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HomeMy WebLinkAboutFlynn Creek Circus 2016-03-03 C.:ou NO . IS k(o AGREEMENT BETWEEN THE CITY OF UKIAH AND THE FLYNN CREEK CIRCUS LLC This Agreement is entered into on March 3, 2016, in Ukiah, California, between the City of Ukiah ( "City") and Flynn Creek Circus, LLC ("FCC"). RECITALS WHEREAS, Flynn Creek Circus wishes to conduct a fundraising circus event for the City and WHEREAS, the City has agreed to host this fundraiser at its location and WHEREAS,the parties have agreed to a series of performances by Flynn Creek Circus at Giomo Field from June 18-June 28 with showings June 23-26, 2016 ("the Event"), pursuant to Flynn Creek Circus's General Proposal and subject to the terms and conditions of this Agreement. THEREFORE, the parties agree as follows: TERMS AND CONDITIONS 1. Term The term of this Agreement shall begin upon execution of the Agreement by the parties and shall remain in effect until July 26, 2016, which is 30 days after the final performance, unless terminated sooner by mutual agreement of the parties or as set forth herein. 2. Duties of Circus a. FCC shall provide the Event at Giomo Field, and perform all necessary tasks for such Event, in accordance with its General Proposal and attachments thereto ("General Proposal"), which are incorporated herein. b. All work and materials provided for the Event shall be in full accordance with the latest General Safety Orders of the Division of Industrial Safety of the Department of Industrial Relations, codified in Division I , Chapter 4, Subchapter 7 of Title 8 of the California Code of Regulations("CCR"), all current OSHA requirements, as may be applicable, and all other applicable State laws or regulations. C. Except as otherwise provided herein, FCC will promptly remove its equipment and personal property from Giorno Field to be completed by 10 p.m.,Tuesday, June 28 , 2016. 3 The City shall engage all contractual negotiations necessary to secure location with property owners including permission for FCC to install hardware in accordance with the General Proposal. 4. IndemnMication FCC shall indemnify and hold harmless the City of Ukiah, and its officers, employees, agents, and representatives (collectively, "Indemnitee") against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, and costs of litigation) incurred by Indemnitee ("Losses"), known or unknown, directly or indirectly arising from or related to the acts or omissions of the Circus pursuant to this Agreement, including Losses arising from Indemnitee's negligent or willfully wrongful acts or omissions. 5. Insurance 5.1 Insurance Liability, Without limiting FCC's obligations under Paragraph 4, FCC shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage — Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1 '87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4. Errors and Omissions liability insurance appropriate to the FCC's profession. 2 Architects' and engineers'coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance FCC shall maintain limits no less than: 1. General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence Iimit. 2. Automobile Liability: $2,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of$1,000,000 per accident. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the FCC shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: I. General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the FCC, products and completed operations of the FCC, premises owned, occupied or used by the FCC, or automobiles owned, hired or borrowed by the FCC for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The FCC's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the FCC's 3 insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The FCC's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liabilijy Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from FCC's performance of the work, pursuant to this Agreement. 3. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty(30)days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coveraee FCC shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. All Certificates and Endorsements are to be received and approved by the City before FCC begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If FCC fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, after notice to FCC that City has paid the premium, the cost of insurance may be deducted from the compensation otherwise due the contractor under the terms of this Contract. G. Subcontractors FCC shall include all sub-contractors or sub-FCCs as insured under its policies or shall furnish separate certificates and endorsements for each sub-contractor or sub-FCC. All coverage for sub-contractors shall be subject to all insurance requirements set forth 4 in this Paragraph 5.1. 6. Entire Agreemet This Agreement and all exhibits referred to in this Agreement constitute the final, complete,and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter herein and supersedes all prior and contemporaneous understandings or agreements of the parties.No party has been induced to enter into this Agreement by, nor is any party relying on, any representation outside those expressly set forth in this Agreement. 7. Modification This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both parties. 8. Severability If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. 9. Waiver No waiver of a breach, failure of any condition,or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy shall be deemed a waiver of any other breach, failure,right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 10. Necessary Acts The parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement. 11. Governing Law This Agreement shall be governed by the laws of the State of California. Any action to enforce or interpret this Agreement shall be filed in Mendocino County Superior Court, each party consenting to the jurisdiction and venue of such Court. Both parties agree to waive any right they might otherwise have to change venue, including pursuant to Cal. Code of Civil Procedure Section 394. 5 12. The headings in this Agreement are included for convenience only and shall neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties to this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 136 Assignment Neither party shall have the right to assign, sublease or otherwise transfer its interests in this Agreement to any third party without the prior Written permission of the other party. 114. Successors This Agreement is binding on the successors or permitted assigns of the parties hereto. 15. Authorization Each person executing this Agreement or its counterpart on behalf of a party hereto warrants that he or she is authorized to do so and that this Agreement constitutes the legally binding obligation of the party whom he or she represents. IN WITNESS WHEREOF,the parties have executed this Agreement: The City of Ukiah Date: 2 IG BY— S 01+-4dr- Flynn Creek Circus LLC Date: By: b ATTACHMENT_�- Flynn Creek Circus LLC General Proposal for the City of Ukiah,2016 Event Description: Flynn Creek Circus LLC (herein referred to as FCC)will perform 1 '/2-2 hour shows at Giorno Field in FCC's Big Top Circus Tent. The show will be a traditional circus presentation including aerialists, acrobats,jugglers and variety entertainment suitable for all audiences. The performances will take place from June 23, 2016 thru June 26, 2016. FCC staff, volunteers and equipment will depart no later than Tuesday June 28, 2016. Performance Schedule: Thursday at 7pm Friday at 7pm Saturday at 3pm and 7pm Sunday at 1 pm and 4pm Tent box office will open to the public 1 hour prior to the show time each day. Financial Understanding: City of Ukiah agrees to a single event partnership with FCC pursuant to the guidelines as outlined in the general proposal. Financial understanding: *Flynn Creek Circus will pay City of Ukiah within 30 days of the final show sold 10%fl of all gross ticket sales after the deduction of 50% General Liability excess insurance premiums. *Pre-sale ticket prices for children are$12, $17 for seniors/students and $25 for adults. *Door ticket prices are$15 for children, $22 for seniors/students and $30 for adults. VIP Tickets are$50. *Both parties agree that profits arising from FCC concession and merchandising sales are not included in gross ticket sales. *Both parties will meet Monday evening or Tuesday morning post event to agree upon the good state of the grounds. FCC will provide transparent accounting and complete ticket sales reports. City of Ukiah Responsibilities *The City of Ukiah will provide the tent and trailer location free of obstacles, recently mown, and accessible by tent trailer(8x20). *The City of Ukiah will provide adequate parking for the public, dumpsters and recycling disposal for show refuse. *The Giorno Field restroom facilities will be open and maintained by the City of Ukiah during the show week. *The City of Ukiah will provide a blueprint of the water sprinkling system for the field if applicable. *The City of Ukiah will provide electricity and water available to FCC living trailers. *The City of Ukiah will promote ticket sales through their websites and activities publications. All advance ticket sales will go through FCC's secure online process. *The City of Ukiah will provide substantial advertising and promotional support through its volunteer and client base. -Specifically: promotional signage at the location 2 weeks prior to event posting of 75 8.5"x11", 75 13"x17"and 1000 hand flyers throughout Ukiah and surrounding areas 2 weeks prior to event City Website and email promotions $500 (or value) investment in of permit fees and/or advertising Flynn Creek Circus Responsibilities *FCC will be responsible for all operational aspects of presenting the circus show including: *Performing a high quality show, securing all equipment and staff *Providing high quality graphic design for promotional materials (posters, PSA announcements, etc.)for distribution by the City of Ukiah *$2000 commercial advertising and print *Promoting ticket sales through internet advertising, postering and social networking *Securing appropriate permits as required by state and county law *Erecting and dismantling the Big Top and all associated equipment *Online ticket sales and at the door ticket sales *recycling and site clean up *FCC will use transparent accounting methods and provide complete ticket sales reports to the City of Ukiah. *FCC will notify necessary Emergency Services such as Fire Department and Sheriffs Office about the event. *FCC will keep vehicle traffic on the field to a minimum. Big Top Tent installation and generator noise *FCC's professional riggers and volunteers will erect and dismantle the 120'x 80' circus tent at Giorno field. Although some vehicle movement is required, FCC will keep this to a minimum. Liability and Security *FCC operates on safety standards that exceed national and international circus regulations. The security of our performers, audience and general public is our number one priority. Contracted parties of FCC carry individual liability insurance in addition to the Flynn Creek Circus LLC policy. *Security: The Big Top tent is secured by onsite artist staff housed in trailers and RVs. This onsite presence is crucial to the security of the equipment inside the Big Top as well as the liability concerns with the general public. *FCC agrees that trailers and RVs will be self-contained with the exception that water for trailer holding tanks be provided onsite. Rehearsals *The circus will be at location prior to the scheduled shows to run technical rehearsals and provide inspectors with opportunity to survey the equipment. This activity is not open to the public. Annual Fundraiser *Assuming the event is successful, FCC would be interested in discussing an annual fundraising partnership with the City of Ukiah.