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CC Resolution 13126 - Award Service Agreement for Management and Operation of Heritage Theatre RESOLUTION NO. 13126 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL AWARDING A SERVICE AGREEMENT FOR THE MANAGEMENT AND OPERATION OF THE HERITAGE THEATRE, AND AUTHORIZE THE CITY MANAGER TO EXECUTE SAID AGREEMENT WHEREAS, on October 17, 2023 the City Council adopted Resolution No. 13068, authorizing the issuance of a Request for Qualifications (RFQ) for management and operation of the Heritage Theatre; and WHEREAS, VenueTech Management Group was the only firm to respond to the RFQ and has been managing and operating the Heritage Theatre since the reopening in 2004; and WHEREAS, VenueTech Management Group has consistently operated the building to meet the needs of the City; and WHEREAS, the proposal submitted by VenueTech Management Group continues to align with the goals of the City and will provide a seamless transition into the next fiscal year; and WHEREAS, staff is recommending the City enter into an agreement with VenueTech Management Group to continue the management and operation of the Heritage Theatre; and WHEREAS, the agreement includes a 5% increase to the existing management fee and will be incorporated into the FY25 budget process; NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Campbell hereby adopt a resolution to award a service agreement for the management and operation of the Heritage Theatre and authorize the City Manager to execute said agreement. PASSED AND ADOPTED this 5th day of March, 2024 by the following roll call vote: AYES: Councilmembers: Bybee, Furtado, Scozzola, Lopez, Landry NOES: Councilmembers: None ABSENT: Councilmembers: None APPROVED: gyp, . Susan M. Lan , Mayor ATTE T: ,pQ Andrea Sa ers, City Clerk CITY OF CAMPBELL SERVICES AGREEMENT This Agreement is entered into at Campbell, California on the day of 2024, by and between the CITY OF CAMPBELL (hereinafter referred to as "City") and VenueTech Management Group (hereinafter referred to as "Provider"). WHEREAS, City desires to secure professional management and consulting services for the THEATRE; and; WHEREAS, Provider represents that it has the expertise, means, and ability to perform said professional services; NOW, THEREFORE, in consideration of each other's mutual promises, Provider and City agree as follows: 1. DEFINITIONS 1.1 "CITY Project Liaison" means that CITY employee, department head level or higher, as designated in writing by CITY to interface with VENUETECH to .ensure open communication, coordination between the parties with respect to the management of THEATRE pursuant to this Agreement. 1.2 "Theatre" means the performing venue known as the Campbell Heritage Theatre, location at the Campbell Community Center in Campbell. 1.3 "Event" means an activity that occurs on the stage or in the lobby, or areas adjacent to the THEATRE as designated by CITY which may be open to the general public or to a private audience including but not limited to: 1.3.1 "Rental Event" means any approved Event produced at THEATRE by a THEATRE Client who shall be solely responsible for all Event activities, including but not limited to,production, marketing, financial and other event related obligations pursuant the terms and conditions of a"Facility Rental Agreement";' 1.3.2 "In-House.Event" means an Event produced at THEATRE at the request of or on behalf of CITY that may be open to the general public or may be for a private audience for which CITY is the primary or sole financial sponsor and/or underwriter, produced by VENUETECH or CITY. 1.3.3 "Co-Promoted Event" means an Event, which CITY may elect to produce with a THEATRE Client whereby both CITY and THEATRE Client shall share, on a negotiated basis, in the potential financial profits and/or potential liabilities. -1 1.3.4 "Season of Events" means professional headliner shows featuring nationally recognized touring Performing Artist(s) which are packaged into a"Season of Events" and offered to the general public through the THEATRE In-House Event program. The Season of Events is produced by VENUETECH on behalf of CITY, subject to a budget approved by the City Council. 1.3.5 "Event Days" means any day in which THEATRE is in use for any purpose to support any type of an Event. This includes but is not limited to, rehearsal, technical staging of lights and sound, set up & strike of stage and actual performance days. For the avoidance of doubt an Event Day shall include days, which cannot be rented to other THEATRE Client(s) that are workdays used to support a coming Event. Notwithstanding the foregoing, rehearsals or similar activities are not deemed to be an Event but are deemed to be Event Days. 1.4 "Merchandise Rights" means the rights for Performing Artists or other businesses, individuals or organizations to sell or distribute merchandise or products at the THEATRE at any time, which shall be negotiated exclusively by VENUETECH in exchange for a percentage of gross sales receipts for such merchandise, which shall be collected by VENUETECH and remitted to CITY. 1.5 "Performing Artist" means an individual or group of entertainers who perform in a wide range of performance disciplines including but not limited to a dramatic, musical or dance Event for an audience at THEATRE. 1.6 "Production Management Employee(s)" means those employees authorized by VENUETECH, who are qualified to provide professional consultation and expertise, including but not limited to the areas of production equipment, Event production, Contract Rider negotiation, Show Advance, stage equipment and production equipment. Authorized VENUETECH employees are solely and expressly limited to the Production Manager, President, Senior Vice President, and Vice President of VenueTech Management Group. 1.7 "Reporting Plan". VENUETECH and CITY shall work together to develop a mutually agreeable plan, for tracking and reporting data related for the operation of the THEATRE. Such Reporting Plan shall be agreed to by the parties based upon past practices, on or the first day of the fiscal year. The Reporting Plan, as approved, shall form and be a part of the Services rendered by VENUETECH under the terms and conditions of this Agreement. 1.8 "Scope of Services" means the services VENUETECH shall provide to CITY pursuant to the terms and conditions of this Agreement which is set forth in "Exhibit A— Scope of Services", as mutually agreed upon by CITY and VENUETECH and incorporated into this Agreement. 1.9 "Show Advance" means in advance of the arrival of the Performing Artist, the process by which VENUETECH negotiates a Contract Rider to the Talent Contract to coordinate the production of an Event pursuant to the specific requirements of the Performing Artist's performance at THEATRE. This may include but is not limited to such matters as performance times, load in times, rehearsal schedules, catering needs, travel needs, local transportation, -2- lodging accommodations, stage employee requirements, equipment requirements, security requirements, ticketing specifications, marketing plans, press access, stage lighting plots, hairdressing and wardrobe requirements, and financial settlement procedures. 1.10 "Talent Agent"/"Talent Agency"means a company which on behalf of individual Performing Artists, represents, manages and negotiates the terms and conditions of Talent Contracts which will include but is not limited to talent fees, performance dates, routing schedules, travel and lodging accommodations, insurance provisions, marketing requirements, ticket prices, show budgets, Merchandise Rights, use or reproduction of artists intellectual property such as image for all media, and box office profit splits. 1.11 "Talent Management" means a third party that directly manages the business and legal affairs of a Performing Artist. Talent Management is sometimes referred to as "Artist's Management". 1.12 "Talent Contract" means a binding agreement or executed contract between VENUETECH and a Performing Artist, Talent Agent, or Talent on behalf of CITY, which sets forth the terms and conditions by which the Performing Artists will perform an Event at the THEATRE. For the avoidance of doubt, in the entertainment industry it is a usual and customary practice to enter into binding Talent Contracts with electronic signatures. Talent Contract shall include any Contract Riders. 1.13 "Talent Fees" means payments made to Performing Artist(s) in compensation for services payable traditionally in two payments as follows: a) 50% upon agreement of the Talent Contract, and b) 50% on day of the Event, prior to commencement of the Event; form of payment shall be at the sole discretion of the Performing Artist or Talent Agent and may include but not be limited to a) cashiers check, b) cash, c) commercial bank check, or d) wire transfer. Flexibility is required to conform to the Performing Artist or Talent Agent's payment requirements which could require payment made directly to Talent Agency prior to the Event or differing percentage payments. 1.14 "Contract Rider" means an addendum or group of addenda to a Talent Contract, which may include but not be limited to a) technical and production requirements, b) hospitality, c) staffing requirements and schedules, or issues that relate to VENUETECH's requirements to support the event and a Performing Artist's performance at THEATRE. 1.15 "THEATRE Client" means an individual, business, organization, City department or school sponsored class or organization, which is granted use of THEATRE by VENUETECH, on behalf of CITY, for an Event or Event Day which may be open to the general public or to a private audience. 1.16 "Theatre Manager" means a full time employee hired, trained and supervised by VENUETECH specifically for the management and operation of THEATRE. Theatre Manager shall perform their primary duties in CAMPBELL, California in an office provided by CITY, and may be assigned some duties, at the discretion of VENUETECH, in other locations, including but not limited,to its offices in San Francisco, California. 1.17 "Vendor" means a third party entity including but not limited to a company or individual who may provide lighting, sound or other technical expertise or equipment or services directly to VENUETECH on behalf of CITY at THEATRE. -3- 1.18 "VENUETECH Executive Employees" means those specific executive officers of VENUETECH who are solely authorized by VENUETECH to bind VENUETECH and/or provide professional consultation and expertise with regards to the areas of theatre management, financial management, marketing, and booking & artist negotiation services. VENUETECH Executive Employees are limited to the John R. Lind, CEO, and Judy Barkett, President and Kristyn Jacobson, Executive Vice President of VenueTech Management Group. 1.19 "VENUETECH Project Manager" means that VENUETECH employee designated in writing by VENUETECH to interface with CITY to ensure open communication, coordination between the parties with respect to the management and operations of THEATRE pursuant to this Agreement. VENUETECH Project Manager shall be limited to President, Senior Vice President or Vice President level employees. 1.20 "Wind-Down Period" means the final three months of the notice period during which both parties complete all necessary tasks that are reasonably necessary to allow the CITY to transition away from the services provided by VenueTech. 2. DUTIES OF PROVIDER 2.1 Provider agrees to perform services as set forth in Exhibit A - Scope of Services, attached hereto and incorporated herein by reference, and which shall be interpreted together and in harmony with this Agreement. In the event of any conflict between Exhibit A and this Agreement,this Agreement shall govern, control, and take precedence. 2.2 Provider's project manager will meet with the City's project coordinator prior to commencement of the project to establish a clear understanding of the working relationships, authorities, and management philosophy of City as it relates to this Agreement. 2.3 Provider, working with the City, will gather available existing information concerning the project, and shall review documents as necessary for compliance with the project's objectives. 2.4 In performance of this Agreement by Provider,time will be of the essence. 2.5 Notwithstanding Section 2.4, Provider shall not be responsible for delay caused by activities or factors beyond Provider's reasonable control, including delays or by reason of strikes, work slow-downs or stoppages, or acts of God. 2.6 Provider agrees to perform this Agreement in accordance with the highest degree of skill and expertise exercised by members of Provider's profession working on similar projects under similar circumstances. 2.7 Provider shall cooperate in good faith with City in all aspects of the performance of this Agreement. 2.8 In the course of the performance of this Agreement, Provider shall act in the City's best interest as it relates to the project. -4- 2.9 The designated project manager for Provider shall be Judy Burkett, President. The Provider's project manager shall have all the necessary authority to direct technical and professional work within the scope of the Agreement and shall serve as the principal point of contact with the City and the City's project coordinator. The authorized principal of Provider executing this Agreement for the Provider shall have authority to make decisions regarding changes in services, termination and other matters related to the performance of this agreement on behalf of Provider. 2.10 The Provider (and its employees, agents, representatives, and subcontractors), in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the City. The City shall not direct the work and means for accomplishment of the services and work to be performed hereunder. The City, however, retains the right to require that work performed by Provider meet specific standards consistent with the requirements of this Agreement without regard to the manner and means of accomplishment thereof. Subcontractors shall assume all of the rights, obligations and liabilities, applicable to it as an independent contractor hereunder. Provider represents and warrants that it (i) is fully experienced and properly qualified to perform the class of work and services provided for herein, (ii) has the financial capability and shall finance its own operations required for the performance of the work and services and (iii) is properly equipped and organized to perform the work and services in a competent, timely and proper manner in accordance with the requirements of this Agreement. 2.11 This Agreement contains provisions that permit mutually acceptable changes in the scope, character or complexity of the work if such changes become desirable or necessary as the work progresses. Adjustments to the basis of payment and to the time for performance of the work, if any, shall be established by a written contract amendment (approved and executed by the City)to accommodate the changes in work. 3. DUTIES OF CITY 3.1 City shall have the obligations set forth in Exhibit B — City Obligations attached hereto and incorporated herein by reference, and which shall be interpreted together and in harmony with this Agreement. In the event of any conflict between Exhibit B and this Agreement,this Agreement shall govern, control, and take precedence. 3.2 City shall furnish to Provider all available and pertinent data and information requested by Provider to facilitate the preparation of the documents called for in this Agreement. Provider shall be entitled to reasonably rely on all such information. 3.3 City shall provide contract administration services. City shall notify Provider of required administrative procedures and shall name representatives, if any, authorized to act in its behalf 3.4 Sole Authority to Approve & Adjust Budget. CITY shall have sole authority to -5- approve the THEATRE budget as well as any mid-year adjustments, including adjustments to fees and rental rates charged to THEATRE Rental Clients. 3.5 Financial Responsibility of CITY. CITY accepts full financial responsibility for all operating costs associated with the operation of the Theatre. Additionally, CITY accepts full financial responsibility for all costs associated with the production of Events including In-house Events, Season of Events and/or Co-promoted Events that may be presented at THEATRE on CITY's behalf. 3.6 City shall review documents submitted by Provider and shall render decisions pertaining thereto as promptly as reasonably possible. 4. MUTUAL OBLIGATIONS 4.1 Quick Timely Response. The Parties agree that a quick and timely response is an essential condition of this Agreement. CITY and VENUETECH agree that the management and consulting services provided for THEATRE by VENUETECH require excellent communication and performance of mutual obligations - such as the obligation to cooperate in good faith and fair dealing. Subject to Exhibit B—Obligations of CITY, CITY is required to give a quick and timely response when giving feedback requested by VENUETECH on the operation of the Theatre, including but not limited to decisions with respect to booking of the Season of Events. Delays in CITY's obligation to respond will delay VENUETECH's ability to fulfill its obligations, or the loss of programming opportunities for the Season of Events. Likewise the CITY requires VENUETECH to fully and timely perform its obligations in this Agreement. 4.2 Reporting Plan. VENUETECH and CITY shall work together to develop a mutually agreeable Reporting Plan for tracking and reporting data related to the operation of the THEATRE. 4.3 Changes to Scope of Services, Reporting Plan. CITY and VENUETECH may work together to modify or change the Scope of Services or Reporting Plan on an as needed basis. Significant increases to the Scope of Services may result in an increase in Fees. All changes shall be mutually agreed upon and an amendment to this Agreement shall be executed by (i) an authorized party of CITY, and (ii) solely by the President, Judy Barkett, of VENUETECH. 4.4 VENUETECH is Not a Financial Partner. CITY and VENUETECH agree that VENUETECH is a management and operating company, and CITY does not view VENUETECH as a financial partner or investor or expect VENUETECH to participate in the financial profit or loss of THEATRE or the Events that take place at THEATRE. 5. COMPENSATION 5.1 For the full performance of the services described herein by Provider, City agrees to compensate Provider as provided in Exhibit C for all services and direct costs associated with the performance of the project as provided for in the Scope of Services attached as Exhibit A once each month, Provider shall submit for payment by City, an itemized invoice for services performed during the previous billing period. The invoice shall describe the services rendered -6- and the title of the item of work, and shall list labor hours by personnel classification. Said invoice shall be based on all labor and direct expense charges made for work performed on the project. Labor charges shall be in accordance with the fee schedule found in Exhibit C of this Agreement. City shall pay Provider for services rendered and approved by the City within 30 days from the date the itemized invoice is received by the City, subject to the City's right to object. 5.2 If Provider incurs other costs which are not specifically covered by the terms of this Agreement, but which are necessary for performance of Provider's duties, City may approve payment for said costs if authorized in writing by the City in advance. 5.3 Provider shall obtain prior written approval for a revised fee schedule from the City before exceeding such fee schedule.. 5.4 In no event, will the Provider be reimbursed for any costs or expenses at any rates that exceed the rates set forth in the fee schedule found in Exhibit C. 5.5 Emergency Closure Fee Reduction: In the event of a public health crisis, such as Covid-.19, where due to a government mandated closure of the,Heritage Theatre is necessary, an emergency fee reduction will go into effect on the first of the month following the notification: This Emergency Closure Fee Reduction shall be $9,300 per month, which shall be deducted from the monthly invoice. This Emergency Closure Fee Reduction will be available to the City during any period of the emergency closure throughout the term of the agreement (i.e., applies during Covid-19 closure or any future closures caused by public health emergencies.) The Emergency Closure Fee Reduction shall continue from the initial date of any future closures until the lst day of the month in which the City receives notice that the Heritage Theatre may open with live events. This reduction would not apply during any winddown period should City Council choose to defund the Heritage Theatre. 5.5.1 Meet and Confer CITY and VTECH agree to meet and confer regarding reimbursable labor costs at the following intervals to determine level of service CITY can afford during closure: • Within first seven(7) days of mandated closure • 30 days post closure • 90 days post closure • 120 days post closure CITY will also provide City Council updated fmancial information at 30, 90, and 120 days post closure and provide an opportunity for the City Council to exercise Section 8, Subsection 8.6(c) CITY Votes to Defund THEATRE.If at any time City Council votes to defund the Heritage Theatre all provisions in 8.6.3 will be enforced. 6. SUBCONTRACTORS 6.1 Provider may not subcontract:any services required under this Agreement without the prior written consent of the City: -7- 6.2 Provider shall be responsible to City for the performance of any and all subcontractors who perform work under this contract, and any acts of negligence on their part. Provider is solely responsible for all payments due to subcontractors. 7. OWNERSHIP OF DOCUMENTS AND MATERIALS All original drawings, documents, papers, data, materials, photographs, negatives and other work products prepared by the Provider and/or its subcontractors in the performance of the services encompassed in this Agreement (whether in printed or electronic format) ("project- related documents and materials) shall be the property of the City and may be used on this project without the consent of the Provider or its subcontractors. City acknowledges that such drawings, documents, and other items are instruments of professional services intended for use only on the subject project. Provider agrees that all copyrights which arise from creation of the Project-related documents and materials pursuant to this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. Upon the completion or termination of this Agreement for any reason, the City shall be entitled to receive, and Provider shall promptly provide to the City upon request, all finished and unfinished project-related-documents and materials, produced or gathered by or on behalf of Provider that are in Provider's possession, custody or control. Provider may retain copies of said documents and materials for its files. In the event of termination, any dispute regarding compensation or damages shall not hinder, prevent, or otherwise impact the City's right to promptly receive and use such documents and materials which are the sole and exclusive property of the City. All copyrighted materials developed by VENUETECH ("Materials") shall remain the property of VENUETECH and are protected by copyright. VENUETECH hereby grants, at no cost to CITY other than considerations contained in this Agreement, a fully executable, non-expiring, nontransferable license agreement to CITY for its use of the written Materials for THEATRE. This license agreement shall grant CITY the right to use Materials, including but not limited to any bid response, business plan or budget,for any public benefit purpose within the current and future geographic borders of CAMPBELL, California. CITY may make copies of Materials for its use, however agrees that it will not knowingly sell, give or otherwise transfer ownership or control of Materials to other individuals, agencies, organizations or businesses and will only use Materials for the benefit of the residents of CITY who through this Agreement have been granted limited rights to the benefits Materials. With the exception of this non-expiring license agreement granted to CITY, VENUETECH retains ownership (all right, title and interest to) of Materials, and copyright rights to VENUETECH's ideas, concepts, materials, trade secrets and other intellectual properties created by VENUETECH for the CITY under the terms and conditions of this Agreement. . 8. . TERM,RENEWAL, & TERMINATION 8.1 Initial Term The initial term of this Agreement shall be for a period of five (5) years, and shall commence on the 1st day of July 2024, and shall expire on June 30, 2029. (Such -8- period shall be referred to as the"Initial Term"). 8.2 Extension: At the written request of the CITY, delivered to VENUETECH no less than ,one hundred & eighty (180) days prior to the expiration of the then-current Term (specifically the dates set fort in 8.2(b) below ("Notice Period"), then this Agreement may be extended for up to two (2) additional subsequent terms of three (3) years each ("Subsequent Term")upon the same terms and conditions of then-current Agreement. 8.2.1 Notice Required. CITY agrees that it will provide a written notice of its intention to extend for an additional Term, or provide notice of its intention to not extend for an additional Term("Notice") on or before the"Notice Date". 8.2.2 Notice Date. The Notice Date for Subsequent Term or Terms shall be on or before December 31, 2028, or on or before December 31, 2031 ("Notice Date(s)"). 8.2.3 Written Notice To Renew Received. Where the CITY sends written notice on or before the Notice Date, and where VENUETECH accepts and provides a written notice of acceptance no later than thirty (30) days from the date Notice is received, then the Subsequent Term shall commence on July 1 of the following year. Subsequent Terms would commence as follows: July 1, 2029, July 1, 2032. 8.2.4 Written Notice Not Received. In the event that CITY does not provide a written notice to VENUETECH by the Notice Date, then the Parties agree to cooperate to achieve a professional and orderly transition for the benefit of both Parties as more fully set forth below, and the Wind-Down Fee shall be due and payable as set forth in Section 8.10 in this Agreement. 8.2.5 Booking Services. For the avoidance of doubt, in the event that CITY elects to terminate this Agreement, or has not provided Notice by the Notice Date then VENUETECH shall cease all negotiation and booking of Season of Events and In-House Events. 8.3 Expiration of the Term. This Agreement shall terminate upon the expiration date of the then-current Term, except where a. CITY has timely exercised its right to renew by extension of this Agreement as set forth above and VENUETECH has accepted such request to renew; or b. The CITY has not elected to exercise its right to an Extension, or c. CITY has/has not provided written Notice of CITY's intention to not renew to VENUETECH by the Notice Date. 8.4 Non-Renewal Transition Period. In the event that the Parties do not renew the Agreement, for any reason, then the Parties acknowledge that the express purpose the 180 day -9- Notice Period (see 8.2 above) shall be to provide for an orderly and professional transition prior to the end of services performed by VENUETECH as set forth below. 8.5 Orderly & Professional Transition. The Parties agree that a notice period is required to facilitate a predictable, orderly and professional transition to some other form of management of THEATRE for the benefit of CITY and VENUETECH, as well as for the benefit of VENUETECH employees who will require notification of their potential change in employment; and further it is essential for VENUETECH to provide notification to Talent Agents, vendors, etc. collectively to provide for an orderly and smooth transition and winding down of services. 8.6 Termination. 8.6.1 Expiration of the Term. This Agreement shall terminate upon the expiration date of the current Term of the Agreement, unless CITY has exercised its' right to Subsequent Term. 8.6.2 Notice of Intent to Terminate for Material Breach & Cure of Default. In the event of a material breach, the non-defaulting party shall provide notice of such potential material breach in writing to the defaulting party, stating the reasons for the notice. The defaulting party shall have a period of sixty (60) days to cure ("Cure Period"). Upon the expiration of the Cure Period and where cure is not achieved, this Agreement may be terminated by the provision of a final written sixty-day (60) notice of intent to terminate by the non-defaulting party. 8.6.3 CITY Votes to Defund THEATRE. In the event the City Council votes to not fund the operations of the THEATRE, then the CITY may terminate this Agreement by provision of a written Notice to VENUETECH of no less than 180 days as set forth in section 8.2 above; provided however, that in the event the City Council decides to re-fund the operations of the THEATRE within nine (9) months of the of the last day of VENUETECH's provision of services to CITY under this Agreement (or from the last day of any extension thereof), then CITY shall reinstate VENUETECH on the same terms and conditions of this Agreement as amended, as of the date of cessation of services by VENUETECH. 8.6.4 Exercise by CITY under Article XVI of the State of California Constitution. Notwithstanding anything to the contrary CITY may terminate this Agreement by a provision of a 180-day written Notice to VENUETECH in order for CITY to be in compliance with Article XVI of the State of California Constitution (which provides in part that a CITY cannot obligate itself where funding is unavailable, provided however that the provisions of Section 8.6(c) above shall apply. 8.7 Effect of Termination- Records & Executory Contracts. Upon termination of this Agreement, for any reason, all of the records in VENUETECH's possession pertaining to the operation of THEATRE,together with all supplies, equipment, or other property of CITY in -10- VENUETECH's possession shall be delivered to CITY. Subject to Section 8.8 and 8.9 below, CITY shall retain responsibility for all executory contracts in effect for agreements including but not limited to Talent Contracts, fees, rental agreements and third party vendors. 8.8 Effect of Termination— Booking Talent Contracts. Upon the termination of this Agreement, for any reason, or upon the passing of the Notice Date without receipt of a Notice from CITY, or where either Party is subject to a notice of material breach which has not been cured during the Cure Period, then all duties and obligations of VENUETECH with respect to the negotiation and booking of In-House and Season of Events shall cease without further obligation. In no event shall CITY have the right to reduce, or by offset or deduction, any of the Fees due VENUETECH under the terms and conditions of this Agreement. For the avoidance of doubt the Parties acknowledge and agree to use their best efforts to avoid the instance of VENUETECH entering into any Talent Contract for Events for which VENUETECH will not have managerial authority of THEATRE at the time of performance, which is a material representation and covenant required by the agreement between VENUETECH and a Talent Agent(s) or Performing Artist(s) in a Talent Contract or Rider. 8.9 Effect of Termination—Existing Talent Contracts. VENUETECH shall have the right, at its sole discretion, to notify the Talent Agent(s) of any Performing Artist(s) under contract for Event dates that would occur after VENUETECH's last day of scheduled management of THEATRE, that VENUETECH will no longer be managing THEATRE at the time such Event takes place. 8.9.1 Talent Agent/Artist Option. Each Performing Artist and their respective Talent Agent or Talent Manager shall be provided an option to reissue the Talent Contract in the name of CITY, or to cancel the Talent Contract, expressly because VENUETECH will no longer be in a position to provide professional event production as originally represented to Talent Agent(s); 8.9.2 No Control of Talent Agent/Artist Option. Decisions to reissue Talent Contracts will be made solely at the discretion of individual Performing Artists, Talent Agents, Talent Agencies or Talent Management, and shall be out of the control of VENUETECH. Any Fees or expenses (or forfeiture of Talent Contract deposits) charged by Talent Agents for the reissuance, cancellation or modification of Talent Contracts, shall be the responsibility of CITY. 8.9.3 CITY takes Talent/Agent Contract by Assignment. Thereafter any Talent Contract(s) which have not been reissued in the name of the CITY, or have not been cancelled, shall be assigned to CITY by VENUETECH,whereby CITY shall assume,without reservation or change, subject to the written consent of Performing Artist, Talent Agent or Talent Management, all rights, duties and obligations under such Talent Contracts, including but not limited to (i)responsibility for previously paid or unpaid contract deposits and final Talent Fees, and/or(ii) all contract and production requirements per the Contract Rider. 8.9.4 CITY Responsibility for EVENT Production. Should Performing Artist's Event(s) occur after VENUETECH's last day of management of THEATRE, -11- whether or not the Talent Contract Riders have been reissued or remain in original form as assigned to CITY,then CITY shall be responsible for all production of the EVENT, and all other contract requirements of the Talent Contracts and/or Contract Riders. 8.10 Termination - Wind-Down Fee. Upon termination of this Agreement as set forth above, including Section 8.2(d) above, then during the final three (3) months of the Notice Period, VenueTech shall be paid a management expense of$8,000 per month, over and above all other Fees set forth in Exhibit C — Schedule of Fees, hereinafter the "Wind-Down Fee". This Wind-Down Fee shall offset increased costs incurred by VENUETECH during the Wind-Down period and thereafter. Further CITY agrees in the event this Agreement is terminated for any reason at any time, including for an alleged material breach by either party, the Wind-Down Fee shall be deemed fully earned and shall be immediately due and payable. Commencing on the 1st of the month of the last three-month period of the Notice Period, the Wind-Down Fee shall be billed in three (3) monthly invoices of$8,000 each .(i.e. expiration is July 1st, then invoices shall be April 1st, May 1st and June 1st) together with the specific invoices for all other fees together with all other fees and reimbursements due VENUETECH for each month, per this Agreement, which all shall be paid pursuant to the terms and conditions of this Agreement. VENUETECH agrees to waive the Wind-Down Fee in the event that the parties mutually agree to an extension of this Agreement for any Subsequent Term. 9. AUDIT AND INSPECTION Provider shall permit authorized representatives of City to inspect and audit all data and records relating to its performance under this Agreement for a period of three years following acceptance of the final study. 10. EQUAL EMPLOYMENT OPPORTUNITY Provider agrees to refrain from discriminatory employment practices on the basis of race, religious creed, color, sex, national origin, handicap, sexual orientation, or ancestry of any employee of, or applicant for employment with, such Provider or subcontractor. 11. INSURANCE AND INDEMNIFICATION 11.1 Provider agrees to indemnify, defend and hold harmless the City, its officers, agents and employees to the fullest extent allowed by law from any and all claims, demands, actions, causes of action, losses, damages, liabilities and costs of every nature, including but not limited to all claims, actions, causes of action, losses, damages, liabilities for property damage, bodily injury, or death, and all costs of defending any claim, action or cause of action (including reasonable attorney's fees and cost of suit), caused by, arising out of, or resulting from, or alleged to have been caused by, arise out of, or result from, in whole or in part, the use of the Heritage Theatre or the performance of this Agreement, except for any claims, actions, causes of action, losses, damages, costs or liabilities proximately caused by the negligence or willful misconduct of City. -12- 11.2 City agrees to indemnify, defend and hold harmless the Provider, its officers, agents and employees to the fullest extent allowed by law from any and all claims, demands, actions, causes of action, losses, damages, liabilities and costs of every nature, including but not limited to all claims, actions, causes of action, losses, damages, liabilities for property damage, bodily injury, or death, and all costs of defending any claim, action or cause of action (including reasonable attorney's fees and cost of suit), proximately caused by (a) the negligence or willful misconduct of the City, (b) any defect in the premises of the THEATRE, or (c) the failure of CITY to comply with any Federal, State and/or Local regulation regarding THEATRE, including but not limited to the Americans with Disabilities Act of 1990 as amended. In no event shall this section be construed to require indemnification by the Provider to a greater extent than permitted under the public policy of the State of California. The defense and indemnity provisions obligations of this Agreement are undertaken in addition to, and shall not be in any way be limited by the insurance obligations contained in this. Agreement. The foregoing indemnity provisions are intended to fully allocate the parties' risk of liability to third-parties; and there shall be no rights to indemnity or contribution, in law or equity or otherwise between the parties that are not set forth in this section. Provider waives all rights to subrogation for any matters covered by the provisions of this section. The parties responsibility for such defense and indemnity obligations as set forth in this section shall survive the termination or completion of this Agreement for the full period of time allowed by law. 11.3 Provider shall maintain insurance conforming to the 'following specifications to the fullest amount allowed by law for a minimum of four (4) years following the termination or completion of this Agreement: A. Types of Coverage The policies shall afford the following types of coverage: 1. Commercial General Liability; 2. Automotive; 3. Workers' Compensation and Employer Liability; and 4. Professional Liability and/or Errors and Omissions B. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. For Commercial General Liability: Insurance Services Office (ISO) CGL Form 00 01 11 85; and -13- 2. For Automotive Liability: ISO CA 00 01 06 92 including symbol 1(any auto); and 3. For Workers' Compensation: insurance as required by the Labor Code of the State of California and Employer's Liability insurance; and 4. For Professional Liability and/or Errors and Omissions: insurance covering negligence committed by or on behalf of Provider in rendering services to City. C. Minimum Limits of Insurance Provider shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of$1,000,000 per accident. 4. Professional Liability and/or Errors and Omissions: $1,000,000 per claim and $2,000,000 in the annual aggregate. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (as agreed to in this Agreement) before the City's own insurance or self-insurance shall be called upon to protect it as a named insured. D. Deductible and Self-Insured Retention Any deductibles or self-insured retention must be declared to and approved by the City, and shall not reduce the limits of liability. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the City, its agents, officers, attorneys, employees, and officials; or the Provider shall procure a bond guaranteeing payment of losses related to investigations, claim administration, and defense expenses. Policies containing any self-insured retention provision shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or the City. -14- E. Other Insurance Provisions The policies are to contain, or be endorsed to contain,the following provisions: 1. General Liability and Automobile Liability Coverage: a. The City, its agents, officers, attorneys, employees, and officials are to be covered as additional insureds as respects: liability arising out of this Agreement performed by or on behalf of the Provider, products and completed operations of the Provider, premises owned, occupied or used by the Provider, or automobiles owned, leased, hired or borrowed by the Provider. It is a requirement of this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth in this Agreement shall be available to the City as an additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured,whichever is affords greater coverage. b. The Provider's insurance coverage shall be primary insurance as respects the City, its agents, officers, attorneys, employees, and officials. Any insurance or self-insurance maintained by the City, its agents, officers, attorneys, employees, and officials shall be excess of the Provider's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its agents, officers, attorneys, employees, and officials. d. The Provider'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. 2. Workers' Compensation and Employer's Liability Coverage: The insurer shall agree to waive all rights of subrogation against the City, its agents, officers, attorneys, employees, and officials, for losses arising from work performed by the Provider for the City. 3. All Coverages: Any unintentional failure to comply with reporting provisions of the policies shall not affect coverage provided to the City; and unless otherwise approved by the City, each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by regular mail has been given to the City, or ten (10) days for cancellation for non- payment of premium. -15- E. Suspension or Cancellation If any of the coverages required by this Agreement should be suspended, voided, cancelled or reduced in coverage during the term of this Agreement, Provider shall immediately notify City and replace such coverage with another policy meeting the requirements of this Agreement. F. Subcontractors Provider agrees that any and all contracts with subcontractors for performance of any matter under this Agreement shall require the subcontractors to comply with the same indemnity and insurance requirements set forth in this Agreement to the extent that they apply to the scope of the subcontractors' work. Subcontractors are to be bound to contractor and to City in the same manner and to the same extent as the Provider is bound to City under this Agreement. Subcontractors shall further agree to include these same provisions with any sub-subcontractor. A copy of this Agreement will be furnished to the subcontractor on request. The Provider shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the Agreement prior to commencing any work, and will provide proof of compliance to the City. G. Acceptability of Insurers Without limiting Provider's indemnification provided hereunder, the policies of insurance listed in Article 9.2 of this Agreement are to be issued by an issuer with a current A.M. Best Rating of A:V and who is authorized to transact business in the State of California,unless otherwise approved by the City. H. Verification of Coverage Provider shall furnish the City with endorsements and certificates of insurance evidencing coverage required by this clause. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates are to be on forms acceptable to the City. Where required by statute, forms approved by the Insurance Commissioner are to be submitted. All certificates are to be received and approved by the City before work commences. 12. VENUETECH OPERATING AUTHORITY 12.1 Authority to Enter into Agreements with Facility Clients. VENUETECH is hereby authorized to negotiate and enter into contracts on behalf of CITY with individuals, -16- businesses and organizations that may be interested in renting THEATRE for the production of public and private Events at THEATRE not sponsored by CITY. Said agreements shall be in conformity with CITY's approved policies for operation of THEATRE. 12.2 Authority = Talent Contracts. VENUETECH is hereby authorized to negotiate and enter into Talent Contracts on behalf of CITY for In-House Events and the Season of Events. CITY shall be obligated by all the terms and conditions of each Talent Contract, including but not limited to fees required for talent and production requirements. The cost of talent fees shall be in conformance with the operating budget approved by CITY. 12.3 Exclusive Authority All Events. VENUETECH shall have the sole and exclusive right to negotiate on behalf of CITY with Talent Agents, Performing Artists, Talent Managements and other artists' representatives for all Events at the THEATRE during the Term of this Agreement, provided that any expense to the City is in conformance with the operating budget approved by CITY. CITY acknowledges that VENUETECH has developed good will and an outstanding professional reputation within the entertainment industry nationwide. These valuable established relationships with industry leaders include practices and methods and specific skills and expertise and experience, which are deemed to be trade secrets of VENUETECH. CITY agrees to refrain from contacting any Performing Artist or Talent Agent or Talent Management, or "talent buying companies" for Events at THEATRE. VENUETECH shall use its goodwill, expertise and experience, together with its trade secrets for the benefit of CITY and THEATRE in the booking of Performing Artists at THEATRE. 12.4 Exclusive Authority Contract Riders. VENUETECH shall also have the sole and exclusive right to negotiate Contract Riders for In-House Events or Season of Events, or other agreements, on behalf of THEATRE and CITY, including but not limited to agreements with respect to (i) production requirements, (ii) selection and hiring of security staff for all Events at THEATRE, (iii) staffing requirements, (iv) bus and truck parking, (v) air transportation, (vi) ground transportation, (vii) lodging, (viii) catering services, (ix) merchandise rights, (x)financial settlement procedures, (xi)media rights, (xii) approval of marketing plans, (xiii) approval of use of artists image, and recorded materials, (xiv) media and public access to artists, (xv) backstage accessibility and other related issues, provided that any exepense to the City is in conformance with the operating budget approved by CITY. 12.5 Back Stage & Security. VENUETECH shall have the sole right to control access to backstage and on-stage areas when Performing Artists and their representatives are present and shall have the sole right to assign this control to individuals designated by such Performing Artists. In addition, VENUETECH shall have the sole right to select security employees for areas with stage and backstage access and to grant approval rights for this selection to Performing Artists or their designated representatives. 12.6 Meet & Greet with Artists. VENUETECH will make all reasonable efforts to accommodate CITY, its representatives, employees and guests, when requests are made to meet artists in secure backstage areas; however both parties acknowledge that these decisions will always be within the sole control of individual Performing Artists and their representatives. 12.7 Performing Artists' Confidentiality. It is understood by both Parties that in most instances Performing Artists, Talent Agents and Talent Managers consider the terms of their Talent Contracts to be proprietary confidential information and will impose confidentiality -17- requirements upon VENUETECH and expect that such information will be held in confidence. To fulfill its duties under this Agreement, VENUETECH will be sharing confidential information with CITY. CITY therefore agrees to not disclose this information to third parties other than its advisors, officials, and key employees solely for the purpose of CITY's receiving legal,tax, business,policy and financial advice., unless otherwise required by applicable law. 12.8 Day-To-Day Operations — General. It is agreed that VENUETECH shall have control over the day-to-day operation of THEATRE and shall make decisions on an ongoing basis relating to the operation and event production needs of the facilities of the THEATRE. The CITY Project Liaison shall work directly with VENUETECH as the .communication link between CITY and VENUETECH, to provide approvals on a timely basis for programming decisions and shall be a resource for answering questions that may arise from time to time, provide guidance when community issues surface and to give general guidance to VENUETECH. CITY may elect to change this Project Liaison from time to time and will give VENUETECH written notification when it elects to do so. 12.9 Handling of Requests for Special Treatment by Facility Clients. Both parties acknowledge that the THEATRE is a high-profile public building and that many nonprofit and other community organizations will wish to use the THEATRE for the presentation of events in the CAMPBELL region. In many instances, requests will be made to use THEATRE for discounted fees or at no cost. VENUETECH has developed strategies to shield the CITY from receiving direct solicitation from these individuals and groups and has included these provisions in the Business Plan. In addition to becoming a nuisance and being time consuming for CITY, this situation has the potential to undermine the VENUETECH employees assigned to the management of THEATRE and decrease their ability to achieve financial goals established for them. It is agreed that VENUETECH and CITY will meet quarterly, or on an as-needed basis, to discuss the effectiveness of these strategies and that VENUETECH will adjust operating policies to reflect the desires of CITY concerning this matter and the financial and public relations impact of this policy and the THEATRE business plan._ 12.10 Right To Select Third Party Software. VENUETECH shall have the sole and exclusive right (subject to budget approval by the CITY) to select third party vendors for the provision of software and systems, including equipment, for the management of the box office, ticket sales and access control for THEATRE. 12.11 Right To Select Marketing Professionals. VENUETECH shall have the sole and exclusive right (subject to budget approval by the CITY) to select graphic designers, printers, web designers, marketing agencies and other marketing professionals for all work related to the operation of the Theatre, including its rental business and in-house productions. Subject to limitations of individual artists and their representatives, VenueTech shall further have the sole and exclusive right to authorize the use of images, depictions, photographs, video and audio reproduction of individual arts for promotion of events presented at the Theatre facilities. 13. CONFIDENTIALITY "Confidential Information"means any and all information of a proprietary or confidential nature, including all tangible or intangible property including but not limited to trade secrets, patents, or copyrights of either Party, pricing information, pricing or cost information related to Season of -18- Events or Talent Contracts/Riders ("Confidential Information"). For purposes of this Agreement, Confidential Information does not include: (i) information learned from a third party entitled to disclose it and who is not in violation of a contractual, legal or fiduciary obligation to either Party, (ii) information which is or becomes known publicly through no fault of either Party, (iii) information already known by either Party prior to disclosure from the other Party, or (iv) or certain information CITY is required to disclose to the public. 14. NONSOLICITATION No Solicitation. During any Term of this Agreement, and on the non-renewal, expiration or earlier termination of this or the then-current Agreement for any reason, CITY or any of its officers, agents or employees, for. 'a period of twelve (12) months thereafter, shall not, either directly or indirectly (through any other successor management entity of THEATRE) (i) solicit, entice, or induce any employee to terminate employment with VENUETECH, without the express'written consent of VENUETECH. Solicitation by CITY, or its successors or successor management entities of any VENUETECH employee, in contravention of this provision without written consent by VENUETECH, shall be deemed a material breach of this Agreement. 15. MISCELLANEOUS 15.1 This Agreement shall be binding on the heirs, executors, assigns and successors of Provider. 15.2 Neither party may not assign this Agreement, or any portion hereof, without the prior written consent of the other. 15.3 This Agreement shall not be construed to alter, affect, or waive any lien or stop notice rights, which Provider may have for the performance of services pursuant to. this Agreement. 15.4 Neither parry's waiver of any term, condition or covenant, or breach of any term, condition or covenant shall not be construed as the waiver of any other term, condition or covenant or waiver of the breach of any other term, condition or covenant. 15.5 This Agreement contains the entire Agreement between City and Provider relating to the project and the provision of services to the project. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Subsequent modifications to this Agreement shall be in writing and signed by both City and Provider. 15.6 If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding on City and Provider. 15.7 This Agreement shall be governed and construed in accordance with the laws of -19- the State of California. 15.8 This Agreement may be executed in counterparts and will be binding as executed. 15.9 All changes or amendments to this Agreement must be in writing and approved by all parties. 15.10 Provider owes the City a duty of undivided loyalty in performing the work and services under this Agreement, including, but not limited to, the obligation to refrain from having economic interests and/or participating in activities that conflict with the City's interests in respect to the work and/or services and project. The Provider shall list current clients who may have a financial interest in the outcome of this Agreement. The Provider hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this agreement. Provider shall not make or participate in making or in any way attempt to use Provider's position to influence a governmental decision in which Provider knows or has reason to know Provider has a direct or indirect financial interest other than the compensation promised by this Agreement. Provider will immediately advise the City if Provider learns of a financial interest of Provider's during the term of this Agreement. 15.11 This Agreement is entered into, and to be performed in Santa Clara County, California, and any action arising out of or related to this Agreement shall be maintained in a court of appropriate jurisdiction in Santa Clara County, California. 15.12 ADA Disclaimer. VENUETECH expressly disclaims any expertise, obligations or duty with respect to compliance with the Americans with Disabilities Act of 1990 as amended ("ADA"), and shall under no circumstances provide any oral or written advice or consultation to CITY or any other party with respect to compliance with the ADA for THEATRE. 15.13 Acknowledgement of Risk. CITY acknowledges that the production and promotion of Events in the entertainment and cultural arts industry have associated inherent risks, which include but are not limited to financial and other general liabilities. Both parties also acknowledge that a decision to produce entertainment, recreation or cultural Events, or any specific Event, may at times be made by CITY for reasons other than financial profit potential and that at times CITY may elect to produce Events which will require financial subsidy in order to achieve other community service objectives. By entering into this Agreement, CITY represents and warrants that it has evaluated this risk, fully understands the implications of said risks and is willing and able to accept the financial obligations associated with this enterprise. 15.14 Arbitration. All disputes shall first be attempted to be settled by informal mediation between the parties. In the event an impasse is reached, all disputes shall be submitted to final and binding arbitration to a single arbitrator selected by the Parties. If the parties are unable to reach an agreement as to the arbitrator, either party may petition the Superior Court for the County of Santa Clara to appoint a neutral arbitrator. The arbitrator's decision shall be a final and binding determination and shall be fully enforceable as an arbitration award in any court having jurisdiction and venue over the parties by order of the court, which shall be under a sealed confidential agreement. -20- 16. NOTICES Notices required under this Agreement may be delivered by first class mail addressed to the appropriate party at one of the following addresses: CITY: City of Campbell Attention: Brian Loventhal, City Manager 70 North First Street Campbell, CA 95008 PROVIDER: VenueTech Management Group Attention: Judy Barkett 2269 Chestnut St. #960 San Francisco, CA 94123 Having read and understood the foregoing Agreement, the undersigned parties agree to be bound hereby: PROVIDER By. Title CITY OF CAMPBELL By Title -21 Exhibit A- Scope of Services • Manage and operate the Campbell Heritage Theatre in accordance with policies approved by the City. • Be responsible for all day-to-day functions and operations of the Campbell Heritage Theatre and shall operate the Theatre at all times in the public interest and in accordance with the highest professional and ethical standards. • Hire, train and supervise all required full-time and part-time employees including but not limited to the Theatre Manager, box office manager, production manager, technical director, stage hands, technical staff, box office employees, ushers, ticket takers, volunteers and other employees as needed. • Manage payroll and other employee systems. • Provide adequate worker's compensation insurance for all employees working at or on behalf of the Heritage Theatre. • Represent the CITY with regard to use of the Heritage Theatre by third parties for the production of public and private events. • Prepare and sign rental agreements, enforce City policies, ensure adequate insurance is maintained and collect fees from rental clients on behalf of the CITY. • Manage accounting records for all transactions and provide monthly reports to City's financial team. • Recommend operating budgets, track revenues and expenditures, develop programming models, rental rates, operating policies, business strategies and changes to the Business Plan to the City. • Approval of policies and fees is the responsibility of the City Council • Execution of approved policies and fees is the responsibility of the CONTRACTOR. • Manage all box office operations including, ticket sales, management and training of ticketing software, box office receipts, scheduling of patron seating, management of patron sales information, customer concerns or problems and administration of any other software systems utilized in the operation or management of the Heritage Theatre. • Negotiate Talent Contracts for Performing Artists who will perform at the Heritage Theatre for events produced in-house on behalf of the CITY. • Negotiate Contract Riders and show advance services for those events to be produced in-house on behalf of the CITY including production requirements, staffing requirements, security, bus and truck parking, air transportation, ground transportation, lodging, catering services, merchandise rights, financial settlement procedures, media rights, approval of marketing plans, approval of use of artists image, approval of artists recorded materials, media and public access to artists, backstage accessibility and other issues. • Manage the Theatre master calendar for performance, rehearsal, technical and -22- production needs and maintenance schedules for all events during the term of the agreement. • Negotiate and coordinate with third party caterers, concessionaires and other food and merchandise vendors as needed. • Manage, coordinate or operate an in-house concession program that is approved by the CITY. • Coordinate the event:production needs of all rental clients including the provisions of production services, such as technical support, stage equipment, production staff, public catering, backstage catering, box office, ushers, ticket takers and other related services. • Provide ongoing guidance and support to rental clients to best meet their needs for production,promotion, and other concerns as they arise. • Execute. and administer all marketing requirements of all booked Professional Artists. • Coordinate with Agents, Managers, or Agencies to develop and implement negotiated marketing and advertising plans for individually booked Professional Artists. • When appropriate, coordinate personal appearances, interviews, and "meet-and- greets"with booked Professional Artists: • Develop all marketing materials for season shows produced by the CITY. • Provide marketing materials and additional rental information to the Recreation and Community Services Department three times a year for Activity Guide mailer._ • Write and implement the sales and marketing plan for all events hosted at the Heritage Theatre. • Solicit sponsorships, program ads, and donations annually for season of shows produced by the City meeting agreed upon revenue targets. • Designate an employee to serve as an Ex-Officio member on the Friends of the Heritage Theatre Board(FOHT). • Provide guidance, support and non-profit counselling to Friends of the Heritage Theatre. • Attend monthly meetings with designated City personnel. • Attend monthly or as needed meetings with FOHT for board meetings and committee meetings. • Work closely with Maintenance division to address any electrical, mechanical, structural, or plumbing issues. • Develop capital plan in accordance with established equipment schedule. • Prepare documents,reports, or data as requested by City personnel. • Coordinate City volunteer program and manage, train, and recruit volunteers to assist with events at the Heritage Theatre. End of Exhibit A -23 Exhibit B—Obligations of the City • Provide a safe building that is appropriate for public assembly and that meets fire safety,public access, local zoning and other local, state and federal requirements. • Provide VENUETECH with :onsite office facilities including but not limited to furniture, telephone, internet, computers and copy machines. • Provide VENUETECH with all tools and equipment required to operate the Theater safely, efficiently and professionally (including such items as automated box office systems,ticket printers, lighting and sound production equipment,tools, etc.) • Assign a CITY Project Liaison to interface with VENUETECH with regard to all aspects of the THEATRE operation and to provide coordination and communication between CITY and VENUETECH. • Provide the funds required to operate the THEATRE, and approve the annual operating budget of the THEATRE subject to City Council approval and any mid-year adjustments as per CITY policy. • Provide the funds required to produce the In-House Events and Season of Events at the THEATRE. • CITY shall obtain, fund and maintain a"Merchant Account" for use in management of the Theatre. • Provide VENUETECH with timely financial data and information in report form, and provide direction to.VENUETECH concerning the operation of THEATRE, and the financial, business and community service goals of CITY regarding THEATRE. •. Provide timely guidance to VENUETECH regarding community interests and needs of the.overall mission and goals of CITY with regards to THEATRE. Specifically provide VENUETECH with direction relating to any requests that may be made by local nonprofit organizations for free or discounted use of THEATRE. • Provide timely guidance to VENUETECH regarding the production of In-House Events or Season of Events. • Provide timely ADA policies and procedures as per the terms of this Agreement and ensure that the THEATRE remains in compliance with ADA laws and other public safety considerations. • Provide VENUETECH employees with training opportunities as same arises for CITY employees for relevant subject matter such as first aid, sexual harassment, hazardous materials. • CITY shall. provide a hyper-text link to VENUETECH's website at www.venuetech.com on the homepage of the web site or sites where CITY advertise or promotes the Heritage Theatre with a tag line acknowledgement that the "Heritage Theatre is managed by VenueTech Management Group". -24- • CITY agrees that VENUETECH employees are allowed to wear distinctive logo clothing (hats and shirts) and photo ID Badges while at work at THEATRE. • Compensate VENUETECH timely for the services provided, as per the terms of this Agreement. End of Exhibit B -25- Exhibit C—Schedule of Fees Management Fee $21,257.06 per This monthly fee is inclusive of all required month consultation and management services, including hours spent by the CEO, President, Senior Vice President, and on-site Theatre Manager. Fee is to be adjusted based upon CPI on 7/1/24. Labor & Overhead Direct cost plus 40% Direct costs include only the costs expressly Reimbursement overhead identified in this Exhibit. VenueTech will provide all required labor for the agreed upon scope of work and will be reimbursed monthly (in arrears) for the wages of these employees (other than the President, Vice President and Theatre Manager costs, which are included in the Management Fee.) VenueTech will be paid labor overhead equal to forty percent (40%) of reimbursable wages to offset personnel overhead costs, including personnel management, worker's compensation insurance, unemployment insurance, employer's tax contributions, payroll expenses, and other employment related costs. This applies to the total wages earned by VenueTech employees assigned to work at the Theatre, excluding the Theatre Manager. This fee is not applied to any employee benefit reimbursements. This fee has increased from the current contract to reflect current market rates. Employee Benefits Direct cost with no Should the operation require additional full- Reimbursement added overhead time personnel or should any part-time employee work requirements exceed an average of 30 work hours per week, VenueTech will be reimbursed for the provision of health insurance. Insurance Direct Cost with no VenueTech will purchase an insurance policy Reimbursement added overhead to cover general liability, non-owned automobile and liquor liability (if required) -26- for exposure specifically relating to the Theatre operation and public events. The direct cost of this insurance will be included in the annual operating budget and will be reimbursed to VenueTech. Within the entertainment industry, underwriters typically quote fees for this type of policy based on total attendance. Annual Research $3,000.00 In January of each year, VenueTech is to be Reimbursement reimbursed an annual research expense to help offset the costs associated with the collection of industry data, artists touring data and other information required for the booking,of talent. Cell Phone Cost Direct cost The City shall pay directly or shall reimburse VenueTech for the direct monthly costs of the provision of cell phones .for the Theatre Manager and the Production Manager assigned to work at the Heritage Theatre. Employee Training Direct cost The CITY shall provide at its cost or shall reimburse VenueTech for the costs associated with the provision of required training for Theatre personnel. Annual Fee CPI adjustment This annual fee increase will apply to all fees Increase included in the Agreement; however, it will not apply to "direct cost" reimbursement including the 40% personnel overhead. The CPI adjustment will be measured by year- over-year CPI for July based on the San Francisco Bay Area. *VenueTech invoices for.Management Fees one month in advance, and for labor and other reimbursements in arrears. Additional positions will be assigned to work for the Heritage Theatre and billed on.a reimbursable basis plus overhead should VenueTech Management Group be selected by the City of Campbell to continue as the Theatre Management firm. Our business model includes cross training of employees in many positions so the same employee might work in more than one position. The following chart itemizes the additional positions necessary to provide the Scope of Services described in the RFQ. -27- Position Compensation Range Production Manager for National Touring Shows: $50 to $75 per hour Production Manager (In-House): $32 to $55 per hour Technicians and Stagehands: $21 to $40 Box Office Manager: $21 to $35 per hour Volunteer Coordinator: $21 to $35 per hour Box Office Staff: $18 to $30 per hour House Managers: $18 - $30 per hour Marketing &Media Relations: $35 - $50 per hour -28-