HomeMy WebLinkAboutC-7161-13 - Performance Agreement for Passport to Animal Adventure(`n
g PERFORMANCE AGREEMENT
�1 WITH PACIFIC ANIMAL PRODUCTION FOR
V PASSPORT TO ANIMAL ADVENTURE
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 10th day of May, 2018 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and Michael & Karla
Majewski, a married couple, doing business as PACIFIC ANIMAL PRODUCTIONS
("Performer"), whose address is 3946 South Mission Road, Fallbrook, CA 92028 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 August 17, 2018 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
date:
2.1 Performer shall provide the following type of performance:
Summer Reading Program Children's Performance —
Passport to Animal Adventure ("Performance").
2.2 Performer shall provide such Performance at the following location and
Location: Newport Beach Central Library ("Central Library")
1000 Avocado Avenue
Newport Beach, CA 92660
Date: August 11, 2018
Performance time: 11:00 A.M.
Performer shall complete all set up by 10:30 A.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.
2.4 Performer shall be responsible for:
2.4.1 Providing a Performance at the Central Library, including a sound
check to be completed at least two (2) hours prior to the Performance;
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2.4.2 Providing all musical instruments, peripheral equipment, musicians,
vocalists and/or other participants necessary to present an excellent Performance at the
Central Library;
2.4.3 Providing directions and travel arrangements sufficient for all
musicians, vocalists, musical instruments and/or other participants to travel to the Central
Library 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 Food, refreshments and personal requirements for all musicians,
vocalists and/or other participants;
2.4.6 Following all directions of City staff as to the entry and egress from
the stage in the Central Library, including when loading and unloading any equipment;
2.4.7 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;
2.4.8 Immediately reporting to the Program Coordinator any damage to the
Performance facility that could cause potential injury to users of the Central Library, or
other needed maintenance repairs or requirements;
2.4.9 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;
2.4.10 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
2.4.11 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.
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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 Four Hundred Forty Dollars and 00/100 ($440.00) 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 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 Performer performs the Performance 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),
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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
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
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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: Support Services Coordinator
Library Services
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717-3852
13.2 All notices, demands, requests or approvals from City to Performer shall be
addressed to Performer at:
Attn: Karla Majewski
Pacific Animal Productions
3946 S Mission Road
Fallbrook, CA 92028
Phone: 760-723-7761
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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.
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.
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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]
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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: S14/ifs
rp
D
City
ATTEST
I
CITY OF NEWPORT BEACH,
a California unicipal corporation
Date: ' l `t I Z o 1 e
c5.09.11 Berton
&4— Library Services Director
By:
&W,--
LeYlani I. Brown
City Clerk
PERFORMER: Michael & Karla Majewski,
a married couple, doing business as
PACIFIC ANIMAL PRODUCTIONS
Date: ,5 11 o j i b
Michael MZMki
Married Couple
Date: ,�)IDIR
By knalfA Aar'1=2
Karla Majewski
Married Couple
[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
Exhibit B — Insurance Requirements
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EXHIBIT A
PERFORMANCE INVOICE
Pacific Animal Productions Page A-1
Pacific Animal Productions
3946 So. Mission Road
Fallbrook, CA 92028
Office:(760) 723-7761 Fax:(760) 723-3941
info@PacificAnimalProductions.com
Bill To:
Newport Beach Library
Attn: Liz Aaron
1000 Avocado Ave
Newport Beach, CA 92660
Customer Information
949-717-3817
eaaron a neuporlbeachcz.goc
Branch 949-717-3800
INVOICE
Invoice Date Invoice If
322/2018 8436
Age
Terms
Show Date
Phone Rep
Group Size
Confirmedl Date
mixed
8/112018
CP
100+
Show Date
Description
Time
Amount
811/2018
"Passport To Animal Adventure" - Meet animals from around the
11:00
375.00
%Norld and learn how they survive each & everyday. From deserts to
swamps. from hunting to hiding, animals arc perfectly suited for the
adventures they will face in their homes no matter where in the world
thec live.
Discount for Libraries
-25.00
1raNeI Pee
90.00
TOTAL $440.00
Payments/Credits $0.00
Balance Due S440.00
Exhibit B
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Performer's indemnification of City,
and prior to commencement of Performance, Performer shall obtain, provide
and maintain at its own expense during the term of this Agreement, policies of
insurance of the type and amounts described below and in a form satisfactory
to City. Performer agrees to provide insurance in accordance with
requirements set forth here. If Performer uses existing coverage to comply
and that coverage does not meet these requirements, Performer agrees to
amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Performer shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Performer shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of 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 Performer performs the Performance contemplated by this
Agreement.
B. General Liability Insurance. Performer shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance,
with coverage at least as broad as provided by Insurance Services Office
form CG 00 01, in an amount not less than one million dollars
($1,000,000) per occurrence, two million dollars ($2,000,000) general
aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under
an insured contract (including the tort liability of another assumed in a
business contract).
Pacific Animal Productions Page B-1
C. Automobile Liability Insurance. Performer shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Performer
arising out of or in connection with the Performance to be performed
under this Agreement, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than one million dollars
($1,000,000) combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against 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 Performer performs the
Performance contemplated by this Agreement or shall specifically allow
Performers or others providing insurance evidence in compliance with
these requirements to waive their right of recovery prior to a loss.
Performer hereby waives its own right of recovery against City, and shall
require similar written express waivers from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to
provide that 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 Performer performs
the Performance contemplated by this Agreement shall be included as
insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or
self-insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which
ten (10) calendar days' notice is required) or nonrenewal of coverage for
each required coverage.
5. Additional Agreements Between the Parties The parties hereby agree to the
following:
A. Evidence of Insurance. Performer shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along
with a waiver of subrogation endorsement for workers' compensation
and other endorsements as specified herein for each coverage.
Pacific Animal Production Page B-2
Insurance certificates and endorsement must be approved by City's Risk
Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of
this Agreement. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Performer sixty (60) calendar days'
advance written notice of such change. If such change results in
substantial additional cost to Performer, City and Performer may
renegotiate Performer's compensation.
C. Enforcement of Agreement Provisions. Performer acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Performer of non-compliance with any requirement imposes no
additional obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Performer maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits
maintained by the Performer. Any available insurance proceeds in
excess of the specified minimum limits of insurance and coverage shall
be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared
to and approved by City. City reserves the right to require that self-
insured retentions be eliminated, lowered, or replaced by a deductible.
Self-insurance will not be considered to comply with these requirements
unless approved by City.
F. City Remedies for Non -Compliance. If Performer or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Performer's right to proceed
until proper evidence of insurance is provided. Any amounts paid by
City shall, at City's sole option, be deducted from amounts payable to
Performer or reimbursed by Performer upon demand.
G. Timely Notice of Claims. Performer shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Pacific Animal Production Page B-3
Performer's performance under this Agreement, and that involve or may
involve coverage under any of the required liability policies. City
assumes no obligation or liability by such notice, but has the right (but
not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City.
H. Performer's Insurance. Performer shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its
own judgment may be necessary for its proper protection and
prosecution of the Performance.
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