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HomeMy WebLinkAbout25C - AGMT - ENTERTAINMENT SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2017 TITLE: AGREEMENT WITH VOLCAN ADVERTISING & ENTERTAINMENT AND PROFESSIONAL ENTERTAINMENT FOR PERFORMERS FOR VARIOUS CITY EVENTS {STRATEGIC PLAN NO. 5, 5C} - CITY ANAGER — RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: /_117 i01Tl4tt� ® As Recommended ❑ As Amended ® Ordinance on 1 at Reading ❑ Ordinance on 2nd Reading [] Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Volcan Advertising & Entertainment to provide entertainment bands or individual performers for city - produced events in the amount not -to- exceed $90,000, for a term of March 21, 2017 to December 31, 2017, with two, one -year renewal options for an amount not -to- exceed $90,000 per year, for a total amount not -to- exceed $270,000, subject to non - substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute an agreement with Professional Entertainment to provide entertainment bands or individual performers for city - produced events in the amount not -to- exceed $20,000, for a term of March 21, 2017 to December 31, 2017, with two, one -year renewal options for an amount not -to- exceed $20,000 per year, for a total amount not -to- exceed $60,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City of Santa Ana, Parks, Recreation, and Community Services Agency (PRCSA) has been working to bring together the elements needed to provide multiple city - produced events throughout the year and recommends entering into agreements with various vendors to provide the necessary equipment, stages, security, carnival rides, vendor booths, entertainment, and insurance for city - produced events. The Cinco de Mayo and Fiestas Patrias events have been attractions for the downtown community and surrounding neighborhoods. These two events attract thousands of Santa Ana residents and visitors from Orange County and the Southern California region. The purpose of the events is to celebrate throuah a safe, familv - friendly event that includes: live entertainment. food booths. 25C -1 Agreement with Volcan Advertising and Entertainment And Professional Entertainment for Performers March 21, 2017 Page 2 informational /resource booths, merchandise /service booths; cultural exhibits and carnival rides /games. The City also hosts several other events such as the 4th of July celebration, Shakespeare in the park and Plaza Navidena. On January 18, 2017 PRCSA issued a Request for Proposal (RFP) for companies to provide entertainment bands or individuals performers for various city - produced events. An evaluation committee consisting of representatives from PRCSA, Planning and Building Agency, and the Police Department was assembled. The group was divided and assigned one or more services to evaluate the submitted proposals. The proposals were evaluated based on experience, understanding, capacity and price. The City received three proposals from companies that represent various entertainment bands and individual performers. The results are below. Company Score Volcan Advertising & Entertainment 290 Professional Entertainment 243 Downtown Inc. 216 The City recommends entering into two agreements, one with Volcan Advertising & Entertainment to provide entertainment bands or individual performers for large -scale events and another with Professional Entertainment for various other events. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #5 (Promote a strong arts and culture infrastructure), Strategy C (Promote arts and culture by partnering with artist groups and merchants to hold events celebrating art in public plazas, parks and other City - controlled open space). FISCAL IMPACT Funds are available in the following account for the specified years: Accounting Unit FY 16/17 FY 17/18 PRCSA- Recreation (no. 01113230 - 62300) $45,000 $110,000 25C -2 FY 18/19 FY 19/20 $110,000 $65,000 Agreement with Volcan Advertising and Entertainment And Professional Entertainment for Performers March 21, 2017 Page 3 APPROVED AS TO FUNDS AND ACCOUNT: s- Jeannie Jurado Acting Executive Director Parks, Recreation and Community Services Agency Francisco Gutierrez Executive Director Finance and Management Services Agency EXHIBITS: 1. Agreement — Volcan Advertising & Entertainment 2. Agreement — Professional Entertainment 25C -3 25C -4 AGREEMENT WITH VOLCAN ADVERTISING & ENTERTAINMENT SERVICES THIS AGREEMENT is made and entered into this 21st day of March, 2017 by and between Volcan Advertising & Entertainment ( "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 providing advertising and entertainment services for various City hosted events. B. On January 18, 2017, the City issued a Request for Proposals for various event services. C. The proposals were evaluated based on experience, understanding, capacity and price. Contractor's proposal was rated the highest score, therefore, the City recommends entering into an agreement with Volcan. Advertising & Entertaining services for large - scale City hosted events. D. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in this 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 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 provide advertising and performer entertainment services for large -scale City hosted events. The Contractor will be expected to provide insurance for performers. Additionally, the Contractor will be responsible for any special requests from the performer, The Contractor is also expected to coordinate with various City departments and other contractors associated with the event(s). The Contractor must provide a listing of talent they represent. Due to the differences in pricing based on the performer, each performance pricing will be negotiated with the City for each event. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services under this Agreement the total sure of Ninety Thousand Dollars ($90,000) for each annual tenor. The total sum to be expended under this Agreement shall not exceed Two Hundred and Seventy Thousand Dollars ($270,000) for the entire term of the Agreement, including any renewals. Exhibit 1 Paget of 7 25C -5 b. Payment shall be made within forty -five (45) days following receipt of proper invoice evidencing work performed, subject to accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which maybe expected by the City. 3. TERM This Agreement shall commence on March 21, 2017 and terminate on December 31, 2017, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended for an additional two, one -year renewal options, by a writing executed by the City Manager and the City Attorney. "MENAW0120901 13ORk CKI7►k9W-WID) 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. S. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor 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 Contractor'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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. Page 2 of 7 25C -6 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, d. If Contractor 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. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor 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 cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. f If Contractor 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 Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work perforned prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor agrees to defend, 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 Page 3 of 7 25C -7 claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such 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 sarne degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. 8. 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. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax: (714) 647-6956 Page 4 of 7 25C -8 With copies to: Parks, Recreation and Community Services Agency City of Santa Ana 20 Civic Center Plaza (M -23) P.O. Box 1988 Santa Ana, California 92702 Fax: (714) 571 -4221 To Contractor: Volcan Advertising & Entertainment 4959 Palo Verde St., Bldg. 203B, Montclair CA 91763 Mailing Address: P.O. Box 828, Pomona, CA 91769 Phone: 909 -629 -5252/ FAX: 909- 629 -1818 A party may change its address by giving notice in writing to the other party. 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor regarding the subject matter therein, 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 terns or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Contractor nor 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. 11. 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. Page 5 of 7 25C -9 12. 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. 13. NON - DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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 or in connection with any activities 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. 14. 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. 15. PROFESSIONAL LICENSES Contractor shall, throughout the tern 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 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. 16. 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. Page 6 of 7 25C -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D.HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney LISA STORCK Assistant City Attorney RECOMMENDED FOR APPROVAL: JEANNIE JUARDO, Acting Executive Director Parks, Recreation and Community Services Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager CONTRACTOR Volcan Advertising & Entertainment Name: Title: Page 7 of 7 25C -11 25C -12 AGREEMENT WITH PROFESSIONAL ENTERTAINMENT THIS AGREEMENT is made and entered into this 21" day of March, 2017 by and between Professional Entertainment ( "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 providing entertainment services for various City hosted events. B. On January 18, 2017, the City issued a Request for Proposals for various event services. C. The proposals were evaluated based on experience, understanding, capacity and price. Contractor's proposal was rated the second highest score, therefore, the City recommends entering into an agreement with Professional Entertainment for performer entertainment services for City hosted events. D. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in this 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 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 provide performer entertainment services for City hosted events. The Contractor will be expected to provide insurance for performers. Additionally, the Contractor will be responsible for any special requests from the performer. The Contractor is also expected to coordinate with various City departments and other contractors associated with the event(s). The Contractor must provide a listing of talent they represent. Due to the differences in pricing based on the performer, each performance pricing will be negotiated with the City for each event. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services under this Agreement the total sum of Twenty Thousand Dollars ($20,000) for each annual term. The total sum to be expended under this Agreement shall not exceed Sixty Thousand Dollars ($60,000) for the entire term of the Agreement, including any renewals. Exhibit I Pagel of 7 25C -13 b. Payment shall be made within forty -five (45) days following receipt of proper invoice evidencing work performed, subject to accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may be expected by the City. 3. TERM This Agreement shall commence on March 21, 2017 and terminate on December 31, 2017, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended for an additional two, one -year renewal options, by a writing executed by the City Manager and the City Attorney. 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. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor 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 Contractor'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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. Page 2 of 7 25C -14 b. Business automobile 'liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for wor'ker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than 51,000,000 per accident. d. If Contractor 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. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor 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 cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or relbses 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 Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor agrees to defend, 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 Page 3 of 7 25C -15 claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor 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 terns 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 terns 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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 7. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such 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. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests mid shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax: (714)647 -6956 Page 4 of 7 25C -16 With copies to: Parks, Recreation and Community Services Agency City of Santa Ana 20 Civic Center Plaza (M -23) P.O. Box 1988 Santa Ana, California 92702 Fax: (714) 571 -4221 To Contractor: Professional Entertainment Consultants Dan Haley 6722 Timaru Circle Cypress, CA 90630 A party may change its address by giving notice in writing to the other party. 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor regarding the subject matter therein, 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 terns 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 nor 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. 11. 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. Page 5 of 7 25C -17 1.2. TERMINATION This Agreement maybe 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. 13. NON - DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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 or in connection with any activities 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. 14. 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. 15. 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 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. 16. 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. Page 6 of 7 25C -18 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year First above written. ATTEST: MARIA D.HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: c� �,,� "'t• °l� LISA STORCK Assistant City Attorney RECOMMENDED FOR APPROVAL: JEANNIE JUARDO, Acting Executive Director Parks, Recreation and Community Services Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager CONTRACTOR. Professional Entertainment Name: Title: Page 7 of 7 25C -19 25C -20