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HomeMy WebLinkAboutItem 4.05 St Pat ProductionSvcCITY CLERK FILE # 0600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: September 19, 2000 SUBJECT: Agreement for St. Patrick's Day Festival Production Services Report Prepared by Paul McCreary, Recreation Supervisor ATTACHMENTS: 1. Agreement 2. Budget Change Form RECOMMENDATIO~ 1. Approve the Agreement with Terry Pimsleur and Company, Inc. and authorize Mayor to execute the Agreement. 2. Approve Budget Change Form FINANCIAL STATEMENT: Because the request from the Contractor to increase their fee was received after the budget was prepared, funds were not included in the FY 2000/2001 Budget for the increased cost of the Agreement. Therefore, a budget transfer from the Unappropriated Reserve is needed to approve the Agreement. DESCRIPTION: On September 15, 1998, the City Council authorized the City Manager to negotiate and execute a five-year Agreement with Terry Pimsleur and Company for the St. Patrick's Day Festival. The current Agreement will expire following the 2003 St. Patrick's Day Festival. The Agreement is reviewed each year and if there are no major changes it is renewed by Staff on or about July 1 of each year. Consideration may be given to an annual adjustment of the management fee provided the services performed are satisfactory. Any adjustment requires the approval of the City Council. Terry Pimsleur has requested a $5,000 (17%) increase in the management fee for the 2001 St. Patrick's Day Festival. The contractor has requested the additional amount primarily because of an inflationary increase in overhead and salary costs over the past two years. Additionally, Terry Pimsleur and Company will be:securing cash sponsorships for the City's Fun Run, which will require additional time. Cash sponsorships for the Fun Run were previously secured by Staff. Based on the evaluation of the 2000 festival, Staff is proposing the following minor changes to the scope of services and language in the Agreement: As part of the evaluation of the 2000 festival, the City Council indicated that in the future the Council should provide direction on the artwork selected for the poster, t-shirts and glassware. Therefore the scope of services will now require the Contractor to submit three conceptual designs for the Council's review at least four months prior to the festival. After the Council selects the conceptual design, the Contractor will coordinate the final design with the artist. G:\STPATS\cc9192000stpatsagreement.doc COPIES TO: rely Pimsleur & Company, Inc. ITEM NO. For the 2000 event, the Contractor solicited sponsorships for the festival and City Staff solicited sponsorships for the Fun Run. The Contractor indicated that more sponsorship dollars can be generated if they are soliciting sponsorships for both events. Therefore the scope of services will include the solicitation of sponsorships for the Festival and Fun Run. During the evaluation, several of the Councilmembers explained they received numerous complaints from vendors and local organizations that the Contractor was not responding to requests for information or applications for booth space. The scope of services includes deadlines for responding to requests and applications. The Contractor is required to respond to requests for vendor applications within 10 working days and to applications that are received within 30 working days. RECOMMENDATION Staff recommends that the Council approve the Agreement with Terry Pimsleur and Company, Inc., authorize Mayor to execute the Agreement, and approve the Budget Change Form. AGREEMENT BETWEEN CITY OF DUBLIN AND TERRY PIMSLEUR AND COMPANY, INC. FOR EVENT PRODUCTION SERVICES 2001 DUBLIN ST. PA TRICK'S DAY FESTIVAL THIS AGREEMENT is made at Dublin, California, as of September 19, 2000, by and between the CITY OF DUBLIN, a municipal corporation ("CITY"), and TERRY PIMSLEUR AND COMPANY, INC., ("CONTRACTOR"), who agree as follows: 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, CONTRACTOR shall produce a festival to be called the "Dublin St. Patrick's Day Festival" at the times and subject to the provisions described in Exhibit A. The festival in 2001 shall be held on March 17 and 18, 2001. The festival in following years shall be held on dates designated by the City Council, no later than July 1 of each preceding year. 2. PAYMENT. CITY shall pay CONTRACTOR for services rendered pursuant to this Agreement at the time and in the manner set forth in Exhibit B. The payments specified in Exhibit B shall be the only payments to be made to CONTRACTOR for services rendered pursuant to this Agreement. CONTRACTOR shall submit all billings for said services to CITY in the manner specified in Exhibit B 3. TERM OF AGREEMENT. The term of this agreement begins on September 19, 2000, and shall continue in full force and effect thereafter for a period of ten (10) months. The agreement shall be reviewed each year and may be renewed on or about July 1 of each year, for up to a total of three (3) years. Consideration may be given to an annual adjustment of the management fee (see Exhibit B), provided the services performed are satisfactory. Said adjustment will be subject to written amendment of this agreement that requires approval by the City Council. 4. FACILITIES AND EQUIPMENT. Except as set forth in Exhibit C, CONTRACTOR shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement. CITY shall furnish to CONTRACTOR only the facilities and equipment listed in Exhibit C according to the terms and conditions set forth in Exhibit C. 5. GENERAL PROVISIONS. The general provisions set forth in Exhibit D are part of this Agreement. In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the general provisions. 6. EXItIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein. 7. CONTRACT ADMINISTRATION. This Agreement shall be administered by the CITY's Parks and Community Services Director ("Administrator"). All correspondence shall be directed to or through the Administrator or his or her designee. Agreement Page 1 of 2 ATTACHMENT I o NOTICES. Any written notice to CONTRACTOR shall be sent to: Ms. Terry Pimsleur Terry Pimsleur and Company, Inc. 414 Mason Street, #704 San Francisco, CA 94102 Any written notice to CITY shall be sent to: Mr. Paul McCreary, Recreation Supervisor City of Dublin 100 Civic Plaza Dublin, CA 94568 Executed as of the day first above stated: CITY OF DUBLIN, a municipal corporation By "CITY" Attest: City Clerk By "CONTRACTOR" Approved as to form: City Attorney Agreement Page 2 of 2 EXHIBIT A Exhibit A Page I of 6 SCOPE OF SERVICES DESCRIPTION OF FESTIVAL. The St. Patrick's Day Festival shall be a two-day street festival held in downtown Dublin. The festival shall have a Celtic theme and feature the following components: a) Main stage featuring Celtic Entertainment. Main stage area shall include a large tent for b) c) d) e) g) h) covered seating. Patio Caf6s featuring restaurants, food vendors, dessert vendors, beverage booths and seating. Artists and craft vendor booths. Local commercial vendor booths (Dublin businesses only). Sponsor booths. Children's rides and games. Community stage featuring children's entertainment and local performance groups. Non-profit organization information booths. PROMOTION AND PRODUCTION BY CONTRACTOR. CONTRACTOR shall create, plan, organize, manage, publicize, promote and otherwise produce Festival as follows: a) Event i) ii) iii) iv) V) vi) vii) viii) xi) xii) Management and Logistics Provide CITY with an organizational timeline within 15 days of the starting date of the agreement each year. Prepare and file applications for and facilitate issuance of required permits including but not limited to street closing, use of public facilities or parks, alcoholic beverage sales, and sound permits. Negotiate and coordinate necessary contracts on behalf of the CITY for use of private property for festival area and event parking. Attend City Council, Commission and Committee meetings as necessary. Design and prepare a plan which displays the layout, public ingress and egress, pedestrian traffic flow, location of arts and crafts booths, food and beverage sale areas, garden cafes, restroom facilities, management booths, and first aid and information stations. Contract Celtic and children's entertainment for two stages. Coordinate with Police and Fire Departments to provide necessary reserve officers and bicycle paramedics for the Festival, and to provide radio communication. Design distinctive poster artwork and logos and purchase and sell commemorative products such as posters, tee-shirts and wine glasses. The CONTRACTOR shall submit three conceptual drawings to the CITY at least four months prior to the festival. The City Council shall provide the CONTRACTOR with direction on the preferred conceptual drawing. Following approval by the Council the CONTRACTOR shall coordinate the final design with the artist. Design signage for event identifying major attractions, entertainment, parking, restrooms, and First Aid. Develop and implement a parking and transportation plan including but not limited to designated event parking, handicapped parking, and shuttles from BART to the festival site if possible. Provide plan to CITY for approval no later than 60 days prior to the event each year. Coordinate advance contact with businesses and property owners impacted by street and/or parking lot closures. This contact shall include but not be limited to a mailing no later than 90 days prior to the event each year. Provide sanitation facilities, including but not limited to trash cans, dumpsters, waste water storage and portable lavatories; supervise maintenance staff. Exhibit A Page 2 of 6 b) xiii) xiv) XV) Provide cleanup services during Festival, including trash pickup and broom sweeping of sidewalks and streets, such that the sidewalks and streets shall be left in substantially the same condition as they were prior to the beginning of Festival. Arrange with Public Works Department for street sweeping of the festival and parking sites following the event. Provide on-site supervisors to coordinate and oversee exhibitor move-in and move-out, respond to questions from participants and public, and coordinate response to emergency situations. Retain overnight security on the Festival site for the purpose of overseeing the storage and maintenance of booths, equipment and supplies. Budget and Financial Guidelines i) Produce the 2001 festival within the event budget set forth below, and within the event budget approved by the City Council for festivals in subsequent years. REVENUE Booth Sales Children's Attractions Sponsorships Glassware / Commemorative Item Sales Poster & T-Shirt Sales Beverage Sales Less Credit Card Fees Less Sales Taxes TOTAL REVENUE $37,725 $3,300 $25,000 $5,800 $4,530 $18,110 ($300) ($1,975) $92,190 LESS: DIRECT FESTIVAL EXPENDITURES Postage Operating Supplies Communications Advertising Printing & Binding Equipment Rental Licenses & Permits Contract Services Promoter's Management Fee (proposed) TOTAL DIRECT FESTIVAL EXPENDITURES NET PROFIT (LOSS) CONTRACTOR'S COMMISSION ON PROFIT $450 $12,100 $50 $7,000 $4,000 $12,490 $1,250 $25,210 $35,000 $97,550 $(5,45O) $0 ii) Any changes to the event budget expenditures as shown in B(i) above, must be approved in writing in advance by the CITY and CONTRACTOR. CONTRACTOR shall pay for any additional expenditures not approved in advance by the CITY CONTRACTOR shall provide a monthly statement of revenues secured as well as estimated revenues necessary to meet the project budget. In the event that revenues are projected to be lower than the budget in Section b(i) above, CONTRACTOR shall cooperatively work with CITY to identify adjustments to expenditures that would preclude any increase in the projected net loss as shown in Section b(i) above. c) d) iii) iv) v) vi) vii) Maintain a checking account for the festival in the-contractor's name. CONTRACTOR shall be responsible for any bank service charges incurred with maintaining the account that are the result of the CONTRACTOR not properly maintaining the account. These costs shall be absorbed by CONTRACTOR as part of their management fee and will not be included as part of the event expenditures. CONTRACTOR shall maintain bank account records associated with this event for a period of at least 18 months following the date of the event. Collect all revenue and make timely payment for festival expenditures. CONTRACTOR shall maintain adequate records of all receipts and invoices associated with services accounted for as part of the event budget. These records shall be made available to the CITY for review during regular business hours for the purpose of audit and/or verification of actual event revenues and expenditures for a period of 18 months following the event. Respond to and coordinate all inquiries related to goods and services purchased by CONTRACTOR and/or payments made by participants or sponsors, both prior to and subsequent to the event. Prepare a monthly financial report, including a bank reconciliation of the festival bank account, for CITY. Prepare a final financial statement within 90 days following the event. If there is a net profit for the event, contractor shall pay CITY 60% and CONTRACTOR shall retain 40% of the net profit, at the time the final financial statement is submitted. If there is a net loss, CITY shall reimburse contractor within 30 working days of receiving and approving the final financial statement. Net profit shall be calculated as stated in Exhibit B of this agreement. Advertising and Promotions i) CONTRACTOR shall use their best efforts to advertise, publicize, and otherwise promote the Festival which efforts may include the following: a) provide CITY with advertising and marketing plan 90 days prior to the event each year. b) draft and distribute media press releases to local newspaper, television, and radio; c) design and produce promotional materials such as posters, advertisements, flyers, and postcards; d) solicit and contract with corporate and media sponsors; e) invite, solicit, or contract with public figures, celebrities for purposes which may include promotional personal appearances during Festival; and f) provide CITY with event information for publication in the CITY's Spring Activity Guide and Web Page no later than February 1 of each year. Sponsorships i) Develop sponsorship package to solicit cash contributions to underwrite expenses for the Festival. CONTRACTOR shall receive a commission of 10% of any monetary sponsorship for the Festival. This shall not include any in-kind donation of products or services. The entire cash contribution shall be considered Festival revenue and the CONTRACTOR commission shall be considered an expense, which shall be included in the calculation of net profit for the festival. Exhibit A Page 3 of 6 e) g) ii) iii) Independent of the CONTRACTOR's festival responsibilities, CONTRACTOR shall also develop a sponsorship package to solicit cash contributions to underwrite expenses for a Fun Run, which shall be coordinated and implemented by the CITY. Contractor shall be entitled to retain a commission of 20% of any monetary sponsorship received for the Fun Run. The contributions received under this section shall not be included in the calculation of net profit for the festival. When calculating the promotor's commission on Fun Run cash contributions CONTRACTOR shall not include any in-kind donation of products or services. Within ten (10) days of receipt of any Fun Run sponsorships, CONTRACTOR shall remit to CITY 80% of the funds received. CONTRACTOR shall provide a monthly accounting of all sponsorships received as well as a narrative explanation of any pending requests. Artists, i) ii) iii) iv) V) Vendors and Booth Sales Solicit and lease space vi) vii) to exhibitors, craft persons, artists, and vendors for children's attractions. Respond to requests for vendor applications within 10 working days. Respond to applications received from potential vendors within 30 working days. Give priority to Dublin businesses and non-profit organizations for booth space, provided they apply by January 15 of each year. Secure a certificate of insurance from vendors as deemed necessary by CITY. Coordinate distribution of any necessary licensing forms required for vendors and monitor compliance as required by local and state laws including but not limited to a Califomia resale license. Recruit a vendor to handle novelty sales along parade route and at the festival. Vendor fee to be included in the calculation of net profit for the festival. Create, design, and appropriate competitions including special contests and judging of music, arts, and crafts, including establishing contest and judging rules, criteria, engaging judges, and providing or soliciting prizes. Equipment Rental i) Coordinate rental of equipment for the event including but not limited to: a) tents, stages, sound systems and chairs for entertainment areas; b) tents, tables and chairs for beer and wine tasting area; c) generators and related equipment as necessary; d) portable radios as needed; e) golf carts for transportation within the festival site; and f) other equipment deemed necessary by CONTRACTOR and approved by CITY. ii) Supervise rental company during set-up and take-down of equipment. Volunteer Festival Workers i) Develop a list of available volunteer positions. ii) Recruit, train and supervise non-profit organizations to provide festival workers, giving priority to Dublin organizations, provided the organizations name Terry Pimsleur & Company, Inc. as additionally insured. iii) Notify non-profit organizations of their work responsibilities at least 30 days prior to the festival. iv) Develop a timesheet for each organization providing volunteers. CONTRACTOR shall use timesheet as means for determining payment to each organization. Payment shall be made no later than 30 days following receipt oftimesheet. Exhibit A Page 4 of 6 h) Management of Food and Beverage Booths i) Design and coordinate food and beverage booths, eating areas, and beer garden cafes, arrange food and beverage services, contract concessionaires and hire staff. Give priority to local restaurants for food booth spaces provided they apply by January 15 of each year. ii) Manage and operate all beer, wine and alcohol sales booths at the Festival including: design and set up booths and cafes; order paper and glass supplies; estimate and order wine, beer and alcohol; oversee delivery of wine, beer and alcohol; recruit a non-profit beneficiary; staff booths; provide security; provide janitorial service; and breakdown booths and cafes at end of Festival. iii) CONTRACTOR shall coordinate and assist with the collection of all receipts from beverage sales, tabulate sales and sales tax and pay sales tax from the gross receipts and provide a written accounting and payment of Beer & Wine Profits as defined below in Section iv, to CITY not later than sixty (60) days following the Festival. iv) The Beer & Wine revenues and related expenses shall be included in the Festival final accounting for the purpose of computing net profit or loss. v) The non-profit organization responsible for securing the Alcoholic Beverage Control permit shall provide a supervising member to be present at all times during the Festival for oversight and consultation regarding beer, wine and alcohol sales. CONTRACTOR as the non-profit organization's agent, shall pay for beer, wine and alcohol upon delivery or upon inventory and accounting, according to the terms of the purchase order from the distributor. vi) METHOD OF PERFORMING SERVICES. CONTRACTOR shall, in CONTRACTOR'S sole and absolute discretion, determine the method, manner, details, and means of performing any and all of CONTRACTOR'S obligations as provided for herein. CONTRACTOR shall consult with CITY on a regular basis to review work and provide input. ,2 SERVICES PROVIDED BY CITY. CITY shall support, assist, and cooperate with CONTRACTOR for the purpose of furthering the production of Festival as follows: a) CITY shall appoint a Support and Liaison representative to fulfill CITY'S obligations of cooperation and support in promotion and production of Festival, who shall consult with CONTRACTOR from time to time throughout the year. b) Sign, as applicant, appear in support of CONTRACTOR at hearings, and do all other acts necessary to obtain required and desired permits. c) Cooperate as necessary and desirable to promote Festival including, but not limited to, making local or media presentations, exhibiting posters in member establishments, distributing flyers and postcards. CITY shall not independently issue press releases, make representations to the public or in any media presentation, advertise, solicit, or otherwise promote Festival without prior consent and approval of content of CONTRACTOR. d) Assist in solicitation of corporate sponsorship and underwriting, and supply mailing labels of Dublin merchants for CONTRACTOR's use. CITY'S BENEFITS AND OBLIGATIONS. a) As consideration to CITY for sponsoring the Festival, CITY shall receive the following promotional benefits: i) Local restaurants shall be giveri preference by CONTRACTOR in selection of food vendors provided that local applications are submitted no later January 1 of each year of the term of this Agreement, after which date CONTRACTOR may retain such vendors as CONTRACTOR, in its sole discretion, deems appropriate; Exhibit A Page 5 of 6 b) ii) iii) CITY shall have the use of one (1) non-food/beverage booth space for information distribution and/or souvenir sales without cost to CITY, the location of which shall be agreed upon in advance and in writing between CONTRACTOR and CITY; and If CONTRACTOR creates artwork in connection with production of the Festival, CONTRACTOR shall grant CITY a limited license to use Festival artwork to produce commemorative items such as tee shirts for sale or other promotional uses by CITY. CITY will pay any agreed upon fees or expenses of the Festival, not covered in this Agreement and as agreed upon in writing and in advance, between CONTRACTOR and CITY, including, for example, but not limited to, rentals of tables and chairs and other amenities or additions to Festival that CITY wishes to include that are not part CONTRACTOR's Festival plan and budget. Exhibit A Page 6 of 6 EXHIBIT B PAYMENT SCHEDULE , CITY shall pay CONTRACTOR a management fee of $35,000 (Thirty five thousand dollars and no cents) for services to be performed pursuant to this agreement. Following the signature and approval of this agreement by both parties, CITY will issue a Notice to Proceed. An initial payment of $10,000 (Ten thousand dollars and no cents) shall be made within 30 days of issuance of the Notice to Proceed and receipt of invoice from CONTRACTOR. For subsequent payments CONTRACTOR shall submit invoices, not more often than once per month, based upon the work completed on each task identified in EXHIBIT A "Scope of Work". CONTRACTOR shall attach a report of accomplishments related to the CONTRACTOR'S work plan for the period that the project is proceeding. CITY shall have sole discretion to determine the amount of any adjustment to the payment request based upon a demonstrated completion of CONTRACTOR'S scope of work. CITY shall retain 10% of each payment, which will be released to CONTRACTOR within 30 days of receiving and approving the final financial statement. In addition to the compensation identified in Section 1, above, CONTRACTOR will receive a commission of forty percent (40%) of the net profit, as defined below in paragraph 3 derived from revenue occurring as a result of CONTRACTOR'S concepts, designs, ingenuity, financing, promotion, administration and production of the festival including but not limited to, arts and crafts booth participation fees; sale of commemorative items, excepting those commemorative items purchased by CITY from CONTRACTOR for resale or agreed on in advance as CITY sales and income; all non-alcoholic beverage sales; all moneys collected from vendors for novelty sales and food booth participation fees, including, but not limited to percentages; cash and other consideration from commercial underwriting or sponsorships; contest entry fees; and management fees for overseeing and operating alcohol beverage booths, cafes and beer gardens for the non-profit organization as more particularly described in Exhibit A. CONTRACTOR shall retain 10% of any monetary festival sponsorships and 20% of any monetary fun run sponsorships. For purposes of this Article, "Net Profit" shall be defined as the gross receipts from the above revenue sources less the actual expenses of promotion and production as set forth in Exhibit A. The total sum stated in Section 1 and 2 above, shall be the total that the CITY shall pay for the services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any additional sum for any expense or cost whatsoever incurred by CONTRACTOR in rendering services pursuant to this Agreement, except as provided in Exhibit A and B for reimbursable festival expenditures listed in the festival budget. CONTRACTOR shall have the ability to eam commissions on sponsorships as defined in Exhibit A (ld) CITY shall make no payment for any extra, further or additional service pursuant to this Agreement unless such extra service and the price therefor is agreed to in a written Change Order executed by the City Manager, or other designated official of the CITY, authorized to obligate CITY thereto. Said Change Order shall be executed prior to the time such extra service is rendered and in no event shall such change order exceed twenty-five percent (25%) of the initial Contract price stated in Section 1. In the event the Change Order exceeds this limitation, City Council approval shall be required. Exhibit B Page 1 of 2 The services to be provided under this Agreement as to the 2001 St. Patrick's Day Festival, or any subsequent St. Patrick's Day Festival(s), may be terminated at any point in time in the sole and exclusive discretion of CITY. In this event, CITY shall compensate the CONTRACTOR for all outstanding costs incurred for festival expenditures as of the date of termination. CONTRACTOR shall maintain adequate'logs which may include timesheets in order to verify costs incurred to date. In addition CITY will pay CONTRACTOR the portion of the management fee attributable to the work performed through ~the date of termination. For purposes of this paragraph, the amount of the fee attributable to the work performed will be based on the tasks completed from the scope of services in Exhibit A. The CONTRACTOR is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed copy of this Agreement and the Notice to Proceed. Exhibit B Page 2 of 2 EXHIBIT C /l FACILITIES AND EQUIPMENT CITY shall furnish physical facilities such as conference space, as may be reasonably necessary for CONTRACTOR'S use while consulting with CITY employees and reviewing records and the information in possession of CITY. The location, quantity, and time of furnishing said physical facilities shall be in the sole discretion of CITY. In no event shall CITY be obligated to furnish any facility which may involve incurring any direct expense, including, but not limiting the generality of this exclusion, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Exhibit C Page 1 of 1 EXHIBIT D GENERAL PROVISIONS 1. DATES OF FESTIVAL. Festival shall be held on Saturday, March 17, 2001,.between the hours of 10:00 A.M. and 5:00 P.M., and Sunday, March 18, 2000, between the hours of 10:00 A.M. and 5:00 P.M., or as close there to as practical or permissible. The festival in succeeding years, if the agreement is renewed, shall be on dates selected upon renewal. CONTRACTOR shall have the right, in consultation with CITY, to change the dates or hours for Festival for any reason, including but not limited to availability of any necessary permits and existence of competing events. 2. INDEPENDENT CONTRACTOR. At all times during the term of this Agreement, CONTRACTOR shall be an independent Contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR'S services rendered pursuant to this Agreement; however, CITY shall not have the right to control the means by which CONTRACTOR accomplishes services rendered pursuant to this Agreement. 3. LICENSES; PERMITS; ETC. CONTRACTOR represents and warrants to CITY that he has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for CONTRACTOR to practice his profession. CONTRACTOR represents and warrants to CITY that CONTRACTOR shall, at his sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for CONTRACTOR to practice his profession. 4. TIME. CONTRACTOR shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of CONTRACTOR'S obligations pursuant to this Agreement. 5. INSURANCE REQUIREMENTS. CONTRACTOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the CONTRACTOR, his agents, representatives, employees or Subcontractors. (a) Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. (b) Minimum Limits of Insurance. than: 1. CONTRACTOR shall maintain limits no less General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. Exhibit D Page I of 6 Exhibit D Page 2 of 6 (C) (d) (e) , Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 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 the CITY, its officers, officials and employees; or the CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 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, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the CONTRACTOR; products and completed operations of the CONTRACTOR, premises owned, occupied or used by the CONTRACTOR, or automobiles owned, leased, hired or borrowed by the CONTRACTOR. The coverage shall contain no special limitations the scope of the protection afforded to the CITY, its officers, officials, employees and volunteers. b. The CONTRACTOR'S insurance coverage shall be primary insurance as respects 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 excess of the CONTRACTOR'S 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 CONTRACTOR'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 Employees 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 work performed by the CONTRACTOR for the CITY. 3. Professional Liability. CONTRACTOR shall carry professional liability insurance in an amount deemed by the CITY to adequately protect the CONTRACTOR against liability caused by negligent acts, errors or omissions on the part of the CONTRACTOR in the course of performance of the services specified in this Agreement. 4. 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. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VII. Verification of Coverage. CONTRACTOR shall furnish CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. 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 received and approved by the CITY before work commences. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. (g) Subcontractors. CONTRACTOR shall include all Subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each Subcontractor. All coverages for Subcontractors shall be subject to all of the requirements stated herein. (h) The Risk Manager of CITY may approve a variation in those insurance requirements upon a determination that the coverages, scope, limits and forms of such insurance are either not commercially available or that the City's interests are otherwise fully protected. 6. CONTRACTOR NO AGENT. Except as CITY may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this Agreement to bind CITY to any obligation whatsoever. 7. ASSIGNMENT PROHIBITED. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any fight or obligation pursuant to this Agreement shall be void and of no effect. 8. PERSONNEL. CONTRACTOR shall assign only competent personnel to perform services pursuant to this Agreement. In the event that CITY, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, CONTRACTOR shall, immediately upon receiving notice from CITY of such desire of CITY, cause the removal of such person or persons. 9. STANDARD OF PERFORMANCE. CONTRACTOR shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which CONTRACTOR is engaged in the geographical area in which CONTRACTOR practices his profession. All instruments of service of whatsoever nature which CONTRACTOR delivers to CITY pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in CONTRACTOR'S profession. 10. HOLD HARMLESS AND RESPONSIBILITY OF CONTRACTOR AND CITY. CONTRACTOR shall take all responsibility for the work, shall bear all losses and damages directly or indirectly resulting to him, to any Subcontractor, to the City, to City officers and employees, or to parties designated by the City, on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences or other causes predicated on active or passive negligence of the CONTRACTOR or of any Subcontractor. CONTRACTOR shall indemnify, defend and hold harrnless the City, its officers, officials, directors, employees and agents from and against loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly arising from the performance of the work. The City agrees to indemnify, defend and hold harmless CONTRACTOR, its employees, subcontractors, and agents from any and all claims, loss, liability, damage and expense arising from any act or omission of the City, whether intentional or negligent, including a breach or violation of the City's warranties or responsibilities as provided in this Agreement. Exhibit D Page 3 of 6 This paragraph shall not be construed to exempt the City, its employees and officers from its own fraud, willful injury or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not a construction contract. By execution of this agreement. CONTRACTOR acknowledges and agrees that he has read and understands the provisions hereof and that this paragraph is a material element of consideration.: Approval of the insurance contracts does not relieve the CONTRACTOR or Subcontractors from. liability under this paragraph. 11. GOVERNMENTAL REGULATIONS. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, CONTRACTOR shall comply with all applicable rules and regulations to which CITY is bound by the terms of such fiscal assistance program. 12. DOCUMENTS. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda or other written documents or materials prepared by CONTRACTOR pursuant to this Agreement shall become the property of the CITY upon completion of the work to be performed hereunder or upon termination of the Agreement. 13. CANCEI .I,ATION BY CONTRACTOR FOR IMPRACIICABIIJTY OF PERFORMANCE. In the event that there are insufficient registered participants or if the cost of any required permit, insurance, fee, or service is such that production of Festival in any given year is deemed by CONTRACTOR, in CONTRACTOR'S sole and absolute discretion, to be economically unfeasible and cost ineffective, CONTRACTOR may cancel production of Festival for that year by giving written notice to City pursuant to the terms of the Article herein entitled "Notices", not later than sixty (60) days prior to the date scheduled for Festival. In the event of cancellation under the terms of this paragraph, City shall compensate CONTRACTOR as set forth in Exhibit B, paragraph 6. Cancellation of Festival pursuant to the terms of this Article shall not otherwise affect the rights or obligations of the parties pursuant to the terms of this Agreement including, but not limited to CONTRACTOR'S right to produce Festival in following years. 14. TERMINATION BY CONTRACTOR FOR IMPOSSIBILITY OF PERFORMANCE. In the event of any legislative or regulatory change or determination whether federal, state, or local which has or would have a materially adverse impact on the promotion or production of Festival, or in the event that performance by any party of any term, covenant, condition or provision of the Agreement should for any reason be in violation of any statute, regulation, or otherwise be illegal or impossible to perform, CONTRACTOR shall have the right to terminate this Agreement by giving written notice of termination to City pursuant to the terms of the Article herein entitled "Notices". In the event of termination under the terms of this paragraph, City shall compensate CONTRACTOR as set forth in Exhibit B, paragraph 6.. 15. TERMINATION BY CONTRACTOR FOR DEFAULT OF CITY. Should City materially default in the performance of this Agreement or materially breach any of its provisions, and such default is not cured as provided in this Article, CONTRACTOR, at CONTRACTOR'S option, may terminate this Agreement by giving written notice to City as provided in this Article and the Article entitled "Notices", but only in the manner provided in this Article. If CONTRACTOR believes that City is not carrying out the terms of this Agreement, CONTRACTOR shall give City notice in writing specifying in detail the nature of the default or breach of this Agreement and in what respect this Agreement is not being carried out. City shall not be in default of this Agreement or breach of any of its provisions if City shall cure such default or breach within ten (10) days after notice has been received by City, or immediately if it is an emergency. If any default or breach cannot be reasonably cured within ten (10) days after notice has been received by City, City shall not be in default of this Agreement if City commences to cure the default within the ten-day period and diligently and in good faith continues to cure the default. In the event of termination under the .terms of this paragraph, CITY shall compensate CONTRACTOR as set forth in Exhibit B, paragraph 6. Exhibit D Page 4 of 6 16. DUBLIN ST. PATRICK'S DAY FESTIVAL NAME. In the event that this Agreement is terminated for any reason, CITY shall have the exclusive right to use the name "Dublin St. Patrick's Day Festival" and CONTRACTOR agrees not to produce, sponsor, support or otherwise participate in a festival or event which is called a "St. Patrick's Day Festival" during the term of this agreement. 17. CONFIDENTIALITY. During the course of planning and production of the festival, CONTRACTOR, may use for the benefit of, discuss with, or disclose to CITY, its members, agents, or representatives, certain information developed by CONTRACTOR and CONTRACTOR'S employees, agents, and contractors, whether disclosed verbally, in public or private meetings, or in written documents, which information may include, but is not necessarily limited to festival budgets, plans, and designs, whether or not implemented; contractor, employee, vendor, client and commercial sponsor lists, and any information, names, capacities, preferences or characteristics of such persons or entities; training materials, procedure manuals, and guidebooks, attendance, sales or other statistical information data and reports; planned, potential or existing business relationships; existence or terms of contracts; all of which CONTRACTOR developed over the course of time at considerable effort and cost, particularly as a result of the past experience, know-how, and negative know-how of CONTRACTOR, whether or not trade secrets herein referred to as "Proprietary Information". 18. NONDISCLOSURE. City, its employees, agents, and representatives, shall not'during the term of this agreement or at any time thereafter, use, permit to be used, or disclose to any person or entity, directly, or indirectly, any of CONTRACTOR'S Proprietary Information, disclosed or made known to CITY, its agents and representatives during the course of planning, development, promotion, or production of festival, herein referred to as "Trade Secrets", whether or not used or implemented, except as required during the course of performance of this agreement or with the express written consent of CONTRACTOR. CITY'S obligations with respect to CONTRACTOR'S Proprietary Information are contractual and shall be enforceable by CONTRACTOR regardless of whether such information would be deemed to be Trade Secret as that term is defined in the California Uniform Trade Secrets Act or any amendments thereto. 19. PROTECTION OF CONTRACTOR'S BUSINESS RELATIONSHIPS. City acknowledges that a significant part of the valuable consideration contributed by CONTRACTOR in connection with its performance of its obligations under this Agreement is the fact that CONTRACTOR will confer the advantage of many of its long-standing business relationships that CONTRACTOR has, over the course of time and at considerable effort and cost particularly as a result of past experience, know-how and negative know-how, identified, solicited, nurtured, developed and retained with individuals and entities including but not limited to: employees and contractors; commercial sponsors, food, beverage and service vendors; exhibiting artists and crafts persons; musicians and performers; CONTRACTORs, graphic artists and designers, and other trades persons and professionals, all of which individually and taken as a whole constitute a significant feature of the stock and trade of CONTRACTOR's production capabilities, herein referred to as "Business Relationships." City further acknowledges that during the term of this Agreement and in the course of promotion and production of Festival, City and its members, directors, officers, employees, agents, and representatives will have the opportunity to learn of and/or become acquainted with some or all of CONTRACTOR's Business Relationships and that soliciting or usurping CONTRACTOR's Protected Relationships for its own economic purpose and advantage is unfair and inequitable to CONTRACTOR. Exhibit D Page 5 of 6 b) c) City shall not, during the term of this Agreement or at any time thereafter, solicit, engage, contract with, or in any manner whatsoever, use or attempt to use to its own economic advantage any of CONTRACTOR's Business Rela. tio. nships, without full disclosure given by City and the express perm~ssmn of CONTRACTOR first hand and obtained in writing. City shall inform its members, directors, officers, employees, agents, and representatives of the existence and nature of CONTRACTOR's Business Relationships and shall take all reasonable precautions to assure that none of its members, directors, officers, employees. agents or representatives breach the obligations of City with respect to CONTRACTOR's Business Relationships. Exhibit D Page 6 of 6 CITY OF DUBLIN BUDGET CHANGE FORM CHANGE FORM # New Appropriations (City Council Approval Required): Budget Transfers: X From Unappropriated Reserves (If Other than General Fund, Fund No - From New Revenues DECREASE BI.IDGET ACCOUNT Name: A~IOUNT Account #: Name: From Budgeted Contingent Reserve (1080-799.000) Within Same Department Activity Between Departments (City Council Approval Required) Other INCREASE BIjI)GET ACCOUNT A~IOUNT Name: Contract Services $5,000.00 Account #: 001.80700.740.000 Name: Account #: Name: Account #: Name: Account #: Name: Account #: Name: Account #: Name: Account #: Name: Account #: Account #: City Manager: ASD/Fin Mgr Date: Signature Signature REASON FOR BUDGET CHANGE ENTRY: In order to approve increase in management fee for St. Patrick's Day Festival. Mayor: Date: Signature Posted By: Date: H:tCC-FORklStFORM-budget change, doc Signature ATTACHMENT 2