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HomeMy WebLinkAboutC-8024-4A - Performance Agreement for Concert on the Green 2017PERFORMANCE AGREEMENT WITH PACIFIC SYMPHONY FOR CONCERT ON THE GREEN THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as of this 1st day of July 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PACIFIC SYMPHONY, a California nonprofit corporation ("Performer"), whose address is 17620 Fitch Avenue, Suite 100, Irvine, California 92614, and it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on July 16, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Performer shall provide the following type of performance: Live concert ("Performance") and interactive children's activities ("Musical Playground"). 2.2 Performer shall provide such Performance and Musical Playground at the following location and date: Location: Civic Green, Civic Center Park, 100 Civic Center Drive, Newport Beach, CA 92660 ("Park") Date: July 16, 2017 Performance time: 7:00 p.m. Performer shall complete all set up by 5:00 p.m. 2.3 The City shall be responsible for: 2.3.1 Providing space for the Performance and Musical Playground and related programming; personnel; Performance; 2.3.2 Providing executive toilet facilities for orchestra members and artistic 2.3.3 Providing parking for orchestra members and artistic personnel; 2.3.4 Providing Performance site signage; 2.3.5 Providing forty (40) volunteers to assist on the day of the 2.3.6 Providing waiver of City special event permit fees; 2.3.7 Providing Performance site clean-up personnel; 2.3.8 Providing promotional support and advertising; 2.3.9 Providing Park Patrol Services; 2.4 Performer shall be responsible for: 2.4.1 Providing sound equipment and amplification system for the Performance; 2.4.2 Providing sound engineer to operate sound equipment for the Performance; 2.4.3 Providing the artistic leadership of Music Director Carl St. Clair; 2.4.4 Providing Musical Playground children's programming and the personnel required to lead these activities, and a conducting clinic with Conductor Carl St. Clair; 2.4.5 Providing a Performance at the Park, including a sound check to be completed at least two (2) hours prior to the Performance; 2.4.6 Providing all musical instruments, peripheral equipment, musicians, vocalists and/or other participants necessary to present an excellent Performance at the Park; 2.4.7 Providing directions and travel arrangements sufficient for all musicians, vocalists, musical instruments and/or other participants to travel to the Park for the Performance; support; 2.4.8 Providing marketing, branding, advertising, and public relations 2.4.9 Providing fundraising support; 2.4.10 Following all directions of City staff as to the entry and egress from the stage in the Park, including when loading and unloading any equipment; 2.4.11 Obtaining prior written approval from the City for all printed (including electronically delivered) materials related to all Performances under this Agreement, including press releases, prior to any distribution; 2.4.12 Immediately reporting to the Program Coordinator any damage to the Performance facility that could cause potential injury to users of the Park, or other needed maintenance repairs or requirements; 2.4.13 Maintaining the highest degree of participant and audience safety possible and completely following all City policies and procedures by immediately reporting any injuries as a result of the Performance; PACIFIC SYMPHONY Page 2 2.4.14 Performer shall at all times conduct himself professionally, courteously and appropriately for this family -friendly facility, and shall be free from the influence of alcohol or drugs; and 2.4.15 Performer agrees, assures and certifies that, except as permitted by law, no person shall, on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual orientation, or any other impermissible basis under law, be excluded from participation in or be denied the benefits of the services provided pursuant to this Agreement, and that Performer shall not discriminate on said grounds in the selection and retention of employees and the procurement of materials and equipment, except as provided in Section 12940 of the Government Code of the State of California. Performer shall also conform to the requirements of the Americans with Disabilities Act in the performance of all obligations under this Agreement. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Performer shall provide the Performance in accordance with the schedule indicated above. Notwithstanding the foregoing, Performer shall not be responsible for delays due to causes beyond Performer's reasonable control. 3.2 In the event of illness, Performer is required to notify City twelve (12) hours prior to cancellation of the Performance. If canceling a Performance for any reason other than illness, Performer shall provide two (2) weeks' notice to the Program Coordinator. In the event of cancellation, Performer shall return all monies advanced by the City. 3.3 For all time periods not specifically set forth herein, Performer shall communicate with City in the most expedient and appropriate manner under the circumstances, by fax, hand -delivery or mail. 4. COMPENSATION TO PERFORMER City shall pay Performer for the Performance on a flat rate basis in accordance with the provisions of this Section. Performer's compensation for the Performance provided in accordance with this Agreement, including all reimbursable items and fees, shall not exceed Fifty Thousand and 001100 ($50,000.00) without prior written authorization from City. No rate changes shall be made during the term of this Agreement without the prior written approval of City. City shall pay Performer upon Performer's arrival for set-up on the date of the Performance. 5. INCOME TAX WITHHOLDING Performer warrants that it is, for purposes of income tax withholding, domiciled in the State of California and shall be solely responsible for the payment of any income tax as required by the State of California. Performer agrees to defend, indemnify and hold City harmless from any tax collection efforts by the State of California, or any other governmental taxing authority, against the City. PACIFIC SYMPHONY Page 3 6. ADMINISTRATION This Agreement will be administered by the Library Services Department. City's Library Services Director or his/her designee shall be the Program Coordinator and shall have the authority to act for City under this Agreement. The Program Coordinator or his/her designee shall represent City in all matters pertaining to the Performance to be rendered pursuant to this Agreement. 7. HOLD HARMLESS 7.1 To the fullest extent permitted by law, Performer shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Performer's presence or activities conducted for the Performance (including the negligent and/or willful acts, errors and/or omissions of Performer, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 7.2 Notwithstanding the foregoing, nothing herein shall be construed to require Performer to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Performer. 8. INDEPENDENT CONTRACTOR It is understood that City retains Performer on an independent contractor basis and Performer is not an agent or employee of City. The manner and means of conducting the Performance are under the control of Performer, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Performer or its employees. Nothing in this Agreement shall be deemed to constitute approval for Performer or any of Performer's employees or agents, to be the agents or employees of City. Performer shall have the responsibility for and control over the means of performing any work or service provided under this Agreement, provided that Performer is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Performer as to the details of the Performance or to exercise a measure of control PACIFIC SYMPHONY Page 4 over Performer shall mean only that Performer shall follow the desires of City with respect to the results of the Performance. 9. COOPERATION Performer agrees to work closely and cooperate fully with City's designated Program Coordinator. City agrees to cooperate with the Performer on the Performance. 10. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Performance to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Performer, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Performer is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Performer. Control means fifty percent (50%) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 11. INTELLECTUAL PROPERTY AND INDEMNITY The Performer warrants that it has the legal right to utilize the songs, scripts, and/or other intellectual property and materials in its Performance provided under this Agreement. The Performer shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Performer's Performance provided under this Agreement. 12. CITY'S RIGHT TO EMPLOY OTHER PERFORMERS City reserves the right to employ other Performers in connection with any City event, performance or concert. 13. NOTICES 13.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Performer to City shall be addressed to City at: Attn: Tim Netherton Library Services City of Newport Beach 1000 Avocado Ave. PO Box 1768 Newport Beach, CA 92658 Phone: (949) 717-3870 PACIFIC SYMPHONY Page 5 13.2 All notices, demands, requests or approvals from City to Performer shall be addressed to Performer at: Pacific Symphony Attn: John Forsythe 17620 Fitch Avenue, Suite 100 Irvine, California 92614 Phone: 714-876-2341 14. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Performer shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Performer's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Performer in writing as unsettled at the time of its final request for payment. The Performer and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, the Performer shall be required to file any claim the Performer may have against the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 15. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Performer. 16. STANDARD PROVISIONS 16.1 Compliance with all Laws. Performer shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 16.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 16.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and any attachments attached hereto, the terms of this Agreement shall govern. PACIFIC SYMPHONY Page 6 16.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 16.6 Amendments, This Agreement may be modified or amended only by a written document executed by both Performer and City and approved as to form by the City Attorney. 16.7 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16.8 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 16.9 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 16.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] PACIFIC SYMPHONY Page 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:*7�4b 1L:7 By: n C. Harp iu City Attorney ATTEST: Date: , - �I�j �II ��� /City Clerk CITY OF NEWPORT BEACH, a Californi municipal corporation Date:A 1 o Zu i_7 gy. (_Tjr6 Hether on Library Services Director PERFORMER: PACIFIC SYMPHONY Date: Signed in Counternnrt Joanne Leatherby CEO By: Signed in Counterpart Susan Anderson Secretary [END OF SIGNATURES] PACIFIC SYMPHONY Page 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: AiK-ofh C. Harpie CityAttorney ATTEST: Date: 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a Californi municipal corporation Date: o Z u By: Tim H ether on Library Services Director PERFORMER: PACIFIC SYMPHONY Date: -7//i BY: J nne Leatherby WO i oarw G tma it Susan Anderson Secretary [END OF SIGNATURES] PACIFIC SYMPHONY Page 8