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HomeMy WebLinkAbout25E - AGMT - FOSAZ FERRIS WHEELREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 1, 2016 TITLE: AGREEMENT WITH FRIENDS OF SANTA ANA ZOO FOR INSTALLATION AND OPERATION OF A FERRIS WHEEL CONCESSION AT THE SANTA ANA ZOO AT PRENTICE PARK (STRATEGIC PLAN NO. 6, 1B) k' CITY MAN 1bER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Friends of Santa Ana Zoo ( FOSAZ) to install and operate a Ferris wheel concession at the Santa Ana Zoo at Prentice Park (SAZAPP) for 10% of the net concession revenues to be provided to the City, for a term from March 1, 2016 to allow for the installation of the Ferris wheel and to continue as long as the Master Support Agreement or any updated or replacement agreement remains effective for the continued operations of the Ferris wheel concession, which is expected to begin in January 2017, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Friends of Santa Ana Zoo is a nonprofit 501(c)3 organization. Their purpose is to market and solicit charitable donations to support the operations, maintenance and expansion of SAZAPP. FOSAZ recently raised and donated the funds for the Zoo's newest exhibit, The Brazilian Ocelot Habitat. FOSAZ and the City of Santa Ana collaborate on programs to further the mission of SAZAPP. FOSAZ oversees many planning and fundraising efforts, including the annual "Boo at the Zoo" event and "Zoofari" black -tie gala. They also provide staffing and maintenance for special events, zoo rentals, and the Treetop Toys Gift Shop. The Friends of Santa Ana Zoo currently own and operate two concession rides at SAZAPP, the Zoofari Express Train Ride and the Endangered Species Carousel. These attractions are favorites of the Zoo's guests. The two rides bring in over $250,000 a year in net concession revenue for FOSAZ that is spent on projects and operations at SAZAPP. FOSAZ would add a third ride, a 65 -foot tall Ferris wheel, next to the train and carousel. This new attraction will provide guests with an exciting ride and unique view of the zoo. The Ferris wheel will be maintained and operated by FOSAZ. The Ferris wheel is projected to be open in January 2017 and raise an additional $100,000 in net concession profits annually for FOSAZ. 25E -1 Agreement with Friends of Santa Ana Zoo to Install and Operation a Ferris Wheel Concession March 1, 2016 Page 2 FOSAZ will contribute 10% of its net concession revenues from rides to the City's Friends of Zoo Contribution revenue account with the remainder of these profits used to support SAZAPP operations and projects like the upcoming Giant River Otter Habitat. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #2 Youth, Education, Recreation, Objective #2 (Expand youth programming), Strategy E (Partner with outside agencies and secure funding to rehabilitate zoo exhibits and expand SAZAPP). FISCAL IMPACT Revenues in the amount of $5,000 (covering January-June 2017) will be added to the FY 2016- 2017 Friend of Zoo Contribution revenue account (no. 01113002 57383) and will be included as part of the City's FY 2016 -2017 budget. Future years beyond FY 2016 -2017 will be adjusted, if needed, and budgeted accordingly. Gerardo Mouet, " Executive Director Parks, Recreation an Community Services Agency EXHIBIT: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNT: Via) Francisco Gutierrez, Executive Director Finance and Management Services Agency 25E -2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE FRIENDS OF SANTA ANA ZOO FOR THE INSTALLATION AND OPERATION OF A FERRIS WHEEL CONCESSION AT THE SANTA ANA ZOO AT PRENTICE PARK. THIS AGREEMENT is made and entered into on this 18T day of March, 2016, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the constitution and laws of the state of California ( "City "), and Friends of Santa Ana Zoo, a California non -profit public benefit corporation, organized for the purpose of supporting the operation, maintenance and expansion of the Santa Ana Zoo at Prentice Park through charitable fund- raising ( "FOSAZ "), RECITALS A. City owns and operates for the public benefit the Santa Ana Zoo at Prentice Park ( "Zoo "), which is under management and control of the Parks, Recreation and Community Services Agency. B. FOSAZ was first incorporated in 1982 as Friends of the Children's Zoo for the purpose of supporting and funding a children's petting zoo at the Zoo, and entered into its first agreement with the City for installation of animal food dispensers at the children's zoo. In 1987, the name was changed to Friends of Santa Ana Zoo. C. For over thirty years, the City and FOSAZ (collectively, the "Parties "), have cooperated to develop the Zoo, including the development of new animal habitats, coordination of volunteer services, concession management, and fundraising. D. Cooperation and support by FOSAZ remain ongoing. Under the Parties' "Agreement Between the City of Santa Ana and the Friends of Santa Ana Zoo for the Benefit and Support of the Santa Ana Zoo at Prentice Park" dated December 3, 2001 and as amended ("Master Support Agreement "), the Parties may from time to time agree on new concessions at the Zoo to be operated by FOSAZ and collaborate on joint activities, including capital improvements at the Zoo. E. The Parties now desire to enter into an agreement for the installation and operation of a Ferris Wheel at the Zoo for the benefit and betterment of the Zoo. THEREFORE, the Parties agree as follows: 1. CONSTRUCTION AND INSTALLATION OF FERRIS WHEEL A. The Parties shall mutually agree on a site at the Zoo that is most optimal fbr the construction and installation of a Ferris Wheel. Page I of 8 25E -3 B. With City's input, and in accordance with all applicable City ordinances and procedures covering such matters as bid process, project administration requirements, and other legal requirements, FOSAZ shall retain qualified consultants and contractors for the geotechnical investigation, surveying, civil engineering, site plan, structural engineering, and site improvements (including but not limited to the structural foundation) necessary for the provision and installation of the Ferris Wheel, C, Prior to construction and installation of the Ferris Wheel, FOSAZ shall provide to City all materials related to the construction and installation of the Ferris Wheel, including without limitation reports, surveys, studies, calculations, plans, and specifications. No work shall commence without City's prior review and approval of such materials. D. FOSAZ shall provide all funding and assume all costs related to the design, construction, provision, installation, and inspection of the Ferris Wheel, including installation of all necessary utilities, City shall pay for utilities upon operation. All work shall be coordinated with City and Zoo staff. E. Prior to operation of the Ferris Wheel, FOSAZ shall obtain all approvals and certificates necessary under applicable federal, state, and local law, including without limitation approval from the Amusement Ride and Tramway Unit of the California Department of Industrial Relations or other government agencies responsible for amusement ride oversight. F. Prior to operation of the Ferris Wheel, FOSAZ shall provide City with all final plans, drawings, as- builts, and similar documents. Operation of the Ferris Wheel may not commence without City's approval. 2. OPERATION, MAINTENANCE, AND INSPECTION OF FERRIS WHEEL A. At its sole cost, FOSAZ shall be responsible for the daily inspection, operation and maintenance of the Ferris Wheel with qualified personnel to ensure its safe and successful operation. Any subcontractors retained for these purposes must be approved by the City. B. FOSAZ shall operate the Ferris Wheel in accord with safety standards and protocols that are best practices in the amusement ride industry. C. FOSAZ shall comply with, coordinate, and obtain all approvals and certifications that are required by the Amusement Ride and Tramway Unit of the California Department of Industrial Relations or other government agencies responsible for amusement ride oversight, including without limitation regular safety inspections conducted by a Qualified Safety Inspector. Page 2 of 8 25E -4 D. On a quarterly basis, FOSAZ shall provide City with all records of operation, maintenance, inspections, and certifications. At any time, FOSAZ shall permit City or its authorized representatives to inspect Ferris Wheel operations and equipment. E. Hours of operation and ticket prices shall be mutually agreed upon by the Parties and may be adjusted from time to time. 3. CONCESSION REVENUE SHARING All revenue generated by the operation of the Ferris Wheel shall be subject to the concession revenue- sharing provisions of the Master Support Agreement, or any updated or replacement agreement between City and FOSAZ for the benefit, and support of the Zoo. 4. OWNERSHIP OF FERRIS WHEEL City owns the Zoo property and all exhibits, support facilities, infrastructure, and animals contained within Prentice Park, including exhibits, support facilities, infrastructure, and animals previously purchased by or funded at FOSAZ expense. FOSAZ shall retain ownership of the Ferris Wheel and any other assets previously agreed to by the Parties, In the event of the dissolution of FOSAZ, any and all assets of FOSAZ shall be used to discharge any liabilities and debts of FOSAZ, The balance of such assets, if any, becomes the property of City to be used exclusively for the benefit of the Zoo. In the event that the Zoo ceases to exist, the balance of FOSAZ assets shall be distributed by a committee made up of the FOSAZ executive committee and an equal number of individuals from the City. 5. GENERAL LICENSE City hereby grants FOSAZ, its directors, officers, employees, contractors, subcontractors, and consultants a nonexclusive license to enter upon and use the Zoo facilities in connection with FOSAZ's execution of its responsibilities under this Agreement. 6. INSURANCE FOSAZ shall maintain and shall require its contractors and consultants, if any, to obtain and maintain insurance as described below: A, Comunercial General Liability Insurance, FOSAZ shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers, and representatives as additional inset ed(s) acid shall include, but not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of FOSAZ's operations in the performance of this Agreement, including, without limitation, Page 3 of 8 25E -5 acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired, and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of California State Law, FOSAZ, if FOSAZ has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. FOSAZ shall obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. D. For any licensed professional such as an architect or engineer performing services under this Agreement: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. E. The following requirements apply to the insurance to be provided by FOSAZ pursuant to this section; i. FOSAZ shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 7. INDEMNIFICATION A. FOSAZ shall protect, indemnify, hold harmless, and defend City, its officials, officers, employees, representatives, and agents, from and against any and all claims, losses, liability, demands, damages, costs, expenses, or attorneys' fees, caused by or arising out of FOSAZ's or its subcontractors' negligent acts or omissions, or willful misconduct, in Page 4 of 8 25E -6 the performance or nonperformance of their obligations under the covenants, terms, conditions, and provisions of this Agreement. B. City shall protect, indemnify, hold harmless, and defend FOSAZ, its directors, officers, employees, and agents, against any and all claims, losses, liability, demands, damages, costs, expenses, or attorneys' fees, arising out of City's negligent performance or nonperformance of its obligations under the covenants, terms, conditions, and provisions of this Agreement. 8. INDEPENDENT CONTRACTOR In the exercise of its obligations under this Agreement, FOSAZ shall act at all times as an independent contractor and not as an employee of the City. Nothing in this Agreement shall be construed to establish a partnership, joint venture, group, pool, syndicate, or agency between the Parties, No provision contained herein shall be construed as authorizing or empowering either party to assume or create any obligation or responsibility, whatsoever, express or implied, on behalf, or in the name of, the other party in any manner, or to make any representation, warranty, or commitment on behalf of the other party. 9. TERM This Agreement shall commence on the date first written above and continue so long as the Master Support Agreement, or any updated or replacement agreement between City and FOSAZ for the benefit and support of the Zoo, remains effective. The Ferris Wheel shall be completed on or before January 31, 2017. Following completion of the Ferris Wheel, either Party may terminate this Agreement with ninety (90) days prior written notice. This Agreement shall automatically terminate in the event of termination of the Master Support Agreement, or any updated or replacement agreement between City and FOSAZ for the benefit and support of the Zoo, In the event of termination, FOSAZ shall arrange for the timely removal of the Perris Wheel, and the Parties shall satisfy all their respective obligations under this Agreement that may be due and owing through the effective date of termination. 10. ASSIGNMENT The Parties shall not assign, transfer, or convey this Agreement or any interest that it may have in this Agreement without the other party's express consent or approval. Any attempted assignment without the required consent or approval shall be void and shall confer no right, title, or interest in or to this Agreement, or part thereof. In the event of an unauthorized assignment, at the option of the party not making the assignment, this Agreement may be terminated upon reasonable notice to the party making the assignment. Page S of 8 25E -7 11. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be property given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) F.O. Box 1988 Santa, Ana, CA 92702 -1988 Fax 714- 647 -6956 With courtesy copies to: To FOSAZ: Executive Director Parks, Recreation, and Community Services Agency City of Santa Ana 20 Civic Center Plaza M -23 P.O. Box 1988 Santa Ana, California 92702 Fax 714 -571 -4211 City Attorney's Office City of Santa Ana 20 Civic Center Plaza (M -29) P,O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 Executive Director Friends of Santa Ana Zoo 1801 East Chestnut Avenue Santa Ana, CA 92701 Fax 714 -550 -0346 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the now address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report Page 6 of 8 25E -8 issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 12. ENTIRE AGREEMENT This Agreement represents the entire agreement between the Parties regarding the subject matter herein, and supersedes all prior negotiations, representations, and contracts, written or oral. This Agreement may only be amended by an instrument, in writing, signed by the Parties. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument, 13. WAIVER The waiver of either party of any breach or violation of any covenant, term, condition, or provision of this Agreement shall not be deemed to be a waiver of any such covenant, tenn, condition, or provision. 14. SEVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 15. GOVERNING LAW AND VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA Maria D. Hrrizar David Cavazos Clerk of Council City Manager -- signatures continue on following page -- Page 7 of 8 25E -9 APPROVED AS TO FORM: SONIA R. CARVALHO FRIENDS OF SANTA ANA ZOO City Attorney By: UVAW AW — Jolm .Funk Assistant City Attorney RECOMMENDED FOR APPROVAL: Gerardo Monet Executive Director Parks, Recreation, and Community Services Agency Page 8 of 8 25E -10