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HomeMy WebLinkAboutMONKEY'S MUNCHIES, INCCity of Santa Ana Clerk of the Council ti AGREEMENT TERMINATION FORM Please complete this farm in its entirety when the attached agreement and all amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements have been satisfied prior to signing the termination farm. Is the agreement(s) a permanent record? Yes No Return form to the Clerk of the Council Office (M-30) . Cali 647-1520 if you have any questions. The agreement with FYI rS M►AIIIOA It S I FYI G , N-2022-028 No. (List all amendments. was completed on Use space below if needed.) I: lagreemenfsVormsVorm - agreement termination fonm_goldenrod.doc COFC Office Use only C Zo Z2— City of Santa And' City lark's Office and final payment has been made. Department: Phone/Ext.: bs- Signature: Date: FEB 0 3 2022 INURANCE NOT Vl`;'' WORK MAY LD CLERK OF LUUNCIL DATE: N-2022-028 AGREEMENT TO PROVIDE ON -CALL FOOD VENDING AT CITY LIBRARY EVENTS LtMrar� (Mattq tWIVOCO)IJ. THIS AGREEMENT is made and entered into on this 16th day of February 2022 by and between Monkey's Munchies, Inc., a California corporation, ("Vendor"), 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 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 firm 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 one hundred (100) servings of food for one hundred (100) program participants at the TeenSpace 13th Birthday Celebration at the Main Library on February 16, 2022. 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 and/or Vendor's event menu on their website (https://monkeysmunchiestruck.com/), as it may be amended from time to time, upon mutual agreement between the Executive Director, or their designee, and the Vendor. The total amount to be expended during the term of this Agreement shall not exceed Three Thousand Dollars and Zero Cents ($3,000.00). 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 7 UNENEYWIT351 This Agreement shall commence on the date first written above and will terminate on June 22, 2022, 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. 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. 6. 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 2 of 7 7. 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. 8. 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. 9. 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. 10. 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. 11. 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 3 of 7 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. 12. 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. 13. 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. 14. 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. 15. 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 4 of 7 16. 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. 17. 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: Monkey's Munchies, Inc. 740 Solano Los Angeles, CA 90012 Attn: Marwin Carranza 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 Page 5 of 7 N-2022-028 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. 18. 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: Daisy Gomez Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney CITY OF SANTA ANA TZ)r- Kristine Ridge City Manager \9 oleo Die] t� By: r (Jan 31,207 2213:16 PST) Br on Salvatierra Name: Deputy City Attorney Title: [signatures continued on nextpagel Page 6 of 7 �4;A7 Brian Sternberg Library Services Director Library Services Page 7 of 7 Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Monkeys Munchies Name: Marwin Carranza (Owner) Address: 740 Solano Ave Phone Number: 323-675-5860 Email Address: marwincarranza@gmail.com EVENT: TeenSpace 13'h Birthday Celebration — February 1612022 and Various Future Events LOCATION: Main Library, 26 Civic Circle Plaza, Santa Ana, CA 92703 (Library turn -around area) TERM: February 16'h 2022-June 30`h 2022 COMPENSATION: Total compensation not to exceed $3,000.00; $675.00 for February 16' event DESCRIPTION: To provide food truck services for the TeenSpace 131 Birthday Celebration and future Library community service events. Initial services for the February 16' event include providing 100 servings of food for 100 guests for a price of $6.00 per person for total of $600. Trip charge of $75. Total cost for February 16' event = $675.