Agenda Item No.
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Megan Wolfe, Director of Community ServiceQJC
FOR: City Council Meeting of July 24, 2023
SUBJECT: First Extension and Amendment to the Professional Services Agreement with Props AV
RECOMMENDATION:
That the City Council award and authorize the City Manager or his designee to administer the terms of the First Extension and Second Amendment to the Professional Services Agreement for FY24 with Props AV in the not to exceed amount of $400,000 to provide production services at the Yucaipa Performing Arts Center for rental clients and City events, and at various City special events.
DISCUSSION:
On March 14, 2022, City Council authorized the City Manager to execute an amendment to the Professional Services Agreement (Agreement) with Props AV to provide production services at the Yucaipa Performing Arts Center (YPAC) and at various City special events, in the not to exceed amount of $350,000. The services provided as part of this Agreement include:
• One technical director (minimum 40 hours a week)
• One lighting specialist (minimum 20 hours a week)
• Holding weekly production meetings with YPAC staff to discuss the audio and visual (AV) needs of rental clients and YPAC presents shows
• Providing weekly, monthly, and annual maintenance of City owned production equipment • Working with artists production teams to ensure production meets artist rider requirements before during and after the event
• Managing inventory before and after events
The Agreement is for two years and allows for three annual extensions, with adjustments based on the annual change to the Consumer Price Index (CPI).
Staff has contacted Props AV regarding extending the Contract for FY24. Props AV has agreed to the proposed extension and amendment to the Agreement and has requested a 3% increase in the Agreement price based on the annual change in the CPI. Props has provided the City with exceptional service throughout the term of the Agreement. In addition, staff has received several positive comments from rental clients, artists, and production teams regarding the service provided by Props AV.
The cost of Props AV services is passed onto the rental client for non -city events and is included in the ticket price for City events. It is anticipated a minimum of 60% of the cost of the contract will be reimbursed through revenues earned. During FY23 a total of 63% of the cost of Props AV was recovered through rental and ticket sales.
Staff is recommending that the City Council approve the first extension and second amendment to the Agreement with Props AV for FY24 in the amount of $250,000 and authorize the amount of $150,000 for any production services provided for Special Events such as Autumnfest, Five Winds Country Music Festival, Winterfest, and/or the Yucaipa Music and Arts Festival that may be required during the FY24, for a Contract total of $400,000.
FISCAL IMPACT:
The Adopted FY24 Annual Operating Budget includes the cost of this item.
Attachment:
1. First Extension and Amendment to the Professional Services Agreement Approved By:
ATTACHMENT 1
CITY OF
D FIRST EXTENSION AND RESTATED AGREEMENT
FOR PRODUCTION SERVICES
This Professional Services Agreement ("Agreement") is made and entered into the 1" day of July 2023, by and between the City of Yucaipa, a municipal corporation, ("City"), and Props AV. ("Vendor"). City and Vendor are sometimes referred to herein as the "Parties", and individually as a "Party"
RECITALS
A. The City has an immediate need for a technical director and for production services for Yucaipa Performing Arts Center rentals and production services for various special events. Vendor has the professional competence, experience, and qualifications to provide services required by City; and City desires to retain Vendor as an independent contractor to provide said services as set forth in the attached Exhibit "A".
B. Vendor represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
C. City desires to retain Vendor and Vendor desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
THE PARTIES THEREFORE AGREE AS FOLLOWS:
1. Engagement
City hereby engages Vendor to perform the services set forth in Exhibit "A" (collectively, "Services").
2. Compensation
This agreement is for a not to exceed amount of $400,000. Vendor shall provide the City a quote for services requested and an invoice the City for services rendered on a per event basis.
City shall provide payment to the vendor upon successful completion of the services.
3. Performance
A. The Services will be performed as expeditiously as reasonably possible and in a good and professional manner. All work shall be conducted and completed in accordance with all current, applicable state and federal laws, local laws, ordinances and regulations, industry standards.
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B. Standard of Performance. Vendor shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
4. Independent Contractor
A. Vendor is and shall at all times remain as to City a wholly independent contractor.
The personnel performing the services under this Agreement on behalf of Vendor shall at all times be under Vendor's exclusive direction and control. Vendor shall have no power to incur any debt. obligation, or liability on behalf of City. Neither City nor any of its agents shall have control over the conduct of Vendor or any of Vendor's employees except as set forth in this Agreement. Vendor shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
B. As an independent contractor, no City employee benefits shall be available to Vendor in connection with the performance of this Agreement. Except for the fees paid to Vendor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Vendor for performing services hereunder for City. City shall not be liable for compensation or indemnification to Vendor for injury or sickness arising out of performing services hereunder.
5. Conflicts of Interest.
Vendor and its officers, employees, associates, and subcontractors, if any, shall comply with all conflict -of -interest statutes of the State of California applicable to Vendor's services under this Agreement, including the Political Reform Act {Gov. Code, § 81000 et seq.) and Government Code Section 1090. Vendor shall incorporate a clause substantially similar to this Section 5 into any subcontract that Vendor executes in connection with the performance of this Agreement.
6. Indemnification.
A. Indemnities for Third Party Claims.
1. To the fullest extent permitted by law, Vendor shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees"), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens and losses of any nature whatsoever, including fees of accountants, attorneys or other professionals, and all costs associated therewith and the payment of all consequential damages (collectively "Liabilities" in law or equity, whether actual, alleged or threatened) which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Vendor, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Vendor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Vendor shall defend the Indemnitees in any action or actions filed First Extension and Restated Agreement for Production Services Page 2
in connection with any Liability with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and expert's costs actually incurred in connection with such defense. Vendor shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2. Vendor shall pay all required taxes on amounts paid to Vendor under this Agreement and indemnify and hold City harmless from any and all taxes, assessments, penalties and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Vendor shall fully comply with the workers' compensation law regarding Vendor and Vendor's employees. Vendor shall indemnify and hold City harmless from any failure of Vendor to comply with applicable workers' compensation laws. City may offset against the amount of any fees due to Vendor under this Agreement any amount due to City from Vendor as a result of Vendor's failure to promptly pay to City any reimbursement or indemnification arising under this Subparagraph A. 2.
3. Vendor shall obtain executed indemnity agreements with provisions identical to those in Section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Vendor in the performance of this Agreement. If Vendor fails to obtain such indemnity obligations, Vendor shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Vendor's subcontractor, its officers, agents, servants, employees, subcontractors, contractors or their officers, agents, servants or employees (or any entity or individual that Vendor's subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the parties.
B. Workers' Compensation Acts Not Limiting. Vendor's indemnifications and obligations under this Section 6, or any other provision of this Agreement, shall not be limited by the provisions of any workers' compensation act or similar act. Vendor expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents employees and volunteers.
C. Insurance Requirements Not Limiting. City does not, and shall not, waive any rights that it may possess against Vendor because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Section 6 shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liability tax assessment, penalty or interest asserted against City.
D. Survival of Terms. Vendor's indemnifications and obligations under this Section 6 shall survive the expiration or termination of this Agreement.
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7. Insurance
Vendor 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 Vendor, its agents, representatives, or employees.
A. Minimum Scope and Limits of Insurance. Coverage shall be at least as broad as:
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 & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Vendor has no owned autos, Code 8 (hired) and 9 (non - owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
B. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Vendor's insurance (at least 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 used).
C. Primary Coverage. For any claims related to this contract, the Vendor's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance First Extension and Restated Agreement for Production Services Page 4
maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Vendor's insurance and shall not contribute with it.
D. Notice of Cancellation. Vendor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self -insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Vendor shall forthwith obtain and submit proof of substitute insurance.
E. Waiver of Subrogation. Vendor hereby grants to City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss under such insurance. Vendor 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. However, the Workers' 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.
F. Self -Insured Retentions. Self -insured retentions must be declared to and approved by the City. The City may require the Vendor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses 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.
G. Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
H. Verification of Coverage. Vendor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins.
However, failure to obtain the required documents prior to the work beginning shall not waive the Vendor's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
1. Subcontractors. Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor shall ensure that City is an additional insured on insurance required from subcontractors.
J. Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the -nature of the risk, prior experience, insurer, coverage, or other special circumstances.
8. Termination or Suspension of Agreement; Term of Agreement A. Right to Terminate or Suspend. City may terminate or suspend this Agreement for non-performance of the Vendor, after giving written notice to Vendor at least seven (7) calendar First Extension and Restated Agreement for Production Services Page 5
days before the termination or suspension is to be effective. Vendor may terminate this Agreement at any time at will, for any reason or no reason, after giving written notice to City at least sixty (60) calendar days before the termination is to be effective.
B. Obligations upon Termination. Vendor shall cease all work under this Agreement on or before the effective date of termination specified in the notice of termination. In the event of City's termination of this Agreement due to no fault or failure of performance by Vendor, City shall pay Vendor based on the percentage of work satisfactorily performed up to the effective date of termination. In no event shall Vendor be entitled to receive more than the amount that would be paid to Vendor for the full performance of the services required by this Agreement. Vendor shall have no other claim against City by reason of such termination, including any claim for compensation.
C. Term of Agreement. This agreement shall expire on June 30, 2026, and have an option to extend two additional years.
9. Force Majeure
Vendor shall not be liable for any failure to perform its obligations under this Agreement if Vendor presents acceptable evidence, in City's sole judgment that such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Vendor's reasonable control and not due to any act by Vendor.
10. Default
A. Vendor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Vendor is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Vendor for any work performed after the date of default.
B. In addition to the right to terminate pursuant to Section 12, if the City Manager determines that Vendor is in default in the performance of any of the terms or conditions of this Agreement, City shall serve Vendor with written notice of the default.
Vendor shall have ten calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. In the event that Vendor fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
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11. Notices
Any notices, consents, requests, demands, bills, invoices, reports or other communications which either party may desire to give to the other party under this Agreement must be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed delivery by reputable document delivery service or courier service during Vendor's and City's regular business hours, or (c) five business days after deposit in the United States mail by first class mail, postage prepaid, and addressed to the party to be notified as set forth below:
If to City:
City of Yucaipa
Attn. Chris Mann
34272 Yucaipa Boulevard
Yucaipa, CA 92399
909-797-2489
If to Vendor:
Props AV
Attn: Brady Westbrook
945 E. 6th St.
Beaumont, CA 92223
800-733-1182
12. Non -Discrimination and Equal Employment Opportunity In the performance of this Agreement, Vendor shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression. marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation, or other basis prohibited by law. Vendor will take affirmative action to ensure that any employee, subcontractor, or applicant for employment, without regard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability mental disability, medical condition, genetic information, or sexual orientation.
13. Prohibition of Assignment and Delegation
Vendor shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City's prior written consent. City's consent to an assignment of rights under this Agreement shall not release Vendor from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section 12 shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section 12, "assignment" and "delegation" means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
14. No Third -Party Beneficiaries Intended
This Agreement is made solely for the benefit of the parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
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15. Waiver
No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power, or remedy of City, nor shall it be construed as a waiver of, or consent to any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the party making the waiver, (2) deemed to be a waiver of or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
16. Exhibits
Exhibit A constitutes a part of this Agreement and are is incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, the provisions of this Agreement shall control.
17. Entire Agreement
This Agreement and all exhibits referred to in this Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty except those expressly set forth in this Agreement.
18. Amendment of Agreement
This Agreement may be amended only by a writing signed by the Parties. The City Manager is authorized to sign an amendment to this Agreement on the City Council's behalf and without the City Council's prior approval to make the following no substantive modifications to the Agreement: (a) name changes; (b) extensions of time; (c) non -monetary changes in the scope of work; and (d) termination of the Agreement.
19. Headings
The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the parties to this Agreement.
20. Word Usage
Unless the context clearly requires otherwise, (a) the words "shall," "will," and "agrees" are mandatory and "may" is permissive; (b) "or" is not exclusive; and (c) "includes" or "including" are not limiting.
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21. Governing Law and Choice of Forum
This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) shall be resolved in a municipal, superior, or federal court with geographic jurisdiction over the City of Yucaipa.
22. Attorneys' Fees
In any litigation or other proceeding by which one party seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded reasonable attorneys' fees together with any costs and expenses to resolve the dispute and to enforce the final judgment.
23. Severability
If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid, or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
24. Authority to Execute Agreement
The person or persons executing this Agreement on behalf of Vendor warrants and represents that he or she has the authority to execute this Agreement on behalf of the Vendor and has the authority to bind Vendor to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
The parties, through their duly authorized representatives, are signing this Agreement on the date stated in the introductory clause.
CITY OF YUCAIPA
A California Municipal Corporation
IN
VENDOR
Props AV
A California Corporation
I:
Chris Mann Brady Westbrook
City Manager Owner
Attachment: Exhibit "A"
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EXHIBIT A
SCOPE OF SERVICES
Vendor shall provide production and audio visual (AV) services for the Yucaipa Performing Arts Center and the following special events (Special Events):
• 4ch of July
• Concerts in the Park
• Autumnfest
• Winterfest
• 911 Ceremony
• State of the City Video
• State of the City Event
Each YPAC performance, and/or rental, or Special Event will be unique in time, location, and type of event. Vendor will need to meet with each client and/or City staff to understand the needs of the event. In addition, the Vendor must provide a quote for the event, ensure production of the event is executed to the City's standards and provide a detailed invoice within three business days of the conclusion of the event.
Vendor will work with staff on City produced shows and events and when directed will act on behalf of the City to negotiate production and AV with artists and their team. Duties will include but are not limited to; maintaining inventory and organization of all production and AV equipment located at the YPAC, using a software system to map out events and produce floor plans, and operate heavy machinery such as a forklift.
Vendor will work with YPAC staff to streamline processes and procedures for performance and non-performance rentals, and help to evaluate, locate, and recommend the purchase of supplies, equipment, and software programs for the YPAC, that will result in efficient processes and excellent customer service.
Vendor will provide one staff member for a minimum of 40 hours a week to act as the technical director as well as one staff member for a minimum of 20 hours a week to act as a lighting technician, agrees to have each subcontractor and employee providing in person services for any event to be in uniform and arrive to each event no later than 1 hour before the start. Vendor will work with City staff to execute each event.
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