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HomeMy WebLinkAbout05 OPERATOR SERVICES AGREEMENTAgenda Item 5 Reviewed: AGE1`1DA REPORT City Manager Finance Director MEETING DATE: MARCH 20, 2012 TO: JEFFREY C. PARKER, CITY MANAGER FROM: DAVID A. WILSON, DIRECTOR, PARKS & RECREATION SERVICES SUBJECT: APPROVAL OF OPERATOR SERVICES AGREEMENT FOR CARNIVAL RIDES AND CONCESSION SERVICES FOR THE TUSTIN TILLER DAYS FESTIVAL SUMMARY: Approval of an Operator Services Agreement between the City of Tustin and North American Amusements, Inc., dba Shamrock Shows, to provide the City with carnival rides and concession services for the Tustin Tiller Days Festival. RECOMMENDATION: Authorize the Mayor and the City Clerk to execute an Operator Services Agreement with the firm North American Amusements, Inc., dba Shamrock Shows for the 2012 Tustin Tiller Days Festival and two (2) optional one year extensions. FISCAL IMPACT: The Agreement increases the percentage of the revenue to the City derived from the sale of carnival ride tickets and rental of vendor space for food and game booths at Tustin Tiller Days. Net proceeds from Tiller Days subsidize festival and parade related expenses. BACKGROUND: Each October, the Annual Tustin Tiller Days Festival is held at Columbus Tustin Park. In addition to a carnival midway area, this event features over 100 information and craft vendors, a food court, two entertainment stages, a sports zone, and a beer and wine garden. After the 2011 Tustin Tiller Days Festival, the agreement with the former carnival services provider was terminated. This action was taken due to the provider not fulfilling their obligations in terms of employee background screening. In addition, this change was made in order to see increased revenues from the carnival midway area. In response to a Request for Proposal (RFP) for carnival rides and concession services sent out in January 2012, the firm of North American Amusements, Inc., dba Shamrock Shows submitted a comprehensive and professional proposal. After conducting due diligence to review the proposal, check references, and meet with the firm ownership, staff has selected Shamrock Shows to operate the Tiller Days carnival as they will bring extensive local experience working with community oriented festivals and a strong relevant background providing carnival and event services. The City Attorney has reviewed the Agreement and approved it as to form. Staff requests City Council approve the proposed Agreement. Attachment: Operator Services Agreement 1/24/2012 AGREEMENT REGARDING RIDES AND CONCESSIONS AT TUSTIN TILLER DAYS THIS AGREEMENT, dated for purposes of identification only this 5th day of March, 2012 is made and entered into by and between the CITY OF TUSTIN, a municipal corporation, (hereinafter referred to as "City"), and North American Amusements, Inc. (Shamrock Shows) (hereinafter referred to as "Operator"). WITNESSETH: WHEREAS, City sponsors an annual event called Tustin Tiller Days, which is located in the City of Tustin; and WHEREAS, Operator is engaged in the business of producing shows, exhibitions, entertainments and carnival operations; and WHEREAS, City desires to obtain, and Operator desires to provide, rides, games and food concessions for Tustin Tiller Days. NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: 1. Employment of Operator Upon the terms and conditions set forth in this Agreement, City hires Operator to provide rides and concessions at Tustin Tiller Days, which shall be held on the first weekend of October between the hours of: Friday 4:00 pm - 11:00 pm, Saturday 11:00 am-11:00 pm & Sunday 11:00 am-10:00 pm. The term of this Agreement shall be for one (1) year with two (2) extensions for one (1) year unless terminated by either party. This Agreement shall be automatically renewed in 2013 (October 4, 5, and 6) and 2014 (October 3, 4, and 5) unless terminated by the City by written notice given at least one hundred twenty (120) days prior to any scheduled event date. 2. Items to be Provided by City City agrees to furnish the following: a. A suitable site at Columbus Tustin Park on ball fields 1, 2, 3 & 4, and the running track, or equivalent location. For the purposes of set-up and tear down, Operator may enter the park no earlier than the Monday before the 83l (65.1 1J24j2012 event, and must have the grounds cleaned of all debris and equipment and restored for use for park and recreation purposes no later than the first Wednesday after the event. This permission is granted with the understanding that all dates from commencement of set-up to completion of tear-down and restoration will be covered under the insurance policies provided by Operator and others to City, pursuant to Section 5. b. An outlet for water, which is to be paid for by City. c. A security plan and police protection. 3. Items to be Provided by Operator Operator agrees to furnish the following: a. A sufficient number of rides, games and concessions that is consistent with the attached proposal, so as to provide a clean, entertaining, honest and sanitary carnival midway, during all dates and hours of operation for Tustin Tiller Days. b. Permits issued in accordance with the Amusements Rides Safety haw signifying that said amusements rides will conform with the standards set by law during Tustin Tiller Days. c. Permits issued by the Orange County Health Department for the Operator sponsored food booths. d. One (1) forty (40) yard roll-off dumpster and daily cleanup of the entire site during the event dates and at the conclusion of the event. At the conclusion of the event, the Operator shall restore the site to the condition existing prior to the event. e. Tickets and ticket sales booths, including ticket sellers. f. Advertising of the event in local newspapers such as the Orange County Register and the Los Angeles Times at Operator's expense (Three (3) two (2) column by ten (10) inch advertisements), distribution of handbills and discount coupons. 831165.1 1/24/2012 g. Operator will provide a refundable performance and damage deposit of ten thousand dollars ($10,000) to the City thirty (30) days prior to the event date. Said deposit will be utilized for reimbursement to the City and/or Tustin Unified School District for services non-rendered and/or repairs in the event any property damage is sustained from Operator's activities. h. A sufficient number of portable toilets to handle the needs of the Carnival. Toilets shall be cleaned on a frequent basis, every two to three hours during the event. i. A sufficient number of trash containers. Operator shall cause such containers to be emptied frequently and disposed of in accordance with law and at Operator's expense. 4. Restrictions Operator shall not have the right to determine a price of admission to Tustin Tiller Days. Neither Operator, nor Operator's concessionaires shall sell or distribute alcoholic beverages. The City may permit others to sell or distribute alcoholic beverages at City's sole discretion. Operator shall not have the right to determine which community groups may establish booths at the event site. This determination shall be at the sole discretion of the City. City and Operator shall cooperate to establish a specific location plan for Operator's ride and concessions and community organizations booths. Operator shall not provide any type of vendor booth in the carnival area or anywhere on the Festival grounds without the prior written consent of City. 5. Insurance Without limiting City's right to indemnification, it is agreed that Operator (and any subcontractors utilized by Operator) shall secure, at least 30 days prior to commencing any activities under this Agreement each year at the event site, and maintain during Tustin Tiller Days, insurance coverage as follows: a. Workers' Compensation Insurance as required by California statutes. The worker's compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the vendor, its employees, agents, and subcontractors. 831.165.1 1/24/2012 b. Comprehensive General Liability Insurance, or Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, Broad-Form Property Damage (if applicable) and Independent Contractor's Liability (if applicable) in an amount of not less than Five Million Dollars ($5,000,000) per occurrence, combined single limit, written on an occurrence farm. c. Comprehensive Automobile liability coverage, including as-applicable- owner, non-owned and hire autos, in an amount of not less than One Million Dollars ($1,000,000) per occurrence, combined single limit, written on an occurrence form. d. Each insurance policy provided under this Agreement shall contain the following endorsements: "This insurance shall not be canceled, limited in a scope or coverage, or non-renewed until after thirty {30) days' prior written notice has been given to the City Clerk, City of Tustin, 300 Centennial Way, Tustin, CA 92680." and. "It is agreed that any insurance maintained by the City of Tustin shall apply in excess of and not contribute with insurance provided by this policy." and "Vendor hereby agrees to waive subrogation which any insurer of vendor may acquire from vendor by virtue of the payment of any loss. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation." e. Each insurance policy required by this Agreement, excepting policies for workers' compensation, shall contain the following clause: 831165.1 1/24/2012 "The City of Tustin, the Tustin Unified School District, and the Tiller Days Organizing Committee, their elective and appointive boards officers, agents, employees, representatives and volunteers are named as additional insured as respects operations and activities of, or on behalf of the named insured, performed under contract with the City of Tustin." f. The City's Risk Manager may, in his/her sole discretion, and by written request approved in writing by the Risk Manager, reduce the amount or type of required insurance that one or more subcontractors are required to provide. Operator shall deliver to City insurance endorsements confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above. The endorsements shall be provided thirty (30) days prior to the first day of Tustin Tiller Days. Said endorsements shall be signed by an authorized representative of the insurance company and shall include the signator's company affliction and title. Should it be deemed necessary by City, it shall be Operator's responsibility to see that City received documentation acceptable to City which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. Also, City has the right to demand, and to receive within a reasonable time period, copies of any insurance policies requires under this Agreement. In addition to any other remedies City may have if Operator fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option terminate this Agreement. Exercise of the above remedy, however, is an alternative to other remedies City may have and is not the exclusive remedy for Operator's failure to maintain insurance or secure appropriate endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Operator may be held responsible for payments of damages to persons or property resulting from Operator's or its subcontractor's performance of the work covered under this Agreement. 6. Indemnification Operator agrees to indemnify, defend and hold harmless the City of Tustin, the Tustin Unified School District, and the Tiller Days Organizing Committee, their respective 831165. 1J24/2012 officers, agents, employees, representatives and volunteers from and against any and all the claims, demands, defense costs, actions, liability, or consequential damages of any kind or nature arising out of or in connection with Operator's (or Operator's subcontractors, if any) performance or failure to perform, under the terms of this Agreement, except those which arise out of the sole negligence of City, the Tustin School District, or the Tustin Community Foundation. 7. Compensation For purposes of this section "Gross Receipts" refers to all income received directly from carnival rides each year, including but not limited to income from the sale of all- day ride passes, without reduction for the cost of providing the rides or other services. , Operator agrees to pay City twenty five percent (25%) of the Gross Receipts up to eighty thousand dollars ($80,000} and twenty-nine percent (29%) of all Gross Receipts beyond eighty thousand dollars ($80,000}, up to one hundred and five thousand dollars ($105,000}, and thirty- three percent (33%) of Gross Receipts beyond one hundred and five thousand dollars ($105,000). Operator may provide up to a maximum of fifteen (15) game booths and agrees to pay the City two hundred and fifty dollars ($250) per game booth per year of this Agreement. Operator may provide up to a maximum of two (2) food booths and agrees to pay the City four hundred and fifty dollars ($450) per food booth per year of this Agreement 8. Employee Background Screening Thirty (30} days prior to each event, Operator will provide the City with the name, social security number, date of birth and driver's license number or equivalent as determined by the City, for all employees working the event. The Operator will also be required to provide the City with a California Department of Justice clearance or equivalent as determined by the City, for all employees at Operator's expense thirty (30) days prior to each event. The parties agree that in the event that the Operator fails to perform any of the duties described in this section, this will constitute a material breach of the contract entitling 831165. I 1/24/2012 the City to terminate immediately with no further responsibility to perform any other duties under the contract. 9. Clean Premises Operator agrees to clean at Operator expense, the designated carnival area and dispose of all refuse within twenty-four (24) hours of the close of the event and restore the grounds to the same condition prior to the event no later than the first Wednesday after the event. 10. Financial Records/Reports Operator shall keep thorough records of the sales of food, games and rides for Tustin Tiller Days so as to enable City to audit the records within one (1) year after Tustin Tiller Days. If such audit reveals an underpayment to City, Operator shall pay City the amount due within ten (10) days of written demand therefor. Within fourteen (14) days of the conclusion of the event, Operator shall provide City with an event financial summary report that details gross carnival ride revenues by daily sales. 11. Impossibility of Performance In the event of war, strikes, earthquake, fire, or other events which would render the performance of this Agreement impossible, in whole or in part, by either party, then each party shall be relieved from obligation thereunder. 12. Termination of Agreement The City may terminate this Agreement, with or without cause, upon giving the other party at least ninety (90) days prior written notice. 13. Amendment It is mutually understood and agreed that no alteration or variance of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understandings or agreements not incorporated herein shall be binding on any of the parties hereto. 831165.1 1/24j2012 14. Assignment Neither Operator nor City may assign or transfer this Agreement, or any party thereof, without the written consent of the other party. 15. Compliance with Laws In the performance of this Agreement, Operator shall abide by and conform to any and all applicable laws of the United States, the State of California and ordinances of the City. 16. Independent Contractor Operator is at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of City. 17. Authority and Effective Date Operator and Operator's signatory further represent that the signatory hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of Operator and to bind Operator hereto. The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event Operator fails to set forth a date of execution opposite the name(s) of Operator's signator(y), Operator hereby authorizes City, by and through its representatives to insert the date of execution by Operator's signator(y) as the date said Agreement, as executed by Operator, is received by City. 831165.1 1j24/2012 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates herein after respectively set forth. "CITY" CITY OF TUSTIN Dated: Mayor ATTEST: City Clerk APPROVED AS TO FORM: David Kendig City Attorney Dated: Title: ~Y~' S l~~'~Z f~1~~6r~'t'~~C~~~G~' 831165.