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HomeMy WebLinkAbout2017 CON Tallal DBA Commcinema - Inflatable Screens and AudioSHORT FORM SERVICES AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND TALLAL, INC. D.B.A. "COMMCINEMA" THIS AGREEMENT is entered into this 25th day of May, 2017, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and TALLAL, INC., D.B.A. "COMMCINEMA", a Texas corporation (the "CONTRACTOR"). NOW, THEREFORE, CITY agrees to engage CONTRACTOR to perform the services set forth herein in accordance with the following terms and conditions: 1. Description of Services. CONTRACTOR shall provide inflatable screen and all other audio visual equipment and labor required for five (5) outdoor movie screenings to be held at CITY -owned public parks as part of the San Diego Summer Movies in the Park series. The movie screening for the movies listed below shall begin at dusk (or as soon thereafter as agreed upon by the PARTIES) on the following dates and locations, unless otherwise agreed upon by the PARTIES: a) June 9, 2017 — "Sing" b) July 8, 2017 — "Jungle Book" c) August 1, 2017 — "The Incredibles" d) August 12, 2017 — "Moana" e) September 8, 2016 — "Lego Batman Movie" 2. Length of Agreement. The schedule is set forth below: a) The duration of this Agreement is from the date of execution through September 8, 2017. 3. Compensation. The total compensation to CONTRACTOR for providing the services set forth herein shall not exceed an annual cost of $3,975 ($795 per screening). 4. Payment Schedule. CITY will make payment within thirty (30) days of receiving and approving a billing statement for the satisfactorily completed services of CONTRACTOR. 5. Termination. A. CITY may terminate this Agreement at any time by providing five (5) day's written notice to CONTRACTOR. In the event of such termination, CITY agrees to pay one-half of the fee due for screenings not yet provided. If twelve hours before a scheduled screening, the CITY determines that severe weather or a Force Majeure event described in this Section 10(A) threatens or prevents any screening from taking place as planned, CITY may cancel the screening and shall pay one-half of the fee due for the cancelled screening. In such event, the CONTRACTOR shall reschedule the cancelled screening as described in Section 10(A). B. Once CONTRACTOR's staff departs for CITY's screening, CITY shall be responsible for all fees owed for that screening even if severe weather or a Section 10(A) Force Majeure event interrupts or prevents the screenings from taking place as planned. In such event, the CONTRACTOR shall reschedule such screening as described in Section 10(A). C. In the event severe weather or a Section 10(A) Force Majeure event poses a safety threat to outdoor screening attendees, CONTRACTOR staff and/or equipment, the CITY reserves the right to direct CONTRACTOR to (1) reduce or suspend screening services until such time as such potential safety threat has passed, or (2) direct CONTRACTOR to cancel the screening. If the screening is cancelled, CONTRACTOR shall reschedule the screening in accordance with Section 10(A). 6. Independent Contractor. It is agreed that CONTRACTOR is an independent Contractor, and all persons working for or under the direction of CONTRACTOR are CONTRACTOR'S agents, servants and employees, and said persons shall not be deemed agents, servants, or employees of CITY. 7. Insurance. CONTRACTOR shall obtain: A. I-1 If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $500,000 bodily injury per accident. Such automobile insurance shall include scheduled and hired vehicles. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. The waiver of subrogation described in this Article 7 shall not apply to workers' compensation coverage because Scott Tallal will be the only person on behalf of CONTRACTOR providing services (described in Article 1) who presents any workers' compensation risk that could lead to subrogation. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. Standard Short Form Agreement Page 2 of 6 Revised June 2017 City of National City and (Tallal, Inc. DBA CommCinema) F. Said policies, except for the professional liability and workers' compensation policies, shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and separate additional insured endorsements shall be provided. G. The Certificate Holder for all policies of insurance required by this Section shall be "City of National City, c/o Risk Manager, 1243 National City Boulevard, National City, CA 91950-4397. H. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. I. Insurance shall be written with only insurers authorized to conduct business in California which hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with, and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. L. If the CONTRACTOR maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) 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. 8. Indemnification and Hold Harmless. The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR' S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers employees, or volunteers. CITY will cooperate reasonably in the defense of any action, and CONTRACTOR shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Standard Short Form Agreement Page 3 of 6 Revised June 2017 City of National City and (Tallal, Inc. DBA CommCinema) 8. Acceptability of Work. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance, and/or the compensation payable to the CONTRACTOR. 9. Business License. CONTRACTOR must possess or shall obtain business license from National City Finance Department before beginning work. 10. Miscellaneous Provisions. A. Force Majeure. If CONTRACTOR shall be unable to carry out any part of its obligations under this Agreement due to causes beyond its control ("Force Majeure"), including but not limited to an act of God, high winds, inclement weather, thunderstorms, strikes, lockouts or other industrial disturbances, acts of public enemies, acts of terrorism, orders or restraints of any kind of the government of the United States or any state or any of their departments agencies or officials or any other civil governmental, military or judicial authority, war, blockage, insurrection, riot, sudden action of the elements, fire, explosion, flood, earthquake, storms, drought, landslide, or explosion or nuclear emergency, utility power outage, this Agreement shall remain in effect but the CONTRACTOR'S obligations regarding the affected screening shall be suspended for a period equal to the disabling circumstances, provided that: 1) the CONTRACTOR gives the CITY prompt written notice describing the particulars of the Force Majeure, including but not limited to the nature of the occurrence; 2) the CITY may, in its sole discretion, elect to reschedule a screening cancelled pursuant to Section 5 to another mutually agreed upon date before October 31, 2017; and 3) if CITY directs CONTRACTOR to reschedule any screening cancelled pursuant to Section 5, CITY shall pay CONTRACTOR $795 for each screening that is rescheduled. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement will control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. Standard Short Form Agreement Page 4 of 6 Revised June 2017 City of National City and (Tallal, Inc. DBA CommCinema) G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The CONTRACTOR shall comply with all laws, including federal, state, and local laws, whether now in force or subsequently enacted. I. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent, or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Subcontractors or SubCONTRACTORs. The CITY is engaging the services of the CONTRACTOR identified in this Agreement. The CONTRACTOR shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY. In the event any portion of the work under this Agreement is subcontracted, the subcontractor(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 7 and the indemnification and hold harmless provision of Section 8 of this Agreement. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Standard Short Form Agreement Page 5 of 6 Revised June 2017 City of National City and (Tallal, Inc. DBA CommCinema) IN WITNESS WHEREOF, this Agreement is executed by CITY and by CONTRACTOR on the date and year first above written. CITY OF NATIONAL CITY Leslie Deese, City Manager APPROVED AS TO F B rris Jones orney CONTACT INFORMATION CITY OF NATIONAL CITY 1243 National City Boulevard National City, CA 91950-4397 Phone: (619) 336-4358 Fax: (619) 336-4292 Contact: Shannon Mulderig Title: Recreation Center Supervisor Dep.: Community Services Email: smulderig@nationalcityca.gov Standard Short Form Agreement Revised June 2017 TALLAL, INC. a Texas corporation D.B.A. "COMMCINEMA" (Signatures of two corporate officers required) By: (Name) Scott Tallal (Print) President (Title) By: (Name) (Print) (Title) TALLAL INC. (DBA COMMCINEMA) 31510 Anacapa View Drive Malibu, CA 90265 Phone: (310) 589- 0223 Fax: N/A Contact: Scott Tallal Title: President Email: scott@commcinema.com Taxpayer I.D. No.: 752517055 Page 6 of 6 City of National City and (Tallal, Inc. DBA CommCinema)