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15-0407_CHRISTIANSEN AMUSEMENTS_Personal Services Agreement (2)THIS AGREEMENT is made, entered into, and shall become effective this 7th day of April, 2015, ("Effective Date") by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Christiansen Amusements (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to operate and manage a two (2) day carnival (the "Event") at the San Juan Capistrano Sports Park (the "Facility„) on the 3rd and 4t�' of July 2015, pursuant to the terms and conditions set forth herein; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services; NOW, THEREFORE, City and Contractor in consideration of the terms, conditions, and covenants contained herein do mutually agree as follows: Section 1. Scope of Work. The Scope of Work shall consist of those tasks and services set forth in Exhibit "A," attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Contractor warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect until completion of all tasks and services required as set forth in Exhibit "A," Contractor is providing the tasks and services set forth in Exhibit "A" at no cost to the City. All costs for tasks and services provided under this Agreement shall be the responsibility of Contractor. The City shall not be obligated to pay Contractor or reimburse Contractor for any costs. 1 The Contractor and the City shall divide the total cash and credit card sales revenues from rides at the Event ("Ride Gross") as follows: the Contractor shall pay the City 20% of the first $30,000.00 Ride Gross and 25% of the Ride Gross thereafter. In the context of this Agreement, the terms "rides" shall mean and include all rides, mechanical and inflatable. Final payment shall be made by July 4, 2015. 3.2 Method of Payment. Contractor shall remit full payment to the City, meet with staff, and provide financial documentation of all revenues (and in particular, financial documentation of all Ride Gross) on July 4, 2015, at the conclusion of the event. Section 4. Independent Contractor. It is agreed that Contractor shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City in the City's sole and absolute discretion. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. Section 6. Surrender Upon Termination. The Contractor shall, at the termination of this Agreement, vacate the Facility in as good condition as they are in at the time of entry thereon by the Contractor. Upon surrender, Operator shall leave the Facility free and clear of all rubbish and debris. Section i. Time of Essence. . Time is of the essence in the performance of this Agreement. Section 8. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of Federal, State and local government. K, 8.1 Operation of Facility. Contractor shall be responsible for the supervision and management of the Event pursuant to this Agreement. Contractor shall perform all operations in a competent manner, consistent with the standards of the industry and in accordance with all applicable Federal, State and local regulations, including the City's Municipal Code. Section 9. indemnity. To the fullest extent permitted by law, Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in the performance of the Agreement. The only exception to Contractor's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor pursuant to this Agreement. Section 10. Default. If the Contractor breaches any covenant or condition of this Agreement, the City may, on reasonable notice to the Contractor (except that no notice need be given in case of emergency), cure such breach at the expense of the Contractor or terminate this Agreement upon written notice. The reasonable amount of all expenses, including attorney's fees, incurred by the City in so doing shall be deemed additional fees payable on demand. Section 11. Insurance. Insurance Coverage Required. The policies and amounts of insurance required hereunder shall be as follows: 11.1 Comprehensive General Liability. Comprehensive General Liability Insurance which affords coverage including completed operations and contractual liability, with limits of liability of not less than $5,000,000 per occurrence and $5,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set 9 forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of San Juan Capistrano and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actua endorsement. 11.2 Comprehensive Automobile Liability. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $1,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for ail "owned," "hired" and "non -owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (1) Name the City of San Juan Capistrano and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 11.3 Worker's Compensation. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 11.4 Proof of Insurance Requirements/Endorsement. Evidence of Insurance: Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements and a copy of the general liability insurance policies declaration page no 0 later than April 30, 2015 and at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. Signed insurance certificates, endorsements and the general liability declaration page must be sent via email from Contractor's insurance broker/agent to the City at mmorris@sanjuancapistrano.org. Certificate Holder: City of San Juan Capistrano, California 32400 Paseo Adelanto San Juan Capistrano, CA 92675 11.5 Endorsements. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. Any Deductible in Excess of $50,000 and/or Self -Insured Retentions must be approved in writing by the City. 11.6 Acceptability of Insurers. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A V11 or higher and authorized to do business in the State of California or approved in writing by the City. 11.7 Insurance of Subcontractors. Insurance of Subcontractors. Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor's policies, 6i 11.8 Notice to Proceed. Contractor shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Contractor has complied with all insurance requirements of this Agreement. Section 12. Maintenance Cost Records. Contractor shall maintain all books, documents, papers, records, pertaining to equipment maintenance, and shall make such records and materials available at its offices for inspection by the City at all reasonable times during the term of this Agreement. Contractor shall furnish copies of all such materials to the City upon request. Section 13. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Contractor. In addition, this Agreement may be terminated by any party for cause by providing written notice to the other party of a material breach of contract. Section 14. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 25925 Camino Del Avion San Juan Capistrano, CA 92075 Attn: Heidi Ivanoff, Community Services Coordinator Attn: Gil Leon, Community Services Coordinator To Contractor: Christiansen Amusements P.O. Box 997 Escondido, CA 92033-0997 Attn. Tom Brown Section 15. Attorneys` Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. an Section 16. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS" Orange County Office). Section 17. Entire_ Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the. subject matter thereof. Section 18. Miscellaneous. 18.1 This Agreement and Exhibit "A" may be modified only by written instrument executed by both parties hereto. 18.2 Any failure by the City to insist upon a strict performance by the Contractor of any of the terms and provisions hereof shalt not be deemed to be a waiver of any of the terms and provisions hereof. 18.3 This Agreement shall be governed by the construed in accordance with the laws of the State of California. 18.4• The parties executing this Agreement warrant that they have authority to bind the respective parties thereto. [SIGNATURE PAGE TO FOLLOW] 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By; Derek Reeve, Mayor CHRISTIANSEN AMUSEMENTS ATTEST City CIekI a�iY Morri APPROVED AS\TO FORM: Hans Va n; City Attorney Attached Exhibit - A. Scope of Worm Tom Brown, CEO E:1 EXHIBIT "A" SCOPE OF WORK Christiansen Amusements Christiansen Amusements agrees to provide the following list of services for the City's two (2) day, July 3 and July 4, 2015, 4th of July Carnival, in the southwest corner of the San Juan Capistrano Sports Park, located at 25925 Camino Del Avion. 1. Christiansen Amusements is to return all necessary, contracts, Proof of Workman's Compensation, Certificate of Liability Insurance and current San Juan Capistrano Business License to the City no later than April 30, 2015. 2. Christiansen Amusements will provide a carnival on July 3 and 4, 2015. The hours of operation will be on Friday, July 3, from 5.00 p.m. — 10:00 p.m. and Saturday, July 4, from 12:00 p.m. — 10:00 p.m. On July 4, 2015, rides will pause at 8:45 p.m. — 9:30 p.m., during the fireworks display; and resume from 9:30 p.m. -- 10:00 p.m. 3. Christiansen Amusements will provide the City staff 100 posters and 100 coupon masters describing the event, at no cost to the City. The City reserves the right to review and approve the design of posters and coupon masters. The Community Services Department Director, or her designee, will have the authority to approve the poster and coupon masters before printing and distribution. City to receive all approved printed posters and coupon masters no later than May 18, 2015. 4. Christiansen Amusements will provide a crew to clean the carnival area and surrounding grounds each evening and at the close of the event, Christiansen Amusements will return the carnival area and surrounding grounds to its original condition, at no cost to the City. 5. Christiansen Amusements will provide all ticket booth staff, ride operators and monitors. 6. Christiansen Amusements will provide and operate credit card terminals. 7. Christiansen Amusements will provide an ATM on site. 8. Christiansen Amusements will provide on-site security at all times, during set-up, event operation, overnight, and tear -down. 9. Christiansen Amusements will begin set-up of equipment on Wednesday, July 1, 2015. Removal of equipment from property will be completed by Tuesday, July 7, 2015. Exhibit "A" -Scope of Work Christiansen Amusements Page 2 10. Christiansen Amusements and all staff employed by Christiansen Amusements are prohibited from using drugs or alcohol before, during or at the conclusion of the event. 11. Christiansen Amusements will provide documentation that all staff employed by Christiansen Amusements completed and passed a background check with the Department of Justice (DOJ), no later than April 30, 2015.