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HomeMy WebLinkAboutTWIST AND SHOUT EVENTS, INC.N-2023-156 INSURANCE ON FILE WORK MAY PROCEED UNTILItS CEEXPIRES CITY CLERK DATE. AGREEMENT WITH TWIST AND SHOUT EVENTS, INC., TO PROVIDE ON -CALL B �iV" (A tw) ENTERTAINMENT SERVICES AT CITY EVENTS (E1106 S) THIS AGREEMENT ; d d d' th' l h d f is ma e an entere mto is 6t ay o June 2023, by and between Twist and Shout Events, 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"). y RECITALS N A. The City desires to retain a vendor to provide on -call entertainment services at City 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. 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 a the City's sole discretion, Vendor shall, during the term of this Agreement, perform the services described in Exhibit A, attached hereto and incorporated by reference, as well as their website (www.twistandshoutevents.com), as it is amended from time to time. 2. COMPENSATION a. City neither warrants nor guarantees any minimum 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 B attached hereto and incorporated by reference, as well as their website (www.twistandshoutevents.com) as it is amended from time to time. The total compensation for the services provided shall not exceed the amount of Six Thousand Dollars and Zero Cents ($6,000.00) during the term of this Agreement, including any extension periods. 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 and Scope of Work, which may reasonably be expected by Page 1 of 9 City. [tomYM IiT This Agreement shall commence on July 1, 2023 and terminate on June 30, 2024, unless terminated earlier in accordance with Section 17, below. 4. PREVAILING WAGES Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws, 5. 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. 6. 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, specifications, 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 Vendor under this Agreement ("Documents & Data"). Vendor 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 under this Agreement. Vendor represents and warrants that Vendor has the legal right to license any and all Documents & Data. Vendor makes no such representation and warranty in regard to Documents & Data that were provided to Vendor by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. Page 2 of 9 7. 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 (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 aggregatelimit 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 Vendor 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) 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. (4) 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 Vendor. 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 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 1185 or if notavailable, 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). (2) Primary Coverage: For any claims related to this contract, the Vendor'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, Page 3 of 9 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 that 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 waiverof 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 theVendor 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: hisurance 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: Vendor shall furnish the City with original Certificates of hsurance 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 CGLpolicy listing allpolicy 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. (8) Subcontractors: Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor 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 therisk, prior experience, insurer, coverage, or other special circumstances. Page 4 of 9 8. 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 or its 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 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Vendor. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Vendor 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 Vendor to the City pursuant to this Agreement. 10. 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. 11. CONFIDENTIALITY If Vendor receives from the City information which due to the nature of such information Page 5 of 9 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. 12. CONFLICT OF INTEREST CLAUSE Vendor covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 13. 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 Executive Director Library Services City of Santa Ana 20 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, CA 92702 To Vendor: Twist and Shout Events, Inc. Attn: Amy Nehring, CEO 7567 Quiet Cove Circle Huntington Beach, CA 92648 714-915-7537 Page 6 of 9 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 timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Vendor 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 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 are not embodied herein. 15. 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 that are the subject to this Agreement performed by City personnel or by other contractors 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 This Agreement may be terminated by the City upon thirty (30) 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: Page 7 of 9 a. As a condition of such payment, the Executive Director may require Vendor 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 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. 18. 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. 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 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. 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. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 8 of 9 N-2023-156 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: C Jennif a - ity Clerk APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: randon Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL - ;e'�s Brian Sternberg Executive Director Library Services CITY OF SANTA ANA Kristine Ridge City Manager TWIST AND SHOUT EVENTS, INC. Amy ehng (J 1, 202317:26 PDT) Amy Nehrig Chief Executive Officer Page 9 of 9 EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Twist and Shout Events, hic. (Vendor # 61950) 7567 Quiet Cove Cir. Huntington Beach, CA 92648 Phone #: 714-915-7537 Email: twistandshoutonlinena wnail.com httns://twistandshoutevents.com/ EVENT: Santa Ana Public Library Services Department Events LOCATION: Services will be performed at library program locations TERM: July 1, 2023 through June 30, 2024 COMPENSATION: Not to Exceed $6,000 DESCRIPTION: This vendor may provide on -call entertainment services including but not limited to face painting, balloon twisting, airbrush tattoos, henna tattoos, photo booth, balloon arches, caricature artists, and yard signs for the period of July 1, 2023 through June 30, 2024. The total amount for this agreement shall not exceed $6,000. Twist and Shout will be providing one of the services on Saturday, April 27, 2024 from 10:30 am to 2:00 pm during the Dia de los Niiios, Dia de los Libros community outreach event. Other services will be provided as needed per direction of department staff. The City will be responsible for setting up the space for the patrons attending and advertising the program. Vendor will be responsible for providing all equipment, materials, supplies and personnel necessary to perform the service. City Staff will be present at all times during the services EXHIBIT B Basic Standard a Hours ) Hours sass.as US$.— rsm-rru emrar r-sstors-rrr Bann{ .rrva-roeraas Z . Uour - Baoon r..�um1 r51[ev. - M. T. W o - s!m rrra.q oter. as mrta r.. my t. tA.VUB Lama, uvo wnn um wrrvuM rarma ttam. N mnn wAteutNi rafam mrr et.mtnutNi Aae tlaRow noun ro your twrr ratmsmy kt wevnuua� Ant rIttw vrnw to ym Wool :N .em�iorui ssrueer ro yu� nv. Now Hot Caricature Caricature Caricature Artists Artist Artist z Hours } Hours 4 Hours ssrs a Ls.co I ssss Bank r Hours of Catralue Artist Bronze Photo Booth Package z Hours $475.o0 r MurS of Service wiM Atten nt ummua se UM MM pkt Soap Book Suuon Bak B.cYrtaaaa haure upkx m to Una Back s Hours of Co"we Anas Gold Photo Booth Package Hours $515 00 a Mmo pf 5e .iewM Ane , wimu05estima u5B wM pictures Sey Boot sum Bak Ba[kgrWMs Pktae Wornrt4 m tloue Bonk 4 Hours at Carwat" . Artyr Platinum Photo Booth Package 4 Hours SA15.00 e Mun o[ Serwre w AttM urymited5esskm USB.hpirturn Scrap Book Statim Bask Bxkerwvtls P[Mt IpINEirq to tlwn Standard Arch B Feet Tall and to Feet Wide $t75 00 N. TNa arch Fan hew up to a colon uecn spiraletl ar as m calls as yw u eae WIIMat a sperm Uffereet size arches. Deluxe ArcK io Feet Tab W rz Feet wwe Sea Eats large Arc: 12 Feet T/I all 16 Feet wwe Ssao.00 Drive TMu Arc lla feet M X M feet rst0el Sm o0 Organic Garland (t6 Feet) S?W (. ' Pfferent size organic G Iarals: a feet $so 6 feet. Sue, w Feet St75 a Feet Sm5 u Fat Sao l6 Feet Uz Organic Arch Standard Medium (8xto) Szz5_on Organic Oedae Arc (tmu poet): Sza.00 Ularge Arch. tz Feet Tall aw 16 Feet wwe S6Ts ea Be&Nowl , nook howl . BWIFgPMI NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREENI ENT TO THE CLERK OF THE COUNCIL Contractor Twist and Shout Name: Project TBD (013) Number: Project AGREEMENT WITH TWIST AND SHOUT EVENTS, INC., TO Name: PROVIDE ON -CALL ENTERTAINMENT SERVICES AT CITY 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: POLICY EXPIRATION FILE TYPE OF INSURANCE COI DATE NUMBER DATE NAME Auto Twist AUTOMOBILE LIABILITY WAIVER 05/23/2024 05/31/2023 and Shout Events 2023-24.pdf GENERAL LIABILITY 3DS5474M3091859 06/07/2024 05/15/2023 SANTA ANA.pdf WC Twist WORKERS COMPENSATION AND WAIVER 05/23/2024 06/02/2023 and Shout EMPLOYERS' LIABILITY Events 2023-24.pdf Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 6/27/2023 12:33 PM NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor Twist and Shout Name: Project N-2023-156 Number: AGREEMENT WITH TWIST AND SHOUT EVENTS, INC., TO Project PROVIDE ON-CALL ENTERTAINMENT SERVICES AT CITY Name: EVENTS The Certificate of Insurance (COI) submitted indicates that the coverages comply with the insurance requirements. The compliant coverage(s) are: POLICY EXPIRATION FILE TYPE OF INSURANCE COI DATE NUMBER DATE NAME SANTA GENERAL LIABILITY 3DS5474M3091859 06/07/2024 05/15/2023 ANA.pdf No further action is required at this time. Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 5/13/2024 12:23 PM