HomeMy WebLinkAboutC-7121-5 - Performance Agreement for Concert Performance (Oasis Senior Center)N
PERFORMANCE AGREEMENT
WITH MR. ROCK N' ROLL, INC. FOR
A CONCERT PERFORMANCE
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 1st day of July, 2018, ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and Contractor MR.
ROCK N' ROLL, INC., a California corporation ("Contractor"), whose address is 14
Cormorant Circle, Newport Beach, California, 92660, acting on behalf of itself and as the
designated agent of Mark Barnett, Dana Haas, Peggy Zeigler and Ray Zeigler, performing
as "REVISITING THE ORBISON YEARS" (the "Performers"). 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 21, 2018, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall arrange for and cause the Performers to provide the
following type of performance:
"Revisiting the Orbison Years", a musical concert performance
("Performance").
date:
2.2 Contractor shall provide such Performance at the following location and
Location: OASIS Senior Center ("OASIS")
Date: July 20, 2018
Performance time: 6:00 p.m. — 7:30 p.m.
Contractor shall complete all set up by: 4:00 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 a stage area for the Performance;
2.3.5 Providing umbrellas or a shaded area over stage, if necessary;
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provided pursuant to this Agreement, and that Contractor 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. Contractor shall also conform to the requirements of the Americans with
Disabilities Act in the performance of all obligations under this Agreement.
2.4.12 At its own sole cost and expense, obtain and pay for any license(s)
which may be required by performance rights organizations ("PROs"), including, but not
limited to, ASCAP and SESAC, to enable the Performers to publicly perform songs in the
repertories of PROs as a part of the Performance.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall arrange for the Performers to provide the Performance in
accordance with the schedule indicated above. Notwithstanding the foregoing,
Contractor shall not be responsible for delays due to causes beyond Contractor's
reasonable control.
3.2 In the event of illness of any of the Performers, Contractor is required to
notify City twelve (12) hours prior to cancellation of the Performance. If canceling the
Performance for any reason other than illness of one or more of the Performers,
Contractor shall provide two (2) weeks' notice to the Program Coordinator. In the event
of cancellation, Contractor shall return all monies advanced by the City.
3.3 For all time periods not specifically set forth herein, Contractor shall
communicate with City in the most expedient and appropriate manner under the
circumstances, by fax, hand -delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Performance on a flat rate basis in
accordance with the provisions of this Section. Contractor's compensation for the
Performance provided in accordance with this Agreement, including, including the
compensation for the Performers and all reimbursable items and fees, shall not exceed
Twenty Five Hundred and 00/100 Dollars ($2,500.00) 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 Contractor upon Contractor's arrival for set-
up on the date of the Performance.
4.2 From the compensation payable to the Contractor, the Contractor hereby
agrees to and shall cause to be disbursed and punctually paid to the Performers such
sum due and payable by Contractor to the Performers under the terms of any contractual
agreement or arrangement made by and between Contractor and the Performers for
services performed by the Performers in connection with the Performance.
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5. INCOME TAX WITHHOLDING
Contractor 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. Contractor 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. City's 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, Contractor 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 the Performers perform the Performance and Consultant
performs the 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
(whether by Contractor or the Performers) including, without limitation, Performer's
presence or activities conducted for the Performance (including the negligent and/or
willful acts, errors and/or omissions of Performers and/or the Contractor, 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
Contractor 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 Contractor.
8. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and neither Contractor nor the Performers are an agent or employee of City. The manner
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and means of conducting the Performance are under the control of Contractor, 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 Contractor
or its employees or to the Performers. Nothing in this Agreement shall be deemed to
constitute approval for Contractor or any of Contractor's employees or agents, to be the
agents or employees of City. Contractor shall have the responsibility for and control over
the means of performing any work or service provided under this Agreement, provided
that Contractor is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Contractor as to the details of
the Performance or to exercise a measure of control over Contractor shall mean only that
Contractor shall follow the desires of City with respect to the results of the Performance.
9. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Program Coordinator and to cause the Performers to do the same. City agrees to
cooperate with the Contractor on the Performance.
10. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Performance to be
provided under this Agreement by the Performers 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 Contractor, or of the
interest of any general partner or joint venturer or syndicate member or cotenant if
Contractor is a partnership or joint -venture or syndicate or co -tenancy, which shall result
in changing the control of Contractor. 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 Contractor warrants that it and the Performers have the legal right and
possess all license(s) required by PROs to utilize and publicly perform the songs, scripts,
and/or other intellectual property and materials in the Performance provided under this
Agreement. The Contractor shall defend and indemnify the Indemnified Parties from and
against any and all Claims arising in any way out of or in connection with Performer's
use of and public performance of the songs to be performed at the Performance,
including, but not limited to, Claims, whether from PROs or others, for infringement or
alleged infringement of any United States' letters patent, trademark, or copyright.
12. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors and performers in connection
with any City event, performance or concert.
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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 Contractor to City shall be addressed to City at:
Attn: Recreation & Senior Services Director
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644-3151
13.2 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Brian Beirne
Mr. Rock N' Roll, 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, Contractor shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Contractor'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 Contractor in writing as unsettled at the time of its final request for payment.
The Contractor and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, the Contractor shall be required to file any claim
the Contractor 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 City, or Contractor 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 Contractor.
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16. STANDARD PROVISIONS
16.1 Compliance with all Laws. Contractor 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 parry 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.
16.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor 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.
16.11 Representation and Warranty. Contractor expressly represents, warrants
and affirms that it has been designated by the Performer as the Performers' agent for
services performed by the Performers in connection with the Performance.
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2.3.6 Providing one case of bottled water; and
2.3.7 Providing a dressing area for the Performers.
2.4 Contractor shall be responsible for:
2.4.1 Providing the Performance at OASIS, 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, the
Performers and/or other participants necessary to present an excellent Performance at
the OASIS;
2.4.3 Providing directions and travel arrangements sufficient for all
Performers and/or other participants to travel to OASIS 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 the Performers;
except as expressly provided for in Section 2.3 above;
2.4.6 Following all directions of City staff as to the entry and egress from
the stage in OASIS, 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 OASIS, 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 Contractor shall at all times conduct themselves professionally,
courteously and appropriately for this family -friendly facility, and shall be free from the
influence of alcohol or drugs; and
2.4.11 Contractor 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
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16.12 No Third Party Rights. This Agreement and all provisions hereof is made
and entered into for the sole protection and benefit of the City and the Contractor. No
other person, including, specifically, the Performers, shall have a right of action based
upon any provision in this Agreement.
[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: ;Tmji� ?z, z o 1 S
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: L, - 0� q-- • i5
By: fLura
Aaron C.a p p(�.aD.l� De i er
City Attorn� ation & Senior Services Director
ATTEST: � A
IV
Date:
By:
Lei ani I. Brown
City Clerk
CONTRACTOR: MR. ROCK N' ROLL,
INC., a California corporation
Date: �/Z� ( c -,-
in
Brian Beirne
President/Secretary
[END OF SIGNATURES]
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