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HomeMy WebLinkAboutALMENDRAL, DYLAN M.INSURANCE NOT REQUIRED N-2024-108 WORK MAY PROCEED CITY CLERK DATE: h hR 2 7 Z024 0'. PW ACz% AGREEMENT BETWEEN THE CITY OF SANTA ANA AND (G. F.a > sFoJN DYLAN M. ALMENDRAL FOR HISTORY WRITE-UP SERVICES THIS AGREEMENT is made and entered into on this 7th day of February, 2024 by and between Dylan M. Almendral, an individual ("Contractor"), 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"). RECITALS A. The City desires to retain a contractor having special skill and knowledge in the field of local history for write-ups to accompany art pieces from the City's South Main Public Arts Initiative. 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 consulting 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 Contractor shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Contractor's proposal, attached hereto as Exhibit A and incorporated by reference. 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 during the term of this Agreement shall not exceed Twelve Thousand, Eight Hundred Dollars and Zero Cents ($12,800). b. Payment of deposit of half of invoice amount for Contractor's services, Six Thousand Four Hundred Dollars and Zero Cents ($6,400), shall be processed upon execution of this Agreement, subject to City accounting procedures. c. Remaining balance for Contractor's services, Six Thousand Four Hundred Dollars and Zero Cents ($6,400), shall be processed upon final invoice following completion of work, subject to City accounting procedures. Page 1 of 7 #19793v7 d. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. City and Contractor agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Contractor 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 Contractor's account(s) with financial institutions. e. Payment need not be made for work that 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 the date first written above and expire on June 30, 2024, unless terminated earlier in accordance with Section 15, 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 Upon final payment by City, Contractor surrenders 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 Contractor under this Agreement ("Documents & Data") and City shall own such Documents & Data. Contractor shall require all subcontractors to agree in writing that City owns any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to sell, transfer, and license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. RESERVED Page 2 of 7 #19793v7 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, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The 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 out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by 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 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 Page 3 of 7 #19793v7 information is reasonably understood to be confidential and/or proprietary, Contractor 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 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 interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. 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. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, 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 is not embodied herein. Page 4 of 7 #19793v7 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 which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 15. 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(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and 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. 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. 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. 18. 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 Page 5 of 7 #19793v7 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. 19. 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: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Executive Director, Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, California 92702 Fax:714-647-5635 To Contractor: Dylan M. Almendral 2509 Valencia St. North Santa Ana, CA 92706 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. 20. 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 Page 6 of 7 #19793v7 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. APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: BratmBOSalvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL: A /-**' Nab)] Saba K Executive Director Public Works Agency #19793v7 CITY OF SANTA ANA: --1710111 l , Thomas R. Hate Interim City Manager CONTRACTOR: WE �irr, t . Page 7 of 7 EXHIBIT A EXHIBIT A SCOPE OF WORK COMPANY/INDIVIDUAL: Dylan M. Almendral PROJECT: City of Santa Ana South Main Project — Art Descriptions SCOPE OF WORK: Contractor shall provide written historical descriptions that uniquely correspond to each of the art pieces located in the seventeen (17) bus shelters along the Main Street corridor for patrons to read. Text will be reviewed and fact -checked by a separate source. Each art piece shall include an artist's narrative. City shall provide Contractor with the artists' narratives that correspond with their respective artwork. Contractor's write-ups will further enhance the connection between the artwork and history of the surrounding area. Contractor's write-ups shall not replace the artists' narratives but shall be featured in combination with the artists' narratives. Text for each description shall include 200-500 words (3-6 paragraphs), and shall be delivered to the City of Santa Ana in Microsoft Word and RawTextFormat. COST: $64.00/hour x (200 hours) _ $12,800 Payment is requested in two intervals ($6,400 upon the start of the project and the final half of $6,400 upon the city's receipt of the written narrative for publication) Perez, Dora From: Frankston, Emerson Sent: Tuesday, March 12, 2024 9:26 AM To: Perez, Dora Subject: FW: Insurance Request: DYLAN ALMENDRAL Sincerely, Emy Frankston From: Kaushal, Aarti Sent: Thursday, January 25, 2024 3:48 PM To: Gomez, Isabel <IGomez@santa-ana.org> Cc: Frankston, Emerson <efrankston@santa-ana.org> Subject: RE: Insurance Request: DYLAN ALMENDRAL Thank you for the additional information Isabel. eased on the very limited scope of work, insurance requirement can be waived for Dylan Almendral. Aarti Aarti Kaushal I Risk Manager City of Santa Ana - Human Resources Department 20 Civic Center Plaza I Santa Ana, CA 92701 Office: (714) 647-5472 Cell: (714) 604-6090 Email: akaushal(a)santa-ana.org santa-ana.org/human-resources I Linkedln I Instagram From: Gomez, Isabel <IGomez@santa-ana.ora> Sent: Wednesday, January 24, 2024 8:22 AM To: Kaushal, Aarti <akaushal@santa-ana.org> Cc: Frankston, Emerson <efrankston@santa-ana.orR> Subject: RE: Insurance Request: DYLAN ALMENDRAL Hi Aarti, Thank you for assisting on this! Please see responses in red. Regards, Isabel Gomez 714-647-5631 1 From: Kaushal, Aarti <akaushal@santa-ana.org> Sent: Tuesday, January 23, 2024 4:58 PM To: Gomez, Isabel <IGomez@santa-ana.ora> Cc: Frankston, Emerson <efrankstonC@santa-ana.ore> Subject: RE: Insurance Request: DYLAN ALMENDRAL Hi Isabel, Tracy forwarded your email to me. Since I don't have the benefit of reviewing the documents you originally provided, I have the following questions for you in order to better understand the scope of work for Dylan: Please confirm that Dylan will turn into the City a write-up for each piece of winning artwork Correct Please confirm that Dylan will not be on City property to view any of the artwork Dylan does not need to view the artwork in person, he'll be using this website for his history write-up: https://www.santa-ana.org/south- main-public-art-initiative/ By clicking on each location symbol, the art shown is what he'll be providing a write- up for and it will accompany the artist's narrative. Please advise how will Dylan's write-ups accompany the artwork? Once he writes it up, where will it be posted? Who will post same? It'will be posted on the above website in question #2 with each art piece. CDA will post it on the website.