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HomeMy WebLinkAboutWheelhouse Media LLC; 2008-03-05;RATIFICATION OF AMENDMENT NO. 2 EXTENDING AND AMENDING THE AGREEMENT FOR PUBLISHING SERVICES TO PRODUCE THE OFFICIAL 2010 TGlF JAZZ IN THE PARKS SOUVENIR PROGRAM WITH WHEELHOUSE MEDIA. LLC Ratification of Amendment No. 2 is entered into and effective as of the 2 dC day of d~y , 2010, but effective as of the 1st day of November, 2009, ("Effective/~ate"), extending and amending the Agreement dated March 5, 2008, (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and wheelhouse ~edia, LLC, a California limited liability company (herein referred to as "Wheelhouse" or "Publisher") (collectively, the "Parties") for publishing services. RECITALS A. On March 5, 2008, the Parties executed the original Agreement for publishing services related to the TGlF Jazz in the Parks souvenir program; and B. On March 17, 2009, the Parties executed the First Amendment to the Agreement that ratified and extended the Agreement one additional year and modified the Agreement's Recitals; and C. The Agreement contemplated three one-year renewals even though the Agreement was to terminate 30 days after the last TGlF Jazz in the Parks concert. The First Amendment extended the Agreement to October 31, 2009. The Parties now desire to exercise the second option to renew for one additional year thereby extending the Agreement to October 31, 2010. D. The Parties have agreed to revise "Section 5.2 (d)" to read: "Publisher shall deliver 8,000 Programs to the Cultural Arts Office no later than June 23, 2010." NOW, THEREFORE, in consideration of the above recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period beginning on the Effective Date of this Amendment No. 2 and ending on October 31, 2010. 2. Wherever a 2008 date is referenced in the Agreement, the year 2010 will replace it, except in the Agreement's initial "effective date" and "signing date" and in Amendment No. 1's "effective date" and "signing date." 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 1 5. The retroactive extension and amendment of the Agreement is ratified. 6. The individuals executing this Amendment No. 2 and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California *By: By: M J P~=ZX.U% (sign here) Authorized ~ignatoM aa WQSLFY /N~~SW ATTEST: (print nameltitle) 7it4@b+4LSrnN~~~%%. 194 (e-mail address) ",, ' , , \ If required by City, proper notarial acknowledgment of execution by contractor must b6 'f'*3:,. attached. If a Cor~oration, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: City Attorney Approved Version #05.22.01 2 AMENDMENT NO. ONE TO EXTEND AND AMEND AGREEMENT FOR PUBLISHING SERVICES TO PRODUCE OFFICIAL 2009 TGIF JAZZ IN THE PARKS SOUVENIR PROGRAM WHEELHOUSE MEDIA, LLC sAmendmejnt No. 1 is entered into and effective as of the I \ day of 2009 ("Effective Date"), extending and amending the agreement dated March 5, 2008, (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Wheelhouse Media, LLC, a California limited liability company (herein referred to as "Wheelhouse" or "Publisher") (collectively, the "Parties") for publishing services. RECITALS A. On March 5, 2008, the Parties executed the original Agreement for publishing services related to the TGIF concert series; and B. The Agreement contemplated three one-year renewals even though the Agreement was to terminate 30 days after the last TGIF concert. Notwithstanding, the Parties desire to exercise the first option to renew for up to one year and extend the Agreement to October 31, 2009; and C. The Parties have agreed to revise "Section 3.1 (f) (ii)" to read: "Publisher will manufacture at least 8,000 copies, the Parties may agree to modify the production number by written amendment to this Agreement" and "Section 5.2 (d)" to read: "Publisher shall deliver the balance of the 8,000 Programs to CAO by noon on June 26, 2009." D. The Parties have agreed to revise "Section 3.1 (g)" to read: "Of the total number of pages within the Program, Publisher will reserve at least 22 pages in the Program for City's use as follows: (i) 5 pages (10 half-pages) for band information; (ii) 3 pages for complimentary ads; (iii) 7 pages for general information (e.g. Welcome page, Concert Guidelines, Table of Contents, Concert listing, Concert info, Raffle donor credit page); (iv) 4 pages for CAO programs and announcements; (v) 1 page for Carlsbad Friends of the Arts; and (vi) at least 2 pages for photos from the 2008 concerts. Additional pages for the City's use may be added by mutual agreement between the Parties." E. The Parties have agreed to revise "Section 6.1" to read: "City of Carlsbad shall receive twenty-five percent (25%) of gross revenues from advertising sales. City of Carlsbad shall also receive one-hundred percent (100%) of the gross revenues from Concert Sponsors. For purposes of this section, gross revenue means without deduction(s), regardless of amount or purpose of any claimed deduction. Publisher shall be entitled to the remaining seventy-five percent (75%) of gross revenues from advertising sales only." NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period beginning on the Effective Date of this Amendment No. 1 and ending on October 31, 2009. City Attorney Approved Version #05.22.01 2. Wherever a 2008 date is referenced in the Agreement, the year 2009 will replace it, except in the Agreement's initial "effective date" and "signing date." 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR *By: CITY OF CARLSBAD corporation By: (sign here) TIM. (print name/title) e (e-mail address) If required by City, proper notarial acknowledgment of execution by contracted attached. If a Corporation. Agreement must be signed by one corporate officer from following two groups. LOR City Clerk %,£>° *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALQJ^BALL, City Attorney Assistant City Attorney City Attorney Approved Version #05.22.01 PUBLISHING AGREEMENT BETWEEN THE CITY OF CARLSBAD AND WHEELHOUSE MEDIA, LLC. FOR OFFICIAL 2008 TGIF JAZZ INTHE PARKS™ SOUVENIR PROGRAM This Publishing Agreement ("Agreement") is entered into as of 2008 ("Effective Date") by and between the City of Carlsbad, a municipal corporation ("City" or "Client") and Wheelhouse Media, LLC, a California limited liability company ("Wheelhouse" or "Publisher"), with its principal place of business 2911 State Street, Suite I, Carlsbad, CA 92008 (collectively "Parties"). RECITALS WHEREAS, the City of Carlsbad is the owner and sponsor of TGIF Jazz in the Parks™, a summer concert series presented by the Cultural Arts Office (CAO) of the City of Carlsbad in various parks throughout the City of Carlsbad; and WHEREAS, 2008 TGIF Jazz in the Parks™ marks the City's 23rd year of the summer concert series; and WHEREAS, in years past, the Cultural Arts Office has produced and self- published a souvenir program that was distributed, without charge, to attendees of the concerts; and WHEREAS, the Cultural Arts Office issued a Request for Proposal ("RFP") to publish the 2008 TGIF Jazz in the Parks™ souvenir program; and WHEREAS, Wheelhouse Media, LLC, a local publisher and publisher of the Carlsbad Magazine submitted the only response to the City's RFP; and WHEREAS, the Cultural Arts Office reviewed and found acceptable the Wheelhouse Media, LLC response and selected Wheelhouse Media, LLC to be the publisher for the 2008 TGIF Jazz in the Parks™ souvenir program; NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows: 1.0 DEFINITIONS. The following definitions will apply within this Agreement. "Advertiser" means (1) a person or business offering products and/or services (e.g., local restaurants, locksmiths, drycleaners and florists) to the end-users of the Program, regardless of location of the products and/or services or the location of the advertiser; or (2) a person or business who places an ad or other general announcement in the Program to support the 2008 TGIF Jazz in the Parks™ summer concert series. "Concert Sponsor" means an Advertiser, who in addition to purchasing a full- page ad in the Program, desires to financially underwrite a specific concert (or concerts) in exchange for public credit and visibility at the concert, as negotiated with CAO. "Preexisting Advertiser" means an Advertiser who has advertised in other publications published by Publisher. For illustration purposes: A person or business, which prior to the Effective Date of this Agreement, has placed an advertisement in Publisher's Carlsbad Magazine. "Program" means the 2008 TGIF Jazz in the Parks™ souvenir program. "Publish" means all activities required to discharge the publishing obligation, or otherwise used to produce the 2008 TGIF Jazz in the Parks™ souvenir program, and may include some or all of the following: (a) Obtain and include for the Program all content, including but not limited to photographs, articles, captions, Advertisers promotional material, and other matters from the Cultural Arts Office ("CAO") of the City and other sources as approved by CAO; (b) Selling, pricing and advertising; (c) Promoting usage, marketing, and branding; (d) Implementing the City's design, composing, arranging, compiling, advertising, and formatting; (e) Exercising editorial control, if required, subject to City's review and final approval; (f) Scoping, sizing, producing, printing and manufacturing; (g) Delivering and distributing; and (h) Managing other miscellaneous matters related to the publishing of the Program. 2.0 TERM OF AGREEMENT This Agreement shall begin on the date last signed and will terminate 30 days after the last 2008 TGIF Jazz in the Parks™ concert. This agreement may be extended, by written amendment for three (3) additional one-year periods, based upon satisfactory performance of Publisher and the City's needs. 3.0 RIGHTS AND OBLIGATIONS OF PUBLISHER 3.1 Publication. (a) Publisher will, at no charge to City, Publish the Program pursuant to the terms and conditions of this Agreement and directions from CAO. (b) Publisher acknowledges that the Publishing obligation is subject to certain laws, rules, and regulations ("Legal Requirements"). In discharging its obligations under this Agreement, Publisher, (i) will not take any action that will cause City to be in violation of any Legal Requirement, whether in effect now or in the future, and (ii) will not discriminate against any Advertiser. City retains the sole discretion in approving and rejecting any potential Advertiser for the Publication. (c) Publisher's compensation for publishing the Program will be based solely upon advertising sales as set forth below in Exhibit A, attached hereto and incorporated throughout this Agreement by reference. (d) Publisher will not sell via mail subscriptions, newsstands or by any other means individual copies of the Publication. Publisher acknowledges that Publisher's sole source of compensation will be through selling advertising space within the Publication. (e) Publisher will include "Credit Lines" in the Program that includes, (i) the "2008 TGIF Jazz in the Parks™ Souvenir Program is Copyrighted by the City of Carlsbad © 2008"; (ii) the "2008 TGIF Jazz in the Parks™ Souvenir Program is a Publication of the City of Carlsbad through its Cultural Arts Office, in collaboration with Wheelhouse Media, Inc., Publisher of Carlsbad Magazine"; and (iii) "All Rights Reserved by the City of Carlsbad". (f) The Program's "look and feel" will be: (i) page count: will be determined based upon content and advertising, however, the Parties estimate that the Program will have approximately 68 pages; (ii) Publisher will manufacture at least 10,000 copies, the Parties may agree to modify the production number by written amendment to this Agreement; (iii) the Program will be saddled-stitched; Program's finished dimensions will be 8.375" x 10.5"; (iv) Publisher will use, subject to final approval by CAO, the following paper stock for the Program: 100# gloss cover with 50# gloss text or 60# gloss with self-cover; however, the Parties may agree, in writing, to use a different paper stock; and (v) Publisher will, at no charge to City, bundle and deliver the Program to the Cultural Arts Office at 2955 Elmwood, Carlsbad. (g) Of the total number of pages within the Program, Publisher will reserve at least 20 pages in the Program for City's use as follows: (i) 5 pages (10 half- pages) for band information; (ii) 3 pages for complimentary ads; (iii) 7 pages for general information (e.g. Welcome page, Concert Guidelines, Table of Contents, Concert listing, Concert info, Raffle donor credit page); (iv) 2 pages for CAO programs; (v) 1 page for Carlsbad Friends of the Arts; and (vi) at least 2 pages for photos from the 2007 concerts. Additional pages for the City's use may be added by mutual agreement between the Parties. 3.2 Preexisting Advertisers. (a) Publisher may offer to sell and may sell advertising space in the Program to any of Publisher's Preexisting Advertiser, so long as Publisher does not discount the Advertising Rates, set forth in Exhibit A, to its Preexisting Advertiser(s) for advertising in the Program or Concert Sponsor. For illustration purposes only, if Publisher offered its Preexisting Advertisers a bundled advertising rate for Publisher's other publications that included advertising in the Program, the Program shall first be credited, from the bundled advertising rate received by the Publisher, the Advertising Rate set forth in Exhibit A. 4.0 RIGHTS AND OBLIGATIONS OF CITY 4.1 Program Details. (a) Provide the content required in Section 3.1(g) above in a timely manner. (b) Provide editorial content, art, photography, etc. for the Program in a timely manner. (c) Provide design and art direction for cover and interior; and design templates in a timely manner. (d) Provide direction and approvals to Publisher related to all aspects of the Program in a timely manner. (e) Work with Publisher to resolve any issues surrounding the Program in a timely manner. (f) Provide all available information about the 2006 and 2007 TGIF Jazz in the Parks™ program Advertisers to Publisher, either in electronic or hardcopy format. 5.0 JOINT RIGHTS AND OBLIGATIONS 5.1 Advertising Sales and Concert Sponsorships (a) Publisher will be responsible for sale of advertising space in the Program. The rates and types of Premium Page and Standard Page listings are identified and set forth in Exhibit A. (b) Advertisers calling the CAO for ad space in the Program will be referred to Publisher. (c) Advertisers will make checks payable to the City of Carlsbad and may be collected by Publisher as part of Publisher's advertising sales. Checks will be deposited by City into a City account. Publisher shall invoice the City bi-weekly for its compensation pursuant to Section 6.1 below. (d) Only CAO will have the right to sell Concert Sponsorships. 5.2 Content and Program Delivery Schedule. (a) CAO shall deliver editorial copy, photos and other content to Publisher no later than May 2, 2008. (b) Publisher shall deliver mock-up Program to CAO on or before June 6, 2008 for final review and approval. Publisher may provide preliminary drafts to CAO for review and comments before final review and approvals are sought of CAO by Publisher. (c) Publisher shall deliver at least 2,500 copies of the Program to CAO by noon on June 19, 2008. (d) Publisher shall deliver the balance of the 10,000 Programs to CAO by noon on June 26, 2008. (e) Publisher shall deliver, on or before June 26, 2008, in electronic format and in a software program code (e.g. Word, Publisher, etc.) acceptable to the CAO, a copy of the entire 2008 Program. 5.3 Editorial Discretion. Subject to any Legal Requirements, CAO will have the sole and exclusive right, acting in a commercially reasonable manner, to determine the scope, design, format, content, organization, style, size, and appearance of the Program, and all other aspects of Program. CAO may solicit input and comment from Publisher. 5.4 Rights in the Program Product and All Supporting Documentation Regardless of Form. The copyrights and other intellectual property rights in the Program is covered by this Agreement, and any and all illustrations, artwork, photographs, video, audio, text, maps, mock-ups, and other advertising and information content created or procured for such Program, will be the sole and exclusive property of the City. Without limiting rights under applicable law, Publisher shall not copy the Program or any portion thereof, provided, however, that Publisher may retain, no more than 10 copies of the Program for its own portfolio for use in securing future publishing contracts, for purposes of demonstrating its quality of services. 5.6 Securing Copyrights, Trademarks, Licenses, Waivers and Other Permissions. Each party will secure, as required, all necessary copyrights, trademarks, licenses, waivers and other permissions and rights to use (collectively "Property Rights") from any third party (person, business or entity) who is the holder of such Property Right and has the legal authority to give express permission to use such Property Right in the Program. Publisher shall maintain a file containing the secured Property Rights and shall provide the originals to City upon request. 6.0 CONSIDERATION 6.1 City of Carlsbad shall receive twenty-five percent (25%) of gross revenues from advertising sales or fifteen thousand dollars (($15,000), whichever is the larger amount. City of Carlsbad shall also receive one-hundred percent (100%) of Concert Sponsors. For purposes of this section, gross revenue means without deduction(s), regardless of amount or purpose of any claimed deduction. Publisher shall be entitled to the remaining seventy-five percent (75%) of gross revenues from advertising sales only. 6.2 In addition to the compensation pursuant to Section 6.1 above, Publisher will receive booth space, not to exceed 10 feet by 15 feet, at each concert venue to distribute Carlsbad Magazine and to promote ClickonCarlsbad.com. City, in its sole discretion, shall designate the location at each concert venue site for Publisher's booth space. It is contemplated by the Parties that Publisher's booth will incorporate a "pop-up" tent feature. 6.3 City of Carlsbad shall mention Carlsbad Magazine and ClickOnCarlsbad.com from the concert stage at least once during each concert event. 6.4 Carlsbad Magazine shall publish the complete concert schedule in the "Calendar of Events" section in its June, July, and August 2008 issues, and shall publish an editorial page promoting the concerts in its May/June 2008 issue 7.0 INDEMNIFICATION 7.1 Cooperation. The Parties will cooperate in good faith in their investigation, defense, settlement and resolution of any claims arising out of any error or omission related to any advertising in the Program. In the event of a demand or complaint asserting that Publisher and City are jointly liable, Publisher will assume the responsibility for and advance the cost of defending that portion of the Claim relating to any advertising; and City will assume the responsibility for and advance the cost of defending that portion of the Claim relating to any editorial content including, illustrations, artwork, photographs, video, audio, text, maps and other non-advertising and information content and the Parties will cooperate, share information and coordinate their efforts in an attempt to eliminate or minimize any liability and their respective attorneys' fees and costs. This assumption of the defense of a claim, or portion thereof, does not imply or create an assumption of liability for any final settlement or judgment for such claim, or portion thereof. 7.2 Indemnify. (a) Publisher will indemnify and hold harmless City and its directors, officers, employees, affiliates, agents and assigns from and against any and all losses directly or indirectly based upon, arising from or resulting from (i) Publisher's failure to perform any of its obligations under this Agreement (ii) any third party claims arising from any error or omission in the Program caused by Publisher, its employees, agents, representatives or subcontractors and (iii) any claims that the Program violates or infringes the intellectual Property Rights of any third party or require the consent of any third party that Publisher was required to obtain for the Program. (b) City will indemnify and hold harmless Publisher and its directors, officers, employees, affiliates, agents and assigns from and against any and all losses directly or indirectly based upon, arising from or resulting from (i) City's failure to perform any of its obligations under this Agreement (ii) any third party claims arising from any error or omission in the Program caused by City, its employees, or agents, and (iii) any claims that the Program violates or infringes the intellectual Property Rights of any third party or require the consent of any third party that City was required to obtain for the Program. 7.3 Notice and Procedures. A Party seeking indemnification (the "Indemnified Party") will give prompt written notice in reasonable detail (the "Notice of Claim") to the indemnifying Party (the "Indemnifying Party") stating the basis of any Claim for which indemnification is being sought hereunder within thirty (30) days after its knowledge thereof; provided that the Indemnified Party's failure to provide any such notice to the Indemnifying Party will not relieve the Indemnifying Party of or from any of its obligations hereunder unless and to the extent that the Indemnifying Party suffers prejudice as a result of such failure. If the facts giving rise to such indemnification involve an actual or threatened Claim by or against a third party: (a) The Parties hereto will cooperate in the prosecution or defense of such Claim in accordance with Section 6.1 above and will furnish such records, information and testimony and attend to such proceedings as may be reasonably requested in connection therewith; and (b) The Indemnified Party will make no settlement of any Claim that would give rise to liability on the part of the Indemnifying Party without the latter's prior written consent that will not be unreasonably withheld or delayed, and the Indemnifying Party will not be liable for the amount of any settlement affected without its prior written consent. 8.0 TITLE AND COPYRIGHT ASSIGNMENT 8.1 Program. Publisher and City intend this to be an Agreement for services and each considers the Program and results of the services to be rendered by Publisher hereunder to be a work made for hire. Publisher acknowledges and agrees that the Program (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City. If for any reason the Program would not be considered a work made for hire under applicable law, Publisher does hereby assign, and transfer, without additional compensation, fees, or royalties, to City, its successors and assigns, the entire right, title and interest in and to the copyright in the Program and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Program, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing throughout the world. If the Program is one to which the provisions of 17 U.S.C. 106A apply, the Publisher hereby waives and appoints City to assert on the Publisher's behalf the Publisher's moral rights or any equivalent rights regarding the form or extent of any alteration to the Program (including, without limitation, removal or destruction) or the making of any derivative works based on the Program, including, without limitation, photographs, drawings or other visual reproductions or the Program, in any medium, for City purposes. Publisher agrees to execute all required documents and to perform such other proper acts as City may deem necessary to secure for City or its designee the rights herein assigned. 9.0 MISCELLANEOUS 9.1 General Force Majeure. Neither Party will be in default under this Agreement or liable for any nonperformance that is caused by any occurrence or circumstance beyond such Party's reasonable control (including epidemic, riot, unavailability of resources due to national defense priorities, war, armed hostilities, strike, walkouts, civil disobedience, embargo, fire, flood, drought, storm, pestilence, lightning, explosion, power blackout, earthquake, volcanic eruption or any act, order or requirement of a regulatory body, Court or legislature, civil or military authority, foreseeable or unforeseeable act of God, act of a public enemy, act of terrorism, act of sabotage, act or omission of carriers, or other natural catastrophe or civil disturbance) during the period and to the extent that such extraordinary condition delays, impairs or prevents such Party's performance. 9.2 Further Assurances. Each Party will take such other actions as the other Party may reasonably request or as may be necessary or appropriate to consummate or implement the transactions contemplated by this Agreement or to evidence such events or matters. 9.3 No Agency; Right to Subcontract. (a) Nothing in this Agreement or in any other document related to this transaction, and no action of or inaction by either of the Parties hereto will be deemed or construed to constitute an agency relationship between the Parties hereto. Each Party is acting independently of the other and neither Party has the authority to act on behalf of or bind the other. (b) Notwithstanding anything to the contrary contained herein, Publisher will be permitted, at any time and from time to time, to carry out or otherwise fulfill its publishing obligations hereunder through one or more agents, subcontractors or other representatives, each engaged with due care and required to be experienced, capable and of similar quality as Publisher, provided that in any event Publisher will remain liable for such obligations hereunder. Notwithstanding the foregoing, Publisher will not have the right to sublicense any marks or other intellectual property granted under this Agreement. 9.4 Governing Law. This Agreement and the legal relations between the Parties will be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in such State and without regard to conflicts of law doctrines unless certain matters are preempted by federal law. 9.5 Amendments; Waiver. Except as expressly provided herein, this Agreement and any attached Exhibit may be amended only by agreement in writing of the Parties. No waiver of any provision or consent to any exception to the terms of this Agreement or any agreement contemplated hereby will be effective unless in writing and signed by both Parties and then only to the specific purpose, extent and instance so provided. No failure on the part of either Party to exercise or delay in exercising any right hereunder will be deemed a waiver thereof, nor will any single or partial exercise preclude any further or other exercise of such or any other right. 9.6 Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given: (i) immediately when personally delivered; (ii) when received by first class mail, return receipt requested; (iii) one day after being sent by Federal Express or other overnight delivery service; or (iv) when receipt is acknowledged, either electronically or otherwise, if sent by facsimile, telecopy or other electronic transmission device. Notices, demands and communications to Publisher and City will, unless another address is specified by Publisher or City hereafter in writing, be sent to the following address as indicated: If to Publisher, addressed to: Wheelhouse Media LLC 2911 State Street, Suite I Carlsbad, CA 92008 Attention: Tim Wrisley Fax: 760.729.9011 If to City of Carlsbad, Cultural Arts Office: Carlsbad Cultural Arts Office 1200 Carlsbad Village Drive (mailing address) 2955 Elmwood Street (delivery address) Carlsbad, CA 92008 Attention: Peter Gordon Fax: 760.730.0329 With a copy to (which shall not constitute notice): Office of City Attorney 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Paul Edmonson Fax: 760.434.8367 9.7 Entire Agreement. This Agreement, including any exhibits attached hereto, constitute the entire Agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the Parties in connection therewith. 9.8 Severability. If any provision of this Agreement is held to be unenforceable for any reason, it will be adjusted rather than voided, if possible, to achieve the intent of the Parties. All other provisions of this Agreement will be deemed valid and enforceable to the extent possible. 9.9 Headings. The descriptive headings of this Agreement are for convenience only and do not constitute a part of this Agreement. 9.10 Interpretation. The Parties each acknowledge that it either has been represented by counsel or has had the opportunity and declined to be represented by counsel in connection with this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. The provisions of this Agreement will be interpreted in a reasonable manner to affect the intent of the Parties. In the event of an inconsistency between the provisions of this Agreement and any attachment or exhibit to this Agreement, the provisions of this Agreement will be controlling. IN WITNESS WHEREOF, the individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. CONTRACTOR *By: *By: (e-mail address) (sign here) (print name/title) CITY OF corporati CARLSBAD, yTmunicipal the State/of/California ATTEST: City Clerk (e-mail address) If required by City, proper notary acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD/R.BALL, City Attorney Deputy City Attorney 10 EXHIBIT A I. ADVERTISING RATES / SUMMER 2008 Premium Pages Back Cover $ 4,000 Inside Front Cover $ 3,500 Inside Back Cover $ 3,500 Two-page Center Spread $ 6,000 Single Center Page $ 3,500 Page Facing Table of Contents $ 3,500 Page Facing Map $ 3,500 Page Facing Schedule $3,500 First Page (opposite inside front cover) $ 3,000 Last Page (opposite inside back cover) $ 3,000 Standard Pages (All sizes in inches: Height x Width) Full Page (10 x 7.5, or 11 x 8.5 full bleed) $ 2,000 Half Page - Horizontal (5 x 7.5) $1,000 Half Page - Vertical (10 x 3.75) $1,000 Quarter Page (3.75 x 5) $ 600 Business Card (3.5 x 2) $300 Friends of the Arts listing (text only 25 words, no logos)... $ 200 II. CONCERT SPONSORS Concert Sponsors additional $1,500 per concert event. The Concert Sponsor is only available to those Advertisers who have taken out a full- page advertisement in the Program. The Cultural Arts Office will work with Concert Sponsors on "showcasing" its name to the public, for example, on a banner installed on the stage, space for a pop-up tent or table, making announcements or introductions from the stage, etc. 11