Attachement 2 Addedum MIP Agreement with comments.171203AGREEMENT BY AND BETWEEN THE TOWN OF LOS GATOS AND LOS GATOS MUSIC IN THE PARK FOR THE PRODUCTION AND PROMOTION OF THE MUSIC IN THE PARK SUMMER MUSIC CONCERT SERIES
THIS Agreement is made and entered into this 5th day of December 2017, by and between the Town of Los Gatos, a municipal corporation of the State of California (hereinafter “Town”),
and Los Gatos Music in the Park, a California nonprofit organization (hereinafter “LGMIP").
WITNESSETH
WHEREAS, the Town of Los Gatos has authorized and used the name “Music in the Park," (the “Events”) for a free summer concert series that has enriched the community and added vitality
to the downtown area, since 1988; and
WHEREAS, on January 19, 2016, the Town Council selected LGMIP to produce, manage, and promote the Music in the Park Summer Music Concert Series; and
WHEREAS, on February 2, 2016, the Town of Los Gatos and LGMIP entered into a two year agreement for LGMIP to produce, manage, and promote the Music in the Park Summer Music Concert Series;
and
WHEREAS, to insure the Town will have adequate advance notice of “Music In The Park” summer music concert series and to adequately plan Town services and to preserve the Town’s commitment
to attract quality events with significant entertainment and cultural enrichment for the community at-large, the Town and LGMIP desire to extend their agreement; and
WHEREAS, Los Gatos Music in the Park is a local organization that has shown its interest to continue to produce this Summer Music Concert Series and desires to enter into another agreement
with the Town; and
WHEREAS, the Town desires to enter into another Agreement with LGMIP to administer, promote and produce the Music in the Park Summer Music Concert Series (the “Events”) subject to the
following terms and conditions:
NOW, THEREFORE, THE PARTIES AGREE, as follows:
1. TERM OF AGREEMENT
The term shall commence upon the execution of this Agreement and shall terminate on September 30, 2019.
2. EVENT DATES & TIMES
The Events will take place on Sundays in the months of June, July and August on the Civic Center Lawn and end on the Saturday of Labor Day Weekend at Oak Meadow Park. Set up shall be
allowed to begin at 8:00 a.m. on the day of the event. The Events shall consist of 10 concerts
at Civic Center Lawn and 1 concert at Oak Meadow Park. Prior to May 15th of each year, LGMIP shall provide the Town with dates of each concert.
3. PREMISES
The initial 10 Events shall take place on the grounds of the Civic Center, as designated on the map attached as Exhibit A (the “CC Grounds”). The Los Gatos Park Dance shall take place
at the Lyndon Bandstand at Oak Meadow Park, as designated on the map attached as Exhibit B (the “OM Park Grounds”).
4. SCOPE OF SERVICES
LGMIP shall provide the following scope of services:
LGMIP shall provide the Town annually with documentation establishing its non-profit status.
LGMIP agrees to plan, organize, produce and manage the Music in the Park Summer concert series that provides a positive, high quality, social experience through music for families and
community members.
LGMIP shall be responsible for all financial costs (other than the sum of $6,000 and other services agreed to with Town under Section 4. paragraph 27-36) and management services required
for production and promotion of the Events and raise funds sufficient to cover production costs, through solicitation of sponsorships, merchandise sales and other fundraising activities.
LGMIP shall provide an adequate number of staff and volunteers to run the Events, and cleaning after the Events.
LGMIP shall maintain a clean, safe, and attractive environment for the Events.
LGMIP shall reimburse the Town for any and all fees paid to the American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music Inc. (BMI); and Society of European Stage
Authors and Composers (SESAC).
LGMIP shall submit an Application for a Special Event Permit for the 10 concerts at Civic Center Lawn and a separate Application for a Special Event Permit for the 1 concert at Oak Meadow
Park at least 90 days before the events and pay the Special Event Administrative Annual Fee to the Town as set forth in the Town’s Master Fee schedule for both Special Event Permit
Applications. In response to the two Applications for Special Event, the Town shall issue Special Events Permits consistent with the requirements set forth in this Agreement and may
contain additional event requirements consistent with Town Code Chapter 14, Article X
LGMIP shall submit a Banner application pursuant to Town Code and pay the Annual Banner Fees for both the 10 concerts at Civic Center Lawn and for the 1 concert at Oak Meadow Park as
set forth in the Town’s Master Fee Schedule. All other fees and permits for LGMIP are waived by the Town unless specifically set forth in this agreement.
LGMIP shall not sell any alcohol. If LGMIP offers winetasting to sponsors in designated private hospitality area, LGMIP shall comply with all Alcohol Beverage Control (ABC) regulations
and obtain all necessary permits, including a Temporary Alcohol Sales Permit from the Los Gatos Police Department and pay a permit fee as set forth in the Master Fee Schedule. If LGMIP
offers winetasting to sponsors in a designated private hospitality area, LGMIP will also designate people to monitor compliance with alcohol use in accordance with the permits issued.
LGMIP shall limit amplified sound between the hours of 2 p.m. and 10 p.m. Prior to 5:00 p.m., LGMIP shall be limited to 45 minutes for band sound check and at all other times before
5:00 p.m. amplified music shall not exceed the Town’s Noise Ordinance decibels levels. During band sound check and after 5:00 p.m., amplified sound shall not exceed a noise level of
98 decibels, as measured from a distance of 300 feet from the property line If noise complaints are submitted to Town Staff, for any given event, the Town reserves the right to direct
LGMIP to reduce the volume level not to exceed 95 decibels, as measured from a distance of 300 feet from the CC Grounds or OM Park Grounds. Sound company provided by LGMIP shall provide
industry standard sound measuring equipment and establish that sound is within the limits.
LGMIP shall be allowed to sell Event items only, such as sponsorships and other fundraising activities for the Event, performer's CD's, MIP T-Shirts and other memorabilia and relevant
items.
LGMIP shall encourage that the attendees of the Events do not interfere with pedestrian or vehicular traffic in the area. LGMIP shall submit a site plan to include a layout of the Events
and a traffic plan for the Oak Meadow Park dance. LGMIP shall submit a separate site plan for any concert proposing a different layout at least 10 days before the Event to the Town
Manager or his/her designee for approval.
LGMIP shall provide best estimate of attendance after per each date of Events for Town management planning.
LGMIP shall include clearly designated access throughout the CC Grounds and OM Park Grounds for mobility impaired attendees, both near the stage and through the main seating area.
LGMIP shall notify the Town Manager or his/her designee at the earliest opportunity of any Event which is likely to exceed the ordinary boundaries of the CC Grounds or OM Park Grounds
as set forth on Exhibit “A” and “B”.
LGMIP shall notify the Town Manager or his/her designee should any single Event
exceed the capacity of the CC Grounds or OM Park Grounds as determined by the Director of Parks and Public Works.
LGMIP shall contract, transport, provide and pay for restrooms and modern full feature hand wash stations at a ratio recommended by rest room vendor. Restrooms shall be delivered the
morning of the Events and picked up the following morning prior to 10:00 a.m. unless a Special Encroachment Permit is obtained from the Town for the restrooms to remain at designated
location throughout the concert series. If a special encroachment permit is obtained, LGMIP shall pay an Encroachment Permit Fee as set forth in the Master Fee Schedule.
LGMIP shall pay for extra trash/recycle/ containers and pick up costs as determined and required by the Town. LGMIP shall be responsible for the cleanliness of the Grounds, including
the removal of trash-refuse not contained in any designated container before vacating the site for any single event. Should LGMIP fail to perform adequate cleanup or damage occurs to
Town property, the Town will invoice LGMIP at full recovery rates, plus overhead for cleanup and repair.
LGMIP shall be responsible for notifying neighboring businesses and residences within 300 feet of the Events, to address any concerns, prior to the first performance and provide proof
of notice to event coordinator. Town shall provide LGMIP with names and addresses of businesses and residences affected by this requirement.
LGMIP shall provide signage posted in the audience area prohibiting blankets and other items that might interfere with the Events. LGMIP shall not allow the unattended staking of any
spots and will take action to prevent reservations prior to 3 p.m. on date of any event. LGMIP shall collect any articles in violation of this section, and relocate them to a convenient
area that does not obstruct the flow of foot traffic.
LGMIP shall be responsible for providing a safe and secure event. LGMIP shall hire outside security personnel that is approved by the Chief of Police for each of the 10 Civic Center
events and at the Park dance. LGPD will provide training and procedures for security personnel to understand security measures and protocol to follow during events. Should the Event
require extra assignment of police officers to protect public safety, then LGMIP shall compensate the Town at an hourly police officer rate.
LGMIP shall not close any streets or parking spaces unless clearly designated on Exhibit “A” or Exhibit “B”.
LGMIP shall limit advertising to the local region.
LGMIP shall be responsible for any portion of Civic Center and Oak Meadow park that is damaged by the act, default or negligence of LGMIP, its agents, employees, contractors, sub-contractors,
patrons, guests, and will repair it or pay to the Town, within thirty (30) days of written invoice, such actual and documented sum as shall be reasonably necessary to restore the Civic
Center and Oak Meadow Parks to its condition as received
by LGMIP at the beginning of the Event Series, excluding normal wear and tear. In connection with the repairs and/or restoration referenced herein, designated representatives of the
parties shall conduct a walk-through of pertinent areas of Civic Center prior to the first Event and periodically during the Events and again after the last Event. During the walk-through,
the parties will assess and identify, as applicable, pre-existing conditions that need to be repaired and maintained by the Town and any damages, if any, that may have occurred during
LGMIP’s use, and will consult and agree in good faith as to what, if any, repair or restoration costs will be paid for by LGMIP. In regard to normal wear and tear, the Town acknowledges
that the Civic Center Lawn and Oak Meadow Park are significantly used the other six days of the week and this wear and tear will be taken into account when assessing and identifying
the condition of the Civic Center Lawn and Oak Meadow Park.
LGMIP shall participate in a joint meeting with the Town following the 3rd concert to assess suitability of current controls and the Town Manager has authority to add additional requirements
to the Events to protect the health and safety of the community. If LGMIP is unable to meet any additional requirements, the Town and LGMIP will meet as soon as possible to discuss
workable remedies.
LGMIP agrees that the Town Manager or his/her designee reserves the right to adjust any of the above conditions and as set forth in the Special Events Permits that will be issued prior
to the events or based on the conduct at any of the Events, as well as based on legitimate complaints received by the Town from the community at large regarding the Events. The Town
agrees that any adjustment of the above conditions constitutes a change in this Agreement and must be feasible for LGMIP to accomplish. If the any conditions the Town adjusts are not
feasible for LGMIP, the parties shall meet to discuss a workable remedy. If not possible, the particular Events in question may be cancelled by either party.
Town shall provide the following scope of services:
Town shall provide the use of Civic Center for all Music in the Park concerts.
Town shall provide the Lyndon Bandstand and the use of Oak Meadow Park for the Los Gatos Park Dance without payment of the associated fee(s).
Town shall provide and maintain a stage (in safe and useable condition) and electrical power to the stage area by 11:00 am each Event day at no cost to LGMIP.
Town shall provide the use of the Council Chambers Lobby Area as a “green room/staging area” only for band members, sound crew, LGMIP Green room monitors, management and volunteers.
LGMIP agrees that no alcohol shall be allowed inside the building pursuant to Town policy. Green room entry shall be controlled through three levels of security: 1) Color-coded wrist
bands assigned only to authorized entrants, 2) Stage Security inspecting for wrist bands and 3) Green Room Entry Door attendant inspecting for wrist bands.
LGMIP agrees to pay for a Town Attendant at a fee of $20.00 per hour for 4 hours to open and monitor the activity in the Council Chambers Lobby and then secure the building at the end
of the Events unless other arrangements are made with the Town. LGMIP agrees to provide volunteer(s) at the entrance to the Lobby Area during the Events to keep the public from entering
the building and also to provide clean up after the Events. Should LGMIP fail to perform adequate cleanup or damage occurs to Town property, the Town will invoice LGMIP at full recovery
rates, plus overhead for cleanup and repair.
Town agrees to grant LGMIP $6,000 per annum (for each of the 2018 and 2019 MIP Seasons). Payment of the $6,000 grant is due to LGMIP not later than March 1st of each season in order
to cover early expenses before the season is announced and sponsor money is collected.
Town shall provide LGMIP with use of the parking spaces along Main Street adjacent to the Civic Center lawn as set forth on Exhibit “A” beginning at 10 a.m. on the day of each Event
for equipment unloading/loading, and sponsor parking/car displays etc. and use of the civic center side parking areas/lots (for band and equipment staging and parking).
Town shall supply “A frame” signs and no parking signs to LGMIP in the quantity necessary to properly secure the areas in sufficient time and at no cost to LGMIP.
Town shall work with LGMIP to coordinate communication regarding and to promote the Events on its municipal website and in the lobby of Town Hall.
Town shall hang LGMIP banner at the Civic Center by June 1, 2018 and move and rehang the banner before the Park Dance, with payment of a separate Annual Banner Fee for the 10 concerts
at the Civic Center and a separate Annual Banner Fee for the Oak Meadow Park dance. The duration, size and location of any banners shall be subject to the Town Code and Banner Policy
and subject to the Town Manager’s approval.
5. PROGRAM COORDINATION
The Town Manager or his /her designee shall be the Contract Manager for the Town and shall render overall supervision of the progress and performance of this Agreement by the Town.
The Chairperson of LGMIP, or a designated LGMIP Board officer, shall be the Program Director for LGMIP, and shall have overall responsibility for the progress and execution of this Agreement
on its behalf. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute Program Director, the Town shall be notified immediately of such
occurrence in writing.
All notices or other correspondence required or contemplated by this Agreement shall be sent to the parties at the following addresses:
TOWN: LGMIP:
Town Manager Ron Simner
Town of Los Gatos 12791 Idlewood Lane
110 E. Main Street Saratoga, CA 95070
Los Gatos, CA 95030
6. REPORTING
LGMIP shall submit an annual report to the Town each year prior to October 1 on a Report Form as provided by the Town and any relevant supporting documents shall be attached.
7. DEFAULT, CURE AND TERMINATION
LGMIP shall be deemed to be in default of its obligations under this Agreement if the Contract Manager determines that LGMIP is providing services below the established minimum standard
of service set forth in this Agreement. In this event, LGMIP shall be notified in writing and provided the opportunity to cure the default by providing the Town with a plan for improvement
of services required of LGMIP by this Agreement provided hereunder within ten (10) business days of receipt of written notice of the Town's determination of a default. Said plan shall
address each and every service issue referred to in the Town’s notice, providing the method for improvement, an explanation, as necessary, for how the method will result in an improvement,
and a schedule for the actions necessary to ensure the planned improvement of services. The Town shall review LGMIP’s plan for improvement and determine within ten (10) business days
after receipt of the plan and at its sole discretion whether the plan is satisfactory to cure the default. In the Event the plan is not deemed satisfactory, the Town may, at its sole
discretion, suspend or cancel this Agreement without incurring any liability to LGMIP.
In addition to the above paragraph, this Agreement shall automatically terminate without a right to cure upon the occurrence of any of the following circumstances:
If LGMIP (with or without knowledge) has made any material misrepresentation of any nature with respect to any information or data furnished to the Town.
The existence of pending litigation against LGMIP that may in any manner affect its ability to perform any of its duties or obligations under this Agreement.
LGMIP taking any action requiring Town approval without first having obtained such approval.
LGMIP submits to the Town any reports that are purposely false or incomplete in any material respect.
LGMIP declares bankruptcy or otherwise indicates that it is no longer willing or able to meet its obligations under this Agreement.
LGMIP refuses to accept any additional conditions that may be imposed by federal or state requirements.
The Town, at its sole discretion, determines there are imminent health and safety issues involved with the Events.
8. ASSIGNABILITY AND INDEPENDENT CONTRACTOR REQUIREMENTS
The relationship of LGMIP to the Town is that of an independent contractor. LGMIP is responsible for the results of its services and compliance with the terms of this Agreement. LGMIP
has full rights to manage employees subject to the requirements of the law. All persons employed by LGMIP in connection with this Agreement shall be employees, contractors, or volunteers
of LGMIP and not employees of the Town in any respect. LGMIP shall be responsible for all employee benefits, including, but not limited to, statutory workers' compensation benefits.
None of the work or services to be performed hereunder shall be subcontracted to third parties without notice to the Town. All subcontractors are deemed to be contractors of LGMIP, and
LGMIP agrees to be responsible for their performance and any liabilities attached to their actions or omissions.
This Agreement is based on the unique services of LGMIP. This Agreement shall not be assigned or transferred without the written consent of the Town. No changes or variations of any
kind are authorized without the written consent of the Town Manager. No changes of the Town’s responsibilities to LGMIP are authorized without the written consent of LGMIP.
9. COMPLIANCE WITH LAW
LGMIP shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state, and local laws, ordinances, codes, regulations, and decrees. Failure of LGMIP
to, in any manner, observe and adhere to law as described herein or as amended shall in no way relieve LGMIP of responsibility to adhere to same and LGMIP herein acknowledges this responsibility.
LGMIP represents and warrants to the Town that it has, or will have, all licenses, permits, qualifications and approvals of whatsoever nature which are legally required to practice
its profession and to provide the services required hereunder, including all licenses necessary to use and or display any artistic works in the performance of the services required
by this Agreement. LGMIP represents and warrants to Town that LGMIP shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any
licenses, permits, and approvals which are legally required to provide its services, including all licenses necessary to use and or display any artistic works in the performance of
the services required by this Agreement.
10. TERMS AND AMENDMENTS
Amendments to the terms and conditions of this Agreement shall be requested in writing by the party desiring such revision, and any such adjustment to this Agreement shall be determined
and effective only upon the mutual Agreement in writing of the parties hereto unless the Amendments are made by the Town as corrective actions, in which case they will be adopted as
ordered.
11. LEGAL MATTERS
This document, including Exhibits represents the entire and integrated Agreement between the Town and LGMIP, and supersedes all prior negotiations, representations, and agreements, either
written or oral.
The terms of this Agreement shall bind, and inure to the benefit of, the parties, their heirs, successors, and assigns.
12. HOLD HARMLESS AND INDEMNIFACTION
LGMIP hereby assumes full responsibility for the acts and conduct of all persons admitted to the Civic Center and Oak Meadow during the Events and hereby releases and agrees to protect,
defend, hold harmless, and indemnify the Town, its Town Council, its officers, employees and elected officials, boards and commissions, from and against all claims, injury, liability,
loss, costs and expense, or damage, however same may be caused, including all cost and reasonable attorney's fees in providing the defense to any claim arising therefrom, for any loss
or damage to property (real and/ or personal) and for personal injury to or death of any person or persons arising out of, occurring by reason of, or in any way connected with LGMIP'
s activities under this Agreement, or in consequence thereof, except to the extent arising from the Town’s or its officers’, agents’, employees’ or representatives’ gross negligence,
willful misconduct or criminal act.
13. INSURANCE REQUIREMENTS
LGMIP shall supply proof of General Liability (GL) insurance and Automobile Liability (AL) insurance from an insurance company licensed to do business in the state of California and
having a financial rating in Best's Insurance Guide of not less than AA. Both the GL and AL insurance will provide "occurrence" coverage against liabilities for death, personal injury
or property damage arising out of or in any way connected with the Events. Both the GL and AL insurance will be in the minimum amount of $1,000,000.00 combined single limit, and will
name the Town and the Town officers, employees, agents, and registered volunteers as additional insured under the coverage afforded. Such insurance will be primary and noncontributing
with respect to any other insurance available to the Town and will include a severability of interest (cross-liability) clause.
Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during
the term of this agreement with the Town Clerk.
In addition to these policies, Service Provider shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the
Town before beginning services under this Agreement. Further, Service Provider shall ensure that all subcontractors employed by Service Provider provide the required Workers' Compensation
insurance for their respective employees.
A copy of the policy or a certificate of insurance along with an additional endorsement naming the Town as an Additional Insured must be filed in the Town Clerks Office at least ten
(10) business days prior to the scheduled Events. The Additional Insured Endorsement, effective for ongoing and completed operations, must be approved in advance by the Town.
14. USE OF NAME
LGMIP agrees that the Town has used the name “Los Gatos Music in the Park” for the Park Summer Music Concert Series at Civic Center since 1988. The Town hereby grants LGMIP a non-exclusive
right and license to use the name “Los Gatos Music in the Park” in connection with this Agreement and the Summer Concert Series at Civic Center. Upon expiration or termination of this
Agreement, all rights to the name “Los Gatos Music in the Park” shall revert exclusively to the Town and LGMIP shall relinquish all rights and obligations to use the name “Los Gatos
Music in the Park” unless a separate written agreement is obtained from the Town.
15. MISCELLANEOUS PROVISIONS
This Agreement shall not be construed or deemed to be an Agreement for the benefit of any third party or parties, and no third party shall have any claim or right of action hereunder
for any cause whatsoever.
In case any one or more of the provisions contained herein shall, for any reason, be held invalid, illegal, or unenforceable in any respect, it shall not affect the validity of the other
provisions which shall remain in full force and effect.
Under no circumstances shall LGMIP have the authority or power to pledge the credit of the Town, or incur any obligation in the name of the Town. LGMIP shall save and hold harmless the
Town, its Town Council, its officers, employees and boards and commissions from expenses arising out of this Agreement.
In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, as well as reasonable costs.
Neither LGMIP nor any of its subcontractors shall discriminate in the employment of persons because of their race, color, national origin, sex, age, ancestry, sexual orientation, religion,
physical or mental disability, or marital status, unless based upon a bona fide qualification under the California Fair Employment and Housing Act. Neither LGMIP nor any of its subcontractors
shall discriminate in the provision of any services or programs because of race, color, national origin, sex, age, ancestry, sexual orientation, religion, physical or mental disability,
or marital
status, unless based upon a bona fide qualification under the California Fair Employment and Housing Act.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first herein above set forth.
TOWN OF LOS GATOS LOS GATOS MUSIC IN THE PARK
____________________________ ___________________________
Laurel Prevetti Ron Simner
Town Manager Chairman of the Board
APPROVED AS TO FORM
____________________________
Robert Schultz
Town Attorney