HomeMy WebLinkAboutFRIDA CINEMA, THE (17)INSURANCE NOT ON FILE
WORK MAY ON PROCEED
CITY CLERK
DATE:
N-2023-251
AGREEMENT WITH THE FRIDA CINEMA
p : ? GSA (0) TO PROVIDE OUTDOOR MOVIE SERVICES
( M'LtUn� THIS AGREEMENT is made and entered into this 22nd day of September, 2023, by and between
The Frida Cinema, a California 501(c)(3) nonprofit company ("Contractor 1, and the City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and
N laws of the State of California ("City").
0
N
RECITALS
A. The City desires to retain a contractor to provide equipment and services for the
® City's Birch October Series outdoor movie programming.
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 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
a. Contractor shall, during the term of this Agreement, provide the equipment and
services as further described and set forth in Exhibit A, attached hereto and
incorporated in full.
b. City grants Contractor the right to enter its property for the purpose of delivery, set-
up, operation, and pick-up on the days of the scheduled events.
C. The equipment shall be disassembled and removed by Contractor at the conclusion
of each event.
d. The City reserves the right to administratively change event locations and dates
upon mutual written agreement between the parties.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services
for City, the rates and charges identified in Exhibit A. The total amount to be
expended under this Agreement shall not exceed Thirteen Thousand Nine Hundred
Seventy Dollars and Zero Cents ($13,970). This sum is comprised of (1) a base
amount of $12,700 and (2) a ten percent (10%) contingency of S 1,270 for services
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at the sole discretion of the City.
b. Payment of half of invoiced amount for the October Series, Six Thousand, Three
Hundred Fifty Dollars and Zero Cents ($6,350), shall be paid upon execution of
this Agreement, subject to City accounting procedures.
C. Remaining balance for the October Series of Six Thousand, Three Hundred Fifty
Dollars and Zero Cents ($6,350), shall be paid within forty-five (45) days of City's
receipt of Contractor's invoice of the last event, subject to City accounting
procedures.
d. 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 the date first written above and terminate on December
31, 2023, unless terminated earlier in accordance with Section 16, below.
4. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor shall
it be construed to create an employer -employee relationship, a joint venture relationship, or to
allow the City to exercise discretion or control over the professional manner in which Contractor
performs the services which are the subject matter of this Agreement; however, the services to be
provided by Contractor shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Contractor shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
5. 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 plaits, 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 Contractor under this Agreement ("Documents & Data"). Contractor
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.
Contractor represents and warrants that Contractor has the legal right to license any and all
Documents & Data. Contractor makes no such representation and warranty in regard to
Documents & Data that were provided to Contractor 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
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purposes intended by this Agreement shall be at City's sole risk.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall maintain
and shall require its subcontractors, if any, to obtain and maintain insurance as described below
for the duration of this Agreement:
a. Minimum Scope and Limit of Insurance
(1) Commercial General Liability (CGL): Insurance Services Office Form CG
00 01 covering COL 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 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) 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 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 Form CG 2010 1185 or ifnotavailabie, through the addition of
botlr CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later
edition is used).
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(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
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 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 [usurers: 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) 'Verification of Coverage: Contractor shall furnish the City with original
Certificates of Insurance 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 CGL policy
listing allpolicy 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.
(8) 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.
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(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.
7. INDEMNIFICATION
Contractor 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 Contractor 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 teens of, or effects, arising from this
Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the
defense of the City, including fees and costs for special counsel to be selected by the City,
regarding any action by a third party challenging the validity of this Agreement, or asserting that
personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal
or property rights arises by reason of the terms of, or effects arising from this Agreement. City
may make all reasonable decisions with respect to its representation in any legal proceeding.
Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code
Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section
2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor represents and warrants that it has obtained the requisite licenses to show the
films contemplated by this Agreement. Contractor fiirther agrees to 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 to
the City pursuant to this Agreement.
9. 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 Contractor 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
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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.
10. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Contractor agrees that
it shall not use or disclose inch information except in the performance of this Agreement, and
further agrees to exercise the same degree of care it uses to protect its own information of like
importance, but in no event less than reasonable care, "Confidential Information" shall include all
nonpublic information. Confidential information includes not only written information, but also
information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any
information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor
without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
is independently developed by the Contractor without reference to information disclosed by the
City.
11. CONFLICT OF INTEREST CLAUSE
Contractor covenants that it presently has no interest and shall not have interests, direct or
indirect, which would conflict in any manner with performance of set -vices specified under this
Agreement.
12. 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
Parks, Recreation, and Community Services Agency
City of Santa Ana
20 Civic Center Plaza (M-23)
P.O. Box 1988
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Santa Ana, CA 92702
To Contractor: The Frida Cinema
Attn: Logan Crow, Executive Director
305 E. 4th Street #100
Santa Ana, CA 92701
323-428-7411
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.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Contractor regarding the subject matter herein, and supersedes any and all other agreements, oral
or written, between the parties. In the event of a conflict between the terms of this Agreement and
any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be
modified except by written instrument signed by the City and by an authorized representative of
Contractor. The parties agree that any terms or conditions of any purchase order or other
instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not
bind or obligate Contractor 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.
14. 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 contractors retained by City.
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.
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16. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor
compensation for all services performed by Contractor prior to receipt of such notice of
termination, subject to the following conditions;
a. As a condition of such payment, the Executive Director may require Contractor to
deliver to the City all work product completed as of such date, and in such case,
such work product shall be the property of the City unless prohibited by law, and
Contractor consents to the City's use thereof for such purposes as the City deems
appropriate,
b. payment need not be made for work that fails to meet the standard of performance
specified in the Recitals of this Agreement.
17. 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.
18. 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 patties 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.
19. 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.
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N-2023-251
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and wan -ants 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:
ennifer L. a `
City Cle
APPROVED AS TO FORM
SONIA R. CARVALHO
City Attorney
By:
randon Salvatierra
Deputy City Attorney
RECOMMENDED FOR APPROVAL
CITY OF SANTA ANA
Kristine Ridge
City Manager
THE FRIDA CINEMA
S ; L -
Lo Crow
Executive Director
Hawk Scott
Executive Director
Parks, Recreation, and Community Services Agency
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0J4-t_._.. _. _. !
OUTDOOR CINEMA & MUSIC AT BIRCH PARK:
OCTOBER 2023
ARTS, CULTURE & COMMUNITY: UNDER THE STARS
The Frida Cinema is a 501(c)(3) mission -driven nonprofit art
house theater that has complemented its in-house
programming with outdoor film and special event
presentations since 2014, including drive-in presentations
and garden -style screenings at parks, historic cemeteries,
and parking lot rooftops such as the 5th & Spurgeon parking
lot in Downtown Santa Ana. Upon the arrival of COVID-19,
these outdoor events served to fill an immediate need,
welcoming folks of all ages to rejoin their community and go
back to the movies in a safe setting. We believe in the
enduring power of cinema and the arts to bring communities
together for entertainment, enrichment, and inspiration.
We are pleased and grateful to present the following proposal for a series of films at Downtown Santa Ana's
Birch Park, which will be presented free -of -charge to our community. Each film will be preceded by live music.
DATES
The following proposal is for a series of four (4) outdoor cinema nights in Birch Park. These will take place
every Thursday night in October, 2023, with a focus on films to celebrate the spooky Halloween season.
SERVICES PROVIDED BY THE FRIDA CINEMA
In service for each of these events, for the fee below The Frida Cinema will provide:
Full production of both the music and film projection elements of the event. This includes providing and
running all materials necessary for both elements:
o two EV ZLX15P powered speakers, and all necessary cables
o sound mixer, microphones and mic stands (enough as needed for scheduled talent)
0 26' inflatable screen and blower
o Epson laser projector
o Oppo media player
o power generator
• Staffing for both music and film elements of the events, including setup, production of the event itself,
and breakdown.
• Handling proper licensing rights for the films, issuing payment to distributors, and preparing and
submitting any post -event reporting to distributors as may be needed.
• Marketing support for all events, by means of our website, newsletter, and social media accounts,
which collectively have a current following of 78,600.
• Coordinating and booking musicians.
• Consistent communication and collaboration with Parks and Recreation in the shared goal of identifying
further features and ideas that would make these events even more dynamic for guests.
• Media support for preparation of pre -show slides (City announcements and recognitions, etc.)
FEE FOR SERVICES (COMPREHENSIVE FOR BOTH MUSIC & FILM ELEMENTS, INCLUDING
CONTRACTORS, PARTNERS, STAFFING, EQUIPMENT, AND LICENSING)
For each of these events, The Frida Cinema will charge a reduced $3,175 to serve as AN Vendor for both the
music and film elements of the event. This breaks down as follows, per event (total for four events: $12,700):
- $1,800: labor, film element (screen setup and breakdown, AN production and management throughout)
- $400: labor, music element (booking talent, setup of mics and stands and monitors, running sound)
- $300: payment to musician (assuming one opening act)
- $375: film licensing
- $300: one hundred (100) small popcoms (bags and popcorn) for first 100 guests to arrive
In consideration of reduction in pricing, The Frida Cinema also requests the ability to place our 10x10 vendor
canopy on site; sell popcorn, soft drinks, and candy to guests; and solicit tax-deductible donations.
100 SMALL POPCORNS PER EVENT
As referenced in the budget above, The Frida Cinema will provide one hundred (100) small bagged popcorns
to the first 100 guests at each of our eight events, as a means to incentivize early arrival. Standard sales of
popcorn will commence after these 100 have been handed out.
TENTATIVE TITLES
Upon confirmation from Parks and Recreations, the films presented will be:
October 5th - GHOSTBUSTERS (1984)
October 12th - GHOST (1990)
October 19th - THE HAUNTING (1963)
October 26th - POLTERGEIST (1982)
ADDITIONAL PARTNERS
We believe that more event partners means more marketing support, more exposure, and more opportunities
for exciting additional features to events, and we will work to identify additional community partners who may
serve to complement and support these events. Currently, we are partnered with Kilson Street, who in
association with Stanford Sound and Audio, who provides sound and talent services for our event, assists with
street and social media marketing.
THANK YOU!
I once again thank you for the opportunity to submit this proposal, and to continue to work with the City of
Santa Ana to develop and produce exciting, accessible, and culturally -enriching opportunities for our neighbors
to come together in community and enjoy the arts. I am standing by to answer any questions you may have,
and look forward to continuing to work with you!
- Logan Crow, Executive Director. looan(o),thefridacinema.org. (323) 428-7411
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NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
The Frida Cinema
Name:
Project
N-2023-251
Number:
Project
Agreement With The Frida Cinema To Provide Outdoor Movie Services
Name:
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
TYPE OF INSURANCE POLICY NUMBER COI DATE FILE NAME
DATE
acord25 - 2023-09-
AUTOMOBILE LIABILITY 6525736C2175 03/21/2024 09/28/2023
28T143555.272.pdf
COI- CITY SANTA
GENERAL LIABILITY 92E6S4883 12/08/2023 12/28/2022
ANA ART WALK.pdf
WORKERS COMPENSATION AND EMPLOYERS' TFC WC 23-24
UB0R34080A2142G 03/25/2024 03/12/2023
LIABILITY CERT.pdf
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
10/9/2023 11:33 AM