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AGT. # 15-124
AGREEMENT
THIS AGREEMENT, entered into this I-lk day of ·~ 'lo6 by
3 and between the COUNTY OF FRESNO, a political Subdivision of the State of
4 California, hereinafter referred to as "COUNTY", and Two Fayre Ladies, a California
5 General Partnership, located at 4546 E. Ashlan, PMB 3232, Fresno, CA 93726,
6 hereinafter "CONTRACTOR".
7 WITNESSETH
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WHEREAS, the CONTRACTOR desires to conduct two-day Fresno Pirate
Festival (the "Event") at Kearney Park in the years 2015, 2016 and 2017
WHEREAS, the COUNTY desires to make Kearney Park available to the
CONTRACTOR for said Event under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other valuable consideration, the receipt and
adequacy of which are acknowledged, the parties agree as follows:
1. TERM
The term of this Agreement shall begin on the date first written above and shall
end thirty (30) days after the Event in 2017.
2. PERMISSION TO USE:
On Saturday, May 16, 2015, the CONTRACTOR shall be entitled to use
reserved portions of the Kearney Park ("The Property") to conduct the Fresno Pirate
Festival ("Event"). The Property shall consist of Sections 1A, 1, 2A, and 4. On
Sunday, May 17, 2015, the CONTRACTOR shall be entitled to use the entire Park
("The Property") to conduct a two-day Event, provided that the Property, at all times
during the Event, shall be open to all members of the public under the same terms
and conditions of persons who are invited by, or otherwise allowed by,
CONTRACTOR to attend or participate in the Event. In conjunction with this Event,
CONTRACTOR shall be solely responsible for providing all adequate and appropriate
staffing, equipment, and supplies to set-up, operate, breakdown, clean up (both during
OUNTY OF FRESNO
Fresno, California 1
1 the Event and upon its conclusion), and administratively coordinate the Event.
2 CONTRACTOR shall be the responsible sponsor of the Event but may enlist the
3 assistance of or contract with other sponsors for the Event provided that
4 CONTRACTOR shall always be responsible for all of its obligations under this
5 Agreement.
6 The Event date in 2015 shall be May 16 and 17. Event dates in 2016 and 2017
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shall be mutually agreed upon by COUNTY and CONTRACTOR. COUNTY is not
responsible if inclement weather affects or otherwise prevents CONTRACTOR from
holding the Event on the date stated.
CONTRACTOR represents that it anticipates an attendance of approximately
1,000 persons at the Event.
Event Date: May 16 and 17, 2015.
Hours: 6:00 am to 10:00 p.m.
3. COMPENSATION:
A. CONTRACTOR shall make the following payments, in full, to the
COUNTY prior to the Event.
(i) Two Thousand Six Hundred Dollars ($2,600.00) per day for use
of Property for the Event, which is not refundable in any event;
and
(ii) One Thousand Dollars ($1 ,000.00) per event for a cleanup/
damage deposit which is refundable, provided however, such
deposit shall not be refunded to the extent that the COUNTY
incurs costs or expenses to clean up the Property, or otherwise
repair any damage to the Property, in connection with the Event.
The posting of such deposit shall neither substitute nor serve as
any sort of limitation on CONTRACTOR's obligations hereunder
to clean up, repair, or otherwise replace any damage to the
Property caused in connection with the Event.
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Fresno. California 2
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:OUNTY OF FRESNO
Fresno, California
B. If CONTRACTOR fails to pay fully any of the foregoing amounts to
COUNTY within the time specified above, then:
(i) COUNTY shall have the sole right to immediately terminate
this Agreement, upon written notice thereof given by COUNTY's
Director of the Department of Public Works and Planning or his or
her designee, to CONTRACTOR; and COUNTY shall be entitled
to retain all of such funds (if any) having theretofore been paid by
CONTRACTOR, and CONTRACTOR shall remain liable to
COUNTY for full payment of all of such amounts, and for any
other damages caused to COUNTY.
C. All payments by CONTRACTOR to COUNTY shall be made and
delivered to: Fresno County Parks, 2220 Tulare Street, 6 1h Floor, Fresno,
CA 93721.
4. EVENT ENTRANCE FEE:
The CONTRACTOR shall not be prohibited from collecting an additional fee for
entry (i.e. in addition to the standard VEF payable to the County under Paragraph
3(B)(i), for entry onto the Property during the dates of the Event, and the amount of
such additional fee is neither approved nor disapproved of by COUNTY.
5. SECURITY. TRAFFIC CONTROL. PARKING. RUBBISH AND
SANITARY FACILITIES:
A. The CONTRACTOR shall be solely responsible for providing crowd
control by making adequate and appropriate arrangements for security
to ensure the safety of all persons in and around the Property during the
day of the Event. In this regard, CONTRACTOR shall, without any cost
or expense to COUNTY, provide all necessary security and traffic control
on the day of the Event, sufficient, as determined by the Fresno County
Sheriffs Department and the California Highway Patrol, to ensure the
safety of all patrons, Event participants, invitees and members of the
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OUNTY OF FRESNO
=resno, California
public who come onto the Property, and County staff. The
CONTRACTOR also shall be responsible for providing adequate and
appropriate traffic and parking control.
B. The CONTRACTOR shall provide an adequate number of clean,
portable toilets (stocked with appropriate paper supplies) and hand
washing stations (stocked with appropriate paper supplies and soap) in
the Event area, as determined by the County's Resources Manager.
C. The CONTRACTOR shall be responsible for providing, at its sole
expense, adequate dumpsters for disposal of all refuse generated by the
Event, and litter and debris control. CONTRACTOR shall also provide,
at its own expense, any additional personnel, trash cans, equipment and
supplies needed, over and above the COUNTY'S normal and customary
operation for making the Property available to CONTRACTOR in the
paragraph immediately above, in order to maintain the Property in a
safe, clean, attractive and orderly condition during the Event.
CONTRACTOR shall provide, at its sole expense, containers for
recycling. CONTRACTOR shall dispose of recycled material at an
approved recycling facility.
6. CONSTRUCTION OF FACILITIES. STRUCTURES. TENTS AND STANDS:
A. The CONTRACTOR, upon the pre-approval of COUNTY
and at the CONTRACTOR's sole expense, shall be allowed to construct
and maintain on the Property, during the Event, such temporary facilities
and structures as are necessary for conducting the Event including, but
not limited to, fences, barriers, grandstands and signs, provided
however, such temporary facilities and structures shall not cause any
damage to the Property.
B. The CONTRACTOR shall also be and is hereby granted
permission to erect tents, concession stands, or both, during the Event
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provided however, such temporary facilities and structures shall not
cause any damage to the Property.
C. All construction and installation, including electrical
hook-ups, shall be made by CONTRACTOR and at CONTRACTOR'S
sole expense, and shall always be done in a good workmanlike manner,
with appropriate equipment, supplies and materials, by properly skilled
personnel, who shall have contractor's licenses for performing any of
such work where contractor's licenses would be required by building and
construction codes and laws. CONTRACTOR shall obtain all necessary
building permits.
D. All structures, facilities, concession stands, tents and
items provided by CONTRACTOR shall be removed by CONTRACTOR
at CONTRACTOR'S sole expense no later than twenty-four (24) hours
following the conclusion of the Event, and CONTRACTOR shall fully
restore the Property to its original condition as it existed prior to the
Event.
7. MAINTENANCE OF. AND PAYMENT FOR DAMAGE TO
PROPERTY:
COUNTY shall be responsible for making the Property available to
CONTRACTOR immediately prior to CONTRACTOR'S Event in as clean, attractive
and orderly a condition as would be normal for COUNTY'S parks and recreation
facilities that are of a similar type to the Property, provided, however, COUNTY shall
not have any obligation to continue to maintain or clean up the Property during the
Event, or provide any other services during the event.
With regard to the condition of the property, the CONTRACTOR shall
be liable for any and all theft of, and damage and destruction to any and all plants,
shrubs, trees, turf, paved surfaces, irrigation systems, equipment and structures and
improvements located upon the Property, and improvements located beneath the
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1 Property, excluding reasonable wear and tear, and for all cleanup of all litter and
2 debris caused by CONTRACTOR or its officers, employees, agents, sponsors,
3 patrons, Event participants, invitees and members of the public who come onto the
4 Property. COUNTY shall inspect the Property for cleanup purposes no later than
5 twenty-four (24) hours after the conclusion of Event. COUNTY shall inspect the
6 Property for theft, damage and destruction no later than seventy-two (72) hours after
7 CONTRACTOR has removed all temporary structures, facilities, concession stands
8 and tents referred to in section 6 above. If, as a result of said inspections by
9 COUNTY any theft, damage or destruction, or litter or debris is found to exist,
10 COUNTY shall remove any litter and debris and repair or replace any loss, damage or
11 destruction, and the costs and expenses for repairs or replacement, or cleanup first
12 shall be deducted from the cleaning/damage deposit until exhausted, and thereafter,
13 shall be billed to CONTRACTOR, who shall be fully responsible for paying all such
14 amounts due. COUNTY shall determine its costs and expenses chargeable to
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CONTRACTOR by using COUNTY's actual cost and expenses of materials, supplies,
goods, and labor, including COUNTY overhead, as applicable.
8. SALES:
A. Souvenirs and Apparel: The CONTRACTOR shall have
the right to sell official Event souvenirs and apparel on-site of the
Property and to retain one hundred percent (1 00%) of such revenue.
B. Food. Drinks and Merchandise: The CONTRACTOR or its
Concessionaire (s) may sell food, drinks and merchandise on site of the
Property and shall retain One Hundred Percent (100%) of such revenue.
Alcohol sales shall be permitted at the Event, conditioned on
compliance with all applicable laws and regulations, specifically including
the responsibility of CONTRACTOR or its concessionaire(s) to obtain all
necessary licenses for such sales as required by the Alcoholic Beverage
Control Board.
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C. Sales and Use Taxes. and Other Taxes: CONTRACTOR shall be
solely responsible for complying with any and all laws concerning the
charging of, collecting, and paying to the appropriate governmental
authorities, all sales and use taxes, and any other taxes and charges, in
connection with the sales of any food, drinks (including, but not limited
to, alcoholic beverages), merchandise and other goods in connection
with the Event, and the COUNTY shall not have any obligation in
connection therewith.
9. TERMINATION:
A. Non-Allocation of Funds: The terms of this Agreement,
and the services to be provided thereunder, are contingent upon the
availability of funds by the COUNTY in connection with the performance
of its obligations under this Agreement. Should sufficient funds not be
allocated, the services provided may be modified, or this Agreement
terminated, at any time by giving the CONTRACTOR ten (10) days
advance written notice.
B. Breach of Contract: The COUNTY'S Director of Public Works and
Planning, or his or her designee may immediately suspend or terminate
this Agreement in whole or in part, upon the determination by COUNTY
that there is on the part of the CONTRACTOR:
1) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement; or
3) A substantially incorrect or incomplete report or false information
submitted to the COUNTY.
In no event shall any receipt of any funds by the COUNTY constitute a
waiver by the COUNTY of any breach of this Agreement or any default
which may then exist on the part of the CONTRACTOR with regard to
any additional funds payable to COUNTY in connection with this
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Agreement. Neither shall such payment impair or prejudice any remedy
available to the COUNTY with respect to the breach or default for any
additional funds owed by CONTRACTOR to COUNTY.
C. Without Cause: Under circumstances other than those set
forth above, this Agreement may be terminated by COUNTY'S Director
of Public Works and Planning or his or her designee or CONTRACTOR
upon the giving of fifteen ( 15) days advance written notice of an intention
to terminate to the other party.
10. COMPLIANCE WITH LAWS: CONTRACTOR shall comply with
any and all federal, state and local laws {including, but not limited to, the Fresno
County Ordinance Code), ordinances and regulations applicable to the work, activities,
and sales covered by this Agreement.
11. INDEPENDENT CONTRACTOR: In the conducting of the Event and the
performance of the work, duties and obligations assumed by CONTRACTOR under
this Agreement, it is mutually understood and agreed that CONTRACTOR, including
any and all of the CONTRACTOR'S officers, agents, and employees, will at all times
be acting and performing as an independent contractor, and shall act in an
independent capacity and not as an officer, agent, servant, employee, joint venturer,
partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to
control or supervise or direct the manner or method by which CONTRACTOR shall
perform its obligations under this Agreement. However, COUNTY shall retain the right
to administer this Agreement so as to verify that CONTRACTOR is performing its
obligations in accordance with the terms and conditions thereof. CONTRACTOR and
COUNTY shall comply with all applicable provisions of law and the rules and
regulations, if any, of governmental authorities having jurisdiction over the subject
matter.
Because of its status as an independent contractor, CONTRACTOR, including
any and all of the CONTRACTOR'S officers, agents and employees shall have
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absolutely no right to employment rights and benefits available to COUNTY
employees. CONTRACTOR shall be solely liable and responsible for providing to, or
on behalf of, its employees all legally required employee benefits. In addition,
CONTRACTOR shall be solely responsible and save COUNTY harmless from all
matters relating to payment of CONTRACTOR'S employees and agents, including, but
not limited to, compliance with Social Security withholding and all other regulations
governing such matters.
12. MODIFICATION: Any matters of this Agreement may be modified
from time to time by the written consent of all the parties without, in any way, affecting
the remainder.
13. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract
this Agreement nor their rights or duties under this Agreement without the prior written
consent of the other party.
14. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save,
hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents,
and employees, from any and all costs and expenses (including attorney's fees and
costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in
connection with the performance, or failure to perform, by CONTRACTOR, its officers,
agents, employees, or sponsors, in connection with this Agreement, and from any and
all costs and expenses (including attorney's fees and costs), damages, liabilities,
claims and losses occurring or resulting to any person, firm, corporation, sponsors,
patrons, Event participants, invitees and members of the public who come onto the
Property who may be injured or damaged by the performance, or failure to perform, of
CONTRACTOR, its officers, agents, employees, or sponsors in connection with this
Agreement.
15. INSURANCE: Without limiting the COUNTY'S rights to obtain
indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole
expense, shall maintain in full force and effect the following insurance policies
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1 throughout the term of this Agreement.
2 A. Comprehensive General Liability Insurance with limits of
3 not less than One Million Dollars ($1 ,000,000.00) per occurrence and an
4 annual aggregate of Two Million Dollars ($2,000,000.00).
5 B. A policy of Workers Compensation insurance as may be
6 required by the California Labor Code.
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C. Comprehensive Automobile Liability Insurance with limits for bodily
injury of not less than Two Hundred Fifty Thousand Dollars ($250,000)
per person, Five Hundred Thousand Dollars ($500,000) per accident and
for property damages of not less than Fifty Thousand Dollars ($50,000),
or such coverage with a combined single limit of Five Hundred Thousand
Dollars ($500,000). Coverage shall include owned and non-owned
vehicles used by CONTRACTOR in connection with this Agreement.
CONTRACTOR shall obtain endorsements to the Comprehensive General
Liability and Automobile Liability Insurance naming the COUNTY, its officers, agents,
and employees, individually and collectively as additional insured, but only insofar as
the operations of CONTRACTOR under this Agreement are concerned. Such
coverage for additional insured shall apply as primary insurance and any other
insurance, or self insurance, maintained by COUNTY, its officers, agents, and
employees shall be excess only and not contributing with insurance provided under
the CONTRACTOR'S policies herein. This insurance shall not be canceled or
changed without a minimum of thirty (30) days advance, written notice given to
COUNTY.
Within thirty (30) days prior to each event, CONTRACTOR shall provide
certificates of insurance on the foregoing policies as required herein, to the
COUNTY'S DEPARTMENT OF PUBLIC WORKS AND PLANNING, stating that such
insurance coverages have been obtained and are in full force; COUNTY, its officers,
agents, and employees will not be responsible for any premiums on the policies. The
:OUNTY OF FRESNO
Fresno, California 10
1 Comprehensive General Liability Insurance and the Automobile Liability Insurance
2 shall name the COUNTY, its officers, agents, and employees, individually and
3 collectively, as additional insured, but only insofar as the operations of
4 CONTRACTOR under this Agreement are concerned; that such coverages for
5 additional insured shall apply as primary insurance and any other insurance, or self-
6 insurance, maintained by the COUNTY, its officers, agents, and employees, shall be
7 excess only and not contributing with insurance provided under the CONTRACTOR's
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policies herein; and that this insurance shall not be canceled or changed without a
minimum of thirty (30) days advance, written notice given to COUNTY.
In the event CONTRACTOR fails to keep in effect at all times insurance
coverage as herein provided, the COUNTY may, in addition to other remedies it may
have, suspend or terminate this Agreement upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State
of California. Insurance purchased shall be purchased from companies possessing a
current A.M. Best, Inc. rating of A FSC VII or better.
16. AUDITS AND INSPECTIONS:
The CONTRACTOR shall at any time during business hours, and as
often as the COUNTY may deem necessary, make available to the COUNTY for
examination all of its records and data with respect to the matters covered in the
Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the
COUNTY to audit and inspect all such records and data necessary to ensure the
CONTRACTORS compliance with the terms of this Agreement.
If this Agreement exceeds ten thousand dollars ($1 0,000), the CONTRACTOR
shall be subject to the examination and audit of the Auditor General for a period of
three (3) years after final payment under the Agreement (Government Code Section
8546.7).
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:OUNTY OF FRESNO
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1 17. NOTICES: The persons and their addresses having authority to
2 give or receive notices under this Agreement include the following:
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COUNTY
County of Fresno
Alan Weaver, Director
Department of Public
Works and Planning
2220 Tulare St. 61h floor
Fresno, CA 93721
(559) 262-4078
CONTRACTOR
Joyce Roberts, Partner
Two Fayre Ladies
4546 E. Ashlan, PMB 3232
Fresno, CA 93726
(559) 392-0965
Any and all notices between the COUNTY and the CONTRACTOR
provided for or permitted under this Agreement or by law shall be in writing and shall
be deemed duly served when personally delivered to one of the parties, or in lieu of
such personal services, when deposited in the United States Mail, postage prepaid,
addressed to such party.
18. GOVERNING LAW: For purposes of venue, this Agreement shall
be deemed to be performed in Fresno County. Venue for any action arising out of or
related to this Agreement shall only be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance
of the Agreement shall be governed in all respects by the laws of the State of
California.
19. ENTIRE AGREEMENT: This Agreement constitutes the entire
Agreement between the CONTRACTOR and COUNTY with respect to the subject
matter thereof and supersedes all previous Agreement negotiations, proposals,
commitments, writings, advertisements, publications, and understandings of any
nature whatsoever unless expressly included in this Agreement.
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:ouNTY OF FRESNO
Fresno, California 12
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OUNTY OF FRESNO
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IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT
as of the day and year first hereinabove written.
(Authorized Signature) Date
Print Name and Title
J/64lP t. ft9) \tJ;r1, '?>2:::>-L
Mailing Addre~ tl\ (1 J 1 , fre&vlo 1 U-1' v{3 ~v1
CA Sales Tax Permit No.
{Out-of-State vendors):
ATTEST:
BERNICE E SEIDEL, Clerk
Board of upervisors
' .
FOR ACCOUNTING USE ONLY:
Fund 0001 Subclass 10000 Org. 7910
Account No.: 5055
DEBROHAH A. POOC
CHAIRMAN
BOARD OF SUPERVISORS
Date: _ _.....J:/-+-J__._1+-l-=:=1.D~t~~---
REVIEWED AND RECOMMENDED
FOR APPROVAL
~~~
ALAN WEAVER, DIRECTOR
DEPARTMENT OF PUBLIC WORKS
AND PLANNING
APPROVED AS TO LEGAL FORM
DANIEL C. CEDERBORG,
COUNTY COUNSEL
By~~
uty "'
APPROVED AS TO ACCOUNTING
FORM
By: 024(~
VICKI CROW, C.P ..
AUDITOR-CONTROLLER/
TREASURER-TAX COLLECTOR
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