HomeMy WebLinkAboutC-7121-1 - Performance Agreement for Concert in the Courtyard (Oasis Senior Center)CCA
r PERFORMANCE AGREEMENT
WITH MR. ROCK N' ROLL, INC. & ABBA FAB FOR
V CONCERT PERFORMANCE
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 17th day of July, 2017 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City'), Anne Davies, Chelsea
Faulds, Nick Davis, Scotty Pearson, sole proprietors performing as ABBA FAB
("Performer"), and MR. ROCK N' ROLL, INC., a California corporation acting on behalf of
itself and as the designated agent of ABBA FAB ("Agent"), whose address is 14
Cormorant Circle, Newport Beach, California, 92660, 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 22, 2017, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Concert in the Courtyard ("Performance").
2.2 Performer shall provide such Performance at the following location and
dates:
Location: OASIS Senior Center ("Park")
Dates: July 22, 2017
Performance time: 6:30 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 sound equipment and amplification system for the
Performance;
2.3.2 Providing sound engineer to operate sound equipment for the
Performance; and
2.3.3 Providing portable electrical power.
2.3.4 Providing food, refreshments and personal requirements for all
musicians, vocalists and/or other participants;
2.4 Performer shall be responsible for.
2.4.1 Providing a Performance at the Park, including a sound check to be
completed at least two (2) hours prior to the Performance;
2.4.2 Providing all musical instruments, peripheral equipment, musicians,
vocalists and/or other participants necessary to present an excellent Performance at the
Park;
2.4.3 Providing directions and travel arrangements sufficient for all
musicians, vocalists, musical instruments and/or other participants to travel to the Park
for the Performance;
2.4.4 Contacting the City's contracted sound engineer in advance of the
Performance to evaluate the set up for all sound equipment on the stage;
2.4.5 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;
2.4.6 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;
2.4.7 Immediately reporting to the Program Coordinator any damage to the
Perfonnance facility that could cause potential injury to users of the Park, or other needed
maintenance repairs or requirements;
2.4.8 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;
2.4.9 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
2.4.10 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 underthis 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.
MR. ROCK N' ROLL, INCJABBA FAB Page 2
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 Twenty Nine Hundred Dollars and 001100 ($2,900.00) 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.
6. ADMINISTRATION
This Agreement will be administered by the Recreation and Senior Services
Department. Recreation Supervisor 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 and Agent, jointly and
severably, 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 Performers presence or
activities conducted for the Performance (including the negligent and/orwillful acts, errors
MR. ROCK N' ROLL, INC./ABBA FAB Page 3
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 orwillful 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
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 Performerwarrantsthat 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
MR. ROCK N' ROLL, INC./ARBA FAB Page 4
15. TERMINATION
In the event that either City, Agent or Performer 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 or
Agent.
16. STANDARD PROVISIONS
16.1 Compliance with all Laws. Performer and Agent shall at their 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 written agreement, 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.
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 Attomevs' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
MR. ROCK N' ROLL, INCJABBA FAB Page 6
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: Laura Detweiler, Director
Recreation & Senior Services
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: 949-717-3870
13.2 All notices, demands, requests or approvals from City to Performer shall be
addressed to Agent at:
Attn: Brian Beime
Mr. Rock N' Rolf, Inc.
14 Cormorant Circle
Newport Beach, CA 92660
Phone: 949-725-1177
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.).
MR. ROCK N' ROLL, INCIABBA FAB Page 5
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.
16.11 Representation and Warranty. Agent expressly represents, warrants and
affirms that it has been designated by Performer as Performer's agent and that Performer
has authorized Agent to act and sign this Agreement on Performer's behalf.
[SIGNATURES ON NEXT PAGE]
MR. ROCK N' ROLL, INC./ABBA FAB 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: 74Lf., � �
Aaron
City A
ATTEST: p
Date: e r
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A
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City
CITY OF NEWPORT BEACH,
a Califomia municipal corporation
Date: t `1 - I'�
By.
L Detweiler, irector
Rftfeation and Senior Services
PERFORMER: Abba Fab
Date:
By ----
Brian B ' ne
Designated agent of Abba Fab
AGENT: Mr. Rock N' Roll, Inc.,
California corporation
Date: . I
s
By:
Brian Bbirfie
President/Secretary
[END OF SIGNATURES]
Attachments: Exhibit A- Invoice
MR. ROCK N' ROLL, INCJABBA FAB Page—8
EXHIBIT A
INVOICE
PLACE OF ENGAGEMEA P: Oasis Senior Center
DATE OF ENGAGEMENT: July 22, 2017
FULL PRICE AGREED UPON: $2,900
MR. ROCK N' ROLL, INC./ABBA FAB Page A-1
EVANSTON INSURANCE COMPANY
CERTIFICATE NO.: 636355385988019721
CERTIFICATE OF INSURANCE
SPECIAL EVENT LIABILITY PROGRAM
PRODUCER
PUBLIC ENTITY (ADDITIONAL INSURED)
Alliant Insurance Services, Inc. in conjunction with
City of Newport Beach
Apex Insurance Services
P. O. Box 6450
Newport Beach, CA 92658
License No: OC 36861
NAMED INSURED (EVENT HOLDER):
EVENT INFORMATION:
Anne Doughty
TYPE: Social Gatherings (Outside)
DATE(S): 07/22/2017
LOCATION: Court and
*Liquor Liability Yes • No
"Liquor Liability after 12 am ends before 2 am ❑
This is to certify that the insurance policy listed below has been issued to the above insured named (event holder) for the policy
period indicated. The insurance described herein is subject to all the terms, exclusions and conditions of such policy(ies) unless
amended as described in Special Conditions.
INSURANCE CARRIER: Evanston Insurance Company
MASTER POLICY NUMBER:
MASTER POLICY DATES: EFFECTIVE: JANUARY 1, 2017 EXPIRATION: JANUARY 1, 2018
COMMERCIAL GENERAL LIABILITY General
OCCURRENCE FORM
DEDUCTIBLE: NONE
Aggregate Limit $ 2,000,000
Products & Completed Operations 1,000,000
SPECIAL CONDITIONS:
Personal & Advertising Injury 1,000,000
The following endorsements attached to
Each Occurrence Limit 1,000,000
the Master Policy do not apply to this
Damage To Premises Rented To You (Any One Premises) 100,000
Certific ste Of Insurance:
Medical Payments (Any One Person) 5,000
Liquor Liability (If purchased) 1.000,000
Optional Limits Purchased
❑ $1,000,00053,000,000
❑ $2,000,00052,000,000
Property Damage (If purchased)
No Property Damage Coverage
The limits of insurance apply separately to each event insured by this policy as if a separate policy of insurance has been issued for that event.
OTHER ADDITIONAL INSUREDS
The City of Newpor Beach
CANCELLATION: Should the above described policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy
provisions.
AUTHORIZED REPRESENTATIVE:
DATE ISSUED: 07/13/2017