A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this _____ day of
____________, 2023, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
CONVENTION TECHNICAL SERVICES, INC., a California
corporation, hereinafter referred to as "CONTRACTOR."
W I T N E S S E T H:
WHEREAS, ANAHEIM owns and operates the Anaheim Convention Center (hereinafter the “Convention Center”); and
WHEREAS, CONTRACTOR desires to provide, from time to time, electrical services to tenants, exhibitors, and other persons at the Convention Center who require such services in connection with events presented at the Convention Center; and WHEREAS, i n order to provide such services, CONTRACTOR must use ANAHEIM facilities.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. TERM OF AGREEMENT
ANAHEIM hereby agrees to permit CONTRACTOR to enter upon the premises of the Convention Center and use the facilities of the Convention Center as necessary in connection 2 with providing electrical services to tenants and exhibitors, upon the following terms and conditions, and on a non-exclusive basis. The term of this Agreement shall commence on July 1, 2023 and shall continue until June 30, 2025, unless sooner terminated as set forth in Paragraph 12 below.
The term of this Agreement may be extended by ANAHEIM, act ing through the Executive Director of the Convention Center, in its sole discretion for up to two (2) additional terms of one (1) year each. ANAHEIM shall give notice of its intent to extend this Agreement for such additional one-year term to CONTRACTOR in writing no less than sixty (60) days prior to end of the term of the Agreement.
2. CONSIDERATION
In consideration of being permitted to enter the premises of the Convention Center to provide CONTRACTOR’S services to tenants of CITY, CONTRACTOR agrees to pay to CITY an amount equal to twenty-five percent (25%) of the gross amount billed by CONTRACTOR for labor and thirty -five percent (35 %) of the gross amount billed by CONTRACTOR for all other work in the Convention Center to exhibitors, associations, tenants, or any other party utilizing the Convention Center, whether billed by CONTRACTOR or any other person or entity.
CONTRACTOR shall pay ANAHEIM all percentages due within sixty (60) days after the final move -out dates set forth in ANAHEIM’s contra ct with the tenant for the event in question. If payment is not remitted to ANAHEIM within this period, CONTRACTOR agrees to pay interest in the amount of one percent (1%) per month, twelve percent (12%) per annum.
In the event that percentages or comm issions due ANAHEIM are not paid within ninety (90) days after the final move out dates referred to above, CONTRACTOR agrees and understands that CONTRACTOR shall be disqualified and prohibited from performing any 3 services within the Anaheim Convention Cen ter notwithstanding its selection by any exhibitor, tenant or other entity or person utilizing the Anaheim Convention Center until such time as full payment has been made.
CONTRACTOR shall provide the electric services to the Convention Center's Exclusive Food and Beverage Provider for temporary installations (including but not limited to portables, sales kiosks, food stands, food trucks, etc.) at no cost to ANAHEIM or the Exclusive Food and Beverage Provider.
3. RATE SCHEDULES
Upon request by ANAHEIM, CONTRACTOR agrees to provide ANAHEIM with a copy of the service order form that is applicable to that event. The service order form is to be mailed or delivered to the Convention Center’s accounting office.
4. AUDIT
ANAHEIM reserves the right to audit and to examine any cost, revenue, payment, charges, claim, other record, or supporting documentation resulting from any items set forth in this Agreement. Any such audit(s) shall be undertaken by ANAHEIM or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. ANAHEIM’s right to audit shall include the right to contact third parties to confirm entries in CONTRACTOR’s supporting documentation. CONTRACTOR agrees to fully cooperate with any such audits and shall make office and support facilities available to ANAHEIM’s representatives as may be reasonably necessary to complete any such audits and inspections.
This right to audit shall extend during the length of this Agreement and for a period of five (5) years following the date of final payment under this Agreement. CONTRACTOR agrees to retain all necessary records and documentation for the entire length of this audit period. 4 CONTRACTOR will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments which must be made as a result of any such audit or inspection of CONTRACTOR’s records shall be made within thirty (30) days from presentation of ANAHEIM’s finding to CONTRACTOR. If CONTRACTOR fails to make s uch payment, CONTRACTOR agrees to pay interest accruing monthly at a rate of twelve percent (12%) per annum. Interest will be computed from the date of written notification of exception(s) to the date CONTRACTOR reimburses ANAHEIM for any exception(s). I f an audit inspection or examination in accordance with this Paragraph discloses overcharges and/or underpayment (of any nature) by CONTRACTOR to ANAHEIM in excess of one percent (1%) of the total billings, the actual cost of ANAHEIM’s audit shall be reimbursed to ANAHEIM by CONTRACTOR.
5. INSURANCE
5.1 Without limiting ANAHEIM’s right to indemnification, it is agreed that CONTRACTOR shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
.01 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial/Comprehensive General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s/Contractor’s liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of more than $10,000 per occurrence, 5 provided that such deductible or self -insured retention is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
.03 Commercial/Comprehensive Automobile Liability Coverage including—as applicable—owned, non -owned, and hi red autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law. .04 Professional Liability Insurance in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis, but may include a deductible or self -insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to ANAHEIM, in writing, at the inception of this Agreement.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by ANAHEIM’s Risk Manager prior to the inception of the final Agreement.
5.2 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: “This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the Cit y Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non -payment of premium which shall provide for not less than ten (10) days' notice.”
5.3 Each insurance policy required by this Agreement, excepti ng policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
6 .01 “It is agreed that any insurance maintained by CONTRACTOR, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self -insurance maintained by the City of Anaheim.”
.02 “The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM-designated volunteers are added as additional insureds as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
5.4 Prior to commencing any work under this Agreement, CONTRACTOR shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreeme nt, CONTRACTOR shall provide ANAHEIM (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to ANAHEIM evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to ANAHEIM, with prior written permission from ANAHEIM. In the event that a claim or other legal action is filed against ANAHEIM, and if ANAHEIM, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then ANAHEIM has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this prov ision shall not apply if the parties agree that CONTRACTOR shall fully defend, hold harmless, and indemnify ANAHEIM against any such claim or other legal action. 7 5.5 In addition to other remedies ANAHEIM may have if CONTRACTOR fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Order CONTRACTOR to stop work under this Agreement and/or withhold any payment(s) which become due to CONTRACTOR hereunder until CONTRACTOR demonstrates compliance with the requirements hereof; or .02 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for CONTRACTOR’ s failure to maintain insurance or secure appropriate endorsements.
5.6 Nothing herein contained shall be construed as limiting in any way the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property resulting from CONTRACTOR’s, (or CONTRACTOR’s contractors/subcontractor, if any) performance of the work covered under this Agreement.
5.7 In the event CONTRACTOR hires other persons or firms to perform some of the work related to this Agreement, CONTRACTOR shall ensure, and certify to ANAHEIM in writing that: (i) the acts or omissions of such persons or firms are covered under the above - referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of CONTRACTOR under this Agreement (except for firms which are not performing professional services-such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, CONTRACTOR shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to ANAHEIM.
8 5.8 ANAHEIM’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event they determine that such amendment is in ANAHEIM’s best interest.
6. INDEMNIFICATION
6.1 As respects acts, errors or omissions in the performance of professional services, CONTRACTOR agrees to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the CONTRACTOR or any SUB -AGENT in the performance of professional services under this Agreement.
6.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and auto mobile liability insurance, CONTRACTOR agrees to indemnify, defend (at ANAHEIM'S option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with CONTRACTOR’S (or CONTRACTOR'S AGENT or SUB-AGENT, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of ANAHEIM.
6.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAHEIM, CONTRACTOR, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement. 9 7. ENTIRE AGREEMENT/MODIFICATIONS
This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the parties. ANAHEIM may modify any or all provisions in this Agreement by providing CONTRACTOR with sixty (60) days written notice stating the proposed modification and its effective date. Such modification(s) shall take effect on the date stated in the notice unless CONTRACTOR notifie s ANAHEIM, in writing, within the sixty (60) days, of its objection to the modifications(s). If CONTRACTOR gives such notice, ANAHEIM reserves the right to withdraw the modification(s) or terminate this Agreement on the date stated in its original notice.
8. ASSIGNMENT
Neither CONTRACTOR nor ANAHEIM may assign or transfer this Agreement, or any part thereof, without the written consent of the other party.
9. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California. If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. The parties shall agree, if reasonably practicable, upon provisions which are equivalent from an economic point of view to replace any provision which is determined to be invalid.
10. COMPLIANCE WITH LAWS
In the performance of this Agreement, CONTRACTOR shall abide by and conform to any and all applicable laws of the United States, the State of California and the City Charter and 10 Ordinances of ANAHEIM. CONTRACTOR shall also secure and maintain, and require any subcontractors to secure and maintain, necessary business licenses from ANAHEIM.
CONTRACTOR shall maintain in good standing CONTRACTOR’s state contractor’s license. CONTRACTOR shall be required to provide their C -10 (electrical) license to ANAHEIM and shall maintain such contractor's license throughout the Term of the Agreement (and any subsequent renewals thereafter). CONTRACTOR shall immediately inform ANAHEIM in writing of the expiration or suspension of its state contractor’s license or any other regulatory license or permit required for CONTRACTOR to engage in the activities contemplated by this Agreement.
11. NO WAIVER
No waiver or failure to exercise any right, option or privilege under the terms of this Agreement on any occasion shall be construed to be a waiver of any other right, option or privilege on any other occasion.
12. TERMINATION
Either ANAHEIM or CONTRACTOR may terminate this Agreement upon giving the other party at least thirty (30) days’ prior written notice; provided, however, that the indemnification provisions shall survive any such termination.
13. INDEPENDENT CONTRACTOR
CONTRACTOR is at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of ANAHEIM.
14. NO THIRD PARTY RIGHTS
11 The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation or undertaking established herein.
15. NOTICES
Notices and communication concerning this Agreement shall be sent to the following addresses:
ANAHEIM CONTRACTOR
City of Anaheim Convention Technical Services, Inc.
Attention: City Clerk 1130 Gene Autry Way
200 S. Anaheim Boulevard Anaheim, CA 92805
Anaheim, CA 92805 Phone: (714) 630-7777
FAX: (714) 630-7783
Either party may, by notice to the other party, change the address specified above.
Service of notice or communication shall be complete, if personally served, when received at the designated address, or five (5) days after deposit of said notice or communication in the mail. ///
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16. AUTHORITY
CONTRACTOR and CONTRACTOR’s signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of CONTRACTOR and to bind CONTRACTOR hereto.
The individual executing this Agreement as the License holder represents that he/she is the holder of the license whose number is provided and that services will be provided under that license number.
(Remainder of page intentionally left blank; signatures on next page)
12 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates hereinafter respectively set forth.
CITY OF ANAHEIM,
a municipal corporation
By______________________________
Mayor of the City of Anaheim
DATE OF EXECUTION: ATTEST:
_________________________ ________________________________ City Clerk
"ANAHEIM"
CONVENTION TECHNICAL SERVICES, INC., a
California corporation
DATE OF EXECUTION: By________________________________
_________________________ Printed Name: ____________________
Title_____________________________
"CONTRACTOR"
APPROVED AS TO FORM License Number_________________
ROBERT FABELA, CITY ATTORNEY Classification _________________ License Holder_________________
By_____________________________
Bryn M. Morley
Deputy City Attorney
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