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HomeMy WebLinkAboutResolution 2015-009 Approving and authorizing the Mayor to execute an agreement between Town of Marana and S & S Bluegrass PromotionsMARANA RESOLUTION NO. 2015-009 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE TOWN OF MARANA AND S & S BLUEGRASS PROMOTIONS, LLC REGARDING THE PLANNING, DEVELOPMENT AND PRESENTATION OF THE 2015 MARANA BLUEGRASS FESTIVAL WHEREAS on January 6, 2015, the Town Council adopted the Town of Marana Strategic Plan III which identifies Community as one of its five focus areas and includes the initiative to market Marana as a destination for unique, family - friendly events; and WHEREAS for the past several years, the Town, in collaboration with several non - profit entities and others in the local bluegrass community, has presented the Marana Bluegrass Festival; and WHEREAS S & S Bluegrass Promotions ( "S & S ") is an Arizona limited liability company organized to plan, implement and manage bluegrass- related special events and to book bluegrass bands for concerts, festivals and events; and WHEREAS on March 4, 2014, the Town Council adopted Resolution No. 201.4 -20 approving an agreement with S & S regarding S & S's participation in the presentation of the 2014 Marana Bluegrass Festival (the "2014 Agreement " ). The 2014 Agreement was effective on March 4, 2014, and had an initial term of one year; and WHEREAS the Town and S & S desire to terminate the 2014 Agreement and enter into a new agreement for S & S to plan, develop and present the 2015 Marana Bluegrass Festival (the "Festival ") with support and assistance from the Town as described in this Agreement; and WHEREAS the Town Council finds that approval of an agreement related to the planning, development and presentation of the 2015 Marana Bluegrass Festival as set forth in this resolution is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, as follows: SECTION 1. The agreement between the Town of Marana and S & S Bluegrass Promotions, LLC regarding the planning, development and presentation of the 2015 Marana Bluegrass Festival, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. Resolution No. 2015 -009 - � - PASSED AND ADOPTED b the Ma and Council of the Town of Marana, Arizona, this 20th da of Januar 2015. Ma Ed Ho ea ATTEST: ocel ronson, Town Clerk APPROVED AS TO FORM: Resolution No. 2015-009 - 2 - EXHIBIT A To RESOLUTION No. 2015 -009 AGREEMENT BETWEEN THE TOWN OF MARANA ANDS & S BLUEGRASS PROMOTIONS, LLC FOR THE 2015 MARANA BLUEGRASS FESTIVAL THIS AGREEMENT (the "Agreement ") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town ") and S & S BLUEGRASS PROMO- TIONS, LLC, an Arizona limited liability company ("'S & S "). The Town and S & S are sometimes collectively referred to in this Agreement as the "Parties," each of which is sometimes individually referred to as a "Party." RECITALS A. In January 2015, the Town Council of the Town of Marana adopted the Town of Marana Strategic Plan III (the ""Plan"). The Plan identifies Community as one of its five focus areas. Under the Community focus area, the Plan includes an initiative to market Marana as a destination for unique, family - friendly events. B. For the past several years, the Town, in collaboration with several non - profit enti- ties and others in the local bluegrass community, has presented the Marana Bluegrass Festival. C. S & S Bluegrass Promotions is an Arizona limited liability company organized to plan, implement and manage bluegrass - related special events and to book bluegrass bands for concerts, festivals and events. D. On March 4, 2014, the Town Council adopted Resolution No. 2014 -20 approving an agreement with S & S regarding S & S's participation in the presentation of the 2014 Marana Bluegrass Festival (the "2014 Agreement ") . The 2014 Agreement was effective on March 4, 2014, and had an initial term of one year. E. The Town and S & S desire to terminate the 2014 Agreement and enter into a new agreement for S & S to plan, develop and present the 2015 Marana Bluegrass Festival (the "Festival ") with support and assistance from the Town as described in this Agree- ment. F. The Town finds that the benefits to the Town resulting from S & S's production and presentation of the 2015 Marana Bluegrass Festival have a value at least equal to the fair market value of the in -kind support and assistance and compensation to be provid- ed to S & S by the Town pursuant to this Agreement. {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -1- EXHIBIT A To RESOLUTION No. 2015 -009 AGREEMENT NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intent of the Parties in entering into this Agreement, and in consideration of the terms of this Agreement, the Parties hereby agree as follows: 1. Termination of 2014 Agreement. The 2014 Agreement is hereby terminated by mu- tual consent of the Parties. 2. Services to be performed by S & S. S & S shall plan, develop and present the 2015 Marana Bluegrass Festival at Ora Mae Harn Park, 13250 N. Lon Adams Road, as set forth in this paragraph 2, and in the Scope of Work, attached hereto and incorporated herein by this reference as Exhibit A. The Festival will be held April 10 -12, 2015, during the times mutually agreed upon by the Parties. The Festival will include performances by bluegrass bands and musicians, food and craft vendors, and other related activities. a. S & S shall recruit, select, approve and contract with musicians and vendors for the Festival. The vendors may include food and crafts exhibitors and other exhib- itors consistent with the theme of the Festival and the terms of this Agreement. S & S shall ensure that all Marana Bluegrass Festival vendors possess a current Town of Marana business license as of the date of the Festival. S & S shall also en- sure that all food vendors possess a current and appropriate permit from the Pima County Health Department, if required, as of the date of the Festival. b. S & S shall ensure that all Festival vendors enter into a release and indemnifi- cation agreement in the form set forth in Exhibit B, attached hereto and fully incor- porated herein by this reference. c. All marketing and promotional materials produced by S & S for the Festival must be approved by the Town prior to their use and distribution. d. S & S shall provide sufficient staffing to present and run the Festival on both days. e. S & S shall provide security for the Festival pursuant to a security plan ap- proved by the Town. 3. Payment and invoices. Except as otherwise agreed to in a written amendment to this Agreement signed by the Parties, for all services and work performed by S & S pursuant to this Agreement, the Town shall pay S & S the comprehensive, inclusive flat fee of $2,500.00 as follows: a. S & S shall submit an invoice to the Town Representative for $1,000.00 on or about the date of execution of this Agreement. b. S & S shall submit an invoice to the Town Representative for $1,500.00 upon final accounting and payment of all outstanding accounts after the Festival. c. Each invoice submitted by S & S to the Town shall include: i. The days when the work and services were performed. {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -2- EXHIBIT A To RESOLUTION No. 2015 -009 ii. The milestones or goals achieved pursuant to this Agreement, where appli- cable. iii. Reference to Town tracking numbers, including Purchase Order numbers, authorizing payment for the work and services addressed by the invoice. d. The Town shall pay S & S within 30 days after the Town Representative ap- proves S & S's invoice or any portion of it. 4. Support and assistance to be provided by the Town. In addition to the payment set forth in paragraph 3 above, the Town shall provide in -kind support and assistance, at no cost to S & S, as set forth in Exhibit C, attached hereto and incorporated herein by this reference. 5. Expenses; admission and other activity fees. Except as provided in paragraphs 3 and 4 above, S & S shall be responsible for all of its operating expenses. S & S may assess, collect and retain admission and other activity fees from parties who wish to attend and participate in the Marana Bluegrass Festival. The Town makes no guarantee or promise regarding the amount of compensation S & S will receive due to admission and other activity fees. a. S & S shall make available to the Town for inspection any books, ledgers or statements kept by S & S regarding activities conducted pursuant to this Agreement. b. S & S shall be liable for all taxes applicable to the proceeds received by S & S under this Agreement, whether those proceeds are from the Town pursuant to para- graph 3 above, or are from other sources. The Town shall not withhold or pay feder- al, social security, or state income taxes or workers' compensation out of the pro- ceeds payable by the Town under this Agreement, unless duly ordered to do so by a court or other government authority with jurisdiction. 6. Effective date and duration. This agreement shall be effective as of the signature date of the last Party to sign this Agreement, and shall remain in effect until May 31, 2015. Notwithstanding the foregoing, the indemnification provisions set forth in para- graph 10 below shall survive termination of this Agreement. 7. Relationship of the parties. In the performance of the services contemplated by this Agreement, S & S shall act solely as an independent contractor, and nothing expressed or implied in this Agreement shall be construed to create the relationship of employer and employee, partnership, principal and agent, or to create a joint venture between the Town and S & S. 8. Use of Town logo and seal. The Town grants S & S a limited license to use, at no cost, the Town's logo and seal in S & S's performance of the services described in this Agreement. S & S shall not use the Town's logo and seal for any other purpose or use. S & S shall not modify, revise or alter the Town's logo or seal in any way. 9. Insurance. S & S and any subcontractor who performs any work for S & S under this Agreement shall maintain insurance throughout the term of this Agreement from {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -3- EXHIBIT A To RESOLUTION No. 2015 -009 carriers acceptable to the Town with the following required minimum coverages and limits: Commercial General Liability U.S. $1,000,000 per occurrence U.S. $2,000,000 aggregate a. S & S shall deliver one or more certificates of insurance evidencing coverage as described in this paragraph 9, including coverage required of any subcontractor, to the Town upon execution of this Agreement and prior to commencing any activities pursuant to this Agreement. S & S shall also deliver new certificates of insurance each time the policy(s) is updated. All certificates shall be delivered to the Town's Parks and Recreation Director. b. The Town shall be named as an additional insured on the commercial general liability insurance policies required by this paragraph 9. As an additional insured, the Town shall be provided coverage for any liability arising out of operations per- formed in whole or in part by or on behalf of S & S or any subcontractor. S & S shall deliver additional insured endorsement(s) along with the certificate(s) of insurance required by subparagraph (a) above. The additional insured endorsement form identification number shall also be included within the description box on the certif- icate of insurance and the applicable policy number shall be included on the en- dorsement. c. All policies required pursuant to this paragraph 9 shall be endorsed to contain a waiver of transfer of rights of recovery (subrogation) against the Town, its agents, officers, officials, and employees for any claims arising out of S & S's or any subcon- tractor's work or service. Endorsements evidencing this waiver of subrogation shall be provided to the Town along with all other insurance documentation required by this Article. d. The certificate(s) shall also stipulate that the insurance afforded S &Sand any subcontractor shall be primary insurance and that any insurance carried by the Town, its agents, officials or employees shall be excess and not contributory insur- ance to that provided by S & S or any subcontractor. Coverage provided by S & S and any subcontractor shall be primary insurance with respect to all other available sources. e. The insurance requirements specified in this paragraph 9 may not be changed or modified except by written agreement signed by both Parties. f. S & S shall give the Town at least 30 calendar days' written notice prior to a planned cancellation or reduction of any coverage required by this paragraph 9. S & S shall give the Town immediate notice of any other cancellation or reduction of any coverage required by this paragraph 9. Cancellation or reduction of any cover- age required by this paragraph 9 is grounds for termination of this Agreement by the Town. {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -4- EXHIBIT A To RESOLUTION No. 2015 -009 10. Indemnification. S & S agrees to defend, save, hold harmless, and indemnify the Town, its officials, employees, agents, successors, and assigns from and against any and all manner of claims, suits, lawsuits, action or actions, causes or causes of action, liabili- ties, damages, and other claims and demands of whatsoever nature or kind, in law or in equity, in tort or in contract, or otherwise caused by or resulting from S & S's errors, omissions, or negligent acts in the performance of services pursuant to this Agreement, or the errors, omissions or negligent acts of any party S & S contracts with in the per- formance of services pursuant to this Agreement, anyone directly or indirectly em- ployed by S & S, or anyone for whose acts S & S may be liable. 11. Regulatory compliance and approvals. Each Party shall at its own expense comply with all applicable federal, state and local laws, rules, and regulations in connection with its obligations under this Agreement. As part of this obligation, S & S shall obtain any and all permits required by the Town, the Northwest Fire District or any other appropriate regulatory agency for its activities under this Agreement. In consideration of the services to be performed by S & S under the terms of this Agreement, to the ex- tent legally permissible, the Town agrees to waive all Town of Marana review and per- mit fees that S & S would normally be required to pay for S & S's activities pursuant to this Agreement. 12. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to the Town, to: TOWN OF MARANA Attn: Parks and Recreation Director 11555 W. Civic Center Drive - Bldg A3 Marana, AZ 85653 If to S & S, to: S & S BLUEGRASS PROMOTIONS, LLC Attn: James Sanchez 4701 W. Linda Vista, Apt. 12102 Tucson, Arizona 85742 13. Entire agreement. This Agreement constitutes the entire agreement and under- standing of the Parties pertaining to the subject matter of the Agreement and super- sedes all offers, negotiations, and other agreements of any kind. All prior and contem- poraneous agreements, representations and understandings of the Parties, oral or writ- ten, are superseded and merged in this Agreement. 14. Authority to execute agreement. The individuals executing this Agreement hereby represent that they have full right, power, and authority to execute this Agreement on behalf of their respective Parties. 15. Force majeure. Notwithstanding any other term, condition or provision of this Agreement to the contrary, if any Party to this Agreement is precluded from satisfying or fulfilling any duty or obligation imposed upon it due to labor strikes, material short- {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -5- EXHIBIT A To RESOLUTION No. 2015 -009 ages, war, civil disturbances, weather conditions, natural disasters, acts of God, or other events beyond the control of such Party, the time period provided herein for the per- formance by such Party of such duty or obligation shall be extended for a period equal to the delay occasioned by such events. 16. Immigration laws. S & S warrants that it will at all times comply with all federal immigration laws and regulations that relate to their employees and with Arizona Re- vised Statutes section (A.R.S. §) 23 -214 (A). S & S acknowledges that pursuant to A.R.S. § 41 -4401 and effective September 30, 2008, a breach of this warranty is a material breach of this Agreement subject to penalties up to and including termination of this Agreement, and that the Town retains the legal right to inspect the papers of any em- ployee who performs work or services pursuant to this Agreement to ensure compli- ance with this warranty. 17. Conflict of interest. This Agreement is subject to the provisions of A.R.S. § 38 -511, which provides for termination in certain instances involving conflicts of interest. 18. Attorneys' fees. The prevailing Party in a civil action to enforce this Agreement shall be entitled to recover from the other Party, in addition to any relief to which such prevailing Party may be entitled, all costs, expenses and reasonable attorneys' fees in- curred in connection with that civil action. 19. Governing law. This Agreement shall be construed in accordance with the laws of the State of Arizona. 20. Termination. Either Party may terminate its participation in this Agreement for any reason upon at least 15 days' prior written notice to the other Party. 21. Miscellaneous. a. This Agreement may not be modified except in a writing signed by both of the Parties. b. The captions and section numbers appearing in this Agreement are inserted only as a matter of convenience, and do not define, limit, construe or describe the scope or intent of such sections or articles of this Agreement. c. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original and all of which, taken together, shall consti- tute one and the same agreement. [SIGNATURE PAGE FOLLOWS] {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -6- EXHIBIT A To RESOLUTION No. 2015 -009 IN WITNESS WHEREOF, the Parties have duly executed this instrument below. The ""Town": TOWN OF MARANA, an Arizona munici- pal corporation "S & S : S & S BLUEGRASS PROMOTIONS, LLC, an Arizona limited liability company Ed Honea, Mayor Date: ATTEST: Town Clerk Date APPROVED AS TO FORM: Town Attorney Date STATE OF ) )ss. County of ) James Sanchez, Member Date Federal I.D. # The foregoing instrument was acknowledged before me this day of 2015 by James Sanchez, member of S & S BLUEGRASS PROMO- TIONS, LLC, an Arizona limited liability company, on behalf of the LLC. (Seal) Notary Public {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF -7- EXHIBIT A To RESOLUTION No. 2015 -009 LIST OF EXHIBITS Exhibit A: Scope of Work Exhibit B: Form of Release and Indemnification Agreement Exhibit C: Spreadsheet listing Town In -Kind Support and Assistance {00040643.DOC /} 2015 S & S MARANA BLUEGRASS FESTIVAL AGREEMENT 1/6/2015 JF 8 EXHIBIT A to AGREEMENT BETWEEN TOWN OF MARANA AND S & S BLUEGRASS PROMOTIONS, LLC 2015 MARANA BLUEGRASS FESTIVAL S &S BLUEGRASS PROMOTIONS, LLC — Scope of Work — 2015 Marana Bluegrass Festival Perform and coordinate pre - Festival planning and Festival management activities to include: Direct Marana Bluegrass Festival Committee activities; select, organize and manage Festival Committee, schedule and run meetings Festival Stage Management; provide a Master of Ceremonies, prepare, coordinate, and manage performance schedule Contract Festival sound system provider with appropriate equipment and experience amplifying acoustic music in an outdoor venue Select and contract headline performers Design 2015 Marana Bluegrass Festival Program, including performance schedule, band bios, and Festival information Provide 2015 Marana Bluegrass Festival promotion; flyer distribution to regional festivals and bluegrass organizations, media contact and public service announcement in Tucson, Phoenix, and Flagstaff markets Perform radio spot for KXCI community radio Create and maintain Marana Bluegrass Festival website www.maranafestival.com Coordinate and staff volunteer effort Collect Festival gate and vendor receipts; pay outstanding Festival accounts 100040646. DOCX /} *:vmIIH18 to AGREEMENT BETWEEN TOWN OF MARANA AND S & S BLUEGRASS PROMOTIONS, LLC 2015 MARANA BLUEGRASS FESTIVAL Release and Indemnification Agreement In consideration of the acceptance of my Vendor Application for the Marana Bluegrass Festival to be held April 10 -12, 2015, I do hereby, for myself, my child /ren, my heirs, executors and assigns, release the Town of Marana (Town) and S & S Bluegrass Promotions, LLC (S & S), and their respective agents, officials and employees from liability for any harm, injury, or damage, which I, or my minor child /ren, may suffer while participating in the above - described event. This includes all risks that are connected with the event whether foreseen or unforeseen. Additionally, I agree to defend, save, hold harmless, and indemnify the Town and S & S, and their respective officials, employees, agents, successors, and assigns from and against any and all manner of claims, suits, lawsuits, action or actions, causes or causes of action, liabilities, damages, and other claims and demands of whatsoever nature or kind, In law or In equity, in tort or in contract, or otherwise caused by or resulting from my errors, omissions, or negligent or intentional acts in connection with the above - described event. I am of lawful age and legally competent to execute this Agreement. I understand the terms of this Agreement and have agreed to its terms as my own free act. If I am acting on behalf of an organization, I certify that I am the agent of the organization, I am acting on the organization's behalf, and I am duly authorized to execute this Release and Indemnification Agreement on the organization's behalf. By signing below, I acknowledge that I have read and agree to abide by all the terms, conditions, rules and regulations outlined in this Vendor Application Form and that I have read and understand the terms of this Release and Indemnification Agreement and agree that I shall be bound by its terms and conditions. 100040648. DOCX /} EXHIBIT C Town of Marana In -Kind Support Assistance to 2015 Marana Bluegrass Festival Resource Unit Unit Quantity Unit Cost Total Ora Mae Harn Park Soccer Field ea /day 1 $95.00 $190.00 Ball field ea /day 5 $95.00 $950.00 Ramada ea /day 5 $160.00 $1,600.00 Ramada large ea /day 1 $192.00 $384.00 Pavillion ea /day 1 $240.00 $480.00 Showmobile stage event 1 $400.00 $400.00 Event Set up hour 48 $21.00 $1,008.00 Event custodial hour 28 $21.00 $588.00 Event Tear Down hour 24 $21.00 $504.00 Administrative Support hour 30 $28.00 $840.00 Total Support $6,944.00