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HomeMy WebLinkAboutFlynn Creek Circus 2024-03-06 COU No. 2324-172 AGREEMENT BETWEEN THE CITY OF UKIAH AND THE FLYNN CREEK CIRCUS LLC This Agreement is entered into on March 6 , 2024, 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 Giorno Field from July 8 -July 14(including camp offering)with showings July 1 1- 14 2024 ("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 Term The term of this Ageement shall begin upon execution of the Agreement by the parties and shall remain in effect until Aug 15, 2024,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 Giorno 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 1,Chapter 4, Subehapter 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. 1 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.,Monday, July 15, 2024. 3. Duties of The City of Ukiah 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. Indemnification FCC shall indemnify and hold harmless the City of Ukiah, and its officers, employees, agents, and representatives (collectively, "Indemnitec")against all liability, demands, claims, costs, losses, damages, recoveries,settlements,and expenses (including interest, penalties, attorney fees, and costs of litigation) incurred by Indemnitce ("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 Insurancg 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: I. 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 1001. 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: $1,000,000 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 limit. 2. Automobile_Liability: $1,000,000 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: 1. 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 Liability 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-I for short-term credit rating. F. Verification of Coverage 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 Aiareement 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. Uoverning=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. Headings 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. 13. 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. 14. Successors This Agreement is binding on the successors or permitted assigns of the parties hereto. 16. Force Ma.jeure Neither party will be liable for failure or delay to perform obligations under this Agreement,which have become practicably impossible because of circumstances beyond the reasonable control of the applicable party. Such circumstances include without limitation natural disasters or acts of God; acts of terrorism; labor disputes or stoppages; war; government acts or orders; epidemics, pandemics or outbreak of communicable disease; quarantines; national or regional emergencies; or any other cause, whether similar in kind to the foregoing or otherwise, beyond the party's reasonable control. Written notice of a party's failure or delay in performance due to force majeure must be given to the other party no later than five(5) business days following the force majeure event commencing, which notice shall describe the force majeure event and the actions taken to minimize the impact thereof. 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: Mar 23,2024 By: Flynn Creek Circus LLC Date: By. �' 3/25/24 Flynn Creek Circus LLC General Proposal- City of Ukiah 2024 Event Description: Flynn CreekCircusLLC(herein referred toasFCC)willperform 1'/2 -2hourshowsatGiorno 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 July 11 2024 thru July 14, 2024. FCC staff,volunteers and equipment will arrive no sooner than July 8, 2024 and departnolater than Monday,July 16, 2024. Performance Schedule: (Subject to change) Thursday at7pm (family special) Friday at 5pm&8pm (21+) Saturday at 5pm and 8pm (21+adult show) Sunday at 1 pm 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 CityoUkiahwithin 10 days ofthe fina Is how 10%ofallgross ticket sales. *Ticket sales are based on table reservation and prices are subject to change. "Both parties agree that profits arising from FCC concession, ad ons and merchandising sales are not included in gross ticket sales. *Both parties will meet Monday post event to agree upon the good state of the grounds. FCC will provide transparent accounting and complete ticket sales reports. *Flynn Creek Circus LLC will provide 1 complimentary table per showing(up to 6 persons)to City of Ukiah for promotional,personal or fundraising use. 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 *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. Portable restrooms will be serviced by the City of Ukiah. *The City of Ukiah will provide a blueprint of the water sprinkling system for the field if applicable. *The City of Ukiah wit[provide water 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 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 *Securing appropriate permits,ABC licensing, and business licenses 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 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. Flynn Creek Circus LLC `Summer Camp' Exhibit A Project Overview: The City of Ukiah (herein referred to as City) will sponsor Flynn Creek Circus LLC (herein referred to as FCC) to implement a summer enrichment program at Giorno Field. FCC proposes 2 three day sessions provided participant sign up meets program enrollment minimums. Program will include a general circus day camp for ages 7 to 15. Proposed dates,times, and program fees, and program description: Dates and daily session times: Session#1: Wed July 10 to Fri, July 12 2024 from 8am-1pm Maximum registration: 32 students per session, minimum 15 This workshop will introduce multiple circus disciplines and work to the level of each individual student. Students will experience the thrills of tumbling, aerial arts and balancing arts all in a safe and encouraging environment. General conditioning and stretching techniques will be emphasized to promote healthy exercise habits. Students will create an end of workshop recital. For 2024, we have lowered the registration fee and extended the registration hours in consideration of the current economic challenges. Standard Course fee: $300 single session Flynn Creek Circus LLC Responsibilities: Provide delivery and pick up of circus big top to house workshop Provide expert Tent master and crew in mounting and demounting of big top Direct program (provide qualified staff for each position, provide detailed workshop descriptions, execute program objectives with qualified staff) Provide all circus equipment Provide proof of liability insurance encompassing the full scope of the program, Business licensing that is current and posted at the location Provide safety procedures, risk assessments and tent layout schematic as needed for permits Provide artwork for advertising purposes Advertising and promoting the program through FCC fan base and social media Ensure general security of all equipment at the site during the event Administer all payments for program staff Facilitate staff compliance with City regulations Ensure that the tent location is in compliance with CA Fire Safety and will pass all inspections Ensure that the site is restored and clean before departure City Responsibilities: Provide location (with access at least 2 days prior to camp commencement and 2 days following the final class) Provide substantial advertising support including program announcements on City of Ukiah websites, social media, in afterschool and print program distributions, and posting flyers and support materials throughout the Ukiah at least 4 weeks prior to the program start. Provide administration of program:answering client questions, advertising, collecting of fees, and registrations paperwork and providing attendance sheets, managing online registration portal Keep FCC staff informed of enrollment numbers, make FCC director guest administrator for online registration platform Provide electricity(as available), restroom facilities (portables and portable servicing next to tent) and water(drinking water forparticipants as well as access to water for on site staff living trailers) Ensure that site is appropriate for tent erection (i.e.: obtain irrigation plans, any specific requirements from lot owner, and arrange for lot to be mown prior to tent arrival) Provide security deposit by May 15, 2024 and 50% net registration fees minus security deposit no later than 11:30am on Friday, July 12, 2024. Maintain non-disclosure of this agreement and all details herein to outside parties beyond the immediate managers of FCC Financial Understanding between Flynn Creek Circus LLC andthe City,of Ukiah: City of Ukiah will pay a non-refundable security deposit of$880 by May 15, 2024. Security deposit funds will be applied to FCC's expenses and/or portion of profits on final accounting. Both above parties agree to a 50% (FCC)150%(City) net profit split without further consideration to unanticipated expenses unless expressly permitted by written agreement. Approved minimum expenses include ($3630): Camp accident insurance- $680(estimated) Advertising - $500 Administration fee-$200. Staffing-$2250 (6 staff @$375) FCC reserves the right to cancel the program if a minimum of 15 student enrollments per session is not obtained by June 10, 2024. In the event of cancellation, FCC will be not be liable to the City of Ukiah for compensation of any kind. Cancellation of camp activity will not constitute cancellation of show activity. Accountina: City will accept all payments through their offices in the name of'City of Ukiah'. Flynn Creek Circus will not accept direct payment. All registrations will be administered by City. if the camp should be canceled due to lack of enrollment, City will be responsible for reimbursement of all registrations. Both City and FCC agree to absorb their own promotional losses without further consideration. Promotion and Publicity and Liability: Both Flynn Creek Circus LLC and The City of Ukiah agree to promote the project through all advertising channels available and to represent the project in positive light to the community and interested parties. It is understood that the City of Ukiah is acting as a sponsoring agent only. City of Ukiah will not be held liable for the camp activity. Non-Compete: All information contained in the General Proposal, Program descriptions and Agreement documents is Flynn Creek Circus LLC proprietary information. City agrees to a non-compete clause for a tented circus camp for a period of 3 years from July 13, 2024. CAMP CONTRACT Flynn Creek Circus Summer Camp 2024 This contract is made on _ March 6 , 2024 between the City of Ukiah (hereinafter referred to as 'City'), and Flynn Creek Circus, Herein after 'Conractor' TERM: This contract shall commence upon the of this contract and continue until July 16, 2024 unless sooner terminated pursuant to the provisions of this contract. MATERIALS: Contractor will provide all materials needed for this activity accept where otherwise agreed. PAYMENT: City shall pay Contractor for services rendered pursuant to this Contract as specified in the General Proposal and Exhibit A. Payment shall be made per specifications set forth in Exhibit A. LICENSES & PERMITS: Contractor represents and warrants to City that Contractor shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Contract any applicable licenses, permits, or approvals which are legally required for Contractor to practice its profession, including an appropriate business license. INDEPENDENT CONTRACTOR: At all times during the term of this contract, Contractor shall be an independent contractor and shall not be an employee of the City. City shall have the right to control Contractor only insofar as the results of the Contractor's services rendered pursuant to this Contract. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Contract. NONDISCRIMINATION: Contractor agrees not to discriminate against any person because of race, color, religion, sex, national origin, age, disability, marital status or sexual orientation in any activity for which Contractor is providing under this Contract. TERMINATION: Either party shall have the right to terminate this Contract at any time by giving timely notice of termination to the other party. In the event that City shall give such notice of termination Contractor shall immediately cease rendering services to this Contract. INDEMNIFICATION: Contractor shall indemnify and hold harmless City, and their governing boards, 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 Contractor pursuant to this Agreement, including Losses arising from Indemnitee's negligent acts or omissions. INSURANCE: Liability Insurance: At all times during the term of this Agreement and any extension thereof, Contractor shall procure and maintain commercial general liability coverage, at Least as broad as the most current ISO Commercial General Liability policy form, with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000) aggregate, and the following requirements: 1) The insurance shall name City of Ukiah, directors, board members, employees, agents, representatives, and volunteers, each while acting in such capacity, as additional insured. ENTIRE AGREEMENT: 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 supersede 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. 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. 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. 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. 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. HEADINGS: 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 Agreemerit. EXECUTION IN COUNTERPARTS: 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. 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. SUCCESSORS: This Agreement is binding on the successors or permitted assigns of the parties hereto. 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. ARBITRATION: Any controversies or disputes arising out of or relating to this Contract shall be resolved by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonable centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after notice of arbitration is served. The arbitrator(s) shall be final and binding on the parties, and judgement may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Contract. In Witness hereof: CITY OF UKIAH Flynn Creek Circus LLC ':z�> 3/25/24 Signature: ���/� /1�^ Signature: law�. s LJ LJ Barry Vag Mar 1B,M409.14 PDT; Email: rnhorger@cityofukiah.com Email: dvaughn@cityalukiah.onmicrosoft.com Signature: ,� � Email: smannion@dtyofukiah.com