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HomeMy WebLinkAboutO ENTERTAINMENT, INC. 2AGREEMENT TERMINATION��JUL 2Y FM 4: 50 Please complete this form when the attached agreement is no longer in effect. CITY OF SANTA ANA Return form to the Sr. Deputy Clerk of the Council (M 304% t(6 5Q29YiVy& have any questions. The agreement with o %i LVL6--i Ao , No../, Q)((M was completed on t1,311 q , and final payment has been made. Department: F 4 Signature:`} (�( Date: LD- ► l"T City of Santa Ana Revised 8-7-03 Clerk of the Council A-2005-015 INSURANCE NO] ON HLE WORK MAY NOT PROCEED CLERK OF COUNCIL. QATF 6/ / 7(0S LICENSE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS Ci f Pecs BETWEEN THE CITY OF SANTA ANA AND O ENTERTAINMENT THIS LICENSE AGREEMENT ("Agreement') is made and entered into this J- day of f2005, by and between the City of Santa Ana, a charter city and municipal co oration, duly organized and exiting under the constitution and laws of the State of California, herein referred to as "Licensor", and O Entertainment, herein referred to as "Licensee". RECITALS: A. On November 1, 2004, the City issues a request for proposals for a carnival Licensee to provide carnivals at City owned parks. B. Licensee submitted a proposal to provide services. Licensee represents that Licensee is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Licensee represents that it is knowledgeable in its field and that any services performed by Licensee under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival Licensee in the field. D. The City of Santa Ana desires to provide "Carnivals" in various Santa Ana parks, and desires to contract for such services with Licensee represents that it is qualified to provide such services to City. E. In undertaking the performance of this Agreement, Licensee represents that it is knowledgeable in its field and that any service performed under this Agreement will be performed in compliance with all City, County, and State and Federal laws, regulations and licenses requirements. NOW THEREFORE, in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all terms and conditions hereof, the parties hereto agree as follows: ARTICLE 1— TERM OF LICENSE Section 1.01 License Area and Use (a) Licensor owns the real property described in Exhibit "A" attached hereto and made a part hereof (the "Property"), commonly know as Jerome Park, located at 2115 W McFadden Av., Santa Ana, California; ("License Area"). Licensor grants to Licensee the privilege of a personal, non- exclusive, revocable license ("License") to encroach upon the License Areas, as herein described and shown in general in Exhibit "A", attached hereto and incorporated herein by reference, for the purpose of providing carnivals and for no other purpose. (b) The right and permission of Licensee is subordinate to the prior and paramount right of Licensor to use the Property in its entirety for public purposes to which it presently is and may, at the option of Licensor, be devoted. Licensee undertakes and agrees to use the License Area and to exercise this License at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Property by Licensor. (c) Licensee hereby acknowledges that title to the Property is vested in Licensor and agrees never to assail or resist the same, and further agrees that Licensee's use and occupancy of License Area shall be referable solely to the permission herein given. (d) As a covenant to this Agreement, Licensee shall adhere to and comply with all responsibilities enumerated in RFP, attached hereto and incorporated herein by reference. Failure to adhere to and comply with the responsibilities enumerated in the REP will result in the respective penalties described in the RFP. Section 1.02 Term (a) The term of the Agreement for the License Area ("Term") shall be for ONE (1) year(s) commencing on February 1, 2005, ("Commencement Date"). At the Licensor's sole discretion, Licensee may be granted extension of this Agreement, for TWO (2) additional terms ("Renewal Term") of ONE (1) year each. Each Renewal Term shall be on the same terms and conditions set forth herein. The Term of the Agreement shall not automatically be extended for each successive Renewal Term. This Agreement shall be irrevocable during its stated term, except as otherwise specifically set forth in this Agreement. (b) The Licensee or Licensor must inform each other, in writing, of its interest not to extend the term of the Agreement. Licensor may terminate this Agreement, at will, upon fifteen days (15) written notice if there is a violation of any of the terms contained herein. Section 1.03 Compensation/Consideration (a) Licensee shall pay all required city fees a including police services and clean up as described in Exhibit A and Fees per event as described in subsection (b) below. All fees shall be due and payable as set forth herein as well as in Exhibit A. A late charge of ten percent (10%) shall be applied after any payment herein is due but unpaid. In addition, one and a half percent (1 %2%) interest per month shall be added for each month that payment hereunder is due but unpaid. (b) FEES PER EVENT Operator agrees to pay the City and City agrees to accept from Operator the following fees per event. Park/ Carnival Dates Jerome Park $7,000.00 July 1-4, 2005 As a condition precedent to being granted a license to operate a carnival, the Operator agrees to pay in advance all City permit and/or license fees for the events as well as any deposits. Section 1.04 Security Deposit Contemporaneously with the execution of this Agreement, Licensee shall deposit with Licensor the additional sum of $5,000.00 as a security. The deposit shall be held by Licensor, without liability for interest, as security for the faithful performance by Licensee of all the terms, covenants, and conditions of this Agreement to be kept and performed by Licensee during the Term of this Agreement, or any extension thereof, and including the removal of Licensee's Facilities as set forth herein. Upon successful completion of all term and conditions of this Agreement, the security deposit shall be refunded to Licensee unless said amounts are required to be paid to the as set forth in the RFP. Section 1.06 Non -Possessory Interest Licensor retains full possession of the License Area and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. Section 1.07 Non -Recording Neither party shall record this Agreement. Section 1.08 Record Keeping and Audit A. Operator shall establish and maintain separate accounting records specified for the carnival activity at the specified parks. Operator's accounting system shall conform to generally accepted accounting principles and all records shall provide a breakdown of total costs and revenues associated with the park carnival events. B. ALL Operator's records of revenues and repairs pertaining to Santa Ana Carnivals shall be kept for the duration of this Agreement and made available at all times for audit by City upon request ARTICLE 2 — TAXES AND UTILITIES Section 2.01 Taxes Licensor is responsible for all taxes on the Property, which includes the License Area. Section 2.02 Utilities Licensee shall pay for all electricity, gas, water sewer and janitorial services furnished to the License Area for the use, operation and maintenance of Licensee's Facilities during the Term of this Agreement, or any extension thereof, and for the removal of garbage and rubbish from the License Area during the Term of the Agreement, or any extension thereof. ARTICLE 3 — IMPROVEMENTS AND ACCESS Section 3.01 Licensee's Facilities (a) Licensee shall hold title only to Licensee's Facilities and any equipment placed on the License Area by Licensee. All of Licensee's Facilities shall remain the property of Licensee and are not fixtures. Licensee has the right to remove all of Licensee's Facilities at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a professional and careful manner, without interference or damage to any other equipment, structures or operations on the License Area or the Property, including the use of the License Area or Property by Licensor or any of Licensor's licensees, assignees or lessees. Licensee shall repair any damage to the License Area caused by such removal and will leave the License Area in satisfactory condition as approved in writing by Licensor. Licensee shall be required to remove all its Facilities upon expiration/termination of the License, and if Licensee fails to do so within thirty (5) days Licensor may elect to do so at Licensee's sole cost and expense, or elect to not remove such Facilities, in which case, such Facilities shall become the property of Licensor, at Licensor's option. Any personal property, equipment or other improvements that are not removed within said three-day period shall become the property of Licensor, at Licensor's option. Licensee's obligation to pay compensation to Licensor shall not cease, unless and until the Facilities that Licensee must remove, are removed to Licensor's approval. (b) Each party shall provide access to the License Area to the other party, and its employees, agents, contractors and subcontractors, twenty-four (24) hours a day, seven (7) days a week. Except in the case of emergencies, Licensor shall give Licensee twenty-four (24) hours notice prior to entry into the License Area. Licensor represents and warrants that it has full rights of ingress and egress to and from the License Area, and hereby grants such rights to Licensee to the extent required to maintain, and operate Licensee's Facilities within the License Area. Licensee's exercise of such rights shall not cause undue inconvenience to Licensor. (c) Licensee shall, at its sole cost and expense, maintain and repair the License Area and Licensee's Facilities including, but not limited to, the removal of all trash, debris, graffiti, as well as any special intensive cleaning. If Licensee causes any damage to the Property, to the License Area or to access roadways or other nearby facilities, it shall properly repair same as specified by Licensor. (d) Upon the expiration or termination of this Agreement, Licensor shall approve in writing the surrender of the License Area by Licensee only after being satisfied that License Area has been left in good and clean condition, less ordinary wear and tear. Section 3.02 Liens Licensee will not permit any mechanics' or materialmens' or other liens to stand against the License Area by reason of any use or occupancy by Licensee, or any person claiming under Licensee. ARTICLE 4 — INDEMNITY AND INSURANCE Section 4.01 Indemnification, Defense, Hold Harmless Licensee shall protect, defend, indemnify and save and hold harmless Licensor, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Licensee's performance of this Agreement or Licensee's failure to comply with any of Licensee's obligations contained in the Agreement by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Licensor. In the event Licensor is named as codefendant, Licensee shall notify Licensor of such fact and shall represent Licensor in such legal action unless Licensor undertakes to represent itself as codefendant in such legal action, in which event Licensor shall bear its own litigation costs, expenses and attorney's fees. Licensee further agrees to indemnify, hold harmless, and pay all costs for the defense of the Licensor, including fees and costs for special counsel to be selected by Licensor, 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. Licensor may make all reasonable decisions with respect to its representation in any legal proceeding. Section 4.02 Insurance In addition to the Licensee's covenant to indemnify and hold harmless Licensor, Licensee shall obtain and furnish to Licensor, a policy of general public liability insurance, commercial general liability insurance including motor vehicle coverage covering the License Area and Licensee's Facilities. The policy shall indemnify Licensee and Licensor, their officers, agents and employees, while acting within the scope of their duties, against any and all claims arising out of or in connection with the License Area and Licensee's Facilities, and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $2,000,000 per occurrence. The City also requires an Additional Insured Endorsement, as attached and incorporated herein as Exhibit C. The policy shall name Licensor, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any insurance coverage which may be applicable to the License Area and Licensee's Facilities shall be deemed excess coverage and that Licensee's insurance shall be primary. Under no circumstances shall the above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. Licensee is required to give the Licensor no less than thirty (30) days notice of cancellation or reduction in coverage. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Licensee to furnish insurance during the term of this Agreement. Section 4.03 Property Insurance - Licensee shall provide to Licensor, before entering the License Area, and shall maintain in force during the entire term of this Agreement, property insurance with extended coverage endorsements thereon, on the License Area in an amount equal to the full replacement cost and/or value thereof; this policy shall contain a replacement cost endorsement naming Licensee as the insured and shall not contain a co-insurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair or rebuild any such improvements so damaged or destroyed; and if not so used, such proceeds shall be paid to Licensor. The proceeds of any such insurance payable to Licensor shall be used for rebuilding or repair as necessary to restore the License Area at the discretion of Licensor. The policy shall name Licensor as an Additional Insured. The policy or policies shall also contain the following endorsements: The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior written notice to Licensor; and 2. Licensor will not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with Licensor prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with Licensor. Section 4.04 Certificates of Insurance; Additional Insured Endorsements Prior to execution of this Agreement, Licensee shall furnish to Licensor certificates of insurance and additional insured endorsements to each of Licensee's insurance policies, subject to approval of the City Attorney, evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: provide the name and policy number of each carrier and policy; 2. shall state that the policy is currently in force; and shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days prior written notice of Licensor; and shall state as follows: "The above detailed coverage is not subject to any deductible or self -insured retention, or any other form of similar type limitation." Licensee shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of Licensor by Licensee under the Agreement. Licensor or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance, which Licensee shall provide within fifteen (15) days of Licensor's request. ARTICLE 5 — TERMINATION AND DEFAULT Section 5.01 Termination in the Event of Casualty or Condemnation (a) In the event of any damage, destruction or condemnation of the License Area, which renders the License Area unusable or inoperable in Licensor's judgment, Licensee shall have the right, but not the obligation, to terminate the Agreement with respect to the subject License Area by giving written notice to Licensor within thirty (30) days after such damage, destruction or condemnation. If by virtue of such casualty or condemnation, Licensor determines that the License Area is no longer adequate for Licensee to continue its operations, or any repairs to the License Area have not been completed or cannot reasonably be completed within sixty (60) days from the date of the damage, destruction or condemnation. This License Agreement will become null and void. (b) In the event of condemnation, unless Licensee is allowed by the condemning authority to continue its operations in the License Area, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Licensee is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to Licensor. Section 5.02 Termination This Agreement may be terminated on thirty (30) days prior written notice as follows: (1) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default, provided that the grace period for any monetary default is ten (10) days from receipt of notice, or (2) by Licensee if Licensee is unable to occupy and utilize the License Area due to a failure to obtain and/or ,maintain any federal, state county or city licensing requirement(s). ARTICLE 6 — ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 6.01 Assignment Licensee may not assign this Agreement. This Agreement is personal to Licensee, and Licensee will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right upon any third party. Section 6.02 Abandonment by Licensee Should Licensee breach this Agreement and abandon the License Area prior to the expiration of the Term or Renewal Term, Licensor may: (a) Continue this License in effect by not terminating Licensee's right to the License Area, in which event Licensor shall be entitled to enforce all of its rights and remedies under this Agreement, including the right to recover the compensation/consideration specified in this Agreement as it becomes due under this Agreement; or (b) Terminate this Agreement and recover from Licensee: The worth at the time of award of the unpaid compensation which has been earned or the sum of one (1) year's compensation, whichever is greater, at the time of termination of the Agreement; or 2. The worth at the time of award of the amount by which the unpaid compensation which would have been earned after termination of the Agreement until the time of award exceeds the amount of compensation loss that Licensee proves could have been reasonably avoided; or 3. The worth at the time of award of the amount by which the unpaid compensation for the balance of the term of this Agreement after the time of award; and, 4. Any other amount necessary to compensate Licensor for all detriment proximately caused by Licensee's failure to perform its obligations under this Agreement. Section 6.03 Default by Licensee Should Licensee default in the performance of any of the terms, conditions, or obligations contained in this Agreement, Licensor may, in addition to the remedies specified in Section 6.02 of this License, re-enter and regain possession of the License Area in the manner provided by the laws of unlawful detainer of the State of California then in effect. Section 6.04 Insolvency of Licensee The insolvency of Licensee as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Licensee, or the making of a general assignment for the benefit of creditors by Licensee, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle Licensor to re-enter and regain possession of the License Area. Section 6.05 Cumulative Remedies The remedies given to Licensor in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. Section 6.06 Waiver of Breach The waiver by Licensor of any breach by Licensee of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Licensee either of the same or another provision of this Agreement. ARTICLE 7 —HAZARDOUS MATERIALS Section 7.01 Licensee represents and warrants that its use of the License Area herein will not generate any hazardous substance, and it will not store or dispose on the License Area nor transport to or over the License Area any hazardous substance. Licensee further agrees to clean-up and remediate any hazardous substance on the License Area and Property, and hold Licensor harmless from and indemnify Licensor against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of Licensor, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. ARTICLE 8 — MISCELLANEOUS Section 8.01 Force Majeure — Unavoidable Delays Should the performance of any act required by this Agreement to be performed by either Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused, provided, however, that nothing contained in this section shall excuse the prompt payment of compensation by Licensee as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Licensor or Licensee, required to perform the act. Section 8.02 Notice Any written notice or required submittals, given under the terms of this Agreement, shall be delivered personally, or mailed, certified mail, postage prepaid, addressed to the party concerned as follows: To Licensor: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copies to: and, Executive Director of the Parks Recreation and Community Services Agency P.O. Box 1988 Santa Ana, CA 92702 Telefacsimile (714) 647-6549 City Attorney 10 City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Telefacsimile (714) 647-6515 To Licensee: O ENTERTAINMENT, INC. 539 East Bixby Road, Suite 59 Long Beach, CA 90807 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 telefacsimile, any notice, tender, demand, delivery, or other 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. Section 8.03 Contract Administrator The Executive Director of Parks Recreation and Community Services Agency, or his/her designee, shall be City's License Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. Section 8.04 Compliance with Laws Licensee shall at Licensee's own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Licensee's use and occupancy of the License Area and Licensee's Facilities whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Licensee in a proceeding brought against Licensee by any government entity, that Licensee has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between Licensor and Licensee and shall be considered grounds for termination of this Agreement by Licensor. Licensee will obtain all permits and other governmental approvals, required in connection with Licensee's activities hereunder, and update such permits/approvals as necessary. Section 8.05 Binding on Heirs and Successors 11 This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. Section 8.06 Partial Invalidity Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. Section 8.07 Waste or Nuisance Licensee shall not commit or permit the commission by others of any waste on the License Area. Licensee shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Premises or License Area; and Licensee shall not use or permit the use of the License Area for any unlawful purpose. Section 8.08 Repairs Licensee shall be required to make any repairs to the License Area occurring from damages caused by Licensee, its employees, agents, contractors, and subcontractors. Section 8.09 Time of Essence Time is expressly declared to be of the essence in this Agreement. Section 8.10 Governing Law 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. Section 8.11 Survival Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive. Section 8.12 Public Necessity Licensor may, upon three (3) months notice in writing to Licensee, suspend or revoke this Agreement without liability to Licensee when public necessity so requires, or to suspend operation immediately hereunder temporarily in the event of public emergency, as may be determined by the City Manager. Such suspension will terminate when the public necessity or emergency no longer exists. Section 8.13 Conflict of Interest 12 Licensee covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of this License Agreement specified herein. Section 8.14 Attorney's Fees In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. Section 8.15 Exclusivity and Amendment This Agreement constitutes the entire agreement and understanding between Licensor and Licensee respecting the License Area, the licensing of the License Area to Licensee, or the License Term herein specified, and correctly sets forth the obligations of Licensor and Licensee to each other as of its date. Any agreements or representations respecting the License Area or their licensing between the parties not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any Agreement between the parties, unless such Agreement is expressed in writing, signed and acknowledged by Licensor and Licensee, or their successors in interest. Section 8.16 Captions Captions used in this Agreement are for ease of reference only and shall not affect the construction or interpretation of this Agreement. Section 8.17 Non -Discrimination Licensee 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. Licensee affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. Section 8.18 Independent Contractor Operator 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 Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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. 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney BY: Michael Viglibtta Deputy City Attorney RECOMMENDED FOR APPROVAL: Parks Recreation and Services Agency CITY OF SANTA ANA DAVID N. REAM City Manager 15 � S Tax ID # �"� - a2A°l2 3nN3AV V3HV- 9NlN8Vd Wo -Z f riiAY-16-07 WED 04:00 PM KALMANSON FAX NO, 4076452810 P. 01/04 I,E$TR ICALMIANSON AGENCY, INC. MATI'LAl�i17oFL 32794••0008 008 A ' 020� ��� j VII: 007) 6.45-5000 /� a AA.4c* POI,TCX I`TLJMBER: NCM06574 j FAX- (407) 645 -29 10 o'f �r() AMED INSURED; f.14TERTAINMENT, INC. CIO ROY HASSU'I°T I;fBY ROAD, 0 59 nNr "xI;ACH, CALIFORNIA 90813 DATE: 05/25/2007 (B01'l ( DAYS AT 12:01 CERTIFICATE OF TNSIJRANCE DATE ISSUED: 05/04/2007 (revised 4 I) 05/16/2007 C'ON'ANY: I00°/u CERTAIN UNDERWR[1'1.IZ$ AS LLOYI)'S LONDON DA'i t:: 05/25,12009 LOCAL STANDARD TINIT') —i i i S 'S TO CERTIFY TEIAT 1'I Il? POLICY(S) Or INSURANC LISTED BELOW HAVE BEEN 15STJ 17 TO THE INSUIi >0 AMED A130VE FOR'l'I IF POLICY PERIOD INDICATk17, NOT WITHSTANDING ANY RUQUTREMENT,1'13RM(S) OI. N U)NDITION(S) OF ANY CONTRACT OR OTIf1;:(t DOCUML"N1' WVIH RESPE(;'f 'i'O WHICH THIS CC:RTIFICATE(S) h;AY L CR w[!.Y P!✓`tTAL�T, T1IIi INSURANCE AVI'ORDED BY 'll-M, POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL'I 11; I'ECZVIS,1'sXC".I,USIONS AND CONDITIONS OF SUCH POT,TCIf*$.LIMITS OF LIAT11LITY SHOWN MAY I IIAVE BI;I3N REDUCED BY ANY PAID CLAIMS TYPE OI' INSURANCE: ;X OENERAL I•[ABILlTY ADE `'!;!)S, &'-ENANTS 0',12512006 LIMITS: GrNI-,ItAL A UUKL' UA I t : LIMITED PRODUCTS AGGRECYATE jll',RSONAL & ADV. TNJURY: EACH OCCURRENCE; 11 RE DAMAGE (ANY ONE FIRE) $ 2,UUU,UUU.V') $-0- $41- $1,000,000.0 ) $-0- ADDII'IUNAL INSURi.1)(S) fliE CITY 01' SANTA ANA, SAN'('A ANA DEPAR"! MENT OF PARKS AND RECREAII(�N, JI,ROME PARK 4Tli OF JULY•IS/ARP IIEREBY ADl)PI) AS ADDITIONAI,' NSURED ONLY AS THEIR INTERESTMAY APPVAR IN RRSf I'C'1 S TO THE OPf RA'l'ION(S) PERFORMLD BY THE NAMPD INSURED ANIXOR IT'S EMPLOYE E(S) ONLY - _ �..__ SVP AT I'ACHIiT) ADDENDUM "A" FOR DESCRIPTION Or' LIAB]LITY COVFRAGE(S) AFt'ORT)F.D. EV8N1' UATE(S): JU,,4,c, 25, 2007 11IROUGH JUNE 28, 2007 (SET-UP) )UNS 29, 2007 T'IIROI CXH JULY 03, 2007 (F:VE, IIT) JLJLY 04, 2007 (TAKE -DOWN) ;EIti_l'_v1E PARK SANi'A ANA CALIT'ORNIA 92701 iPICATB IS 1SSIJI:Ci AS A MATTCR OF TtIFORMATION ONI,Y AND CONFERS NO RIGl I7'S UPON THE E Ct RT1171C;ATE HOLDER,THIS CT"WrIFICATE DOES NOT AMEND, EXTEND OR AI,1'E R THE COVERAGES) AFFOI MED BY TIJE POLICY(S) LISTED, 'l,IIVIITS SI(OWN ARE THOSE IN EIS FECT AS OF POLICY INCEPTION.- $ IG 1LU ANY 0l 111E ABO VL DESCRTBIJD POLICY(S) BE CANCELLED 31;FORE THE EXPIRATION DATE T HEREOF, JSS; ING COMPANY Wl Lt. ENDEAVOR TO MAT1, ^3L)D,, Y WRITTEN NO T[CE TO THE CERTIFICATE IIOI.DER NAMED BELOW, BUT FAILURE TO 14411, SUCH NOTICE SHALI, IMPOSE NO OBLIGATION($) &/OR LIABILITY (S) OF ANY KIND UPON 11IL COMPANY, IT'S AGENTS &/OR REPRESENTATIVES &/OR KALMANSON ET AL, J -- CERTII-ICATF HOLDER i ADDITIONAL INSUK U: THE CITY OI' SAN'tA ANA C-I NTE", PI.A/A C7 3'3.N 192701 TO CTRT IIOLI)ER ON 05/16/2007 /�.:;is SS21195-59ti) 714/571.4209 NVI f /l l�"> ICAT, n{~SON/PRESIDENT V MAY-16-07 WED 04,01 PM KALMANSON FAX NO, 4076452810 P. 02/04 0 JD 10 e e o EXIUBff B A12121-flONAI. INSURED Q90—RSEMENT r-_QR C0M-MLRCiAL QENERAL LIABILITY POLIC Y Ins nee t mpany 0 / _�L .. .� d h a0 This endorscixsent modifies such insurance as is afforded by the provisions of Policy 0 6,5,7yrelating to the following: I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its a7,Iployees, agents, volunteers and representatives we named as additional insureds F.,-rsoxredw") with regard to liability and del'imse of suits arising from the operations acid uses performed by or on behalf of the named insured 2. With respect to claims arising out of the operations and uses perfcrrmed by or on behalf of the named insured, such insurance as is afforded by this policy is pxirnau'y anal is not n,dditiongi to or Contributing with any other insurance carried by or for the benefit of tb,c additional insureds. 1. This insurance applies separattly to each insured against whom claim is mach of suit is brought except with respect to the company's limits al' liability. The inclusion► of any person or organization as an insured shall not aftt any right which such person car org,zmizatios i wottltl have as a claimant if not so int ludr 4. With respect to the, udditiontai insw-eds, this iissutanoe sliall not be cancelled, or materially reduced in aw rage or limits except after thirty (30) days writtem notice has been given to tiu City of Santa Ana, 20 Civic Center Plaza, Sanra. Ana, C di!'ornia 92701. (coraplw: on, cif the following, including countersignature, is required to make this endorsement effective.) % GAxc4tave /''' �_ �o C3a —, this endorsement for as a part of y - I je (J tell 1�` -1) >saucd to Nauted In;sumd Countersigned by __ Authoi £d WU9£: 60 L00Z 91 ' fi RW T96SS6bZ9S s 'ON XUA WQ U AY -13-07 WED 04:01 PM KALMANSON FAX N0. 4076452810 P. 03/04 C L A I M S M A D E A D D E N D U M " A" F O R _-^�_�- s_m__'_' 0 ENTERTAINMENT, INC. AGENCY: LESTER KALMANSON^AGENCY-INC--------------------------------- P.O. BOX 940008 MAITLAND, FLORIDA - U.S.A. ----5^5000"FAX�'4071645`2810- _�- -------------- POLICY PERIOD / TERM: 05/25/07 TO 05/25/08 ---- ^ ---- - _-_---- -- (12`01-AM LOCAL STANDARD TIME) �t�t-- - ______-- -`-^-, POLICY / HINDER NUMBER: NCM06S DrSCRTPT.IUN ^`r^.._`__-------__--__ _--_" ___, TION OF CLAIMS MADE __-___,"_---_-, LIABILITY INSURANCE COVPRAG} (S) AFFORDED: ^SPECTATOR LIABILITY COVERAGE IS AFFORDED FOR THE 'SUPPLYING OF VARIOUS - ' ^y CONTRACTED TALENTS / ACTS TO BE SUPPLIED BY THE NAMED INSURED &/OR IT'S `-`-EMPLOYEZ(S)-TO -PERFORM AT VARIOUS CONTRACTED (USA) LOCATIONS ONLY, B) PREMISES LIABILITY COVERAGE IS -AFFORDED FOR THE^NAMED INSURED'$ EVENT PLANNING &/OR COORDINATING BUSINESS FOR VARIOUS CONTACTED ACTIVITY(S) &/OR OPERATION(S) FOR CONSIDERATION PROVIDED BY THE NAMED INSURED &/OR I`1'S --_-EMPLOYEE(S)_WHILE`AT VARIOUS CONTRACTED (USA) LOCATIONS ONLY, C) PREMISES LIABILITY COVERAGE IS AFFORDED TO INCLUDE -THE SET- UP,uUSE- &/0,1 TAKE DOWN OF THE NAMED INSURED'(S) OWNED EQUIPMENT) TO BE USED IN CONJUNCTI()N WITH THE NAMED INSURED, (S) COMMERCIAL CONTRACTED TALENT(S) / ACT(S) OPERAT_:OIJ(S) ----- !-^CTIVIT'Y(S)`ONLY, _W1IILE AT VARIOUS CONTRACTED (USA) LOCATION(S) ONLY. WARRANTED: -_ Z) ANIMAL TALENT ACT(S) / SHOW(S) ARE SPECIFICALLY EXCLUDFD UNLESS OTHERWISE ENDORSED HERETO AND AN ADDITIONAL PREMIUM CHARGE IS MADE, 2) ANY / ALL VENDOR(S) / CONCESSIONAIRES) 6/OR CONTRACTED TALZNT(S) PROVIDED BY THE NAMED INSURED MUST PROVIDE A CERTIFICATE OF INSURAITCE, THROUGH AN ACCEPTABLE CARRIER, WITH MINIMUM LIMITS OF $11000,000.00 PEP OCCURRENCE / AGGREGATE, NAMING 0 ENTERTAINMENT, INC. AS AN AODITIOIIAL NAMED INSURED. ?) \TAMED INSURED IS TO MAINTAIN A SEPARATE WRITTEN AGREEMENT WITH ALL TALENTS (TALENT AGENTS) &/OR WITH ALL CLIENTS &/OR VENUES. 4) THIS POLICY WILL BE EXCESS OVER ANY OTHER VALID &/OR COLLECTABLE LIABILITY INSURANCE POLICIES APPLICABLE FOR ALL CONTRACTORS / TALENTS, UNLESS OTHERWISE STATED &/OR ENDORSED HERETO. 5) LIABILITY COVERAGE IS SPECIFICALLY EXCLUDED FOR AIQY PYROTECHNICS, 6) WORKERS COMPENSATION / EMPLOYERS LIABILITY COVERAGE IS SFEGI)ICALLY EXCLUDED FROM THIS POLICY FOR ANY INaURY TO ANY EMPL CONTRACTORS &/OR VOLUNTEERS. OYEES, INDEPENDENT 7) LIABILITY COVERAGE IS SPECIFICALLY EXCLUDED FOR ANY EXOTIC ANIMALS, MAY-16-07 WED 04:01 PM KALMANSON FAX N0, 4076452810 P. 04/04 �:.. C I, A I M S - -- -� A D D E N D U M K A p F A F -- _-_-O ENTERTAINMENT, INC. 0 R 11GENCY: LESS, ER KALMANSON-AGENC -IN _`�_` ` P' O' AGENCY INC. BOX 940bOB -- MAITLAND, FLORIDA - ___�_� PH: 407-645-5000 U.�r .A, --._ FAX: 407-645--281 0 POLICY pERidt7'/'TRRM:5/25/06^TO 5^ -~`` --_.--__ _ /07 i0*,ICY^/^BIND>rR^NUMI3F�R^^1~^ LOCA7,�STANDARD aTIME) DESCRIPTION`OF�C`��� _ `NCM`�9�- _ --_ ------ _ - _--- �LAIMS MADEyL-TABUTTy TNSURA ED NC AI'^ n} cUN7R�,TOEnL`"jA z2Y CoVERAc;F�1S `�~-�--`�^COVERACE�s) .OFUrp: , TALI;IvTS / ACTS 'rU AI''CORDED t,0^ F"'-�C EMPLOYRFS TO 6r SUPPLIED THE SUPPLYING or Vnrz, p -------- PERFORM 8Y THE NAMF,D INSURED & , _______ _____ _ AT VARIOUS CONTRRCTED (USA) LOCATIONS INSURED D} PRLMTSc:S L1AF�I------ ---- /OR T1' g &/GR COU COVERAGE IS`A. -___ �__,____�� RD)f111TTNG I3USIPIESS FOR AFFORDED FOR N_ ---- "-'- OPl~RE1TlONS FOR CONSIDERATIONVARIOUS CONTACTS ."ED INSrIRFD _� OP,Q YFES D A41'TV S EVENT PLANNING WHIJ,r AT VAR PROVIDED R1� THE ITIES &/OR -__ --_ 00S CONTRACI7'D NAMJ D TNSURI D 6/OR ITPS V1 `^PRIMtSES �_------------------------------ DOWN, (USA) r,QCI1TIONS ONLY. / I,rl�3ILITYCOVI;(�AGE IS OF THE N AFFORDEDTOINCLUD--_^_ __ THE NAA1F.0 INSURED' 1NSURP;D' (S) OWNED S INC LUDE THE SETUP"-�,_ -',- ACTIVITY S (S) COMMERCIAi, CGNTR11 TPM T) TO 1,E USF• /C 12 TAFF �__ (') , WHIT !1T V SI"'D IN CONJUNCT O ___,_- VARIOUS CONTRACTED / ACTS I N Wl1'H :A7J :IAVTsrJ: ---_ -- (USA) OPERATIONS / ~ -- A) I OCF(TIGIJ (S) ONLY. TALENT ACTS / SIioWS --- ENDORSED HERETO A- ARP Sp'ECTF'ICAI,LY -__-__ - AN ADDITIONAL pap'" RECHARGE UNLESS 21 ANY / ALL ISM OTIIIIZW(SE VENDORS / CON ,E MADE. TIE NAMED r "SIONAIRrS &/Or; r �9CCEr'TAJ3L,fiINSURgp MCrST PROVznr CON'TRACT'ED ARRIr•,R, WITH A CERTIFICATE: TAIZ 1'S PROVIDlll BY AGGREc;A1jE MINIMUM LIM. OE' zN;UrrCE NAAII.NG 0 ENTPRTATNMFNT I ITS OF $1, 000 , THROUGH 3N 3} NAa9rD NC. AS AN ADDITIONAL PFR oCCURR NCE / INSURED Is TO MAINTAIN A ` IONA1a NAM,?n TNSUi,En, TALENTS (TALENT SFPl�[tT, W , AGENTS) &/OR WrTiI Ar,r, C•. RITr(;N AGRr•,r, 4) TIIIS CLIENTS MENT WITIi AI,I, POLICY WILL &/OR VIrNUES, LTARIrrTY INSURANCEBE EXCESS OVER )NY UNLESS IOLICIrS 1ppLICAB FOTHIR F pkALI &/OR OTIIRRWrSE; STATED CQI�r,F;C�PA3LE &/OR ENDORSED HERETO CONTRACTORS, S) LIABILITY FONT ° / TAr,F;NTf xY COVER IS SPECIFICALLY EXCLUDED 61 WORr<ERs > . L,UUED FOR ANY E�YRO1'ECHr,1ICS. COMrENSATION / F'MPI,OY1rk5 EXCLUDED FROM TIIIS 1'UL7CY FOIE ANY rNJURY 'rY CONTRAC7.ORS COVLrnGE IS SPECIFIC""ALLY /Uk Vol,UN'T8ERS. =U ANi, EMPr OYFF'c, 1NDEpENF)FNT �) 1.,rA8II,ITY COVF;P�AQ£ IS SPFCIFICI�.r,I,Y EXCLUDE D 1•oiz ANY E;xGrxc ?11vzMr�Ls.