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HomeMy WebLinkAboutC-9898-6 - Performance Agreement for 2025 Summer Preschool Clay Art ActivityPERFORMANCE AGREEMENT WITH KMO VENTURES TWO, LLC FOR 2025 SUMMER PRESCHOOL CLAY ART ACTIVITY THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as of this 28th day of April, 2025 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and KMO VENTURES TWO, LLC, a California limited liability company doing business as ("DBA") KIDCREATE STUDIO ALISO VIEJO ("Performer"), whose address is 26895 Aliso Creek Road 100D, Aliso Viejo, CA 92656 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 December 31, 2025, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED date: 2.1 Performer shall provide the following type of performance: 2025 Summer Preschool Clay Art Activity ("Performance") 2.2 Performer shall provide such Performance at the following location and Location: Newport Coast Community Center, 6401 San Joaquin Hills Road, Newport Beach, CA 92657 ("Community Center") Date: August 6, 2025 Performance time: 10:00 AM Performer shall complete all set up by 10:00 AM 2.2.1 City shall have the option, in -lieu of or in addition to providing an in - person Performance, to record Performance and exercise its discretion in the event it wishes to stream the Performance at a later date pursuant to Section 5.1. 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: KMO VENTURES TWO, LLC Page 1 2.4.1 Providing all musical instruments, peripheral equipment, musicians, vocalists and/or other participants necessary to present an excellent Performance at the Community Center; 2.4.2 Providing directions and travel arrangements sufficient for all musicians, vocalists, musical instruments and/or other participants to travel to the Community Center for the Performance; 2.4.3 Contacting the City's contracted sound engineer in advance of the Performance to evaluate the set up for all sound equipment on the stage; 2.4.4 Food, refreshments and personal requirements for all musicians, vocalists and/or other participants; 2.4.5 Following all directions of City staff as to the entry and egress from the stage in the Community Center, 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 Performance facility that could cause potential injury to users of the Community Center, 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 maintain professional, courteous, and appropriate conduct 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. KMO VENTURES TWO, LLC Page 2 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of this Agreement and Performer shall provide the Performance in accordance with the schedule indicated above. 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 Notwithstanding the foregoing, neither party shall be responsible for delays or cancellations due to causes beyond that party's reasonable control which renders the Performance impractical or impossible, such as war, pandemics, riots, strikes, terrorism, inclement weather, fire, earthquake, tsunami or flood. The affected party shall give written notice to the other party without unreasonable delay, and unless the parties agree in writing to reschedule the Performance, this Agreement shall be terminated, and Performer shall return all monies advanced by the City. 3.4 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 Twelve Dollars and 00/100 ($412.00) 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. MEDIA 5.1 RECORDING/PHOTOGRAPHY. At City's discretion and expense, Performer grants City the absolute and irrevocable right and permission to record video, film, photograph, make audio recordings or any other media (collectively, the "Material") of the Performance. Performer agrees that the City will be the owner of the Material and the Material may be incorporated in or used in connection with media productions created by or agreed to by the City to air on Newport Beach Television known as "NBTV", the City's government access cable TV channel, and for promotional, advertisement and archival purposes. City agrees to limit use of such Material to said purposes. 5.2 PRESS AND PROMOTIONS. Performer hereby grants City the absolute and irrevocable right and permission to include Performer's name, likeness, voice and biographical information as well as excerpts from Performer's pre-recorded work (CD, DVD, or other media) in promotional literature and advertisements for the Performance, KMO VENTURES TWO, LLC Page 3 including, but not limited to, television commercials, social media posts, on the City's website, City brochures and other media. 5.3 PUBLIC RELATIONS. Performer shall provide biographical and promotional material no later than August 1, 2025. Any promotional material sent to the City shall become the property of the City for the sole purpose of marketing and promoting Performance. Performer is encouraged to provide City with any such promotional materials as Performer believes will help represent the Performer best in this effort. 6. 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. 7. ADMINISTRATION This Agreement will be administered by the Recreation & Senior Services Department. City's Recreation & Senior 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. 8. HOLD HARMLESS 8.1 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), 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). 8.2 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 KMO VENTURES TWO, LLC Page 4 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. 9. 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. 10. 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. 11. 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. 12. 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. KMO VENTURES TWO, LLC Page 5 13. CITY'S RIGHT TO EMPLOY OTHER PERFORMERS City reserves the right to employ other Performers in connection with any City event, performance or concert. 14. NOTICES 14.1 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: Recreation & Senior Services Director Recreation & Senior Services City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 14.2 All notices, demands, requests or approvals from City to Performer shall be addressed to Performer at: Attn: Kristen Olosky KMO VENTURES TWO, LLC 26895 Aliso Creek Road B616 Aliso Viejo, CA 92656 15. 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.). 16. 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. KMO VENTURES TWO, LLC Page 6 17. STANDARD PROVISIONS 17.1 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. 17.2 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. 17.3 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. 17.4 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. 17.5 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. 17.6 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. 17.7 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. 17.8 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. 17.9 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. 17.10 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] KMO VENTURES TWO, LLC 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: y�Z2/Z By: �\ a on C. Harp tititi� City Attorney ATTEST: i �3.�'q�, Date: CITY OF NEWPORT BEACH, a California Tunic . pal corporation Date: f O By: re n evin eation & Senior Services Director PERFORMER: KMO VENTURES TWO, LLC, a California limited liability company doing business as ("DBA") KIDCREATE STUDIO ALISO VIEJO Date: By: By: Leilani I. Brown City Clerk vuPc� Signed in Counterpart Kristen Olosky Manager/Member Date: Signed in Counterpart Michael Olosky Manager/Member [END OF SIGNATURES] Attachments: Exhibit A — Performance Invoice KMO VENTURES TWO, LLC 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: L ;, By: Y fy n C. Harp v Attorney ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Sean Levin Recreation & Senior Services Director PERFORMER: KMO VENTURES TWO, LLC, a California limited liability company doing business as ("DBA") KIDCREATE STUDIO ALISO VIEJO Date: By:�� Krisfe Olosky Manager/Member Date: C �? By: Mich e101osky P/Member (END OF SIGNATURES] Attachments: Exhibit A — Performance Invoice KMO VENTURES TWO, LLC Page 8 EXHIBIT A PERFORMANCE INVOICE KMO VENTURES TWO, LLC Page A-1 KIDCREATE Invoice 29670113 STUDIO 2025-04-15 14:36:29 Client KMO Ventures One, LLC City of Newport Beach Youth Programs dba Kidcreate Studio Dana Point 100 Civic Center Dr, Bay E 26895 Aliso Creek Road, B616 Newport Beach, CA Aliso Viejo, CA 92656 92660 949-545-7091 FEIN 83-369-1070 City of Newport Beach - Summer Camp - Group Activity City of Newport Beach Youth Programs Schedule: © Wednesday, August 6, 2025, 10:00 AM - 11:00 AM ® August 6, 2025 IN Kidcreate Mobile Studio I Client Location, Dana Point, CA, 92629 0 Kidcreate Mobile Studio I Client Location, Dana Point, CA, 92629 Group Activity Fee Qty 1 $360.00 $360.00 Travel Fee / Round Trip Mileage $52.00 Sub total $412.00 CA DEPT OF TAX AND FEE ADMINISTRATION (#236387968-00001) $0.00 Order total $412.00 Important - Please note Mobile Studio 2025 Thank you for booking an activity with Kidcreate Studio! We're very excited to get messy with your artists! Please keep the following important items in mind: • Deposits (if required) must be paid within 7 days to hold your reservation. Deposits are non-refundable. • Final payments must be received 7 days before your event or your event is subject to cancellation. Payments are non-refundable. • Final payments are based upon the number of artists you provide us. This should be the maximum number of children you anticipate and is the number we prepare for. If there are more artists at your event, our teachers will make every reasonable effort to include them in the activity, but we can't guarantee this. You will be expected to pay for additional artists at our full per child rate. If you have any questions about your activity, please let us know. 949-545-7091 southorangecountyca@kidcreatestudio.com