Loading...
HomeMy WebLinkAbout09/02/2008 11 Staged Right Scenery Services Agreement for Stage Rigging at the Capitol Theatre 411 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. I I For Meeting of September 2, 2008 ITEM TITLE: A Resolution authorizing the City Manager to execute a personal services agreement with Staged Right Scenery to provide repair, consulting and supervision services related to the stage rigging system at the Capitol Theatre SUBMITTED BY: William R. Cook, Director of Community and Economic Development CONTACT PERSON/TELEPHONE: William R. Cook (575 -6113) SUMMARY EXPLANATION: The Capitol Theatre has been afforded a unique opportunity within the process of repairing the stage rigging system. As part of their proposal to repair the rigging system, Staged Right Scenery (SRS) has agreed to provide instruction and "hands on training" to Capitol Theatre staff during the installation process. The consultation, design and fabrication portions of the personal services agreement with SRS include inspection of the existing theatrical rigging, direction in resolution of found problems, and correction of identified items, including design and oversight of fabrication of needed equipment. In addition, SRS agrees to provide instruction on theatrical rigging to the Capitol Theater production staff as a complement and part of the in -house program of education and skills training. Production staff will assist SRS in the installation process. Instruction will include "hands on training" during the installation, followed by instruction on proper operation and improvements on the rigging system. Also, some general theatre operations training sessions will encompass theatre history, terminology, and skills development in various stage practices. The total amount of the contract is $25,000. It will be paid out of federal grant funds (Project 2102): The final personal services agreement will be similar to the agreement attached to this agenda statement. Any difference between the attached agreement and the final agreement will be reviewed by City Legal. Resolution X Ordinance Other (Specify) Contracts X Mail to (name and address): Dale Millard, Staged Right Scenery 169215 West Byron Road, Prosser, WA 99350 Phone: 206 - 714 -4758 Funding Source Project 2102 APPROVED FOR SUBMITTAL: �b City Manager STAFF RECOMMENDATION: Adopt the resolution BOARD /COMMISSION /COMMITTEE RECOM MENDATION: 1111 COUNCIL ACTION: • RESOLUTION NO. R -2008- A RESOLUTION authorizing the City Manager to execute a personal services agreement with Staged Right Scenery to provide repair, consulting and supervision services related to the stage rigging system at the Capitol Theatre. WHEREAS, the stage rigging system at the Capitol Theatre is in need of repair; and WHEREAS, a unique opportunity exists to have the rigging repair system completed while simultaneously updating training for the Capitol Theatre staff to install, operate and improve the system; and WHEREAS, Dale Millard of Staged Right Scenery is an experienced technician and mechanical designer for the entertainment industry; and WHEREAS, in that capacity Dale Millard has agreed to provide consultation, design, fabrication and instruction services for the repair and installation of the stage rigging system at the Capitol Theatre; and WHEREAS, the City Council deems it to be in the best interest of the City to enter into a personal services agreement with a technician selected for such expertise, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute a personal services agreement in an amount not to exceed $25,000, with Dale Millard of Staged Right Scenery to provide professional repair, consulting and supervision services related to the repair of the stage rigging system at the Capitol Theatre. ADOPTED BY THE CITY COUNCIL this 2n day of September, 2008. David Edler, Mayor ATTEST: City Clerk CONSULTANT AGREEMENT FOR PERSONAL SERVICES for City of Yakima, Washington This agreement is made and entered into on this day of 2008, between the City of Yakima, Washington, a municipal corporation, (hereinafter referred to as CITY), and Staged Right Scenery (SRS), (hereinafter referred to as CONSULTANT). CITY and CONSULTANT for mutual consideration hereinafter set forth, agree as follows: OBJECTIVES The CITY desires to obtain the professional services of •CONSULTANT for the purpose of consulting /supervision services to include inspection, identification, design, repair and installation of remedial equipment or structures at the Capitol Theatre. Instruction will be provided in the operation, repair and other related topics concerning the counterweight system at the Capitol Theatre, theatrical rigging and practice. CONSULTANT has the professional expertise to provide this service on behalf of the City. II. SCOPE OF SERVICES The CONSULTANT agrees to perform certain consulting /supervision services for the CITY. These tasks are outlined as follows: CONSULTANT shall: • Consulting services: Consulting services will include inspection of existing theatrical rigging at the Capitol Theatre, direction in resolution of found problems and correction of identified items (design and oversight on fabrication of needed. equipment). • Design and Fabrication: CONSULTANT will provide designs of additional rigging support structures, i.e. motorized weight transfer arbor, lateral masking traveler tracks, and other items identified through inspection of counterweight system and needs of the Capitol Theatre. All structures, battens, etc., will be purchased and /or fabricated under the Capitol Theatre /City of Yakima's purchasing procedures. All designs and fabrication will be approved by the Capitol Theatre staff and /or structural engineer, if required. All purchases should be made through the Capitol Theatre /City of Yakima purchasing procedures. However, if materials, rental of equipment and /or additional services are deemed by the Capitol Theatre to be critical to time and /or task, CONSULTANT may acquire said items, under Two Thousand Five Hundred Dollars ($2,500.00) aggregate, and will bill for reimbursement. It is understood that CONSULTANT will seek the best pricing available for said items. • Instruction: CONSULTANT agrees to provide instruction on theatrical rigging and practice to the Capitol Theatre production staff as a complement and part of the in -house program of education and skills, training. CONSULTANT will provide direction and supervision identifying proper correction and resolution to counterweight systems repairs. Instruction will include "hands on training" during installation, proper operation, and improvements on the Capitol Theatre's rigging system. Production staff will assist CONSULTANT in the installation process. Staff to assist in the installation of project will be left to the sole discretion of CONSULTANT and Capitol Theatre operations manager. In addition to "hands on" training, general theatre operations sessions will encompass theatre history, terminology, practice and skills development. III. PAYMENT As compensation for these services the CITY agrees to pay CONSULTANT in accord with the following terms and rates: a. The maximum total fees and expenses payable by the CITY to the CONSULTANT under this contract shall not exceed Twenty -five Thousand. Dollars ($25,000.00). b. All time, to include portal -to -portal travel from Prosser, Washington, will be billed. The following hourly rates for CONSULTANT personnel are currently in effect: Hourly Rate Category - $49.00 Consulting and Design $49.00 Instruction and Labor c. No payment shall be made for any work performed by the CONSULTANT, except for work identified and set forth in this Contract or supporting exhibits or attachments incorporated by reference into this Contract. d. The CONSULTANT may, in accord to the rates set forth herein, submit invoices to the CITY not more often than twice per month during the progress of the work for partial payment of work completed to date. Invoices shall cover the time CONSULTANT performed work for the CITY during the billing period. The CITY shall pay the CONSULTANT for services rendered in the month following the actual delivery of the work and will remit payment within thirty (30) days from the date of receipt of billing. e. The CONSULTANT shall not be paid for services rendered under the Contract unless and until they have been performed to the satisfaction of the CITY. f. In the event the CONSULTANT has failed to perform any substantial obligation to be performed by the CONSULTANT under this Contract and such failure has not been cured within ten (10) days following notice from the CITY, then the CITY may, in its sole discretion, upon written notice to the CONSULTANT, withhold any and all monies due and .payable to the CONSULTANT, without penalty, until such failure to perform is cured or otherwise adjudicated. "Substantial" for purposes of this Contract means faithfully fulfilling the terms of the contract with variances only for technical or minor omissions or defects. g. Unless otherwise provided for in this Contract or any exhibits or attachments hereto, the CONSULTANT will not be .paid for any billings or invoices presented for payment prior to the execution of the Contract or after its termination. 2 • IV. STANDARD PROVISIONS • 1. TERM OF CONTRACT The term of this Contract shall begin on the date last executed below, and shall terminate upon completion of all services required hereunder by the CONSULTANT, but no later than May 1, 2009, unless terminated earlier • by the CITY in accordance with paragraph 6 of this Section of this Contract, or except in the event of outside forces . (inventory needed not available, illness, etc.) and accepted force majeure occurrences (natural disasters, war, civil conflict, etc.). 2. CONTRACT REPRESENTATIVES Each party to this Contract shall have a contract representative. Each party may change its representative upon providing written notice to the other party. The parties' representatives are as follows: a. For CONSULTANT: Name of Representative: Dale Millard Mailing Address: 169215 West Byron Road City, State and Zip Code: Prosser, WA 99350 Telephone Number: (206) 714 -4758 Fax Number: (509) 786 -3048 E -mail Address: stgrtscnry @gmail.com b. For CITY: Name of Representative: Warren Houtz Title: Director of Operations Mailing Address: 19 South Third Street City, State and Zip Code: Yakima, WA 98901 Telephone Number: (509) 853 -8324 Fax Number: (509) 575 -6251 E -mail Address: warren @capitoltheatre.org 3. AMENDMENTS AND CHANGES IN WORK a. In the event of any errors or omissions by the CONSULTANT in the performance of any work required under this Contract, the CONSULTANT shall make any and all necessary corrections without additional compensation. All work submitted by the CONSULTANT shall be certified by the CONSULTANT and checked for errors S and omissions. The CONSULTANT shall be responsible for the accuracy of the work, even if the work has been accepted by the CITY. 3 b. No amendment, modification or renewal shall be made to this Contract unless set forth in a written Contract Amendment, signed by both parties and attached to this Contract. Work under a Contract Amendment shall not proceed until the CITY has duly executed the Contract Amendment. 4. HOLD HARMLESS AND INDEMNIFICATION a. The CONSULTANT shall hold harmless, indemnify and defend the CITY, its officers, officials, employees and agents, from and against any and all claims, actions, suits, liability, losses, expenses, damages, and judgments of any nature whatsoever, including costs and attorneys fees in defense thereof, for injury, sickness, disability or death to persons or damage to property or business, caused by or arising out of the CONSULTANT'S acts, errors orr omissions in the performance of this Contract. Claims shall include, but not be limited to, claims that information supplied by the CONSULTANT infringes any patent, copyright, trademark, trade name, or otherwise results in an unfair trade practice. PROVIDED HOWEVER, that the CONSULTANT'S obligations hereunder shall not extend to injury, sickness, death or damage caused by or arising out of the sole negligence of the CITY, its officers, officials, employees or agents. PROVIDED FURTHER, that in the event of the concurrent negligence of the parties, the CONSULTANT'S obligations hereunder shall apply only to the percentage of fault attributable to the CONSULTANT, its employees or agents. b. In any and all claims against the CITY, its officers, officials, employees and agents by any employee of the CONSULTANT, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification 411 obligation under this Section shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the CONSULTANT under Worker's Compensation acts, disability benefits acts, or other employee benefits acts, it being clearly agreed and understood by the parties hereto that. the CONSULTANT expressly waives any immunity the CONSULTANT might have had under such laws. By executing the Contract, the CONSULTANT acknowledges that the foregoing waiver was mutually negotiated by the parties and that the provisions of this Section shall be incorporated, as relevant, into any contract the CONSULTANT makes with any CONSULTANT or agent performing work hereunder. c. The CONSULTANT'S obligations hereunder shall include, but are not limited to, investigating, adjusting and defending all claims alleging loss from action, error or omission, or breach of any common law, statutory or other delegated duty by the CONSULTANT, the CONSULTANT'S employees, or agents. 5. INSURANCE a. Workers' Compensation: The CONSULTANT shall maintain workers' compensation insurance as required by Title 51, RCW, and shall provide evidence of coverage to the CITY. If the CONSULTANT has employees, the CONSULTANT shall request the Washington State Department of Labor and Industries, Workers' Compensation Representative, send written verification to CITY that the CONSULTANT is currently paying Workers' Compensation. b. Commercial General Liability: The CONSULTANT shall maintain Commercial General Liability coverage for bodily injury, personal injury and property damage, subject 4 • to limits of not less than $1,000,000 per Toss. The general aggregate limit shall apply separately to this Contract and be no less than $2,000,000. The CONSULTANT shall provide Commercial General Liability coverage which does not exclude any activity to be performed in fulfillment of this Contract. Specialized forms specific to the industry of the CONSULTANT will be deemed equivalent provided coverage is no more restrictive than would be provided under a standard Commercial General Liability policy, including contractual liability coverage. ii. The CONSULTANT'S Commercial General Liability insurance shall include the CITY, its officers, officials, employees and agents with respect to performance of services, and shall contain no special limitations on the scope of protection afforded to the CITY as an additional insured. The CONSULTANT shall furnish the CITY with evidence that the additional insured provision required above has been met. An acceptable form of evidence is the endorsement pages of the policy showing the CITY as an additional insured. iv. If the CONSULTANT'S liability coverage is written as a claims made policy, then the CONSULTANT must evidence the purchase of an extended reporting period or "tail" coverage for a three -year period after project completion, or otherwise maintain the coverage for the three -year period. v. If the Contract is over $50,000 then the CONSULTANT shall also maintain Employers Liability Coverage with a limit of not less than $1 million. c. Automobile Liability: The CONSULTANT shall maintain Business Automobile Liability insurance with a limit of not less than $1,000,000, each accident combined Bodily Injury and Property Damages. Coverage shall include owned, hired and non -owned automobiles. d. Professional Liability Insurance: Before this Agreement is fully executed by the parties, CONSULTANT shall provide the City with a.certificate of insurance as evidence of Professional Errors and Omissions Liability Insurance with coverage of at least One Million Dollars ($1,000,000.00) per occurrence and an annual aggregate limit of at least One Million Dollars ($1,000,000.00). The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions, provided are in effect. The insurance shall be with an insurance company rated A -VII or higher in Best's Guide. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before January 1, 1999, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Agreement and for a minimum of three (3) years following the termination of this • Agreement. e. Other Insurance Provisions: i. The CONSULTANT'S liability insurance provisions shall be primary with respect to any insurance or self - insurance programs covering the. CITY, its elected and appointed officers, officials, employees and agents. 5 • ii. Any failure to comply with reporting provisions of the policies shall not 4110 affect coverage provided to the CITY, its officers, officials, employees or agents. The CONSULTANT'S insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. iv. The CONSULTANT shall include all subconsultants as insureds under its policies or shall furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants shall be subject to all of the requirements stated herein. v. The insurance limits mandated for any insurance coverage required by this Contract are not intended to be an indication of exposure nor are they limitations on indemnification. vi. The CONSULTANT shall maintain all required policies in force from the time services commence until services are completed. Certificates, policies, and endorsements expiring before completion of services shall be promptly replaced. f. Verification of Coverage and Acceptability of Insurers: The CONSULTANT shall place insurance with insurers licensed to do business in the State of Washington and having A.M. Best Company ratings of no less than A -, with the exception that excess and umbrella coverage used to meet the requirements for limits of liability or gaps in coverage need not be placed with insurers or re- insurers licensed in the State of Washington. Certificates of Insurance shall show the Certificate Holder as CITY OF YAKIMA and include c/o of the Office or Department issuing the Contract. The address of the Certificate Holder shall be shown as the current address of the Office or Department. ii. Written notice of cancellation or change shall be mailed to the City's Contract Representative identified in Section 4 of this Contract The CONSULTANT shall furnish the CITY with properly executed certificates of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section prior to commencement of services. The certificate will, at a minimum, list limits of liability and coverage. The certificate will provide that the underlying insurance contract will not be canceled or allowed to expire except on thirty (30) days prior written notice to the CITY. iv. The CONSULTANT or its broker shall provide a copy of any and all insurance policies specified in this Contract upon request of the CITY. 6. TERMINATION a. The CITY may terminate this Contract in whole or in part whenever the CITY determines, in its sole discretion, that such termination is in the best interests of the CITY. The CITY may terminate this Contract upon giving thirty (30) days written notice by Certified Mail to the CONSULTANT'S Contract Representative. In that event, the 6 0 CITY shall pay the CONSULTANT for all costs incurred by the CONSULTANT in performing the Contract up to the date of such notice. Payment shall be made in accordance with Section III of this Contract. b. In the event that funding for this project is withdrawn, reduced or limited in any way after the effective date of this Contract, the CITY may summarily terminate this Contract notwithstanding any other termination provision of the Contract. Termination under this paragraph shall be effective upon the date specified in the written notice of termination sent by the CITY to the CONSULTANT. After the effective date, no charges incurred under this Contract are allowable. c. If the CONSULTANT breaches any of its obligations hereunder, and fails to cure the breach within ten (10) days of written notice to do so by the CITY, the CITY may terminate this Contract, in which case the CITY shall pay the CONSULTANT only for the costs of services accepted by the CITY, in accordance with Section III of this Contract. Upon such termination, the CITY, at its discretion, may obtain performance of the work elsewhere, and the CONSULTANT shall bear all costs and expenses incurred by the CITY in completing the work and all damage sustained by the CITY by reason of the CONSULTANT'S breach. 7. NO CONFLICT OF INTEREST CONSULTANT represents that it or its employees do not have any interest and 0 , shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. CONSULTANT further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 8. ASSIGNMENT, DELEGATION, AND SUBCONTRACTING a. The CONSULTANT shall perform the terms of the Contract using only its bona fide employees or agents, and the obligations and duties of the CONSULTANT under this Contract shall not be assigned, delegated, or subcontracted to any other person or firm without the prior express written consent of the CITY. b. The CONSULTANT warrants that it has not paid nor has it agreed to pay any company, person, partnership, or firm, other than a bona fide employee working exclusively for CONSULTANT, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. 9. NON - WAIVER OF RIGHTS The parties agree that the excuse or forgiveness of performance, or waiver of any provision(s) of this Contract does not constitute a waiver of such provision(s) or future performance,, or prejudice the right of the waiving party to enforce any of the provisions of this Contract at a later time. • 10. INDEPENDENT CONSULTANT a. The CONSULTANT'S services shall be furnished by the CONSULTANT as an Independent CONSULTANT and not as an agent, employee or servant of the CITY. The CONSULTANT specifically has the right to direct and control CONSULTANT'S own activities in providing the agreed services in accordance with the specifications set out in this Contract. b. The CONSULTANT acknowledges that the entire compensation for this Contract is set forth in Section III of this Contract, and the CONSULTANT is not entitled to any CITY benefits, including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, fringe benefits, or any other rights or privileges afforded to CITY OF YAKIMA employees. c. The CONSULTANT shall have and maintain complete responsibility and control over all of its subconsultants, employees, agents, and representatives. No subconsultant, employee, agent or representative of the CONSULTANT shall be or deem to be or act or purport to act as an employee, agent or representative of the CITY. d. The CONSULTANT shall assume full responsibility for the payment of all payroll taxes, use, sales, income or other form of taxes, fees, licenses, excises, or payments required by any City, federal or state legislation which is now or may be enacted during the term of this Contract as to all persons employed by the CONSULTANT and as to all duties, activities and requirements by the CONSULTANT in performance of the work on this project and under this Contract and shall assume exclusive liability therefore, and meet all requirements thereunder pursuant to any rules or regulations. e. The CONSULTANT agrees to immediately remove any of its employees or agents from assignment to perform services under this Contract upon receipt of a written request to do so from the CITY'S Contract Representative or designee. 11. COMPLIANCE WITH LAWS The CONSULTANT shall comply with all applicable federal, state and local laws, rules and regulations in performing this Contract. 12. INSPECTION OF BOOKS AND RECORDS The CITY may, at reasonable times, inspect the books and records of the CONSULTANT relating to the performance of this Contract. The CONSULTANT shall keep all records required by this Contract for six (6) years after termination of this Contract for audit purposes. 13. NONDISCRIMINATION The CONSULTANT, its assignees, delegatees or subconsultants shall not discriminate against any person in the performance of any of its obligations hereunder on the basis of race, color, creed, ethnicity, religion, national origin, age, sex, marital status, veteran status, sexual orientation or the presence of any disability. Implementation of this provision shall be consistent with RCW 49.60.400. 14. OWNERSHIP OF MATERIALS/WORK PRODUCED 411 a. Material produced in the performance of the work under this Contract shall be as works for hire as defined by the U.S. Copyright Act of 1976 and shall be owned by the 8 CITY. This material includes, but is not limited to, books, computer programs, plans, specifications, documents, films, pamphlets, reports, sound reproductions, studies, surveys, tapes, and /or training materials. Ownership includes the right to copyright, patent, register, and the ability to transfer these rights. The CITY agrees that if it uses any materials prepared by the CONSULTANT for purposes other than those intended by this Contract, it does so at its sole risk and it agrees to hold the CONSULTANT harmless therefore to the extent such use is agreed to in writing by the CONSULTANT. b. An electronic copy of all or a portion of material produced shall be submitted to the CITY upon request or at the end of the job using the word processing program and version specified by the CITY. 15. DISPUTES Differences between the CONSULTANT and the CITY, arising under and by virtue of this Contract, shall be brought to the attention of the CITY at the earliest • possible time in order that such matters may be settled or . other appropriate action promptly taken. Any dispute relating to the quality or acceptability of performance and/or compensation due the CONSULTANT shall be decided by the CITY'S Contract Representative or designee. All rulings, orders, instructions and decisions of the CITY'S Contract Representative shall be final and conclusive, subject to the CONSULTANT'S right to seek judicial relief pursuant to paragraph 15 of this Section. 16. CHOICE OF LAW, JURISDICTION AND VENUE a. This Contract has been and shall be construed as having been made and delivered within the State of Washington, and it is agreed by each party hereto that this Contract shall be governed by the laws of the State of Washington, both as to its interpretation and performance. b. Any action at law, suit in equity, or judicial proceeding arising out of this Contract shall be instituted and maintained only in any of the courts of competent jurisdiction in the COUNTY OF YAKIMA, Washington. 17. SEVERABILITY a. If a court of competent jurisdiction holds any part, term or provision of this Contract to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Contract did not contain the particular provision held to be invalid. b. If any provision of this Contract is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. c. Should the CITY determine that the severed portions substantially alter this Contract so that the original intent and purpose of the Contract no longer exists, the • CITY may, in its sole discretion, terminate this Contract. 18. NOTICES 9 • Any notices shall be effective if personally served upon the other party or if 0 mailed by registered or certified mail,;'return receipt requested, to the addresses set out in paragraph 2 of this Section. Notice':may also•be given by facsimile with the original to follow by regular mail. Notice shall be deemed to have been given three days following • the of mailing or immediately if personally served. For service by facsimile, service shall . be effective upon receipt during working hours. If a facsimile is sent -after working hours, it shall be effective at the beginning of the next working day. • 19. ENTIRE AGREEMENT The parties agree that this Contract is the complete expression of its terms and conditions. Any oral or written representations or understandings not incorporated in this Contract are specifically excluded. V. AUTHORIZED SIGNATORS Staged Right Scenery By: Dale Millard, Owner ' Date: 0 • City of Yakima • By: R.A. Zais, Jr., City Manager Date: ATTEST: • City Clerk • 0 10