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HomeMy WebLinkAboutYCB MEDIA, LLC-2017COMPLET>; INSURANCE01 ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE. O 0-0ACI) gme CONSULTANT AGREEMENT N-2017.214 THIS AGREEMENT is made and entered into this 12t" day of October, 2017, by and between YCB Media, LLC (dba Garbage Dream), a California limited liability company (hereinafter "Consultant'), 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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of graphic design services. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant 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: SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A attached to this Agreement and incorporated herein by this reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed fifteen thousand dollars ($15,000.00) during the term of this Agreement. 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. 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. On separate approval by the City, payment will be made on all proper invoices evidencing acceptable work performed prior to the start date of this Agreement in section 3 below. 3. TERM This Agreement shall commence on the date first written above and terminate after six (6) months, unless terminated earlier in accordance with Section 15 below. The Term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant 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 Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant 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 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 Consultant under this Agreement ("Documents & Data"). Consultant 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. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant 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. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant 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, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise due to negligent acts, omissions or willful misconduct in the performance of this Agreement by the Consultant 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 the negligent acts, omissions or willful misconduct of the Consultant in the performance of this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from the negligent acts, omissions or willful misconduct of the Consultant in the performance of this Agreement. The Consultant 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 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 the negligent acts, omissions or willful misconduct of the Consultant in the performance of this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant 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 Consultant to the City pursuant to this Agreement, except for materials explicitly furnished by the City to Consultant that are included in the final work product or documents. 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant 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 Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant 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. Consultant 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 Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant 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 Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant 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. 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 With courtesy copies to: FiT: City Manager's Office City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 Santa Ana, CA 92702 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Fax 714- 647-6515 To Consultant: Cale Bunker Principal Garbage Dream, LLC 315 N. Puente Street, Suite E Brea, CA 92821 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. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 Consultant. 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 Consultant 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 Consultant, Consultant 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 consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant 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 Consultant 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 Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant 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 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 Consultant 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. Consultant 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. 19. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow 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. {Signature Page Follows} IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. APPROVED AS TO FORM: 8ON|AR.CARVALH0 ;f Community Development Agency CITY OF SANTA ANA 112 475�L\A Interim City anaaer GARBAGE D M, ILLC Cale Bunk-i,� Principal 'U EXHIBIT A SCOPE OF SERVICES ATTACHED REFERENCE#SA100917C J MAKE CHECK PAYABLE TO: GARBAGE DREAM 315 N. PUENTE ST. SUITE E BREA, CA 92821 DATE: 10/1212017 City of Santa Ana For Services: REQUEST FOR QUOTE 20 Civic Center Plaza (M-25) Pa ment Due: NET30 Santa Ana, CA 92701 Attn: Robert M. Zur Schni DESCRIPTION RATE HOURS AMOUNT AMAZON HQ Proposal ReDesi n Gra hic Services $95 148 $14 060.00 > Original Vector artwork, maps, charts, ,,,.,,,,> Orioinal, Cover,arlwork .................................................................................................................................................................................. ,Photography Services..................................................................................$95.....................8 .760,00 SUBTOTAL $14 82____� 0.00 mm TAX 0.00% OTHER 0.00 TOTAL $1:20;00 .......................................... SPECIFICATIONS Quotations are based on the accuracy of the specifications provided. This is an estimate of the time and labor required to complete your project. Any labor required over the quoted amount and all communications, travel, or meetings will be billed at the hourly rate. We reserve the right to renegotiate the contract should the project go over the allotted time we've outlined above. This contract is a rough estimate, and if "project creep" occurs we have the right to fairly renegotiate the contract and its terms. CANCELLATION FEES All orders are subject to cancellation fees: 100% design fee if any work has been done; 100% design plus 15% of the total printing price if the job has been sent to print but not yet printed; 100% of the invoice amount if the job has already printed. Jobs placed on hold for over 30 days will be considered cancelled and cancellation fees will apply. If you choose to reopen the order within 30 days from the invoice date showing cancellation, the applicable fees will be credited to the completion of your reopened projects. INDEMNIFICATION You agree to indemnify, defend and hold harmless Garbage Dream, our independent contractors, affiliates, agents, employees, partners, and suppliers from any liability, loss, claim, demand, and expense (including attorneys' fees) related to any artwork or programming that you supply or approve. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which you will cooperate with us to the fullest possible extent. THANK YOU FOR THE OPPORTUNITY! YCBMEDI-01' 1 - CERTIFICATE • THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement, A statement on PRODUCER INSURED LLC YCB Media, LLC DBA Garbage Dream 315 N. Puente St. Brea, CA 92821 COVERAGES CERTIFICATE NIIMRFR• RFVISIf1N MI IMRRR• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTO THE INSURED NAMEDABOVE FORTHE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADDL SUBR TYPE OF INSURANCE p POLICY EFF POLICY EXP _�................... _ POLICY NUMBER p LIMITS A X I COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000'000 CLAIMS,MADE ❑X OCCUR X ODSD217246 0312812017 0312812016 DAMAGE TO RENTED $ 300,000 MED EXP (Any one arson $ 5,000 PERSONAL &ADV INJURY $ 2,000,000 GENL AGGREP.A E LIMIT APPLIES PER: GENERALAGGREGATE $ 4,000,000 X POLICY f PE PT LOC LOG PRODUCTS AGG _ $ 4,000,000 WE A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT_ Ea arr,d.nt 2,000,000 ANYAUTO ODSD217246 03/2812017 03/28/2018 BODILY INJURY Per ersan1 % OWNED SCHEDULED AUgqT[cO1$ONLY AUTOS BODILY INJURY Peracddenl W E X AUT0IS X ATOS AMAGE ONLY ON[JLY Pe0PERdeot A X UMBRELLA LIAR X OCCUR EACH OCCURRENCE 11000,000 EXCESS LtA8 CLAIMS MADE ODSD217246 4312612017 03!2812016 AGcftEGAT $..-....—.. 1,000,000 DED X RETENTION$ 10,000 Et WORKERS COMPENSATION I PER OTW- X ANDEMPLOYERS'LIAMLITV YIN ER UB2JO08223 0213/2017 02/13/2018 1,000,000 ANY PROPRIETyyOR/PARTNER/EXECUTIVE OFFI%R/M EXCLUDED? N/A ELEACH ACCIDENT .. $ ............................... In NN) E. L. DISEASE -EA EMPLOYE 1,000x000 If yes, describe under _ 1,000x000 DESCRIPI'I NOF PERATIONS below E.L. DISEASE -POLICY LIMIT DESCRIPTION Or OPERATIONS I LOCATIONS I VEHICLES(ACORD 101, Additional Remarks Schedule, maybe attached if more space Is required) City of Santa Ana, its officars, employees, agents, volunteers and representatives are named as additional insureds as required by written contract. City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED ACORD 25 (2016103) ©1908-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD I�I:Illlr ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company Massachusetts Bay Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # ODS -D217246-00 relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective 10/13/2017 this endorsement form as a part of Policy # ODS -D217246-00 Issued to YCB Media LLC DBA Garbage Dream Named Insured Countersigned by Authorized Representative 10 Mitre -Ramirez, Norma From: Morley, Marc Sent: Thursday, October 19, 2017 4:52 PM To: Mitre -Ramirez, Norma Cc: Orozco, Norma Subject: Contract: N-2017-214 Hi Norma, Please see approval from the City Attorney's office to not require professional liability insurance for contract N-2017- 214. Let me know if you have any questions or concerns. Thank you! Marc Morley City of Santa Ana Economic Development Division 20 Civic Center Plaza (M-25) Santa Ana, CA 927D2 T ,(714),)647,@%6 F (7114i) 647.6543a Mtw:Glwww.Santa-array w1pusiinees/ From: Hodge, Ryan Sent: Thursday, October 19, 2017 4:49 PM To: Morley, Marc Subject: RE: Professional Insurance Marc, If Garbage Dream did not and is not going to retain any licensed professionals when providing their services, then they do not need to provide professional liability insurance. The Certificate of Liability Insurance showing coverage for Commercial General Liability%tomobile Liability, and Workers Compensation insurance is sufficient to meet the insurance requirements in the agreement for this consultant. Please feel free to forward this to the Clerk's Office and let me know if you need anything else for this matter. Thank you, 6" . Ryan /2,�fU�-GLU2G(X