AGR-3347.H - ORANGE COMMUNITY CHORUS AKA ORANGE COUNTY FRIENDS OF MUSIC - ENTERTAINMENT SERVICES FOR ANNUAL TREE LIGHTING CEREMONY AND 3RD OF JULYA R-3 a l
ENTERTAINMENT SERVICES AGREEMENT
THIS ENTERTAINMENT SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this day of o , 2020 (the"Effective Date")by and
between the CITY OF ORANGE, a municipal corporation ("City"), and ORANGE
COMMUNITY CHORUS, a.k.a. ORANGE COMMUNITY MASTER CHORALE, a.k.a.,
ORANGE COUNTY FRIENDS OF MUSIC, tax exempt nonprofit organization within the
meaning of Section 501 and 509 of Title 26 of the United States Code ("Contractor"), who agree
as follows:
1. Services.
a. Subject to the terms and conditions set forth in this Agreement, Contractor
shall arrange for and provide to the reasonable satisfaction of City the labor, materials, supplies
and equipment necessary to execute the Events described in Exhibit "A," attached hereto and
incorporated herein by this reference,to be used by the City or its officers, employees, contractors
and agents in connection with: (a)the City's fireworks display and related events to be held in July
herein referred to as the"3`d of July Event")on the dates indicated in the Event Schedule attached
as Exhibit "A"; and (b) the City's Annual Tree Lighting Ceremony and Candlelight Choir
Procession event(herein referred to as the"Tree-lighting Ceremony")to be held on the December
indicated in Exhibit"A."
b. Contractor shall be responsible for ensuring that the materials, supplies and
equipment provided by Contractor are in good working order and shall have a sufficient number
of trained personnel available on site to set up, operate and take down the materials, supplies and
equipment. Contractor represents that it and all of its employees, agents and representatives are
experienced in performing the work and services and will follow the highest professional standards
in performance of the work and services. All materials,supplies, equipment and services provided
shall conform to all federal, state and local laws, rules and regulations and to the best professional
standards and practices. The terms and conditions set forth in this Agreement shall control over
any terms and conditions in any exhibit attached hereto to the contrary.
c. Contractor shall perform only those services specifically requested by the
City's Director of Community Services ("Director")which shall be set forth in writing in the form
of a letter agreement and signed by both parties prior to the performance of services for any event
for which Contractor's services are to be provided. The letter agreement for each event shall -
provide for the number of musicians,vocalists,performers and other personnel be used,the songs
and music to be performed, a description of all equipment to be provided by Contractor,
Contractor's requirements of City in terms of equipment, set-up and take-down, the anticipated
cost for Contractor's services and compensation payable to Contractor, a mutually agreed upon
schedule for the performances, and such other information as the Director may require.
d. Emily Bustamante, Recreation Supervisor ("Authorized City
Representative"), shall be the person to whom Contractor will report for the performance of
services hereunder. Unless and until otherwise notified in writing by the Director, it is understood
that Contractor's performance hereunder shall be under the direction and supervision of the
Authorized City Representative (or her designee), that Contractor shall coordinate its services
hereunder with the Autliorized City Representative to the extent required by the Authorized City
Representative, and that all performances required hereunder by Contractor shall be performed to
the satisfaction of the Authorized City Representative and the Director.
2. Term of Agreement. Unless extended as provided herein or terminated sooner
pursuant to the terms of this Agreement, the parties acknowledge that the term of this Agreement
will commence with the December 2020 Tree Lighting Ceremony event and end after the 2022
December Tree Lighting Ceremony event. Contractor understands that funding for each event is
contingent upon the City Council's approval of an annual budget and appropriation of funds for
the event. If the City Council fails to approve and appropriate funds sufficient to pay the amount
of compensation set forth herein for any event, then this Agreement shall terminate and be of no
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further force and effect as to that particular event; provided that Contractor shall be paid for all
work completed pursuant to the terms of this Agreement.
3. Compensation. The total not-to-exceed amount for the term of the Agreement
shall be TWENTY-EIGHT THOUSAND EIGHT HUNDRED DOLLARS and 00/100
28,800.00). Following the completion of work and services for each`event provided for herein,
Contractor shall submit to City its invoice for the services, payable as set forth in Exhibit"A."
4. Pavment. City will pay Contractor the amount invoiced for each scheduled event
within thirty(30) days following City's approval of the invoice.
5. Change Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefore have been previously authorized in writing and approved by City as an
amendment to this Agreement. The amendment shall set forth the changes of work and adjustment
of the fee to be paid by City to Contractor.
6. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and subcontractors shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
7. Cancellation of Events. City has the right to unilaterally cancel a particular
community event by giving Contractor written notice 90 days prior to event date.
8. Independent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and
expense, furnish all facilities, materials and equipment which may be required for furnishing
services pursuant to this Agreement. Contractor shall be solely responsible for, and shall
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indemnify, defend and save City harmless from all matters relating to the payment of its
subcontractors,agents and employees,including compliance with social security,withholding and
all other wages, salaries, benefits, taxes, exactions, and regulations of.any nature whatsoever.
Contractor acknowledges that Contraetor and any subcontractors, agents or employees employed
by Contractor shall not, under any circumstances, be considered employees of the City, and that
they shall not be entitled to any of the benefits or rights afforded employees of the City, including,
but not limited to, sick leave, vacation leave, holiday.pay, Public Employees Retirement System
benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.
9. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
10. Assignment or Subcontractin. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Agreement shall be of ariy force
or effect unless the assignment has had the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his designee.
11. Time of Completion. The services of Contractor are to commence upon the
assignment of particular matters by the Director and shall be undertaken and completed in such
sequence as agreed to under the terms of the letter agreement described in Section l.c.
12. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than-those delays that are caused by City, shall be an extension of time. No matter
what the cause of the delay, Contractor must document any delay and request an extension of time
in writing at the time of the delay to the satisfaction of City.Any extension granted shall be limited
to the length of the delay outside Contractor's control.If Contractor believes that delays caused by
City will cause it to incur additional costs, it must specify, in writing, why the delay has caused
additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No
additional costs can be paid that exceed the not to exceed amount absent a written amendment to
this Agreement.
14. Epual Emplovment Opportunitv. During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin or mental or physical disability.
Contractor shall ensure that applicants are employed and that employees are treated during
employment,without regard to their race,color,religion,sex,national origin,or mental or physical
disability. Such actions shall include,but not be limited to the following: employment,upgrading,
demotion or transfer,recruitment or recruitment advertising, layoff or termination, rates of pay or
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other forms of compensation and selection for training, including apprenticeship. Contractor
agrees to post in conspicuous places, available to employees and applicants for employment, a
notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard for race, color,religion, sex,national origin, or mental or physical
disability.
15. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a Contractor to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
16. Indemnitv. Contractor agrees to hold City, its officers, agents and employees
harmless from any and all claims,liabilities or losses for personal injury,death or property damage,
including workers compensation claims, arising out of or in connection with work undertaken or
equipment provided pursuant to this Agreement to the extent any such claim is caused by or results
from any acts or omissions, or intentional misconduct of Contractor, its employees or its agents.
Further, Contractor agrees to provide City, its officers, agents and employees, at the request of
City and at Contractor's sole expense, with the defense of any and all such actions, suits.or other
legal proceedings brought against City; its officers, agents and employees arising out of or in
connection with the work undertaken pursuant to this Agreement. Contractor shall pay any
judgment or settlement rendered against the City,its agents,officers and employees,including any
award for attorneys' fees. Contractor shall not be liable for the indemnification and defense of
City on claims or litigation arising out of the sole negligence or sole willful misconduct of City.
17. Insurance. Prior to the commencement of performance of any work under this
Agreement, Contractor shall procure and maintain in full force and effect during the term of this
Agreement, at no cost or expense to the City, insurance of the types set forth below and on such
terms and in such amounts as set forth below:
a. Workers compensation insurance as required by law for the protection of its
employees during the progress of the work. Contractor understands that it is an independent
contractor and not entitled to any worker's compensation benefits under any City program.
b. Comprehensive general liability insurance or commercial general liability
insurance written on an occurrence basis providing for a combined single limit of(a) $1 million
per occurrence for bodily injury, death and property damage. The policy of general liability
insurance shall provide that the City, its officers, agents and employees are declared to be
additional insureds under the terms of the policy, but only with respect to the work performed by
Contractor under this Agreement. A policy endorsement to that effect shall be provided to the City
along with the certificate(s) of insurance, which endorsement shall be on Insurance Services
Office, Inc. Form CG 20 10 10 O1 or such other form as may be acceptable to the City's Risk
Manager. In lieu of an endorsement,the City will accept a copy of the policy(ies)which evidences
that the City is an additional insured as a contracting party.
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c. Each policy of general liability shall provide that City, its officers, agents, and
employees are declared to be additional insureds under the terms of the policy, but only with
respect to the work performed by Contractor under this Agreement. A policy endorsement to that
effect shall be provided to the City along with the certificate of insurance,which endorsement shall
be on Insurance Services Office, Inc. Form CG 20 10 10 O1. In lieu of an endorsement, the City
will accept a copy of the policy(ies) which evidences that the City is an additional insured as a
contracting party.
d. Contractor shall assume full responsibility for maintaining insurance on or
otherwise assuming risk to all equipment under the responsibility and/or control of Contractor.
Contractor will determine its own needs in procurement of insurance to cover liabilities other,than
as stated above. City will not defend nor indemnify Contractor should it be sued for any reason.
e. The insurance policies maintained by Contractor shall be primary insurance and no
insurance held or owned by City shall be called upon to cover any loss under the policy.
f.Before Contractor perfortns any work under this Agreement, it shall furnish City
with certificates of insurance and/or endorsements evidencing the foregoing insurance coverage
on forms acceptable to City, which shall provide that the insurance in force will not be canceled
or allowed to lapse without at least ten(10) days' prior written notice to City.
g. Contractor agrees that in the event of loss due to any of the perils for which it has
agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor
hereby grants and assigns to the City, on behalf of any insurer providing insurance to either the
Contractor or to the City with respect to the services of Contractor herein, a waiver of any right to
subrogation which any such insurer of said Contractor may acquire against the City by virtue of
the payment of any loss under such insurance.
18. Termination. City, acting through its City Manager or his/her designee, reserves
the right to terminate this Agreement for any reason by giving five(5)days' written notice of intent
to terminate to Contractor. Upon receipt of notice, Contractor shall immediately cease work,
unless the notice provides otherwise. Should City terminate this Agreement, City shall pay
Contractor for services satisfactorily provided and all allowable reimbursements incurred to the
date of termination in compliance with this Agreement,unless such termination shall be for cause,
in which event the City may withhold any disputed compensation. City shall not be liable for any
claim of lost profits.
19. Audit of Records. In accordance with generally accepted accounting principles,
Contractor shall maintain reasonably full and complete records of the cost of and completion of
services performed under this Agreement. During the term of this Agreement and for a period of
two years after termination or completion of this Agreement, City shall have the right to inspect
and/or audit Contractor's records pertaining to the performance of this Agreement at Contractor's
office. Contractor agrees to make available all records for inspection or audit at its offices during
normal business hours and upon 3 days' notice from City.
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20. Compliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. Contractor represents and warrants that Contractor:
1) Has complied and shall. at all times during the term 'of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,.
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashiom to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
c. Contractor shall require all subcontractors or sub-consultants to make the
same representations and warranties as set forth in Section b.
d. Contractor shall, upon request of the City, provide a list of all employees
working under this Agreement and shall provide, to the reasonable satisfaction of the City,
verification that all such employees are eligible to work in the United States. All costs associated
with such verification shall be borne by the Contractor. Once such request has been made, ,
Contractor may not change employees working under this Agreement without written notice to the
City, accompanied by the verification required herein for such employees.
e. Contractor shall require all subcontractors or sub-consultants to make the
same verification as set forth in Subsection d.
f.Any Contractor, subcontractor or sub-consultant who knowingly employs
an employee providing work under this Agreement who is not authorized to work in the United
States,and/or fails to follow federal laws to determine the status of such employee shall constitute
a material breach of this Agreement and may be cause for immediate termination of this Agreement
by the City.
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g. Contractor agrees to indemnify and hold the City, its officials, and
employees harmless for, of and from any loss, including but not limited to fines, penalties and
corrective measures,the City may sustain by reason of the Contractor's failure to comply with said
laws,rules and regulations in connection with the performance of this Agreement.
21. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction
of California courts.
22. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing arid signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
23. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally or by first class mail,postage prepaid, to
each party at the address listed below. Either party may change the notice address by notifying
the other party in writing. Notices may be sent by either facsimile or U.S. Mail. Notices shall.be
deemed received upon receipt of same or within 3 days of deposit in the U.S. Mail, whichever is
earlier. Notices sent by facsimile shall be deemed received on the date of the facsimile
transmission.
CONTRACTOR" CITY"
Orange Community Chorus City of Orange
525 North Shaffer 230 E. Chapman Avenue
Orange, CA 92867 Orange, CA 92866-1591
Attn: Michael Short Attn: Emily Bustamante
Telephone: 714-325-7648 Telephone: 714-744-7276
Email: mshort@orangeusd.kl2.ca.us Email: ebustamante@cityoforange.org
Remainder of page intentionally left blank; signatures on next page]
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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
ORANGE COMMLTNITY CHORUS a.k.a. CITY OF ORANGE, a municipal corporation
ORANGE COMMUNITY MASTER CHORALE
a.k.a. ORANGE COUNTY F IE DS OF MUSIC
By: 1`'J By: nz ` •
Printe me: Rick Otto; City Manager
Title:
By: APPROVED AS TO FORM:
I'rinted T.ame: .
Title: o 'A
Mary E. nning
Senior Assistant City Atto ey
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EXHIBIT "A"
Beneath this sheet.]
ORANGE COMMUNITY CHORUS EVENT SCHEDULE
2020-2022)
A. Event: Tree Li htin Ceremony and Candleli ht Choir Procession 2020. 2021 and 2022
Sunday, December 6, 2020— Not to Exceed $8,200*
Sunday, December 5, 2021— Not to Exceed $8,200*
Sunday, December 4, 2022— Not to Exceed $8,200*
B. Event: 3rd of Julv Celebration 2021 and 2022
Saturday, July 3, 2021— Not to Exceed $2,100*
Sunday,July 3, 2022— Not to Exceed $2,100*
All events will be held at designated locations within the City of Orange, or will be
organized as virtual community events. Specific dates and/or event titles may change.
Exhibit A:Page 1 of 1