HomeMy WebLinkAboutBAHENA, CELSO dba RASPADOS ESTILO GUERREROINSURANCE NOT ON FILE
WORK MAY O0_(. PROCEED N-2023-077
CLERK OF COUNCIL
DATE:
04 AGREEMENT WITH CELSO BAHENA DBA RASPADOS ESTILO GUERRERO TO
PROVIDE FOOD VENDING AT CITY LIBRARY EVENTS
C'J
THIS AGREEMENT is made and entered into on this 5"' day of April, 2023 by and between Celso Bahena,
an individual dba Raspados Estilo Guerrero, ("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"). 1
o: brht7Iva.3•)(�^e RECITALS
A. The City desires to retain a Vendor having special skill and knowledge in the field of
providing quick service food vending for the City's Library events, beginning with the Dia
de los Ninos, Dia de los Libros event on April 29, 2023.
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
a. 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 Library events, beginning with the Dia de los Ninos, Dia de los
Libros event at the Main Library, 26 Civic Center Plaza, Santa Ana, CA 92703 on April
29, 2023 from 10:30am — 2:30pm.
b. City grants Vendor the right to enter its property for the purpose of setup, operation, and
pick-up on the days of the scheduled events.
C. City shall have the sole discretion as to the engagement of Vendor for service/events not
detailed in Exhibit A. The City reserves the right to administratively change event
locations, dates, or services for any mutually agreed upon services/events.
2. COMPENSATION
a. City neither warrants nor guarantees any minimum compensation to Vendor under this
Agreement. Vendor shall be paid only for actual service performed under this Agreement
at the rates and charges identified in Exhibit A. The total amount to be expended under
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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 the 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 and Scope of Work, which may reasonably be expected by City.
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This Agreement shall commence on April 20, 2023 and will terminate on June 30, 2024, unless
terminated earlier in accordance with the terms of this Agreement.
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: If Vendor has employees, 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) Broader Coverage: 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.
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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 Vendor including materials, parts,
or equipment furnished in connection with such work or operations. General liability
coverage can be provided in the 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.
(5) 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.
(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 raring of no less than A:VII, unless
otherwise acceptable to the City.
(7) 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.
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(8) 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.
(9) 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.
(10) 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.
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.
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.
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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
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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. TERNIINATION
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.
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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
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:
Celso Bahena dba Raspados Estilo Guerrero
2422 W California Street
Santa Ana, CA 92704
714-552-3363
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
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N-2023-077
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.
19. NUSCELLANEOUS 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:
JeAmer L,
City C Terk
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Br n Salvatierra
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
ZA
Brian Sternberg
Executive Director
Library Services
CITY OF SANTA ANA
Kristine Ridge
City Manager
Celso Bah Apr5, 202317:08 PDT)
Celso Bahena
Owner
Page 8 of 8
EXHIBIT A
Exhibit A
SCOPE OF SERVICES
VENDOR INFORMATION:
Raspados Estilo Guerrero
Contact: Celso Bahena
2422 W California St.
Santa Ana, CA 92704
Phone: (714) 552-3363
Email: raspadosguerrero@gmail.corn
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 20, 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.
Raspados Estilo Guerrero will provide its services on Saturday, April 29 from 10:30 a.m. to 2:30
p.m. during the Dia de los Nihos, Dia de los 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.
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
Celso Bahena
Name:
Project
TBD (108)
Number:
AGREEMENT WITH CELSO BAHENA DBA RASPADOS
Project
ESTILO GUERRERO TO PROVIDE FOOD VENDING AT CITY
Name:
LIBRARY EVENTS
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:
EXPIRATION COI
TYPE OF INSURANCE POLICY NUMBER FILE NAME
DATE DATE
3.16.23COI
GENERAL LIABILITY NXTZEYADHP02GL 11/02/2023 03/16/2023 celso
bahena.pdf
Affidavit of
Exemption
WORKERS COMPENSATION for Workers
WAIVER 03/21/2024 03/21/2023
AND EMPLOYERS' LIABILITY Compensation
Insurance
2023.pdf
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
4/13/2023 5:13 PM