HomeMy WebLinkAboutC-7161-46A - Performance Agreement for Genealogy Uncovereds
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C" PERFORMANCE AGREEMENT
WITH ARLENE O'DONNELL FOR
V GENEALOGY UNCOVERED
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as of this
22th day of November, 2023 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and ARLENE O'DONNELL,
a Sole proprietor ("Performer"), whose address is 185 Helix, Irvine, California 92618 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 April 5, 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Genealogy Uncovered ("Performance").
2.2 Performer shall provide such Performance at the following location and dates:
Location: Newport Beach Public Library, 1000 Avocado Avenue, Newport Beach,
CA 92660 ("Library")
Date: January 31, 2024, February 21, 2024 and March 27, 2024
Performance time: 10:00 A.M.
Performer shall complete all set up by 9:30 A.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:
2.3.1 Providing lighting for the Performance;
2.3.2 Providing seating for the Performance; and
2.3.3 Providing portable electrical power.
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
Library;
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2.4.2 Providing directions and travel arrangements sufficient for all musicians,
vocalists, musical instruments and/or other participants to travel to the Library 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 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 the 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.
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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 and the invoice attached hereto as Exhibit A and incorporated herein
by this reference. Performer's compensation for the Performance, inclusive of all dates,
provided in accordance with this Agreement, including all reimbursable items and fees, shall
not exceed Six Hundred Dollars and 00/100 ($600.00) 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 December 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
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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 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
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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.
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: Arlene O'Donnell
185 Helix
Irvine, CA 92618
Phone: 949-466-7178
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 of the same or
any other term, covenant or condition contained herein, whether of the same or a different
character.
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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 ATTORNEY'S OFFICE
Date: 12 loS'/23
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: lVa / 2n a 3
By: %is By:
a on C. Harp /qy Melissa Hartson
t Attorney '-)151 Library Services Director
3
ATTEST:
Date: r .�
By:
Lei ani . E
City Clerk
PERFORMER: ARLENE O'DONNELL,
a Sole prop ieto
Date:
By:
Arlene O'Donnell
[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
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EXHIBIT A
PERFORMANCE INVOICE
Arlene O'Donnell Page A-1
INVOICE
Submitted to Newport Beach Public Library
For Performances and Presentations
(in -person or virtual)
Title of Performance: Genealogy Uncovered 2024
Date of Service/Performances: Jan 31 Feb 21 & Mar 27 2024
Presentation Format: V/In-Person Virtual (live) Virtual (pre-recorded)
Amount: $600.00
Made Payable To: Arlene O'Donnell
Street Address: 185 Helix
City: Irvine
Phone: 949 ) 466 - 7I7 8
Submitted by: Arlene O'
Date: 08/30/2023
State: CA _ Zip: 92618 -
Email: silkberry(daol.com