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HomeMy WebLinkAboutPATCHBAYZ LLC- FUTA TORO_ City of Santa Ana t City Clerk AGREEMENT TERMINATION FORM �1 Please complete this form in its entirety when the attached agreement and all amendments (if any) are no longer in effect.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 form. Is the agreement(s) a permanent record? Yes No 1- Return form to the City Clerk's Office (M-30). Call 647-6520 if you have any questions. The agreement with COTC Office Use ON City of Santa Ana JUL. 06 2023 City Clerk's Office N-2023-127 U No. was completed on and final payment has been made. (List all amendments. Use space below N needed.) Department: VVICSA- Phone/Ext.: Signature: Date: i.tagreementsrformsVorm- agreement termination form—goldenrod.doc INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE XPIRES AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT caa y< CITY CLE N-2023-127 DATE: MAY 2 2 2023 AGREEMENT WITH PATCHBAYZ, LLC, DBA STUS TO PROVIDE A LIVE PERFORMANCE BY FUTA TORO AT CITY OF SANTA ANA'S 2023 JUNETEENTH EVENT THIS AGREEMENT is made and entered into this loth day of May, 2023, by and between Patchbayz, LLC, a California limited liability company dba Stus ("Contractor"), f/s/o Futa Toro ("Artist"), 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"). 01 pYL6$4�/gani,�uf �)(�'"- I RECITALS A. The City desires to retain artists to provide live performances at the City's Juneteenth 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. 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. Contractor shall provide a performance by Artist for the City's Juneteenth Celebration event on June 17, 2023 at Centennial Park (3000 W. Edinger Avenue, Santa Ana, CA 92704) as further described in Exhibit A, attached hereto. b. Artist shall provide a 20 minute live performance. Contractor's Initials: LW C. Contractor must provide song list of family friendly, clean edit songs with lyrics to be approved by the City of Santa Ana prior to performance. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services for City, including all travel expenses and performance by Artist, the rates and charges identified in Exhibit A. The total amount to be expended under this Agreement shall not exceed One Thousand, Five Hundred Dollars and Zero Cents ($1,500.00). Page 1 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT b. Contractor agrees that the City is not responsible for payment directly to Artist nor anyone else purporting to represent them. C. Union fees, manager and/or agent commissions, and insurance obligations are part of the cost of production and City shall not be liable or responsible for any such payments under this Agreement. d. Payment of deposit of half of invoiced amount for Artist's performance, Seven Hundred Fifty Dollars and Zero Cents ($750.00), shall be processed upon execution of Agreement and receipt of an invoice by the City, subject to City accounting procedures. e. Remaining balance for Artist's performance of Seven Hundred Fifty Dollars and Zero Cents ($750.00) shall be paid on the day of the event, subject to City accounting procedures. f 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. 3. TERM This Agreement shall commence on June 17, 2023 and terminate on June 17, 2023, after the event, unless terminated earlier in accordance with Section 17, below. 4. ROYALTY -FREE LICENSE The City shall have the right and royalty -free license to simulcast or produce and show a tape -delayed broadcast of the Artist's performance to the City community or general public, through the internet or any other means. This license shall be non-exclusive and the copyright shall remain with the Artist. Copies of Artist's performance may be maintained by the City, and Artist consents to use of such recordings. 5. INDEPENDENT CONTRACTOR Contractor and Artist shall, during the entire term of this Agreement, be construed to be independent contractors and not employees 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 and/or Artist perform the services which are the subject matter of this Agreement; however, the services to be provided by Contractor and Artist 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. Page 2 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT 6. INSURANCE Contractor on behalf of Artist shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. a. Minimum Scope and Limit of Insurance: (1) Commercial General Liability Insurance. 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) Automobile Liability. ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with a limit no less than $1,000,000 per accident for bodily injury and property damage. (3) 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. (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 form of an endorsement to the Contractor's insurance (at least as broad as ISO Fonn CG 20 10 1185 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). Page 3 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT (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 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. 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 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 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) Claims Made Policies. If any of the required policies provide claims -made coverage: 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 the 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 Contractor must purchase "extended reporting" coverage for a minimum of five (5) years after completion of work. (8) Verification of Coverage. Contractor shall furnish the City with original. Certificates of Insurance including all required amendatory endorsements (or copies Page 4 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT of the applicable policy language effecting coverage requiredby 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 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. (9) 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. (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. 7. RELEASE Contractor, on behalf of Artist, accepts any City -provided equipment used in connection with the performance in their "as -is" condition, with all faults. Artist, on behalf of Artist, fully releases, waives and discharges forever any and all claims, demands, rights, and causes of action of any kind or nature against, and covenants not to sue, City, its elected officials, officers, employees, agents and volunteers, and all persons acting on behalf of, by, through or under each of them, under any present or future laws, statutes, or regulations for any claim or event relating to the condition of the City -provided equipment or Artist's use thereof. 8. INDEMNIFICATION Contractor and Artist agree to defend, and shall 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 negligent operations of the Contractor, Artist, or 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. The Contractor and Artist further agree 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 Page 5 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor and Artist'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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Artist. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor and Artist shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor and/or Artist to the City pursuant to this Agreement. 10. 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 Artist 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. It. CONFIDENTIALITY If Contractor or Artist receive from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor and Artist agree that they 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 and/or Artist disclosed in a publicly available source; (c) is in rightful possession of the Contractor and/or Artist without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor and/or Artist without reference to information disclosed by the City. Page 6 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT 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 aclmowledges 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. 15. 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 that are the subject to this Agreement performed by City personnel or by other consultants retained by City. 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. TERMINATION a. This Agreement may be terminated by the City upon Three (3) days written notice of termination. b. Any reasonable concerns by Contractor and/or Artist regarding the feasibility of the performance must be brought to the attention of City at least two (2) hours prior to the start of time of the performance to provide City time to cure any such concerns. If City is unable to cure such concerns and such concerns reasonably prevent Artist from performing, then Contractor shall be paid the total sum contemplated by this Agreement. C. If City provided equipment malfunctions after the start of performance and the malfunction(s) could not have been detected by a reasonable inspection at least two (2) hours prior to the start of the performance and the City is unable to cure such malfunction(s) and such malfunction(s) reasonably prevent Artist from performing, then Contractor shall be paid the total sum contemplated by this Agreement. Page 8 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT d. Decisions regarding the safety of the performance due to environmental conditions will be a joint decision between the Contractor, on behalf of the Artist, and the City. C. If either party is unable to perform any of its obligations under this Agreement due to events beyond its reasonable control, the City shall have the right to reschedule the event at a time mutually agreed upon with the Contractor. The Contractor will not be compensated for any expenses incurred for the original date of performance. Events beyond a party's reasonable control ("Force Majeure Event") shall include but are not limited to: Act of God; 2. Any order, rule or regulation of any court or government agency; 3. Government restrictions; 4. Wars, insurrections, terrorism, or civil disorder in or around the performance venue; 5. Outbreak of disease; 6. Strikes, lockouts, or other forms of labor difficulties; and/or Any other cause beyond the reasonable control of the party whose performance is affected. If a Force Majeure Event occurs pursuant to Section 17(d), the parties' respective obligations will be excused fully, without any additional obligations, and each party shall bear its own costs incurred in connection with this Agreement. If the performance is canceled pursuant to a Force Majeure event, then the parties will use reasonable efforts to reschedule the performance at a mutually acceptable time and venue. 18. 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. Page 9 of 11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT 19. 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. 20. 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 and all other governmental 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. 21. 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. Contractor represents and warrants that it is in compliance and will maintain compliance with all applicable laws including, but not limited to, the California Talent Agency Act. 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: CITY OF SSANNTTA�ANA r - enni£er L. Hall Kristine Ridge I" City Clerk City Manager [signatures continued on next page) Page 10of11 AGREEMENT FOR PERFORMER WITH A MANAGER OR AGENT APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: '11randon Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL Hawk Sco Executive ec , Parks ecreation and Community gency CONTRACTOR OK La Donna Williams May 16,202315:40 PDT) LaDonna Williams CEO Page 11 of 11 EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Patchbayz, LLC-Futa Toro EVENT: Juneteenth SERVICE DATE(S): June 17, 2023 COMPENSATION DUE TO THE VENDOR: Not to exceed $1,500 for the event. DESCRIPTION: Patchbayz LLC, will provide: • Music entertainment at the City's Juneteenth event. • Performance schedule to be determined at a later time Open Hours —Event will be held from 11:00am — 6:00 pm The Vendor will be paid the amount of compensation, $1,500, no later than the day of the event via ACH/Wire Transfer Garcia, Stephanie From: City of Santa Ana <certificate-request@ctrax.jdidata.com> Sent: Thursday, May 18, 2023 3:14 PM To: ladonna@stus.app; info@theeventhelper.com; mleon@santa-ana.com; Garcia, Stephanie Subject: Internal Notice of Compliance NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor Patchbayz LLC Name: Project TBD (094) Number: Project Agreement With Patchbayz, LLC, DBA Stus To Provide A Live Name: Performance By Futa Toro At City Of Santa Ana's 2023 Juneteenth Event 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 AUTOMOBILE LIABILITY GENERAL LIABILITY WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Thank you, POLICY NUMBER WAIVER EXPIRATION COI DATE DATE FILE NAME 04/03/2024 04/12/2023 Auto_Insurance_RequIrement_Waiver.pdf 3DS5474M3330857 06/18/2023 02/17/2023 City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 5/18/2023 6:13 PM WAIVER 04/03/2024 04/12/2023 3DS5474-M3330857 Certificate of Insurance(1).pdf W orkers_Com pensation_Waiver.pdf 1