming at any time. Page 7 of 7 AC® CERTIFICATE OF LIABILITY INSURANCE ._.......... 0 5 �ATE[10212017MM100mYY, THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGH75 UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT! If the cartlfleate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemant(sl. PRODUCER Eddie Quivares Jr. State Farm Agency 415 N. Broadway S Santa Ana, CA 92701 INSURED Yenny Bernal DBA Uplifting Soul Art Events 1052 VV Pine St Santa Ana, CA, 92703 COVERAGES CERTIFICATE NUMBER; 75-0450 REVISION NUMBER: " ,' �. NFT MAI Inc POLICIES OF 1NSURANCE USTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. No TVVIT148TANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN iS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, ILTR TYPE OF INSURANCE DL S POLICY NUMVeR POLICYDlYYYY PMf13DiYYYyI Y EXP LIMITS A GENERAL LIABILITY Y ❑ 92 -EX -K512-8 081116)2017 05/08/2015 EACH OCCURRENCE S 1,000,000 PREMISES Ea ocaurrance 5 34(),000 i� COMMEF20IALGENERAL LIABILITY CLAIMS -MADE Fx7 OCCUR MED EXP (Arty oreperson) S 5,000 PERSONAL$ ADV INJURY $ 1,000,000 - GENERAL AGGREGATE 5 2,000,000 GFN'LAGGREGATELIMIECTTAPPUESPER: POLICY PCU- LOC PRODUCTS - COMP/OPApCt $ 2,000,000 8 AUTOMOBILE LIABILITY �O atlBDISINGLE LIMIT $ ANY AUTO ALLOWNED SCHEDULED AUTOS AUTOS HIIRRDAUT05 NON -OWNED AUTOS ry�(Per '`� ° BODILY INJURY (Perporson) $ $ODILYINJURY (Perac6dent) $ PROPERTY DAMAGE accidant) $ $ UMBRELLA LIAM EXCESS LIAR R ODOUR CUtIMS•MADE ,�`IA J / _ `�, EACH OCCURRENCE $ AGGREGATE $ 1)ED RETENTIONS 10.000 $ (� WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORlPARTNEWEXECurivE OFFICE/MEMRFR FXCLU1:1DEO9 NIA ❑ °�+.,��' °y\� ��� IMC 9TATU- OTHE- T E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ [Mandatory in NHI If yns, desi:00 Lndav E.L. DISEASE -POLICY LIMIT $ $ OESCRIPTION OF OPERATIONS f LOCATIONS f VEHICLES (Attach ACORD 101, Additional Remarks Schedule, Ir more space la raqulrsd) Cinco De Mayo Celebration in Downtown Santa Ana. Uplifting Soul Art Event will he at the Yost Plaza/Spurgeon Promenade, THE CITY OF SANTA ANA, IT'S OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVE ARE NAMED AS ADDITIONAL INSURED IN REGARDS TO GENFRAL LIABILITY PER ATTACHED EXHIBIT B ADDITIONAL INSURED FORM. CITY OF SANTA ANA 20 CIVIC CENTER PLAZA $ANTA ANA, CA 92701 SQNIA BATRES ACORD 25 (20101051 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANGELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE= WITH THE POLICY PROVISIONS. AUTHORIZED a 1988- ACORD CORPORATION, All rights reserved, The ACORD name and logo are regia marks &ACORD 1001486 152843.7 03-01-2012 Exhibit B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company: State Farm Insurance This endorsement modifies such insurance as is afforded by the provisions of Policy Number: 92-IEX-K512-8 relating to the following: 1) The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and representative are named as additional insured ("additional insured") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured, 2) With respect to claims arising out of the operations and uses performed by or on behalf of the names insured, such insurance as is afforded by this policy is primary and is not additional to or to contributing with any other insurance carried by or for the benefit of the additional insured. 3) This insurance applies separately to each insured against whom claim is or snit is brought except with respect to the company's limit of liability. This inclusion of any person or organization as an insured shall not affect any right which is such person or organization would have as claimant if not so included. 4) With respect to the additional insured, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) written notice has been given to the City of Santa Ana, 20 Civic Center. Plaza, Santa Ana, California 92701. Effective May 6, 2017 this endorsement form as a part of Policy Number: 92 -EX -K512-8 Issued to Yenny Bernal DB iI in Soul vents Countersigned ��-5Auth •ized Representative WORKERS' COMPENSATION DECLARATION I hereby affirm under penalty of perjury, the ([�amelTit �e) following declaration : I certify on behalf of the term of my (Consultanfl umpany Name)contractfor C t ri services with :"Zatturing City of Santa Ana, I wil l not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions and provide proof of workers' compensation coverage. DATE: E5( 2— J k-1 l -. 15 -icy . By: Name; "P re(A '�bC4,C r Title: 2)0lE; r! tbTf�eA '.... Telephoner ms's- r= WARNING: FAILURE TO SECURE WORKERS' COMPENSATION COVERAGE 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 SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY'S FEES.