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CITY MANAGER
FROM: OFFICE OF THE CITY MANAGER
BY: JASON CHACON, DIRECTOR OF PARKS & RECREATION
SUBJECT: APPROVE PROFESSIONAL SERVICE AGREEMENT WITH VENUETECH MANAGEMENT GROUP, INC. FOR THE MANAGEMENT AND CONSULTING
SERVICES OF THE DOWNEY CIVIC THEATRE
That the City Council approve a professional service agreement with VenueTech Management Group for the management and consulting services for the Downey Civic Theatre; and, authorize ihe City Manager to execute all amendments to the agreement.
The Downey Civic Theatre was dedicated in April of 1970. City staff operated the 738-seat, 36,665 sq. ft. theatre from April 1970 to December 2010 providing minimal in-house programming and operating primarily as a rental facility to reoccurring clients. During the time the City operated ihe Theatre, very little operational change occurred during four decades although entertainment iastes and community demographics experienced a significant shift.
Parks & Recreation staff released a Request For Proposals (RFP) in March of 2022 for Theatre management and consulting services. Two vendors initially attended the site walk and question and answer session; however, only VenueTech submitted a proposal. The second group declined to submit a proposal due to the limited seating of the Downey Civic Theatre and their ability to recoup costs for management and operations.
FISCAL IMPACT
2. Estimated $550,000 for labor reimbursement costs from facility rentals from accoun) 10-4-4380-0700. Rental revenues help offset annual cost.
INC. FOR THE MANAGEMENT �, •
DATE 6-28-22
PAGE 2
Fiscal Responsibility
Efficiency & Adaptability
of -
, Infrastructure & Parks
ATTACHMENT
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
WITH VENUETECH MANAGEMENT GROUP
FOR MANAGEMENT AND CONSULTING SERVICES
AT THE DOWNEY THEATRE
1. PARTIES AND DATE.
This Agreement is made and entered into this 1 st day of July, 2022 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and VenueTech Management Group, Inc, a California corporation, with its principal place of business at 2269 Chestnut Street #960, San Francisco, CA 94123 ("Contractor"). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain professional theatre management and consulting services required by City on the terms and conditions set forth in this Agreement. Contractor represents that it has demonstrated competence and experience in providing Theatre Management and Consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Services.
City desires to engage Contractor to render such theatre management and consulting services at the Downey Theatre, a municipal theatre located at 8435 Firestone Blvd, Downey, CA 90241 as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional theatre management and consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2022 to June 30, 2027 unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
.1.3 Renewal upon Same Terms. No less than six (6) months prior to the expiration of the then- current Term, VENUETECH and CITY may mutually agree to renew the Agreement for one (1) additional Subsequent Term for a period of five (5) years, through June 30, 2032, upon the same terms and conditions by written amendment to this Agreement signed by the City Manager and the VENUETECH.
3.1.4 Non -Renewal Transition. In the event that the parties do not renew the Agreement as set forth in 3.1.3 above, then the parties acknowledge that the express purpose of a minimum of six (6) months' notice to terminate this Agreement, is to facilitate a predictable and professional transition to some other form of management of THEATRE for the benefit of CITY and VENUETECH, as well as for the benefit of VENUETECH employees who will require notification of their potential change in employment, to provide notification of Talent Agents, vendors, etc. collectively to provide for an orderly and smooth transition and winding down of Services.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to:
social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CaIPERS) to be eligible
for enrollment in CalPERS as an employee of City, Contractor shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
3.2.2 Conformance to Applicable Requirements. All work prepared by Contractor shall be subject to the approval of City.
3.2.3 Substitution of Key Personnel. Contractor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Contractor may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Contractor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Contractor at the request of the City.
3.2.4 City's Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City's Representative or his or her designee.
3.2.5 Contractor's Representative. Contractor hereby designates John Lind, President & CEO, or his or her designee, to act as its representative for the performance of this Agreement ("Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, Contractors and other staff at all reasonable times.
3.2.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor's failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub -Contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.8 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Contractor and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Contractor's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.
3.2.9 Insurance.
3.2.9.1 Time for Compliance. Contractor shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor 4 shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances.
3.2.9.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. (1) Commercial General
Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Contractor owns no autos, Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation: Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance.
(B) Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the City if City receives written verification that Contractor has no employees.
If the Contractor maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
3.2.9.3 Professional Liability (Errors & Omissions). Contractor shall procure and maintain, and require its sub -Contractors to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Contractor maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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3.2.9.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Additional Insured Status. The Commercial General
Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Contractor's insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used).
(B) Waiver of Subrogation. Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under said insurance policies set forth herein. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, 11 reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.9.5 Primary Coverage. For any claims related to this Agreement, the Contractor's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it in any way.
3.2.9.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions.
In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers.
3.2.9.7 Deductibles and Self -Insurance Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City. City may require Contractor to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self -insured retention may be satisfied by either the named insured or City.
3.2.9.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, authorized to do business in California, and satisfactory to the City.
3.2.9.9 Verification of Coverage. Contractor shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement.
However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Contractor's obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time.
3.2.9.10 Claims -Made Policies. If any of the policies provide coverage on a claims -made basis:
(A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement;
(C) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Contractor must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement.
3.2.10 Safetv. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. Extra Work may be authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as M
appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
(A) Expiration of the Term. This Agreement shall
terminate upon the expiration date of the current Term of the Agreement, unless CITY has exercised its' right to renew as set forth herein.
(B) Notice of Intent to Terminate for Material Breach & Cure of Default. In the event of a material breach, the non -defaulting party must provide notice of such potential material breach in writing to the defaulting party, stating the reasons for the notice. The defaulting party shall have a period of sixty (60) days to cure. Upon the expiration of the cure period and where cure is not achieved within said cure period, this Agreement shall be terminated by the provision of a final written 30 days' notice of intent to terminate by the non -defaulting party.
(C) In the event the City Council votes to not fund the operations of the THEATRE, then the CITY may terminate this Agreement by providing a six (6) month notice, provided however, that in the event the City Council decides to fund the operations of the THEATRE within nine (9) months of the original notice to Contractor of its intent to not fund the operations of the THEATRE, then CITY shall reinstate Contractor on the same terms and conditions of this Agreement. (D) Notwithstanding anything to the contrary CITY may
terminate this Agreement by providing a six (6) months' notice to Contractor in order for CITY to be in compliance with Article XVI of the State of California Constitution (which provides in part that a CITY cannot obligate itself where funding is unavailable).
3.5.1.1 Effect of Termination Records & Executory
Contracts. Upon termination of this Agreement, for any reason, all of the records in Contractor's possession pertaining to the operation of THEATRE, together with all supplies, equipment, or other property of CITY in Contractor's possession shall be immediately delivered to CITY. CITY shall retain responsibility for all executory contracts in effect for agreements including but not limited to talent fees, rental agreements and third party vendors.
3.5.1.2 Effect of Termination — Booking New Talent
Contracts. Upon termination of this Agreement, for any reason, or upon the passing of the date for renewal without a renewal of this Agreement for a subsequent term, or where either party is subject to a notice of material breach which has not been cured has set forth above, then all duties and obligations of Contractor with respect to the negotiation and booking of In -House and Season of Events shall cease without further obligation.
3.5.1.3 Upon Termination - Booking of Events. CITY
agrees that it shall have no right to impose any obligation or requirement upon Contractor to continue to provide such booking services and that in no event shall CITY have the right to reduce any Fees due Contractor under the terms and conditions of this Agreement. For the avoidance of doubt the parties acknowledge and agree to avoid the instance of Contractor entering into any Talent Contract for Events for which Contractor will not have managerial authority of THEATRE which Contractor would 00 have represented to Talent Agent(s) or Performing Artist(s) during negotiations.
3.5.1.4 Effect of Termination — ExistingTalent
Contracts. Contractor shall have the right, at its sole discretion, to notify the Talent Agent(s) of any Performing Artist(s) under contract for Event dates that would occur after Contractor's last day of scheduled management of THEATRE, that Contractor will no longer be managing THEATRE at the time such Event takes place. (A) Each Performing Artist and their respective Talent
Agent or Talent Manager shall be provided an option to reissue the Talent Contract in the name of CITY, or to cancel the Talent Contract, expressly because Contractor will no longer be in a position to provide professional event production as originally represented to Talent Agent(s);
(B) Decisions to reissue contracts will be made solely at the discretion of individual Performing Artists, Talent Agents, Talent Agencies or Talent Management, and shall be out of the control of Contractor or CITY. (C) Thereafter any Talent Contract(s) which have not
been reissued in the name of the CITY, or have not been cancelled, shall be assigned to CITY by Contractor whereby CITY shall assume, without reservation or change, subject to the consent of Performing Artist, Talent Agent or Talent Management, all rights, duties and obligations under such Talent Contracts, including but not limited to (i) responsibility for previously paid or unpaid contract deposits and final Talent Fees, and/or (ii) all contract and production requirements per the Technical Rider. (D) Should Performing Artist's Event(s) occur after
Contractor's last day of management of THEATRE, whether the Talent Contracts or Technical Riders have been reissued or remain in original form as assigned to CITY, then CITY shall be responsible for all production and other contract requirements. ill
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Contractor:
City:
VenueTech Management Group
2269 Chestnut Street #960
San Francisco, CA, 94123
Phone: (415)409-4402
Fax: (415) 409-4403
Attn: John R. Lind, President
City of Downey
11111 Brookshire Avenue
Downey, California 90241
Phone: (562) 904-7286
Fax: (562) 869-2810
Attn: Jason Chacon, Director of Parks and Recreation
With a courtesy copy to:
City of Downey
City Attorney's Office
11111 Brookshire Avenue
Downey, California 90241
Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are 12 prepared or caused to be prepared by Contractor under this Agreement ("Documents & Data"). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Contractor or provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor.
Such materials shall not, without the prior written consent of City, be used by Contractor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Contractor which is otherwise known to Contractor or is generally known, or has become known, to the related industry shall be deemed confidential.
Contractor shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation.
3.5.6 Indemnification.
3.5.6.1 General Indemnification. Except as provided in subdivision
3.5.6.2 below which is applicable to "design professionals" only, Contractor shall defend (with counsel acceptable to City), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, 13 including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses. The Contractor's duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that Contractor and/or its personnel are employees of the City, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. Contractor shall defend, at Contractor's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Contractor shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct.
3.5.6.2 Design Professionals. The provisions of this subdivision
3.5.6.2 shall apply only in the event that Contractor is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Contractor is a "design professional" within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Contractor shall defend (with legal counsel reasonably acceptable to City), indemnify and hold harmless City and City's officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Contractor, any subContractor, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Contractor's performance of any task or service for or on behalf of City under this Agreement. The Contractor's duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that Contractor and/or its personnel are employees of the City, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. Such obligations to defend, hold harmless and indemnify City or any City officers, officials, employees or volunteers shall not 14 apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Contractor's cost to defend City and/or City's officers, officials, employees or volunteers against any such Claim shall not exceed Contractor's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Contractor shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Contractor has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Contractor shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Contractor's negligence, recklessness or willful misconduct.
3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.10 City's Right to Employ Other Contractors. City reserves right to employ other Contractors in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, 15 agents, and subcontractors of Contractor, except as otherwise specified in this Agreement.
All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.19 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of any City in.
Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument.
3.5.23 Effect of Conflict.
In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Contractor shall ensure that City is an additional insured as required in Section 3.2.10.4. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [Signature Page to Follow]
17 CITY OF DOWNEY,
a California municipal corporation
and charter city
IN
Attest:
Blanca Pacheco
Mayor
Maria Alicia Duarte, CIVIC
City Clerk
Approved as to Form:
City Attorney
1111RAP913-VI
3-1
Its
Attest:
VENUETECH MANAGEMENT GROUP, INC,
a California Corporation
John R. Lind
President & CEO
Secretary
Approved as to Form:
Legal Counsel
i3
EXHIBIT "A"
SCOPE OF SERVICES
1. Management
a. The Contractor shall manage and operate the Theatre in accordance with policies approved by the CITY as may be modified from time -to -time. The Contractor shall be responsible for the day to day functions and operations of the Theatre and shall operate the Theatre at all times in the public interest and in accordance with the highest professional and ethical standards.
b. The Contractor shall recommend for CITY's approval all recommend operating budgets, programming models, rental rates, operating policies, and business strategies where necessary, to the City.
c. The Contractor shall establish an effective system of communication that encourages linkages and collaborative efforts between the Theatre and other segments of the local hospitality, business and performing arts communities.
d. The Contractor will have oversight responsibility over any and all sub -contractors. e. The Contractor shall review existing operating and financial systems controls for the Theatre and make recommendations for modifications, for the consideration and approval of the CITY. The Contractor shall prepare and submit annual budgets for the operation of the Theatre. The Contractor shall also establish a system of internal controls to provide reasonable assurance that the CITY's and/or the Theatre's resources are used in an effective and efficient manner. The Contractor shall keep full and accurate accounting records relating to its activities at the Theatre in accordance with generally accepted accounting principles. f. The Contractor shall be an independent contractor and consequently, shall be responsible for all staff employment and payroll functions related to its operation of the Theatre. g. The Contractor shall return the Theatre and all furniture, fixtures and equipment to the CITY in the same condition in which they were provided except for normal wear and tear. h. The Contractor shall provide regular reports to the City Director of Parks & Recreation and/or her designee. The CITY may make periodic inspections of the Theatre and equipment to determine that they are being maintained in a neat, safe and orderly condition. (See Facility Operations section below for further maintenance obligations.) i. The Contractor shall abide by all applicable local, county, state and federal laws pertaining to its operation and shall secure all licenses and permits necessary for the operation of the Theatre. The Contractor shall be responsible for, and pay all city, county, state and federal taxes arising as a result of the management contract, including, but not limited to obtaining a CITY business license.
j. The Contractor shall represent the CITY with regard to the use of the Theatre by third parties for the production of public and private events. Contractor will negotiate, prepare and sign rental agreements, require insurance, make other requirements of Theatre Clients, provide services to Clients and collect fees, rents and reimbursements on behalf of the CITY.
Contractor shall negotiate talent contracts for performing artists who will perform at the Theatre for those events or'Season of Events", to be produced in-house by Contractor, on behalf of the City.
Contractor shall also negotiate technical riders and show advance services for those events to be produced in-house on behalf of the City, including production and equipment requirements, staffing requirements, security, bus and truck parking, air transportation, ground transportation, lodging, catering services, merchandise rights, financial settlement procedures, media rights, approval of marketing plans, approval of use of artists image, approval of artists recorded materials, media and public access to artists, backstage accessibility and other issues.
iii. Contractor shall coordinate the event production needs of all Theatre clients including the provision of production services such as technical support, stage equipment, production staff, public catering, back stage catering, box office, ushers, ticket takers and other related services. Contractor shall also coordinate the event production needs of "house companies" including Downey Symphony and High School events, including the provision of production services such as technical support, stage equipment, production staff, box office (if required), ticket takers, ushers and other services these groups may require.
k. All areas of the Theatre shall be kept clean, orderly, attractive and sanitary at all times and in strict accordance with the applicable laws, ordinances, rules and regulations as well as the standards of the CITY.
I. The CITY shall have the right to reject the manner in which Contractor provides services and require that undesirable behavioral practices be discontinued or remedied. Failure of the Contractor to take appropriate action after notification from the CITY and a reasonable opportunity to cure may result in the cancellation of the management contract at the discretion of the CITY.
m. The Contractor shall constantly endeavor to improve the operation of the Theatre with a view toward developing the most efficient and highest quality of service to the customers, minimizing operating costs, increasing the quality of maintenance and security and maximizing gross receipts without negatively impacting costs. n. The Contractor shall implement proactive and reactive measures to ensure its employees conduct themselves in a business -like and professional manner. The Contractor shall thoroughly train and closely supervise all of its employees so that they are aware of, and habitually practice, high standards of cleanliness, courtesy and service.
o. The Contractor will implement a business model consistent with the Theatre's current operations that includes a blend of presenting shows and outside rentals. The Contractor will develop and consistently utilize a responsive, transparent and effective process to reserve and use the Theatre. Contractor shall develop an "in-house" programming plan for a season of entertainment and/ or a series of festivals (art and music, film, ethnic, civic, holiday, etc.) for presentation at the Theatre and Theatre courtyard. This programming could possibly extend to other facilities in the general area as well. Contractor shall manage the Theatre master calendar for performance, rehearsal, technical and production needs and maintenance schedules for all events during the twelve (12) month calendar year. p. Contractor shall manage and operate the Theatre box office including the sale of event tickets, management of box office receipts, scheduling of patron seating and the management of patron sales information. The CITY anticipates that the box office hours of operation will continue.
q. In order to achieve the goals of this RFP, the Contractor shall put in place a management, booking, marketing, promotional and operations team well qualified to enhance all aspects of the Theatre operations. The Contractor will include a competent, successful contract manager capable of, and empowered to operate the THEATRE and to be responsive to the desires and directives of the CITY in areas of contract enforcement, scheduling, personnel relations and any and all matters pertinent to the operation and management of the Theatre.
It is expressly understood that the operations manager will be located onsite.
Provide the City with on -going programming and operating reports with information regarding ticket sales, market strength, sales trends, booking patterns, industry trends, entertainer routing possibilities and other data.
s. Provide insurance coverage as per the terms of this agreement.
2. Marketing
a. Contractor shall be responsible for those marketing responsibilities that are legally required in the contractual relationships entered into between Contractor and Talent Agents or those required or promised through Contractor long-standing business relationship with such agencies. Therefore Contractor shall have the sole and exclusive right, subject to budget approval by the City, to select graphic designers, printers, marketing agencies and other marketing professionals for all work related to the artists protected by these contracts.
Subject to limitations of individual artists and their representatives, Contractor shall have the sole and exclusive right to authorize the use of images, depictions, photographs, video and audio reproduction of individual artists for promotion of events produced by Contractor on behalf of the City.
b. Contractor shall be responsible for the development and implementation of all marketing and advertising plans for individual artists and negotiation of each marketing plan with Talent Manager, Talent Agent or Talent Agency where required.
c. Contractor shall coordinate personal appearances, interviews and "meet -and -greets" by performing artists.
d. The Contractor shall be responsible for the development of all promotional and marketing materials including graphics, letterhead, brochures, fact sheets, newsletters and other required support materials subject to the approval of the CITY. The Contractor shall maintain the Theatre website and distribute the Theatre related information via email blasts, social media posts, etc.
e. The Contractor shall establish positive relationships with the CITY's local business community, media sources in order to develop and engage in advertising, solicitation and promotional activities focused on realizing the full potential of the Theatre. The CITY is interested in delivering high -quality performing arts programming to the community at a reasonable ticket price. In addition, the CITY is interested in event diversity relative to creativity and innovative approaches of managing the THEATRE and is seeking proposals that identify creative and innovative strategies for resource development as well as the management and marketing of the Theatre.
3. Facility Operations
The Contractor shall be responsible for the following activities with respect to both in-house shows as well as private rentals.
a. Front of house staffing including ticket sellers, ticket takers, ushers, patron assistance, crowd control, security, and general housekeeping.
b. Box Office
i. The Contractor shall staff and manage a box office operation that serves events at the Theatre. The box office will be open and staffed by the Contractor. ii. Data entry of all events and shows into the ticketing software. iii. Process all ticket sales on-line and in -person and over the phone. iv. Be the primary point of contact for all ticket sales including customer service and support for ticketing questions, production questions and facility questions. v. Prepare financial reports and daily deposit per CITY policy. vi. Respond to questions and inquiries from CITY staff regarding financial transactions.
c. Concessions
i. Contractor will manage a concession program and coordinate with third party caterers, concessionaires and other food and merchandise vendors. ii. Manage and operate any in-house concession program that may be implemented at the Theatre.
d. Rentals
The Contractor shall represent the CITY with regard to the use of the Theatre by third party (renters) for production of public and private events.
The Contractor will be responsible for negotiating, preparing, and executing rental agreements, ensuring that all CITY requirements and facility use
policies/regulations are imposed and enforced, processing ticket sales, collecting fees and preparing deposits on behalf of the CITY.
iii. The Contractor will be responsible for providing the support staff for all rentals including but not limited to light technicians, sound technicians, house manager, ticket sellers and ushers.
e. Back of the house staffing including load in/out, backstage set up and technical Theatre operations.
f. The Theatre management including booking, ticket sales, sponsorship, advertising and marketing, fundraising and general operations.
g. Safety and Quality Assurance
i. The Contractor, its officials, agents, and/or employees shall be bound by and comply with all applicable provisions of the Labor Code and with Federal, State, and local laws related to labor.
ii. The Contractor shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety and the California and Federal Office of Safety and Health Administration.
iii. The Contractor shall forfeit to the CITY the penalties prescribed in the Labor Code for violations.
iv. The Contractor shall carry Worker's Compensation insurance and require all subcontractors to carry Worker's Compensation insurance as required by the Labor Code.
v. The Contractor is to ensure the Theatre is operated in a safe manner at all times.
The Contractor is responsible for maintaining the security of the Theatre while performing business services related to the management contract. vi. Upon closing the Theatre on any given day, the Contractor is responsible for:
closing and locking all closets and storage areas, clearing the Theatre of all persons, locking all outside perimeter doors, and activating the Theatre alarm system.
vii. Any costs incurred due to the improper use of the Theatre alarm system by the Contractor's employees, officials, and/or agents, including false alarms, shall be the sole responsibility of the Contractor. Any such costs will be deducted from the monthly billing.
viii. The Contractor will be responsible for maintaining a list of employees, officials, and/or agents that require access and alarm codes to the Theatre. The Contractor agrees to follow security procedures of the CITY which include maintaining privacy over access codes, passwords and other security measures to only the designated user.
ix. The Contractor shall adhere to the Americans with Disabilities Act of 1990 ("ADA") regulations and provisions at all times while operating and managing the Theatre. x. The Contractor shall work with the CITY to develop and implement reasonable accommodations as defined by the ADA and the CITY.
xi. The Contractor must ensure that all of its officials, employees, and/or agents have been properly trained to operate theatrical equipment necessary to operate the Theatre and that training is in compliance with the theatrical equipment manufacturer's or Contractor's specifications for training, or other training curriculum specified by a regulatory agency such as the Occupational Safety and Health Administration (OSHA).
xii. The Contractor agrees to maintain up to date training records on site. h. Financial Management
i. The Contractor shall be responsible for the full fiscal management of the Theatre following the CITY's financial policies and procedures to include billing, contracts, budgeting and collection of fees.
ii. The Contractor shall operate the Theatre within a fiscally responsible framework based on an annual approved budget. This will include financial and operational reports, meeting on a regular basis and providing ongoing communication as to the operation of the Theatre.
iii. All financial transactions shall be subject to audit by an authorized representative of the CITY, at any time. The Contractor will report any incidents or allegations of fraud or mishandling of funds immediately to the CITY.
Facility and Equipment Maintenance
i. The Contractor will provide the CITY with input on the development of a ten-year maintenance plan and assisting in preparing and updating the CITY's equipment replacement program.
ii. The Contractor will be responsible for completing an annual inventory of all equipment located at the Theatre and providing a report detailing losses and additions for the prior and current fiscal years reportable in September of the current year, as well as the condition of each piece of equipment. iii. It is understood that all supplies and equipment purchased by the Contractor on behalf of the CITY will be owned by the CITY.
iv. The Contractor will be responsible for the care and maintenance of all theatrical equipment located at the Theatre.
v. The Contractor shall follow manufacturer guidelines for maintenance of equipment and when possible make minor repairs and adjustments to keep equipment in good working order.
vi. The Contractor will send the equipment out for service to a reputable repair shop, as determined by Contractor, when equipment requires major repair per the CITY's approved budget and purchasing guidelines.
vii. The Contractor shall notify the CITY Parks and Recreation and Public Works Departments of any noticeable damage, necessary repairs or maintenance and unsafe conditions in the facility that the Contractor may become aware of during the course of their work regardless of whether it is the Contractor responsibility to maintain or repair. The Contractor will work with the CITY to ensure that facility maintenance needs are met.
EXHIBIT "B"
COMPENSATION
The monthly management fee includes all required consultation and management services, including the work of VenueTech's Executive Team (President, Executive Vice President, Senior Vice President, Vice President, and General Counsel.) Additionally, the management fee includes the provision of the full-time, on -site Theatre Manager.
VenueTech is reimbursed for additional personnel required to support Theatre and Festival events.
This Labor Overhead Reimbursement will be billed at direct cost plus 40% overhead for employer taxes, employer required insurance and other personnel and payroll expenses. VenueTech is reimbursed for a small number of administrative expenses which are included in the table below.
Management $20,800 per This monthly fee is inclusive of all required consultation and management services, Fee month billed including VenueTech's executive team and Theatre Manager. in advance
Event &
Direct costs
VenueTech will provide all operational and event related labor with expenses Operations
plus 40%
reimbursed monthly. VenueTech will be paid labor overhead equal to forty percent Labor
overhead
(40%) of reimbursable wages to offset personnel overhead costs including workers Overhead
billed in
compensation insurance, unemployment insurance, employer tax contributions, Reimbursement
arrears
payroll expenses, personnel administration and other employment related costs.
Employee
Direct Cost
Should any part-time employee exceed an annual average of 30 hours per week Benefits
VenueTech will be reimbursed for the employer contributions for health and disability Reimbursement
insurance benefits.
Required Direct costs Should any employee qualify for paid time off due to VenueTech employee benefits or Employee Time plus 40% federal or state law, VenueTech will be reimbursed for direct cost.
Off overhead
billed in
arrears
Insurance Direct Cost VenueTech purchases an insurance policy to cover general liability for exposure Reimbursement specifically relating to the public events hosted at the venues managed by the firm.
VenueTech will be reimbursed for this insurance, based on the "attendance formula" used by the insurance underwriter.
Annual $3,000 Reimbursed annual research expense to offset costs associated with the collection of Research Fee industry data, artist touring data and information required for talent booking.
Cell Phone Direct Cost
Reimbursement
Annua Fee 5%
Increase
Reimbursement for direct cost ofcell phones ofthe Theatre Manager and Technical Director.
This annual fee increase will apply to all fees included in this agreement, except for the 40% labor overhead
Financial and Management Fee Proposal