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HomeMy WebLinkAboutSEGERSTROM CENTER FOR THE ARTS (WITHOUT BOUNDARIES PROGRAMMING)INSURANCE ON FILE N-2024-011 WORK MAY PROCEED UNTIL INSURANCE EXPIRES C-TVQA4 _ CITY CLERK DATE; AGREEMENT WITH SEGERSTROM CENTER FOR THE ARTS FOR C � c C \ CENTER WITHOUT BOUNDARIES PROGRAMMING THIS AGREEMENT is made and entered into on this 8th day of January 2024 by and between Segerstrom Center for the Arts, a California nonprofit corporation ("Provider"), 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"). City and Provider may be collectively referred to as the "Parties" or individually as a "Party." RECITALS A. The City desires to retain a provider having special skills, resources and knowledge to provide dance and music programming for the Santa Ana Library. B. Provider represents that it is able and willing to provide such services to the City C. In undertaking the performance of this Agreement, Provider represents that it is knowledgeable in their field and that any services performed by Provider under this Agreement will be performed in compliance with such standards as may reasonably be expected. D. The Parties acknowledge that the City intends to provide recreational activities 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. Provider shall perform those services as set forth in Exhibit A to this Agreement. b. All classes operated pursuant to this Agreement for conducting recreation classes at City facilities, including parks, will comply with all applicable guidance and public health orders, including those from the Centers for Disease Control ("CDC"), California Department of Public Health ("CDPH"), the Orange County Health Care Agency ("OCHCA") and the City itself for as long as those orders and guidance remain in place. Provider will remind participants of these guidelines. To the extent that Provider needs assistance with enforcing any rules or requirements, Provider will contact a City Parks' employee or City security for assistance. c. Provider shall not attend a class or teach any class if Provider is sick or has any symptom(s) associated with COVID-19 including but not limited to, fever above 100.4, chills, cough, shortness of breath, loss of taste or smell, nausea, muscle or body aches, vomiting, headache, sore throat or diarrhea. Page 1 of 10 d. Provider will not attend class or teach a class if Provider or any member of Provider's household has been asked to quarantine or self -isolate due to symptoms of COVID-19 or a positive test result for COVID-19. e. Provider acknowledges that, to the extent that City is able to and chooses to conduct classes indoors, this Agreement will also cover classes conducted at any of City's facilities during the term of this Agreement. f. City reserves the right to change the location(s) at which the services contemplated by this Agreement are provided. 2. COMPENSATION a. In consideration for the provision of the programs set forth in Exhibit A, City agrees to pay, and Provider agrees to accept as total payment for their services for the City, the rates and charges identified in Exhibit A. Total revenue to Provider shall not exceed Light Thousand, Seven Hundred Forty -Five Dollars and Zero Cents ($8,745). This amount comprises (1) a base sum of $7,950 and (2) a ten percent (10%) contingency of $795 for any additional services as requested in the sole discretion of the City. b. Payment by City shall be made within forty-five (45) days following completion of the last class of each series taught by Provider, subject to City accounting procedures. City and Provider agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Provider agrees to execute the City's standard ACH Vendor Payment Authorization and provide required documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Provider's account(s) with financial institutions. c. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on January 16, 2024 and expire on June 30, 2024 unless terminated earlier in accordance with Section 14 below. 4. INDEPENDENT CONTRACTOR Provider 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 manner in which Provider performs the services which are the subject matter of this Agreement; however, the services to be provided by Provider shall be provided in a manner consistent with all applicable standards and regulations governing such services. Provider shall pay all salaries and wages, employer's social security taxes. Page 2 of 10 unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. Provider is not an agent, representative or employee of City and Provider shall have no authority to act on behalf of the City. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Provider shall maintain insurance as described below: 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) Worker's Compensation Insurance. In accordance with California State law, Provider, if Provider 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, Provider agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. (3) Sexual Abuse or Molestation (SAM) Liability. If the CGL policy referenced above is not endorsed to include affirmative coverage for sexual abuse or molestation, Provider shall obtain and maintain a policy covering Sexual Abuse and Molestation with a limit no less than $100,000 per occurrence or claim or an individual instructor and with a limit no less than $1,000,000 per occurrence or claim for an organization. (Not required if City staff is present at all times). (4) If the Provider 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 Provider. 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 Provider 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 Provider's insurance (at least as broad as ISO Form CG 20 10 Page 3 of 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). (2) Primary Coverage: For any claims related to this contract and the negligence or willful misconduct of Provider or its employees, the Provider'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 Provider'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: Provider hereby grants to City a waiver of right to subrogation by the workers compensation insurer of said Provider against the City by virtue of the payment of any loss under such insurance. Provider agrees to obtain 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 Provider 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) Verification of Coverage: Provider 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 all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Provider's obligation to provide them. (8) 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. Page 4 of 10 6. INDEMNIFICATION a. Provider agrees to and shall indemnify, defend 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 Provider or its contractors, 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, to the extent that the injury, damages, just compensation, restitution, judicial or equitable relief is caused by the negligence of the Provider. 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. City may make all reasonable decisions with respect to its representation in any legal proceeding. In no case will Provider be required to indemnify or hold harmless the City from injury, damages, just compensation, restitution, judicial or equitable relief caused by the negligence of the City. b. The City agrees to and shall indemnify, defend and hold harmless, Provider, its officers, directors, agents, and employees from liability for injury, damages, just compensation, restitution, judicial or equitable relief arising out of the negligence or willful misconduct of the City, its employees or contractors or other persons acting on behalf of the City, which relates to this Agreement. c. In the event of concurrent liability, each party shall bear responsibility for its share. 7. CONFIDENTIALITY If Provider receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Provider 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, including but not limited to student records. 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 Provider disclosed in a publicly available source; (c) is in rightful possession of the Provider without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Provider without reference to information disclosed by the City. Page 5 of 10 8. COVID-19 ASSUMPTION OF RISK AND WAIVER Provider acknowledges that Provider could be exposed to persons that may have COVID- 19 providing services pursuant to this Agreement. Provider understands that interacting with any person currently comes with the inherent risk of exposure to COVID-19 and that COV1D-19 is highly contagious. Provider assumes the risks associated with providing services pursuant to this Agreement, namely potential exposure to COVID-19. Provider acknowledges that while some people have no symptoms or mild symptoms from COVID-19, some people have become seriously ill requiring hospitalization and that some people have died from COVID-19. Provider acknowledges that persons over the age of 65 and persons with underlying health conditions are at greater risk of contracting COVID-19 and are potentially risking serious injury or death. Provider is agreeing to provide classes pursuant to this Agreement and does so of Provider's own free will. Provider intends to be legally bound by this assumption of risk, release and waiver and to bind Provider's heirs, personal representatives, next of kin and anyone who may make a claim on Provider's behalf. Provider knowingly releases and waives any and all claims that Provider may have or could have in the future and includes any claims resulting from potential exposure or actual exposure to COVID-19, this includes claims for personal injury, transmittal of COVID-19 to others, and/or wrongful death. Provider agrees to hold harmless, defend and indemnify the City, its public officials, officers, employees, volunteers, and agents from any and all claims for liability or damages, including those for exposure to or diagnosis with COVID-19 as a result of providing services pursuant to this Agreement. 9. CONFLICT OF INTEREST Provider covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. BACKGROUND CHECK Provider shall ensure that all employees, subcontractors, and any volunteers are fingerprinted and background checked prior to conducting any work pursuant to this Agreement. Provider shall not assign any employee, agent, subcontractor, volunteer or the Provider personally to provide services pursuant to this Agreement, if that employee, agent, subcontractor, volunteer, or the Provider personally are required to register as a sex offender under California Penal Code Section 290 et seq, have a conviction for any crime of moral turpitude, have a conviction for a sexual based crime, have a conviction for a violent felony as defined in California Penal Code Section 667.5(c), or has a conviction for a serious felony as defined in California Penal Code Section 1192.7(c). Disqualifying convictions include but are not limited to, violations of California Penal Code Sections 37, 128, 136.1 with Section 186.22, 187, 190-190.4 and 192(a), 205, 206, 207-209.5, 211, 212, 212.5, 213, 214, 215, 218-219, 220, 236.1(b) or 236.1(c), 243.4, 261, 261.5, 273.5, 262, 264.1, 266, 266c, 266h, 266i, 266j, 267, 269, 272, 273a, 273ab, 273d, 285, 286, 288, 288a, 298.2, 288.3, 288.4, 288.5, 288.7, 289, 290, 311.1, 311.2, 311.3, 311.4, 311.10, 311.11, 314, Page 6 of 10 347(a), 368, 417(b), 451(a),518 with 186.22, 647.6, 653f(c), 664 and 187, 667.5(c), 18745, 18750, or 18755, 12022.53, 11418(b)(1) or (b)(2); Business and Professions Code Section 729. 11. 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 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 copy to: Executive Director of Library Services City of Santa Ana 26 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92701 To Provider: Segerstrom Center for the Arts Attn: Marytza Rubio, Vice President of Community & Culture 600 Town Center Drive Costa Mesa, CA 92626 Mrubiogscfta.org 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 time frames, weekends, federal, state, County or City holidays shall be excluded. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Provider 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 Provider. The parties agree that any terms or conditions of any purchase order or other instrument Page 7 of 10 that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Provider 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 The experience, knowledge, capability and reputation of Provider were a substantial inducement for City to enter into this Agreement. Therefore, Provider 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. 14. TERMINATION a. This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Provider shall be entitled to receive, and City shall pay Provider, compensation for all services rendered prior to the effective date of termination. b. Termination or cancellation of classes by the Provider must be given to the City at least thirty (30) days prior to termination/cancellation. Failure to provide adequate cancellation notice to the City may put future contracting of business with the City at risk and will result in the City's retention of ten (10%) percent of the final payment to Provider. 15, RECORDS To the extent Provider tracks attendance in each class, Provider shall keep attendance records and any other records in connection with the work to be performed under this Agreement and shall permit City, upon request, to review such records for a period of three (3) years from the date of final payment to Provider under this Agreement. 16. NON-DISCRIMINATION Provider 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. Provider affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 17. 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 Page 8 of 10 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. 18. LICENSES Provider 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. 19. SEVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 20. EXHIBITS All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 21. AUTHORITY The person(s) executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. /signature page follows] Page 9 of 10 N-2024-011 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: N,- I W11 INS= r.: APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney `Brandon Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL: Brian Sternberg Executive Director, Library Services CITY OF SANTA ANA AornasR. [ Iatc Interim City Manager PROVIDER: Lr"- Marytza Rubio Vice President Community & Culture Page 10 of 10 EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Name: Segerstrom Center for the Arts Partnership Address: 600 Town Center Drive Costa Mesa CA 92626 Phone Number: 714-556-2787 Email Address: mrubio&scfta.org EVENT: Rhythm/Ritmo Santa Ana Program LOCATION: All SAPL locations including satellite program sites. • Main Library • Newhope Library • Teen Time El Salvador • Teen Time Garfield • Knowledge Mobile Stops • Santa Ana Senior Center • Southwest Senior Center TERM: Program Term (January 16, 2024-June 30, 2024) Audience: All ages: Families, adults, teens, tweens, youth, seniors Leads: Segerstrom Center staff and Santa Ana Public Library Staff CENTER WITHOUT BOUNDARIES: PUBLIC PROGRAMS Drop -in style classes where all are welcome, no registration/signups are required, and a great way for friends and families of all abilities to participate together! Adult Services Tuesday Night Program 6:00-7:00 p.m, Weekly dance class exploring a range of styles and movements each month. Program Leads: Patty Lopez, Brissa Lopez Audience: Open to all ages; recommended for teens and adults. Capacity dependent on provided space for people to move around comfortably and clearly see instructor, Frequency: Weekly, January 2024 — March 2024 Time & Date: Tuesday, 6:OOPM—7:OOPM Location: Main Library, 26 Civic Center Plaza, Santa Ana 92701 Consistent indoor location required, access to electricity and basic sound system if available. Cost per session: $250 per session, $350 for bilingual session Estimated cost for January — March series: $3150 (Bilingual sessions) Center Number of Cost per TOTAL for Day of 2024 Time Age Location Without Workshops Workshop Class/Series the Schedule Group Boundaries Week Tuesday 3 $250 $750 Tuesday Jan 16 6:00 Teens Main Night Jan 23 7:00 & Library Dance Jan 30 pm Adults Tuesday 4 $350 $1400 Tuesday Feb 6 6:00- Teens Main Night Feb 13 7:00 & Library Dance Feb 20 pm Adults Feb 27 Tuesday 4 $250 $1000 Tuesday March 5 6:00- Teens Main Night March 12 7:00 & Library Dance March 19 pm Adults March 26 Total 11 $3150.00 Young Adult Services Teen Jam Sessions: Beat Making Class A series of workshops led by local musicians and teaching artists to explore beat making with analog and digital equipment. A series with multiple instructors, this workshop is intended for teens and adults. No previous experience required. Audience: 13+; adults. Capacity TBD by instructor and space Capacity dependent on provided space for people to move around comfortably and clearly see instructor. Frequency: Once a week for three months; April 2024 —June 2024 Series divided by three session intervals (example: first three sessions can focus on analog foundations; next three on intro to digital tools; last three on production) Time & Date: 4:00-5:30 p.m. 75-minutes per session includes 60-minutes instruction and 15 minutes' free play; Monday — Friday afternoon or Saturday availability TBD depending on space and instructor availability. Location: Can rotate sites every three sessions; indoor space required Cost per series (12 sessions @ $400 per class): $4800 Center Without Boundaries Number of Workshops Cost per Workshop TOTAL for Class/5eries Day of the Week 2024 Schedule Time Age Group Location Beat 4 $400 $1600 Tuesday April 4:00 Teens Main Making April 10 5:30 & Library April 17 pm Adults April 24 Beat 5 $400 $2000 Tuesday May 1 4:00- Teens Main Making May 8 5:30 & Library May 15 pm Adults May 22 Ma 29 Beat 3 $400 $1200 Tuesday June 5 4:00- Teens Main Making June 12 5:30 & Library -Total June 19 pm Adults 11 $4900.00 NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE NVIT11 AGREEMENT TO THE CLERK OF THE COUNCIL Contractor Segerstrom Center for the Arts Name: Project TBD 4 Number: Project AGREEMENT WITH SEGERSTROM CENTER FOR THE ARTS Name: FOR CENTER WITHOUT BOUNDARIES PROGRAMMING 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 POLICY EXPIRATION COI DATE FILE NAME NUMBER 1 DATE ABUSE OR MOLESTATION GENERAL LIABILITY WORKERS COMPENSATION AND EMPLOYERS` LIABILITY Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Pius Services Team 1/8/2024 7:16 PM 79958956 C 07/01/2024 12/08/2023 79958956 1 07/01/2024 12/08/2023 79958959 1 07/01/2024 cert_LOS_City of Santa Ana 2722895_2.pdf cert_LOS_City of Santa Ana 2722895_2.pdf cert_LOS_City of 12/08/2023 Santa Ana 2722895 2.pdf