HomeMy WebLinkAboutC-7161-59 - Performance Agreement for Nature Connections to Literature1
PERFORMANCE AGREEMENT
V WITH ENVIRONMENTAL NATURE CENTER FOR
NATURE CONNECTIONS TO LITERATURE
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 3rd day of August, 2023 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and
ENVIRONMENTAL NATURE CENTER, a California nonprofit corporation ("Performer"),
whose address is 1601 East 16th Street, Newport Beach, California 92663 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 October 6, 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Nature Connections to Literature ("Performance").
2.2 Performer shall provide such Performance at the following location and
date:
Location: Friends Meeting Room, Newport Beach Central Library, 1000
Avocado Avenue, Newport Beach, CA 92660 ("Central Library")
Date: September 26, 2023
Performance time: 4:00 P.M.
Performer shall complete all set up by 3:30 P.M.
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 providing the room for the performance at
the Central Library, along with electrical, lighting and seating.
2.4 Performer shall be responsible for:
2.4.1 Providing all musical instruments, peripheral equipment, musicians,
vocalists and/or other participants necessary to present an excellent Performance at the
Central Library;
2.4.2 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;
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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 theCentral Library, 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 theCentral Library, 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.
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.
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.
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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 Two Hundred Eighty Dollars and 00/100 ($280.00) 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,
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 September 1, 2023 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.
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7. 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.
B. 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
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
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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.
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:
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Attn: Melissa Hartson, Library Services Director
Library Services Department
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717-3870
14.2 All notices, demands, requests or approvals from City to Performer shall be
addressed to Performer at:
Attn: Mindy Schwartz
Environmental Nature Center
1601 E. 16th Street
Newport Beach, CA 92663
Phone: 949-645-8489
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.
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
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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]
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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 ATT RNEY'S OFFICE
Date: Z�
By:�
Ytron C. Harp s/Z3
y Attorney
ATTEST:
Date: f f2 kJ3
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:'�j
By:
Melissa Hartson
Library Services Director
PERFORMER: ENVIRONMENTAL
NATURE CENTER, a California
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By: )IM- '4, By:
Leilani I. Brown
City Clerk
Chief Executive Officer
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E� Date:
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By:
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o� �P Secretary
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[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
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EXHIBIT A
PERFORMANCE INVOICE
Environmental Nature Center Page A-1
ENVIRONMENTAL NATURE CENTER
1601 E. 16" St.
Newport Beach, CA 92663
949-645-8489
www.encenter.org
TRAVELING NATURALIST PROGRAM INVOICE
Dear Ms. Lefter,
Thank you so much for scheduling your program with us. We're sure you will find your upcoming experience
educational and fun as well. The following checklist will help assure that your program runs smoothly. Please
read through this ENTIRE DOCUMENT. Feel free to contact us if you have any questions or concerns. Please keep
this for your records and forward it to any other teachers in your group. The prices are per student. This chart
is an estimate of the total cost.
Contact Name:
Christine Lefter
School/Group:
Newport Beach Central Library
Date and Program:
9/26/23 — Nature Connections to Literature
Time:
4:00pm
Number of Participants
(minimum 20/session):
40
Number of sessions:
1
Participant fee:
(20 student min.)
$7
Subtotal:
$280
Mileage: ($40/visit)
WAIVED
Total Cost:
$280
Before the visit:
❑ Please do not tell the students what animals I will be bringing (if your program involves animals) as it ruins the
element of surprise and distracts them from other parts of the program.
❑ Please arrange an empty space that has 1-2 tables in the front and a chair. It works best if students sit on the
floor in a huge half circle. Although any empty space is greatly appreciated, an empty classroom is preferable
over the MPR, unless the group exceeds 35 students.
❑ Notify the teachers of the location of the Traveling Naturalist and the times they should visit the room.
The day of:
❑ The Traveling Naturalist will arrive 30 minutes prior to the first scheduled program to set up.
❑ If you have not already mailed a check in, you may hand it to the Traveling Naturalist. The invoice that is
attached is a rough estimate based on the number of students you provided. If that number changes, you can
just pay the proper amount on the day of the visit.
After your Assembly:
❑ After your program we will send you a link to an online program survey. Please take the time to complete the
online survey. It will help us improve our programs and gauge the needs of your school, teachers, and students.
COVID-19 Policies:
All ENC staff are required to be fully vaccinated for COVID-19. Please let us know if you require our naturalist
to wear a mask during the program. We do not require it of our staff at this time, but are happy to comply with
your school policies.
Thank you!
Mindy Schwartz
Mindy Schwartz
Education Director
Environmental Nature Center
949-645-8489 ext. 113
mindy@encenter.org
ENVIRONMENTAL NATURE CENTER
Invoice #
12_TN2324_NBlibrary
Date
7/11/2023
Bill to: Newport Beach Public Library
Attn: Christine Lefter
Email: clefter@newportbeachca.gov
Estimated Balance Due for programs:
Remit to: ENC
Attn: Mindy Schwartz
Environmental Nature Center
1601 16th Street
Newport Beach, CA 92663
Description of Charges
Amount
'Nature Connections to Literature' Program, 9/26/2023
Mixed ages, 40 students, 1 session, $7/student
$280
Mileage Fee ($40/visit)
WAIVED
TOTAL
$280
Thankyou! The ENC's Federal Tax Identification Number is 23-7182423