HomeMy WebLinkAboutAgreement A-23-105 with C Squared Productions LLC.pdf 23-0071 Agreement No. 23-105
1 AGREEMENT
2 THIS AGREEMENT, hereinafter referred to as "Agreement", is made and
3 entered into this 14t" day of March, 2023, by and between the COUNTY OF FRESNO,
4 a Political Subdivision of the State of California, hereinafter referred to as "COUNTY",
5 and C SQUARED PRODUCTIONS, LLC whose address is 18019 Ave 256 Exeter, CA
6 93221, hereinafter referred to as "CONTRACTOR".
7 WITNESSETH
8 WHEREAS, the CONTRACTOR desires to conduct a once a year, three-day
9 Fresno Pirate Festival Event (the "Event") at Kearney Park in the years 2023, 2024,
10 2025, and potentially in the years 2026, and 2027 should the Term of this Agreement
11 be accordingly extended; and
12 WHEREAS, the COUNTY desires to make Kearney Park available to the
13 CONTRACTOR for said Event under the terms and conditions of this Agreement.
14 NOW, THEREFORE, in consideration of the mutual promises and covenants
15 contained in this Agreement, and for other valuable consideration, the receipt and
16 adequacy of which are acknowledged, the parties agree as follows:
17 1. TERM
18 The initial term of this Agreement shall be for three years, commencing March
19 14, 2023, through the 301" day of June 2025, unless terminated earlier in the manner
20 specified below in paragraph 9 "Termination". Upon expiration of said initial three-year
21 term, this Agreement shall automatically renew on its anniversary date for no more
22 than two (2) additional one-year terms, unless terminated earlier in the manner
23 specified in paragraph 9, "Termination".
24 2. PERMISSION TO USE:
25 Subject to the terms and conditions of this Agreement, the CONTRACTOR shall
26 be entitled to exclusive use of Kearney Park ("Property") to conduct a three-day Event
27 each year of the Term, provided the Property, at all times during the Event, shall be
28 open to all members of the public under the same terms and conditions of persons
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1 who are invited by, or otherwise allowed by CONTRACTOR to attend or participate in
2 the Event. In conjunction with this Event, CONTRACTOR shall be solely responsible
3 for providing all adequate and appropriate staffing, equipment, and supplies to set-up,
4 operate, breakdown, clean up (both during the Event and upon its conclusion), and
5 administratively coordinate the Event. CONTRACTOR shall be the responsible
6 sponsor of the Event but may enlist the assistance of or contract with other sponsors
7 for the Event provided the CONTRACTOR shall always be responsible for all of its
8 obligations under this Agreement.
9 In 2023, the Event shall occur on May 19, 20, and 21. Event dates in 2024 and
10 2025 shall be mutually agreed upon by COUNTY and CONTRACTOR. COUNTY is
11 not responsible if inclement weather affects or otherwise prevents CONTRACTOR
12 from holding the Event on the mutually agreed to dates stated.
13 CONTRACTOR represents that it anticipates an attendance of approximately
14 4,500 persons at the Event.
15 3. COMPENSATION:
16 A. CONTRACTOR shall make the following payments, in full, to the
17 COUNTY prior to the Event.
18 (i) Three Thousand Two Hundred Seventy Dollars ($3,270.00) per
19 day for use of Property for the Event, which is not refundable in
20 any event; and
21 (ii) One Thousand Dollars ($1,000.00) per day for a cleanup/
22 damage deposit which is refundable, provided however, such
23 deposit shall not be refunded to the extent that the COUNTY
24 incurs costs or expenses to clean up the Property, or otherwise
25 repair any damage to the Property, in connection with the Event.
26 The posting of such deposit shall neither substitute nor serve as
27 any sort of limitation on CONTRACTOR'S obligations hereunder
28 to clean up, repair, or otherwise replace any damage to the
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1 Property caused in connection with the Event.
2 B. CONTRACTOR shall make the following payments, in full, to the
3 COUNTY no later than thirty (30) days after the date of the invoice from
4 the COUNTY.
5 (i) The CONTRACTOR agrees to pay the COUNTY the standard
6 vehicle entrance fee ("VEF") of Five Dollars ($5.00) per vehicle
7 entering the Property each day of the Event, and CONTRACTOR
8 shall use sequentially numbered tickets to serve as the vehicle
9 entry passes for the Event. COUNTY shall have the right to verify
10 the vehicle count during the Event, either by mechanical means or
11 by physical count, and it is hereby agreed that the accuracy of
12 COUNTY'S count shall not be disputed and shall be accepted as
13 the final and official count for the purpose of calculating the
14 CONTRACTOR'S total VEF payment component pursuant to this
15 Paragraph 3(B)(i) (based on the number of vehicles entering the
16 Property during the Event, multiplied by the standard VEF charge
17 of Five Dollars ($5.00) per vehicle). CONTRACTOR will be
18 allowed to create up to twenty-five (25), COUNTY approved,
19 proprietary Event staff vehicle identification markers that must be
20 placed on the Event staff vehicle front windshield, in the upper
21 right hand corner, to identify Event staff vehicles which will neither
22 be charged the standard VEF nor counted in calculating the
23 CONTRACTOR'S total VEF payment component pursuant to this
24 Paragraph 3(B)(i); provided that such Event staff vehicles shall be
25 required to use the appropriate vehicle entrance gate which will be
26 specified in advance of the Event date by the COUNTY.
27 CONTRACTOR shall make such payment to the COUNTY within
28 thirty (30) days of the date of the invoice from the COUNTY, and it
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1 is expressly acknowledged that such obligation on the part of the
2 CONTRACTOR shall survive the expiration of the term of this
3 Agreement.
4 C. If CONTRACTOR fails to pay fully any of the foregoing amounts to
5 COUNTY within the time specified above, then:
6 (i) COUNTY shall have the sole right to immediately terminate this
7 Agreement, upon written notice thereof given by COUNTY'S
8 Director of the Department of Public Works and Planning or his or
9 her designee, to CONTRACTOR; and COUNTY shall be entitled
10 to retain all of such funds (if any) having theretofore been paid by
11 CONTRACTOR, and CONTRACTOR shall remain liable to
12 COUNTY for full payment of all of such amounts, and for any
13 other damages caused to COUNTY.
14 D. All payments by CONTRACTOR to COUNTY shall be made and
15 delivered to: Fresno County Parks, 2220 Tulare Street, 6t" Floor, Fresno,
16 CA 93721.
17 4. EVENT ENTRANCE FEE AUTHORIZATION:
18 The CONTRACTOR shall not be prohibited from collecting an additional fee for
19 entry (i.e. in addition to the standard VEF payable to the County under Paragraph
20 3(13)(i)), for entry onto the Property during the dates of the Event, and the amount of
21 such additional fee is neither approved nor disapproved of by COUNTY.
22 5. SECURITY, TRAFFIC CONTROL, PARKING, RUBBISH AND
23 SANITARY FACILITIES:
24 A. CONTRACTOR shall be solely responsible for providing crowd
25 control by making adequate and appropriate arrangements for security
26 to ensure the safety of all persons in and around the Property during the
27 day of the Event. In this regard, CONTRACTOR shall, without any cost
28 or expense to COUNTY, provide all necessary security and traffic control
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1 on the day of the Event, sufficient, as determined by the Fresno County
2 Sheriff's Department and the California Highway Patrol, to ensure the
3 safety of all patrons, Event participants, invitees and members of the
4 public who come onto the Property, and County staff. The
5 CONTRACTOR also shall be responsible for providing adequate and
6 appropriate traffic and parking control.
7 B. The CONTRACTOR shall provide an adequate number of clean,
8 portable toilets (stocked with appropriate paper supplies) and hand
9 washing stations (stocked with appropriate paper supplies and soap) in
10 the Event area, as determined by the County's Resources Manager.
11 C. The CONTRACTOR shall be responsible for providing, at its sole
12 expense, adequate dumpsters for disposal of all refuse generated by the
13 Event, and litter and debris control. CONTRACTOR shall also provide,
14 at its own expense, any additional personnel, trash cans, equipment and
15 supplies needed, over and above the COUNTY'S normal and customary
16 operation for making the Property available to CONTRACTOR in the
17 paragraph immediately above, in order to maintain the Property in a safe,
18 clean, attractive, and orderly condition during the Event. CONTRACTOR
19 shall provide, at its sole expense, containers for recycling.
20 CONTRACTOR shall dispose of recycled material at an approved
21 recycling facility.
22 6. CONSTRUCTION OF FACILITIES, STRUCTURES, TENTS AND STANDS:
23 A. The CONTRACTOR, upon the pre-approval from COUNTY, and at
24 the CONTRACTOR's sole expense, CONTRACTOR shall be allowed to construct and
25 maintain on the Property, during the Event, such temporary facilities and structures as
26 are necessary for conducting the Event, including, but not limited to, fences, barriers,
27 grandstands and signs, provided however, such temporary facilities and structures
28 shall not cause any damage to the Property.
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1 B. The CONTRACTOR shall also be and is hereby granted permission to
2 erect tents, concession stands, or both, during the Event provided however, such
3 temporary facilities and structures shall not cause any damage to the Property.
4 C. All construction and installation, including electrical
5 hook-ups, shall be made by CONTRACTOR and at CONTRACTOR'S sole expense,
6 and shall always be done in a good workmanlike manner, with appropriate equipment,
7 supplies and materials, by properly skilled personnel, who shall have contractor's
8 licenses for performing any of such work where contractor's licenses would be
9 required by building and construction codes and laws. CONTRACTOR shall obtain all
10 necessary building permits.
11 D. All structures, facilities, concession stands, tents and items provided
12 by CONTRACTOR shall be removed by CONTRACTOR at CONTRACTOR'S sole
13 expense no later than twenty-four (24) hours following the conclusion of the Event, and
14 CONTRACTOR shall fully restore the Property to its original condition as it existed
15 prior to the Event.
16 7. MAINTENANCE OF, AND PAYMENT FOR DAMAGE TO PROPERTY:
17 COUNTY shall be responsible for making the Property available to
18 CONTRACTOR immediately prior to CONTRACTOR'S Event in as clean, attractive
19 and orderly a condition as would be normal for COUNTY'S parks and recreation
20 facilities that are of a similar type to the Property, provided, however, COUNTY shall
21 not have any obligation to continue to maintain or clean up the Property during the
22 Event, or provide any other services during the event.
23 CONTRACTOR shall be liable for any and all theft of, and damage and
24 destruction to any and all plants, shrubs, trees, turf, paved surfaces, irrigation systems,
25 equipment and structures and improvements located upon the Property, and
26 improvements located beneath the Property, excluding reasonable wear and tear, and
27 for all cleanup of all litter and debris caused by CONTRACTOR or its officers,
28 employees, agents, sponsors, patrons, Event participants, invitees and members of
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1 the public who come onto the Property. COUNTY shall inspect the Property for
2 cleanup purposes no later than twenty-four (24) hours after the conclusion of Event.
3 COUNTY shall inspect the Property for theft, damage and destruction no later than
4 seventy-two (72) hours after CONTRACTOR has removed all temporary structures,
5 facilities, concession stands and tents referred to in section 6 above. If, as a result of
6 said inspections by COUNTY, any theft, damage or destruction, or litter or debris is
7 found to exist, COUNTY shall remove any litter and debris and repair or replace any
8 loss, damage or destruction, and the costs and expenses for repairs or replacement,
9 or cleanup first shall be deducted from the cleaning/damage deposit until exhausted,
10 and thereafter, shall be billed to CONTRACTOR, who shall be fully responsible for
11 paying all such amounts due. COUNTY shall determine its costs and expenses
12 chargeable to CONTRACTOR by using COUNTY'S actual cost and expenses of
13 materials, supplies, goods, and labor, including COUNTY overhead, as applicable.
14 8. SALES:
15 A. Souvenirs and Apparel: The CONTRACTOR shall have
16 the right to sell official Event souvenirs and apparel onsite of the Property
17 and to retain one hundred percent (100%) of such revenue.
18 B. Food, Drinks and Merchandise: The CONTRACTOR or its
19 Concessionaire(s) may sell food, drinks and merchandise onsite of the
20 Property and shall retain one hundred percent (100%) of such revenue.
21 Alcohol sales shall be permitted at the Event, conditioned on compliance
22 with all applicable laws and regulations, specifically including the
23 responsibility of CONTRACTOR or its concessionaire(s) to obtain all
24 necessary licenses for such sales as required by the Alcoholic Beverage
25 Control Board.
26 C. Sales and Use Taxes, and Other Taxes: CONTRACTOR shall be
27 solely responsible for complying with any and all laws concerning the
28 charging of, collecting, and paying to the appropriate governmental
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1 authorities, all sales and use taxes, and any other taxes and charges, in
2 connection with the sales of any food, drinks (including, but not limited to,
3 alcoholic beverages), merchandise, and other goods in connection with
4 the Event, and the COUNTY shall not have any obligation in connection
5 therewith.
6 9. TERMINATION:
7 A. Non-Allocation of Funds: The terms of this Agreement, and the
8 services to be provided thereunder, are contingent upon the
9 availability of funds by the COUNTY in connection with the
10 performance of its obligation under this Agreement. Should sufficient
11 funds not be allocated, the services provided may be modified, or this
12 Agreement terminated, at any time by giving the CONTRACTOR ten
13 (10) days advanced written notice.
14 B. Breach of Contract: COUNTY'S Director of Public Works and
15 Planning, or his or her designee may immediately suspend or
16 terminate this Agreement in whole or in part, upon the determination
17 by COUNTY that there is on the part of the CONTRACTOR:
18 1) An illegal or improper use of funds;
19 2) A failure to comply with any term of this Agreement; or
20 3) A substantially incorrect or incomplete report or false information
21 submitted to the COUNTY.
22 In no event shall any receipt of any funds by the COUNTY constitute a
23 waiver by the COUNTY of any breach of this Agreement or any default
24 which may then exist on the part of the CONTRACTOR with regard to
25 any additional funds payable to COUNTY in connection with this
26 Agreement. Neither shall such payment impair or prejudice any remedy
27 available to the COUNTY with respect to the breach or default for any
28 additional funds owed by CONTRACTOR to COUNTY.
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1 C. Without Cause: Under circumstances other than those set
2 forth above, this Agreement may be terminated by COUNTY's Director of
3 Public Works and Planning or his or her designee or CONTRACTOR
4 upon the giving of fifteen (15) days advance written notice of an intention
5 to terminate to the other party.
6 10. COMPLIANCE WITH LAWS: CONTRACTOR shall comply with
7 any and all federal, state and local laws (including, but not limited to, the Fresno
8 County Ordinance Code), ordinances and regulations applicable to the work, activities,
9 and sales covered by this Agreement.
10 11. INDEPENDENT CONTRACTOR: In the conducting of the Event and the
11 performance of the work, duties and obligations assumed by CONTRACTOR under
12 this Agreement, it is mutually understood and agreed that CONTRACTOR, including
13 any and all of the CONTRACTOR'S officers, agents, and employees, will at all times
14 be acting and performing as an independent contractor, and shall act in an
15 independent capacity and not as an officer, agent, servant, employee, joint venturer,
16 partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to
17 control or supervise or direct the manner or method by which CONTRACTOR shall
18 perform its obligations under this Agreement. However, COUNTY shall retain the right
19 to administer this Agreement so as to verify that CONTRACTOR is performing its
20 obligations in accordance with the terms and conditions thereof. CONTRACTOR and
21 COUNTY shall comply with all applicable provisions of law and the rules and
22 regulations, if any, of governmental authorities having jurisdiction over the subject
23 matter.
24 Because of its status as an independent contractor, CONTRACTOR, including
25 any and all of the CONTRACTOR'S officers, agents and employees shall have
26 absolutely no right to employment rights and benefits available to COUNTY
27 employees. CONTRACTOR shall be solely liable and responsible for providing to, or
28 on behalf of, its employees all legally required employee benefits. In addition,
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1 CONTRACTOR shall be solely responsible and save COUNTY harmless from all
2 matters relating to payment of CONTRACTOR'S employees and agents, including, but
3 not limited to, compliance with Social Security withholding and all other regulations
4 governing such matters.
5 12. MODIFICATION: Any matters of this Agreement may be modified
6 from time to time by the written consent of all the parties without, in any way, affecting
7 the remainder.
8 13. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract
9 this Agreement nor their rights or duties under this Agreement without the prior written
10 consent of the other party.
11 14. HOLD HARMLESS: CONTRACTOR agrees to indemnify, save,
12 hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents,
13 and employees, from any and all costs and expenses (including attorney's fees and
14 costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in
15 connection with the performance, or failure to perform, by CONTRACTOR, its officers,
16 agents, employees, or sponsors, in connection with this Agreement, and from any and
17 all costs and expenses (including attorney's fees and costs), damages, liabilities,
18 claims and losses occurring or resulting to any person, firm, corporation, sponsors,
19 patrons, Event participants, invitees and members of the public who come onto the
20 Property who may be injured or damaged by the performance, or failure to perform, of
21 CONTRACTOR, its officers, agents, employees, or sponsors in connection with this
22 Agreement.
23 15. INSURANCE: Without limiting the COUNTY'S rights to obtain
24 indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole
25 expense, shall maintain in full force and effect the following insurance policies
26 throughout the term of this Agreement.
27 A. Comprehensive General Liability Insurance with limits of
28 not less than Two Million Dollars ($2,000,000.00) per occurrence and an
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1 annual aggregate of Four Million Dollars ($4,000,000.00).
2 B. A policy of Workers Compensation insurance as may be
3 required by the California Labor Code.
4 C. Comprehensive Automobile Liability Insurance with limits for bodily
5 injury of not less than Two Hundred Fifty Thousand Dollars
6 ($250,000.00) per person, Five Hundred Thousand Dollars
7 ($500,000.00) per accident and for property damages of not less than
8 Fifty Thousand Dollars ($50,000.00), or such coverage with a combined
9 single limit of Five Hundred Thousand Dollars ($500,000.00). Coverage
10 shall include owned and non-owned vehicles used by CONTRACTOR in
11 connection with this Agreement.
12 CONTRACTOR shall obtain endorsements to the Comprehensive General
13 Liability and Automobile Liability Insurance naming the COUNTY, its officers, agents,
14 and employees, individually and collectively as additional insured, but only insofar as
15 the operations of CONTRACTOR under this Agreement are concerned. Such
16 coverage for additional insured shall apply as primary insurance and any other
17 insurance, or self insurance, maintained by COUNTY, its officers, agents, and
18 employees shall be excess only and not contributing with insurance provided under
19 the CONTRACTOR'S policies herein. This insurance shall not be canceled or changed
20 without a minimum of thirty (30) days advance, written notice given to COUNTY.
21 Within five (5) days of its execution of this Agreement, CONTRACTOR shall
22 provide certificates of insurance on the foregoing policies as required herein, to the
23 COUNTY'S DEPARTMENT OF PUBLIC WORKS AND PLANNING, stating that such
24 insurance coverages have been obtained and are in full force; COUNTY, its officers,
25 agents, and employees will not be responsible for any premiums on the policies. The
26 Comprehensive General Liability Insurance and the Automobile Liability Insurance
27 shall name the COUNTY, its officers, agents, and employees, individually and
28 collectively, as additional insured, but only insofar as the operations of CONTRACTOR
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Fresno,California 11
1 under this Agreement are concerned; that such coverages for additional insured shall
2 apply as primary insurance and any other insurance, or self-insurance, maintained by
3 the COUNTY, its officers, agents, and employees, shall be excess only and not
4 contributing with insurance provided under the CONTRACTOR's policies herein; and
5 that this insurance shall not be canceled or changed without a minimum of thirty (30)
6 days advance, written notice given to COUNTY.
7 In the event CONTRACTOR fails to keep in effect at all times insurance
8 coverage as herein provided, the COUNTY may, in addition to other remedies it may
9 have, suspend or terminate this Agreement upon the occurrence of such event.
10 All policies shall be with admitted insurers licensed to do business in the State
11 of California. Insurance purchased shall be purchased from companies possessing a
12 current A.M. Best, Inc. rating of A FSC VII or better.
13 16. AUDITS AND INSPECTIONS:
14 The CONTRACTOR shall at any time during business hours, and as
15 often as the COUNTY may deem necessary, make available to the COUNTY for
16 examination all of its records and data with respect to the matters covered in the
17 Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the
18 COUNTY to audit and inspect all such records and data necessary to ensure the
19 CONTRACTORS compliance with the terms of this Agreement.
20 If this Agreement exceeds ten thousand dollars ($10,000.00), the
21 CONTRACTOR shall be subject to the examination and audit of the Auditor General
22 for a period of three (3) years after final payment under the Agreement (Government
23 Code Section 8546.7).
24 17. NOTICES: The persons and their addresses having authority to
25 give or receive notices under this Agreement include the following:
26 COUNTY CONTRACTOR
27 County of Fresno C Squared Productions, LLC
Steven E. White, Director Randy Smith & Cheryl Vera Smith
28 Department of Public 18019 Ave 256
Works and Planning Exeter, CA 93221
COUNTY OF FRESNO
Fresno,California 12
1 2220 Tulare St. 6th floor (559) 303-3112
Fresno, CA 93721
2 (559) 600-4078
3 Any and all notices between the COUNTY and the CONTRACTOR provided for
4 or permitted under this Agreement or by law shall be in writing and shall be deemed
5 duly served when personally delivered to one of the parties, or in lieu of such personal
6 services, when deposited in the United States Mail, postage prepaid, addressed to
7 such party.
8 18. GOVERNING LAW: For purposes of venue, this agreement shall be
9 deemed to be performed in Fresno County. Venue for any action arising out of or
10 related to this Agreement shall only be in Fresno County, California.
11 The rights and obligations of the parties and all interpretation and performance
12 of the Agreement shall be governed in all respects by the laws of the State of
13 California.
14 19. ENTIRE AGREEMENT: This Agreement constitutes the entire
15 Agreement between the CONTRACTOR and COUNTY with respect to the subject
16 matter thereof and supersedes all previous Agreement negotiations, proposals,
17 commitments, writings, advertisements, publications, and understandings of any
18 nature whatsoever unless expressly included in this Agreement.
19 20. COUNTERPARTS: This Agreement may be signed in counterparts, each of
20 which is an original, and all of which together constitute this Agreement.
21
The parties are signing this Agreement on the date stated in the introductory
22 clause.
23
C SQUARED PROD CTIONS, LLC COUNTY OF FRESNO
24
BY: r
25 Title Vr
g�'Chairman
26
/'� 7- B rvisors of the
County of Fresno
27 ATTEST:
BERNICE E.SEIDEL
28 Clerk of the Board of Supervisors
County of Fresno,State of California
NTY OF FRESNO
sno,Califomia 13 By f-Z1Q1CCAs��f/i� M Deputy
1 ATTEST:
Bernice E. Seidel
2 Clerk to the Board of Supervisors
County of Fresno, State of California
3
By see attestation on page 13
4 Deputy
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25 FOR ACCOUNTING USE ONLY:
Fund: 0001
26 Subclass: 10000
Org. No: 7910
27 Account: 5055
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COUNTY OF FRESNO
Fresno,California 14