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HomeMy WebLinkAboutE-7 Staff Report - Helm and Sons Carnival 2023CONSENT ITEM E-7 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MIKI CARPENTER, DIRECTOR OF COMMUNITY RESOURCES DATE: MAY 15, 2023 SUBJECT: APPROVE LETTER AGREEMENT WITH HELM & SONS AMUSEMENTS FOR OPERATIONS AND SUPPORT SERVICES FOR AZUSA GOLDEN DAYS CARNIVAL BACKGROUND: The Community Resources Department, in partnership with the Azusa Golden Days nonprofit, and other community organizations that make up the Azusa Golden Days Planning Committee, have historically coordinated a carnival during the final weekend of the Golden Days Celebration. The carnival vendor provides amusement rides, game booths and food items to Azusa residents, in conjunction with other activities such as nonprofit fundraising food and information booths at the carnival. RECOMMENDATIONS: Staff recommends that the City Council take the following actions: 1) Approve Letter of Agreement with Helm & Sons to operate a three-day carnival for weekend of October 20-22, 2023. 2)Authorize the City Manager to execute the Letter Agreement, in a form acceptable to the City Attorney, on behalf of the City, subject to non-substantive changes made by the City Manager and City Attorney. Approved City Council May 15, 2023 Letter Agreement Helm & Sons May 15, 2023 Page 2 ANALYSIS Helm & Sons Amusements is an experienced operator of carnivals across California. Helm & Sons will assist with the online presale of tickets, expand marketing efforts, increase the number of rides offered, while providing the game and food booths traditionally present at the Azusa Golden Days Carnival. This year, Azusa Golden Days is one week later than in prior recent years. An informal bid process was conducted by staff, and Helm & Sons was the selected vendor based on experience and responsiveness. FISCAL IMPACT: There is no fiscal impact associated with the recommended actions. Staff time and supplies for these activities are already allocated in the current fiscal year budget. There are no fees charged for these operations and support services directly. Any funds raised through ticket sales will be used to offset Azusa Golden Days expenses, which is a series of events that is co-sponsored by the Azusa Golden Days nonprofit and the City of Azusa. Prepared by: Miki Carpenter Director of Community Resources Fiscal Review by: Reviewed and Approved by: Talika M. Johnson Sergio Gonzalez Director of Administrative Services City Manager Attachments: 1) Letter Agreement for Azusa Golden Days Carnival Operations and Support Services 45635.01000\8513162.1 May 15, 2023 HELM AND SONS AMUSEMENTS INC. PO BOX 660 COLTON, COLTON, CA 92324 Dear Mr. Kay: Letter Agreement for Golden Days Carnival Operations and Support Services This letter shall be our Agreement (“Letter Agreement”) regarding the Golden Days Carnival Operations and Support Services described below (“Services”) to be provided by Helm & Sons Amusements, Sole Proprietorship (“Contractor”) as an independent contractor to the City of Azusa (the “City”) for the City’s Golden Days Carnival Operations and Support Services (“Project”). Contractor is retained as independent contractor and is not an employee of the City. City and Contractor are sometimes referred to herein as “Party” or “Parties.” The Services to be provided include the following: The Services to be provided are more particularly described in the Scope of Services attached hereto as Exhibit “A” and are incorporated herein by reference. Services on the Project shall begin immediately and shall be completed by October 22, 2023, unless extended by the City in writing. Contractor shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Letter Agreement. Attachment 1 Helm & Sons May 15, 2023 Page 2 of 7 45635.01000\8513162.1 Contractor has represented to the City that certain key personnel will perform and coordinate the Services under this Letter Agreement. Should one or more of such personnel become unavailable, Contractor may substitute other personnel of equal competence upon written approval of the City. In the event that the City and Contractor cannot agree as to the substitution of key personnel, the City shall be entitled to terminate this Letter Agreement for cause. The key personnel for performance of this Letter Agreement are as follows: Tom Kay. Compensation shall be based on the actual amount of sales and services provided based upon agreed upon fees, attached hereto as Exhibit “B” and incorporated herein by reference. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Letter Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Commercial general liability insurance in an amount not less than $2,000,000 per occurrence and $5,000,000 general aggregate. Such coverage shall include but shall not be limited to broad form contractual liability, products and completed operations liability, independent contractor’s liability, abuse and molestation liability, and cross liability protection. Contractor shall name the City of Azusa as additional insured by endorsement. There shall be no limitation of coverage on the named additional insureds. Workers' compensation as required by the California Labor Code and employer's liability insurance in an amount of not less than $1,000,000 per accident or occupational illness. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before Project completion, Contractor shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Contractor may terminate this Letter Agreement only upon 30 calendar days’ written notice to the City only in the event of City’s failure to perform in accordance with the terms of this Letter Agreement through no fault of Contractor. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its Helm & Sons May 15, 2023 Page 3 of 7 45635.01000\8513162.1 directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Letter Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorney’s fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Contractor’s obligation to indemnify shall survive expiration or termination of this Letter Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials’ officers, employees, agents, or volunteers. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements; all emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD), the California Air Resources Board (CARB) or other governmental agencies; and all water quality laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board, the Santa Ana Regional Water Quality Control Board and the City. By executing this Letter Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Contractor shall maintain records of its compliance, including its verification of each employee, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub- subcontractors and consultants performing any work relating to the Project or this Letter Agreement to make the same verifications and comply with all requirements and restrictions provided herein. Contractor's failure to comply or any material misrepresentations or omissions relating thereto shall be grounds for terminating this Letter Agreement for cause. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Contractor shall indemnify City against any alleged violations of this paragraph, including, but not limited to, Helm & Sons May 15, 2023 Page 4 of 7 45635.01000\8513162.1 any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Los Angeles County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Letter Agreement, the prevailing Party shall be entitled to recover all reasonable fees and costs incurred, including reasonable attorney's fees, as determined by the court. Contractor shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third-party beneficiaries of any right or obligation of the Parties. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Contractor warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Contractor hereto. If you agree with the terms of this Letter Agreement, please indicate by signing and dating two originals where indicated below and return both to the undersigned. Once the documents are fully executed, one original will be returned to you for your records. [SIGNATURES ON NEXT PAGE] Helm & Sons May 15, 2023 Page 5 of 7 45635.01000\8513162.1 CITY OF AZUSA HELM & SONS Approved by: Reviewed and Accepted by Contractor: City Manager Signature Attest: Name City Clerk Title Approved as to Form: Date Best Best & Krieger LLP City Attorney Helm & Sons May 15, 2023 Page 6 of 7 45635.01000\8513162.1 Exhibit A- Scope of Work 1. Amusement Rides a. Vendor agrees to provide up to 20 rides, or as mutually agreed. Rides may include 7 kiddie rides, 6 mid-size rides & 7 adult/spectacular rides. This could change due to any government rule or regulation. 2. Additional Equipment to be supplied by Vendor a. Electric Power for all show rides and concessions b. Cleanup crew that will empty trash throughout the event. c. Cleanup crew that will clean designated area each night of the Event. d. Social media marketing efforts for the event, to promote the event and to drive on line pre-sale, valued at $3500 - $5000. e. Uniformed Personnel to man all rides and concessions. 3. City to provide a. A suitable location for the operation of the Event. b. Permits and Licenses for opening. c. To properly prepare grounds for the event. Arrange for water and hauling away of trash. d. Restrooms for set-up crew. 4. Set-Up a. Vendor will be allowed to enter the grounds with their equipment on Monday before opening day, at a mutually agreed upon time. b. Set-up must commence two full days before the opening for safety reasons. 5. Hours of Operation (subject to change) a. Friday 5:00 pm-10:00 pm b. Saturday 12:00 pm-10:00 pm c. Sunday 2:00 PM- 10:00 pm 6. Remarks or Additions a. Vendor will have the EXCLUSIVE RIGHT to operate any RIDES, GAMES, FOOD, or any AMUSEMENT BOOT, SALES, or DEVICE not belonging to the City. NO INDEPENDENT or PROFESIONAL OPERATOR may be brought in without the expressed consent Vendor. b. Helm & Sons will provide game and food booths as mutually agreed upon. c. Vendor will sell tickets on site at Carnival and provide a link for advance purchase of wristbands. Helm & Sons May 15, 2023 Page 7 of 7 45635.01000\8513162.1 Exhibit B- Schedule of Fees 1. Ride Tickets and Wristbands: a. Wristband promotional presale at $35.00, plus $4.00 Convenience Fee b. Wristband Price on site at Carnival is $45.00, plus $4.00 Convenience Fee c. Rides take three (3) to ten (10) tickets per person per ride. d. Individual tickets will also be available on-site. 2. Special Midway Concessions a. Vendor will have the right to operate concessions on the midway. b. City shall receive payment of One Hundred Dollars ($200.00) for each game operated, or as deemed appropriate by the committee. c. City shall receive payment of Two Hundred Dollars ($400.00) for each food concession operated, or as deemed appropriate by the committee. 3. Guarantee City shall receive income: 25% of ride gross and 10% of Wow Express (Fast pass). 4. Settlement of income a. Balance of all income and ticket sales shall be done by the end of the event closing night, with balance due to the City submitted within 3 business days b. Audit of tickets/income can be conducted at any time by City staff and/or agents