1.4 Staff ReportM
°11N F
°S COUNCIL AGENDA REPORT
DATE: JANUARY 27, 2016
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
MEETING DATE: 02/02/16
ITEM NO: 1.4
SUBJECT: AUTHORIZE THE TOWN MANGER TO EXECUTE A THREE YEAR AGREEMENT
FOR SERVICES WITH LOS GATOS MUSIC AND ARTS TO PROVIDE
OPERATION OF THE JAZZ ON THE PLAZZ SUMMER CONCERT SERIES
THROUGH SEPTEMBER 2018.
RECOMMENDATION:
Authorize the Town Manager to execute a three year agreement for services (Attachment 1) with Los
Gatos Music and Arts to provide operation of the Jazz on the Plazz Summer Concert Series through
September 2018.
BACKGROUND:
Jazz on the Plazz (JOTP) is a series of free public concerts, featuring world-class local and international
musicians produced by Los Gatos Music & Arts (LGM&A) which have been held on Wednesday
evenings from June through August at the Los Gatos Plaza Park since 2004. Proceeds from fundraising
activities and the summer concert series is used to sponsor youth workshops and music and arts
programs for people of all ages.
DISCUSSION:
Per Council's direction, the special event permit that LGM&A has applied for annually to operate JOTP
has been converted into a standard agreement for services in order to comply with municipal code
requirements. The proposed three year agreement includes the payment of all fees included within the
master fee schedule, and the same provisions, and performance standards that were previously included
in prior year's special event permits. The agreement does not require the payment for Town in-kind
services. A list of the proposed scope of services provided by the Town and LGM&A is detailed in
Attachment 1 (pp. 2-6). All parties are in agreement with the terms and conditions proposed within the
attached agreement.
PREPARED BY: CHRISTINA GILMORE
Assistant To The Town Manager
Reviewed by: Assistant Town Manager Town Attorney Finance 25
N�MGRWdminWotkriles\2016 Comcil ReportsW2-02\J=_oo_the_Plaa_Agmcment_02.02.16.doc
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MAYOR AND TOWN COUNCIL
SUBJECT: JAZZ ON THE PLAZZ
JANUARY 27.2016
CONCLUSION:
Staff recommends that the Town Council authorize the Town Manager to execute a three year
agreement for services (Attachment 1) with Los Gatos Music and Arts to operate the Jazz on the Plazz
Summer Concert Series through September 2018.
ALTERNATIVES:
Alternatives to the recommendation provided above include:
1. Direct staff to revise the agreement, and then move forward with Los Gatos Music and Arts.
2. Provide other direction.
COORDINATION:
This staff report was prepared in collaboration with the Town Attorney's Office and the Finance
Department.
FISCAL IMPACT:
In-kind contributions for Town services have been identified and included within the proposed
agreement. These costs will be included in the proposed FY 2016/17 to FY 2017/18 budgets. "1
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Agreement for the Operation of the Jazz on the Plazz Summer Concert Series (with Exhibit A)
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AGREEMENT BY AND BETWEEN THE TOWN OF LOS GATOS AND LOS GATOS
MUSIC AND ARTS FOR THE PROMOTION AND PRODUCTION OF THE JAZZ ON
THE PLAZZ SUMMER MUSIC CONCERT SERIES
THIS Agreement is made and entered into this 2ND day of February 2016, by and between the
Town of Los Gatos, a municipal corporation of the State of California (hereinafter "Town"), and
Los Gatos Music & Arts, a California nonprofit corporation (hereinafter LGM&A").
WITNESSETH
WHEREAS, the Town has authorized and coordinated with Los Gatos Music & Arts for, "Jazz
on the Plazz", a free Wednesday night summer music concert series that has enriched the
community and added vitality to the downtown area, since 2004; and
WHEREAS, to insure the Town will have adequate advance notice of "Jazz on the Plazz"
summer music concert series and to adequately plan Town services and to preserve the Town's
commitment to attract quality Events with significant cultural and entertainment enrichment for
the community at -large an agreement is necessary; and
WHEREAS, Los Gatos Music & Arts is a local nonprofit agency that has shown its ability to
coordinate this Summer Music Concert Series and desires to enter into an agreement with the
Town; and
WHEREAS, the Town desires to enter into an Agreement with LGM &A to administer, promote
and produce the Jazz on the Plazz 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, 2018. An amendment to this Agreement may be made to renew its term, pursuant
to Section 8, Terms and Amendments. Such amendment must be approved by the Town Council
prior to December 30, 2018.
2. EVENTS DATES & TIMES
The Events will take place on Wednesday nights in the months of June, July and August. Set up
shall be allowed to begin at 11:00 AM on the day of the Events. Prior to May 15' of each year,
LGM&A shall provide the Town with dates of the Events.
3. PREMISES
The Events shall take place on the grounds of the Town Plaza, as designated on the map attached
as Exhibit A (the "Grounds").
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Page 1 of 9
4. SCOPE OF SERVICES
LGM&A shall provide the following scope of services:
1. LGM&A shall provide the Town annually with documentation establishing its non-profit
status.
2. LGM&A agrees to plan, organize, produce and manage the Jazz on the Plazz Summer
concert series that provides a positive, high quality, social experience through music for
families and community members.
3. LGM&A shall be responsible for all financial costs 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.
4. LGM&A shall provide an adequate number of staff and volunteers to run the Events, and
cleaning after the Events.
5. LGM&A shall maintain a clean, safe, and attractive environment for the Events.
6. LGM&A shall reimburse the Town any and all fees to the American Society of
Composers, Authors and Publishers (ASCAP); Broadcast Music Inc. (BMI); and Society
of European Stage Authors and Composers (SESAC). .-,
7. LGM&A shall pay the non-profit Special Events Administrative Annual Fee in the
amount of $169.00 and an Annual Banner Fee of $90.60 to the Town which shall be
subject to annual adjustments set forth in the Town's Master Fee Schedule. All other fees
and permits are waived by the Town unless specially set forth in this Agreement.
8. LGM&A shall not sell any alcohol. If LGM&A offers winetasting to sponsors in a
designated private hospitality area, LGM&A 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 as set forth
in the Master Fee Schedule. If LGM&A offers winetasting to sponsors in a designated
private hospitality area, LGM&A will designate people to monitor alcohol use and
compliance with alcohol use in accordance to the permits issued.
9. LGM&A shall limit amplified sound between the hours of 2 p.m. and 9 p.m. and
amplified sound shall not exceed a noise level of 98 decibels, as measure 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 LGM&A to reduce the volume
level not to exceed 95 decibels, as measured from a distance of 300 feet from the Town
Plaza Grounds. Sound company provided by LGM&A shall provide industry standard
sound measuring equipment and establish that sound is within the limits.
.,
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10. LGM&A shall be allowed to sell Events items only, such as sponsorships and other
fundraising activities for the Events, performer's CD's, Jazz T -Shirts and other
memorabilia.
11. LGM8rA shall encourage attendees of the Events to not interfere with pedestrian or
vehicular traffic in the area. Exhibit "A" shall include a site plan of the layout of the
Events. LM&A 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.
12. LGM&A shall provide a best estimate of attendance prior to each date of Events for
Town management planning.
13. LGM&A shall include clearly designated access throughout the site grounds for mobility
impaired attendees, both near the stage and through the main seating area.
14. LGM&A shall notify the Town Manager or his/her designee at the earliest opportunity of
any Events which is likely to exceed the ordinary boundaries of the Grounds as set forth
on Exhibit "A".
15. LGM&A shall notify the Town Manager or his/her designee should any single Events
exceed the capacity of the park as determined by the Director of Parks and Public Works.
16. LGM&A 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, LGM&A shall pay an Encroachment Permit Fee of $112.00 and any
annual adjustments thereto.
17. LGM&A shall pay for extra trash/recycle/glass containers and pick up costs as
determined and required by the Town. LGM&A shall be responsible for the cleanliness of
the Grounds, including the removal of trash -refuse not contained in any designated can
before vacating the site for any single Events. Should LGM&A fail to perform adequate
cleanup or damage occurs to Town property, the Town will invoice LGM&A at full
recovery rates, plus overhead for cleanup and repair.
18. LGM&A 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 Events coordinator. Town shall provide LGCC with names and
addresses of businesses and residences affected by this requirement.
19. LGM&A shall provide signage posted in the audience area prohibiting blankets and other
items that might interfere with the Events. LGM&A shall not allow the unattended
staking of any spots and will take action to prevent reservations prior to 3 p.m. on date of
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any Events. LGM&A 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.
20. LGM&A shall not require the use of police officers outside their regularly scheduled
deployment. If possible, without disruption of ordinary policy services or compromise of
public safety, regularly scheduled on -duty personnel will police the event. If additional
police are deemed necessary by the Chief of Police, he/she shall so inform LGM&A.
LGM&A shall have the duty to secure the protection deemed necessary by the Chief of
Police, at the sole expense of LGM&A. Should the Event require extra assignment of
police officers to protect public safety, then LGM&A shall compensate the Town at an
hourly police officer rate of $166.21.
21. LGM&A shall not close any streets or parking spaces unless clearly designated on
Exhibit "A". A barricade with an attendant shall be placed at the entrance of
Montebello/Broadway beginning at 4:00 p.m. on the day of the Events to ensure that
parking spaces on that street are used for patrons of businesses and the Post Office until
the close of business and to provide for the unloading of Events equipment.
22. LGM&A shall limit advertising to the local region.
23. LGM&A shall be responsible for any portion of Town Plaza that is damaged by the act,
default or negligence of LGM&A, its agents, employees, contractors, sub -contractors,
patrons, guests, and will pay to the Town, within thirty (30) days of written invoice, such
actual and documented sum as shall be reasonably necessary to restore the Town Plaza to
its condition as received by LGM&A at the beginning of the Events 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 Town Plaza prior to the first Events and periodically during the Events and again after
the last Events. During the walk-through, the parties will assess and identify, as
applicable, pre-existing conditions and damages, if any, that may have occurred during
LGM&A's use, and will consult and agree in good faith as to what, if any, repair or
restoration costs will be paid for by LGM&A. In regard to normal wear and tear, the
Town acknowledges that Town Plaza is 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 Town Plaza.
24. LGM&A 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
LGM&A is unable to meet any additional requirements the Town Manager may add, the
Town and LGM&A will meet to discuss workable remedies.
25. LGM&A agrees that the Town Manager or his/her designee reserves the right to adjust
any of the above conditions based on the conduct at any of the proposed 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
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constitutes a change in this Agreement and must be feasible for LGM&A to accomplish.
If any conditions the Town adjusts are not feasible for LGM&A, the parties shall meet to
discuss a workable remedy. If not possible, the particular Events in question may be
cancelled by either parry.
Town shall provide the following scope of services:
26. Town shall provide the use of Town Plaza for all Jazz on the Plazz concerts.
27. Town shall provide electrical power to the stage area by 11:00 am each Events day.
28. Town shall promote the Events on its municipal website and in the lobby of Town Hall.
29. Town shall allow LGM&A to hang banners, with the payment of an Annual Fee,
advertising the Events concert series. The size and location of any banners shall be
subject to the Town Banner Policy and subject to the Town Manager's approval.
30. Town shall provide "NO Parking Signs" along the Plaza side of South Santa Cruz Avenue
at least 72 hours prior to the Events.
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 LGM&A, or a designated LGM&A Board officer, shall be the Program
Director for LGM&A, 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:
Town Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 9503
LGM &A:
President and Chairperson
Los Gatos Music & Arts
101 W. Main Street
Los Gatos, CA 95030
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6. REPORTING
LGM&A 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
LGM&A shall be deemed to be in default of its obligations under this Agreement if the Contract
Manager determines that LGM&A is providing services below the established minimum
standard of service set forth in this Agreement. In this Events, LGM&A 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 LGM&A 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 refereed 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 LGM&A'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 Events the plan is not deemed satisfactory, the Town may, at its sole
discretion, suspend or cancel this Agreement without incurring any liability to LGM&A.
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:
1. If LGM&A (with or without knowledge) has made any material misrepresentation of any
nature with respect to any information or data furnished to the Town.
2. The existence of pending litigation against LGM&A that may in any manner affect its
ability to perform any of its duties or obligations under this Agreement.
3. LGM&A taking any action requiring Town approval without first having obtained such
approval.
4. LGM&A submits to the Town any reports that are purposely false or incomplete in any
material respect.
5. LGM&A declares bankruptcy or otherwise indicates that it is no longer willing or able to
meet its obligations under this Agreement.
6. LGM&A refuses to accept any additional conditions that may be imposed by federal or
state requirements.
7. The Town, at its sole discretion, determines there ares imminent health and safety issues
involved with the Events.
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8. ASSIGNABILITY AND INDEPENDENT CONTRACTOR REQUIREMENTS
The relationship of LGM&A to the Town is that of an independent contractor. LGM&A is
responsible for the results of its services and compliance with the terms of this Agreement.
LGM&A has full rights to manage employees subject to the requirements of the law. All persons
employed by LGM&A in connection with this Agreement shall be employees of LGM&A and
not employees of the Town in any respect. LGM&A 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 delegated or subcontracted to
third parties without prior written Town approval. All subcontractors are deemed to be
contractors of LGM&A, and LGM&A 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 LGM&A. 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.
9. COMPLIANCE WITH LAW
LGM&A shall comply with all applicable laws, codes, ordinances, and regulations of governing
federal, state, and local laws, ordinances, codes, regulations, and decrees. Failure of LGM&A to,
in any manner, observe and adhere to law as described herein or as amended shall in no way
relieve LGM&A of responsibility to adhere to same and LGM &A herein acknowledges this
responsibility. LGM&A represents and warrants to the Town that it has 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.
LGM&A represents and warrants to Town that LGM&A 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.
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11. LEGAL MATTERS
This document, including Exhibits represents the entire and integrated Agreement between the
Town and LGM&A, 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 INDEMNIFICATION
LGM&A hereby assumes full responsibility for the acts and conduct of all persons at the Town
Plaza 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 LGM&A'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
LGM&A 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. Such 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.
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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. MISCELLANEOUS PROVISIONS
This Agreement shall not be construed or deemed to be an Agreement for the benefit of any third
parry or parties, and no third parry 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 LGM&A have the authority or power to pledge the credit of the
Town, or incur any obligation in the name of the Town. LGM&A 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 LGM&A 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 LGM&A 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 & ARTS
Laurel Prevetti
Town Manager
APPROVED AS TO FORM
Town Attorney
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Teri Hope
President
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