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HomeMy WebLinkAboutC-4166 - Public Performance Agreement for Entertainment at Mariners Independence Day Eventn PUBLIC PERFORMANCE AGREEMENT WITH BARRYN STROH DBA BARNABY LIVEI �i FOR ENTERTAINMENT AT MARINERS INDEPENDENCE DAY EVENT THIS PERFORMANCE AGREEMENT ( "Agreement ") is made and entered into as of this 3rd day of July, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City"), and BARRYN STROH DBA VARIETY ARTS LIVEI ( "Performer") a skilled self - employed public entertainer to provide a live, onsite performance at Mariner's Park in Newport Beach California on Saturday, July 3, 2010 under the conditions agreed upon herein. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City shall provide and maintain a location for the Performer without charging Performer for the use of the facility. C. City shall provide an area in Mariner's Park for the performance. D. City shall provide restroom facilities for the public, either temporary or permanent, as needs are determined by the Program Coordinator. Such facilities shall be maintained by the General Services Department. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM OF AGREEMENT The term of this Agreement shall commence on July 3, 2010 and shall remain in effect until all performances agreed upon herein have been performed, or the Agreement has been otherwise terminated. In addition to the individual performance cancellation provisions of 3. D. of this Agreement, Performer may terminate this entire Agreement by providing written notice at least 30 days prior to the performance. It is understood that City may at its sole discretion terminate this contract without cause by giving ten (10) calendar days written notice, subject to payment to Performer for services rendered prior to the date of termination. City reserves. the right to cancel or postpone a performance due to emergencies. 2. SERVICES TO BE PERFORMED Performer shall provide an interactive game show with games and activities that will engage event attendees. Performer shall be the lead entertainer during the game show. 3. TIME AND LOCATION OF PERFORMANCE A. Performer shall provide performance at the: Mariner's Park 4U' of July Event (Special event for families) Saturday, July 3, 2010 Set -Up Complete by: 9:45am Performance from 11 am to 2pm Mariner's Park — 1300 Irvine Avenue (corner of Dover Drive & Irvine Ave) B. Performer shall provide sound equipment and amplification system for the performance. C. Performer shall provide Sound. Engineer to operate sound equipment for. the. . performance. D. Performer shall secure portable electrical *power, E. In the event of illness, Performer is required to notify City.thirty -siz (36) hours prior to any cancellation. If cancelling a performance for any reasori other than illness, . Performer shall contact Program Coordinator two•(2) weeks. prior-to event. F. Performer shall acquire, provide, repair, and maintain, at Perfomner's own expense, . such supplies, equipment and additional personnel as deemed necessary for Performer's own use in performing the services in this Agreement. Additional personnel and necessary supplies, equipment, additional publicity and materials for the performance specified above shall be provided by Performer unless otherwise specifically agreed to in writing by City. G. Performer shall immediately notify City of any name, address, or telephone number changes. H. 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 or sexual orientation, 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 this Agreement. Performer is also responsible for: • Cooperating with requests from City staff. • Receiving prior approval from City of all printed materials related to performance under this Agreement, including press releases, prior to any distribution. • Immediately reporting to the Program Coordinator any damage to the program facility that could cause potential injury to users of City venue, or other needed maintenance repairs or requirements. • Maintaining the highest degree of participant safety possible and completely following City procedures by immediately reporting any injuries as a result of performance participation. 4. COMPENSATION TO CONSULTANT City shall pay Performer the contract price of Two Thousand Six Hundred Twenty -Five Dollars and no1100 ($2,625.00 ) which includes compensation for $300 in audience prizes that are appropriate for this type of family event (i.e. no fireworks, etc.). The fee shall be payable within 10 days after completion of the performance. Payment shall be made only if the Performer actually provides the performance contracted for under this agreement. If the performance is cancelled by either part, the City is under no obligation to pay performer. that are appropriate for this type of family event (i.e. no fireworks, etc.). The fee shall be payable within 10 days after completion of the performance. Payment shall be made only if the Performer actually provides the performance contracted for under this agreement. If the performance is cancelled by either part, the City is under no obligation to pay performer. 5. ADMINISTRATION This Agreement will be administered by the Recreation & Senior Services Department. JESSICA VINCENT, RECREATION SUPERVISOR, or her designee, shall be the Program Coordinator and shall have the authority to act for City under this Agreement. The Program Manager or his/her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. The Program Coordinator can be contacted at: Office — 949 -644 -3166 Cell (after business hours) — 949 - 274 -0064 ivi nce ntna. newpo rtbeach ca. gov 6. STATUS OF PERFORMER The parties intend and agree that at all times during the course of this Agreement, Performer, and any assistants, employees, technicians, co- performers or subcontractors Performer may retain in the course of providing the performance, shall be acting as an Independent Contractor and shall not be considered an agent or employee of the City. As such, Performer shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers compensation and unemployment insurance and that of his/her assistants, employees or co- performers, or subcontractors. City shall not be liable for any payment or compensation in any form to Performer, or his/her assistants, employees, co- performers or subcontractors other than as provided herein. 7. OTHER PERFORMERS The City reserves the right to employ other performers for the July 3rd, 2010 event. 8. INDEMNIFICATION - GENERAL Performer, as a condition of this Agreement, shall indemnify the City, its elected and appointed agents, officers, representatives, employees, City Council, boards and commissions harmless with respect to any loss, liability, injury or damage that arises out of, or is in any way related to, the acts or omissions of Performer, his /her employees, officers and agents in the course of performance of services under this Agreement, except that Performer shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of City, its officer, agents or employees. 9. INDEMNIFICATION – INTELLECTUAL PROPERTY Performer, as a condition of this Agreement, shall further indemnify City and hold City, its elected or appointed agents, officers, representatives, employees, City Council, boards and commissions harmless with respect to any proceedings brought against City for any intentional or unintentional violation by Performer of the legally protected rights of any third parties with respect to works performed under this Agreement. Such legally protected rights of third parties include but are not limited to U.S. patents, trademarks, and copyrights issued as of the effective date of this Agreement. If Performer will be providing a public performance of musical compositions or arrangements which are subject to a license held by a third party, it is the responsibility of Performer to obtain the appropriate license to perform the material prior to the performance(s) contracted for in this Agreement. Professional Services Agreement — Bamaby Live! Page 3 10. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Performer. Assignments of any or all rights, duties or obligations of Performer under this Agreement will be permitted only with the express written consent of City. Performer shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 11. 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. 12. WAIVER Performers agree on behalf of themselves and/or their heirs, executors or administrators, to waive and release any and all claims for personal injury or property damage, of whatsoever form or nature, that they may have against the City that may arise from their participation in this Performance. 13. 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. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant 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. A. Proof of Insurance. Consultant 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. 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. Professional Services Agreement — Barnaby Live! Page 4 C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work 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 for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non- Professional Services Agreement — Bamaby Live! Page 5 compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. 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. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant 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 Work. 15. 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.AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. Professional Services Agreement — Bamaby Live! Page 6 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: /Mynette, Yeauch mp Assistant City Atto CITY OF NEWPORT BEACH, A Municipa Corporation By:'C Ladra iter, Director Re'- re tion & Senior Services Department ATTEST: PERFORMER: BARRYMSTROH DBA VARIETY ARTS LIVE! By: f f By: 1 Le'ilani Brawn, City Clerkr�V'wF ; � Title: �_ ;. Tax 0- Attachments: Exhibit Acflpe of Services Exhibit B — Insurance Exhibit C --- Certificate of Exemption from Worker's Compensation Ins. F:ltemp\00 RSS Contractslbarnaby live.docx Professional Services Agreement — Barnaby Live! Page 7 SCOPE OF SERVICE /BILLING RATES The Ultimate Audience Yartici.pation Experience! Variety Arts LIVE! 26621 Cortina Dr. Mission Viejo, Ca. 92691 Magicbam @msn.com Invoice #:070310 Date: June 2, 2010 Client: City of Newport Beach Beach Address: 1300 Irvine Ave Newport Beach, CA 92663 Phone #: 949 - 718 -1993 Fax #: 949 -644 -3155 Cell# 949 - 573 -4204 (949) 215 -8970 Email: Event Date: Saturday July 3rd, 2010 Performance Time: 11:00a.m. – 2:00 p.m. (Please notify if different 3 hour time slot) Event Location: Mariners Park, Newport Beach Attn: Jeremy It is VERY IMPORTANT for the Client to understand the area needed to perform our "Interactive Gameshow ", if this has not been decided or discussed by the client and Interactive Events, please be sure to do so. Our "BARNABY LIVE" Entertainment Includes: 3 hour Picnic Entertainment $200.00 in Prizes Sound Technician / Picnic Helpers Actual Performance Time: 11:00A.M – 2:00 P.M. Price for Complete Show ......................... ......................$2,625.00 Professional Services Agreement — Bamaby Live! Page 8 q ° CERTIFICATE OF LIABILITY INSURANCE DA'T;""°°"""" PROOUCEn THIS CERTIFICATION IS ISSUED AS A MATTER OF INFORMATION RJF Agencies. Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 7225 Northland Drive North, Suite 300 HOLDER. THIS CERTIFICATE- DOES NOT AMEND, EXTEND OR Minneapolis. MN 55428 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. I INSURERS AFFORDING COVERAGE j NAIC 0 _... ..__.... _.. .-- '1—'-— INSURERA Lexl;gIonlnsurancia Compan y 1 19437. PO Bow$ d Me U.S. d Club Members � _ %7 I wsuRER_R l� ox Q•� INSURER C: New Richrtlond, WI 54017 T� 1__.___._._. i OSl1RER D. Phone: 715246 -8908 Fax 715-248 -4257 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS_ SHOWN MAY HAVE BEEN REDUCED By PAID CLAIMS. Newport Beach. CA 92658 ILTR NM� TYPE OF INSURANCE - - POLICY NUMBER PDAYICS M OC— PGOALCY E%g TE A LIMITS IMPOSE NO OBLIGATION OR LIABILITY OF ANY WHO UPON THE INSURER. n$ AGENTS OR GENERAL LIABILITY 04125!2010 D42512011 EACHOCCIIRRENCE It 3.0D0,000 A 014245848 X ICOL'LiRCULL GENERAL LIABILITY PREMIS S(Ea oavlmcej s 100,000 I— CLAYS MAUL. - X (:CUM I MFn FXP (MY ale Dersml S 5,000 -- X I LX9776 8/04 I ' PrItSONALa ADV IFULrtr $ 3.000,000 X LX0404 I GENERAL AGG[IEGATE s 5,000,000 GCNL AGGREGATE I IMIT APPLIES PER PRODUCTS :CONPOPAGG S 5.000,000 X I MICY' % I CDC AUTCEIOINLE LIABILITY ' COMBINED SINGLE LIMIT S ' ANY AUTO (E, ar.NOeX) III Kl(WIFEUAUIUS I I Icooky 1NA1Ry I SCIGDIA.ED Al1T0.S I :, (PIN PanR'11 S ......__ HIRF.D AUTO* IXXALY INAIHY "ON.OWTIED ALTOS (Pw aaDanO S __..._ —. M3OPErtTY DAMAGE S IM apa4 Ir GARAGE MARILITY I AUTO ONLY - EA ACCIDENT S ANY AUTO 01"E" THAN 1'A AGf. I AOIOONI,Y AGG 4 EXCESSNMBNFLLA LIABILITY LACHOCG1RRhNC ". 11 OI:CUR CI A'•: vK 11 nfd;R(GAi( j ' 1 :IEIXI(:T: ill I q Hh I�NIION L ; t ,LIMY OT WORKERS COMPCNSA U0I ANO 'ORV L14115 : N EMPLOYERS' LIAON ITV I10RP`l1 u�F]' 11 ,'HSVSC CA CU %eNrF:S I SPf C:IN PROVI &Oms d�nA: Cl a1SCA$C -`01.tiYL: L111 ; OTIILK III-SCRIP I ION OF 01'E RATIONS It OCATIONS I VEHICLLS i EXCLUSIONS ADDED NY ENOONSEMFNr 1 yq C1A1 PROVISIONS Performer Is a named msured as a menOw., of Performers of the V S (Folm L[XD(JCO21 LX0404)) Barryn V Stroh dba Variety Arts LIVE' Additional Insured City of Newport Beach CERTIFICATE HOLDER CANCELLATION ACORD 25 (2001/08) © ACORD CORPORATION 1988 am SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of NOWp00 Beach DATE THEREOF. THE ISSUDIQ INSURER WILL ENDEAVOR TO NAIL 30 DAYS WRITTEN 3300 Newport Beach Newport Beach. CA 92658 NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY WHO UPON THE INSURER. n$ AGENTS OR REPRESEHTATrvES. AUINORI} OREPRESENTATIVE (1 ACORD 25 (2001/08) © ACORD CORPORATION 1988 am IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statment on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). I�763�TIi.T� The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder. nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ENDORSEMENT N 006 This endorsement, effective 12:01 AM 04/25/2010 Forms a pan of policy no.: 014245848 Issued to: PERFORMERS OF THE U.S. CLOWNS OF THE U.S. By:LEXINGTON INSURANCE COMPANY PRIMARY COVERAGE FOR SPECIFIED PERSONS OR ORGANIZATIONS NAMED AS ADDITIONAL INSUREDS - ONGOING OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following paragraph is added to SECTION II - WHO IS AN INSURED and applies only to persons or organizations we have added to you policy as additional insureds by endorsement to comply with insurance requirements of written contracts relative to the performance of your ongoing operations for the additional insureds: This insurance is primary over any similar insurance available to any individual or entity we have added to this policy as an additional insured. However, this insurance is primary over the other similar insurance only if the additional insured is designated as an insured in the Declarations of the other similar insurance. We will not require contribution of limits from the other similar insurance if the insurance afforded by this endorsement is primary. This insurance is excess over any other valid and collectible insurance, whether primary, excess, contingent or on any Other basis, if it is not primary as defined in the paragraph above. NI other terms and conditions of the policy are the same DL Authorized Representative OR Countersignature (In states where applicable) LX9974 (10'ea) ENDORSEMENT # 014 This endorsement, effective 12:01 AM 04/25/2010 Forms a part of policy no.: 014245848 Issued to: PERFORMERS OF THE U.S. CLOWNS OF THE U.S. By:LEXINGTON INSURANCE COMPANY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED REQUIRED BY WRITTEN CONTRACT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY POLICY, COVERAGE APPLICABLE TO COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE (SECTION I - COVERAGES) ONLY A. Section II - Who Is An Insured is amended to include any person or organization you are required to include as an additional insured on this policy by a written contract or written agreement in effect during this policy period and executed prior to the "occurrence" of the "bodily injury" or 'property damage." B. The insurance provided to the above described A additional insured under this endorsement is limited as follows: 1. COVERAGE A BODILY INJURY AND PROP- ERTY DAMAGE (Section I - Coverages) only. 2. The person or organization is only an additional insured with respect to liability arising out of "your v,ork" or "your product ". 3. In the event shat the Limits of Insurance provided by this policy exceed the Limits of Insurance required by the mitten contract or written agreement, the insurance provided by this endorsement shall be limited to the Limits of Insurance required by the written contract or mitten agreement. Mss endorsement shall not increase the Limits of ! nsurance shown in the Declarations perlauring to the coverage provided herein. 4. The insurance provded to such an additional insured does not apply to "bodily injury" or "property damage" arising out of an archi- tect's, engineer's, or surveyor's rendering of or failure to render any professional services, including, but not limited to: i. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, or drawings and specifications: and ii. Supervisory, inspection, architectural, or engineering activities. 5. This insurance does riot apply to 'bodily injury" or "property damage" arising out of 'your work" or "your product" included in the "product - completed operations hazard" unless you are required to provide such coverage by written contract nr written agreement and then only for the period of time required by the Witten contract or written agreement and in no event beyond the expiration date of the policy. 6. Any coverage. provided by this endorse ment to an additional insured shall be excess over any other valid and collectible insurance available In the additional insured whether primary, excess, contingent or on any other basis. C. In accordance wrath the terms and conditions of the policy and as more fully explained in the policy, as soon as practicable, each additional insured must give us prompt notice of any "occurrence" v,hich may result in a claim, forward all legal papers to us, cooperate in the defense of any actions, and otherwise comply with all of the policy's terms and conditions. Failure to comply with this provision may, at our option, result in the claim or "suit" being denied. Authorized Representative OR Countersignature (In states where applicable) Includes copyrighted information of the Insurance Services Offices, Inc., with its permission. All rights reserved. LX9776 (08104) PROOF OF INSURANCE --------------------------------- PROOrorwwwNe! ______________________________- YtaReLES ON POLxY ; MYbYY✓eKl Emt~ of ne YyW YNIF 'hnfor CNEV i0plW]NOSi+61%1 1 cl� 1M JM LLO['{ ineOPJaSTiRe�iNJ NenW lIeVEE Ptkb N✓e0er G2"N , 6YROH, alVU1Yl1 ONYEa9 OM POLICY Yniaa sNtT'M V t EMetlM f}Yt Otltvi0 E�iralm D6:O71iN11 t MetKY PeN1u tlMMMrti,Fw�N4tl1Y0i0 t � Iep.M CYMG�£n LOGE EfCablewtM � lgtb/✓ Z t , W�esae v�etelaaM mel Y4�Ne WtaP McN�erama rO � � tOV wtwnr ae.eelp Mewiwpebe. IF YOU HAVE AN ACcinENT CALL OUR 1417 CLAIMS a TOW HOTLINE 7 $006)- CLA1�1 (1.800-072 -6216) �Allev en ealaett lol IMfYI WYeYM' Sbp� Ctl NClavna6TW H01F�Y t�BpD61cWY It.BODbtt- l2awbrtWn tlereawvaU.tt^WasvY.Nw � Bap t: OYM nvIRa Yi0 a00ratm aYUpnsma �Y^✓venpe bwlUbina tePle'inep✓bNlJnd ) w �YivY2velbMOYJEd9.s4. peEpWien4 v1b+eseaa, aPiet t peM�cs pbaM,rl11, e1G f 6MP 1 Gel M 0MR a benle M1ROev Ord itu ✓ehw ,'mbinvlon d me Envertal d AN oaN� ve+.HVNaI a le+� nuW at." dhptft :SWJ'aNM Ertv�m[ve+Mefslemnes Plele. /ivibO mweaw meenb+l k.rEeaW tiesi..ar.K..aen.me. +� veu EM ✓94Vaem rq vrytna mreu� W aoloYM •anvMiw OiedWn rrp�fNewe Oe r�dJWw yp,eq emn nr veren ---- -a ----- wrr,.e--- ------ ----i- -rr -a _ ___ _________ ___ —_.—ew...,.0 i.....- nn—. —h —hl..", MI v vow CdlC in e00AOh," 86vwt U tweed EIiV!! CITY OF NEWPORT BEACH CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subjmt to the Workers' Compensation haws of the State of California. Executed on This 16._ day of._ June, 2010 2003, at Newport Beach. California., [Add Consu ant's name afld title] RECREATION & SENIOR SERVICES CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 06/15/2010 Dept. /Contact Received From: Teri Craig Date Completed: 06/16/2010 Sent lo: Teri Craig By: Michelle Ross Company/Person required to have certificate: Varicry Ans Live 1. GENERAL LIABILITY A. INSURANCE COMPANY: LexinKton Insurance Co. B. AM BEST RATING (A-: VII or greater): "A"(XV) C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? D. LIMITS (Must be $1 M or greater): What is limit provided? E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? 11. AUTOMOBILE LIABILITY A. PROOF OF INSURANCE PROVIDED III. WORKERS' COMPENSATION B. INSURANCE COMPANY. No into puwtdcd. _ C. AM BEST RATING (A-: VII or greater) D. LIMITS: Statutory E. WAIVER OF SUBROGATION (To include): Is it included? F. IF NO EMPLOYEES - EXEMPTION FORM SIGNED HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? (it.) Cartier is non - admitted Approved: Agent of Brown & Brown Date Broker of record for the City of Newport Beach ❑ Yes ® No $ ,000,wo • Yes ❑ No • Yes ❑ No ® Yes ❑ No ® Yes ❑ No ® Requires approval /exception/waiver by Risk Management IN B &B initials Comments: Carrier is non - admitted Approved: X %�lru tJr.i1'uk' 6/16/10 I I Yes ❑ No ❑ Yes ❑ No ❑ Yes ® No CITY OF NEWPORT BEACH Recreation & Senior Services Department .9- = PUBLIC PERFORMANCE AGREEMENT vThis agreement is made on this day, April 1, 2009, by and between the City of Newport Beach, California, Department of Recreation & Senior Services (hereinafter referred to as "City'), and Barryn Stroh dba Variety Arts Live! (hereinafter jointly and severally referred to as "Performer"), a skilled, self - employed public entertainer, to provide a live, onsite performance at Mariner's Park in Newport Beach on Saturday, July 4t', 2009 under the conditions agreed upon herein. The parties agree as follows: DUTIES OF PARTIES A. CITY AGREES TO PERFORM THE FOLLOWING DUTIES: City shall provide and maintain a location for the performance without charging Performer any fees for the use of the facility. 2. City shall provide an area in Mariners Park for the performance. 3. City shall provide restroom facilities for the public, either temporary or permanent, as needs are determined by the Program Coordinator. Such facilities shall be maintained by City's General Services Department. 4. City shall process and obtain all necessary permits for the performance through the City Recreation and Senior Services Department. B. PERFORMER AGREES TO THE FOLLOWING: 1. Performer shall provide the following type of performance: An Interactive Game Show with games & activities that will engage event attendees. Banyn Vaughn Stroh known as Bamaby shall be the lead entertainer /performer during the game show. 2. Performer shall provide such performance at the following location and date: Mariners Park 4"' of July Event (Special Event for Families) Saturday, July 4, 2009 Performance from 11 am — 2:00 pm Set -up Complete by 9:30 am Mariners Park 1000 Irvine Ave. (corner of Dover Drive and Irvine Ave.) 3. Performer shall provide sound equipment and amplification system for the performance. 4. Performer shall provide Sound Engineer to operate sound equipment for the performance. PUBLIC PERFORMANCE AGREEMENT Page 2 5. Performer shall secure portable electrical power. 6. In the event of illness, Performer is required to notify City twelve (12) hours prior to any cancellation. If canceling a performance for any reason other than illness, Performer shall contact Recreation & Senior Services Department, and provide two (2) weeks notice. 7. Performer shall acquire, provide, repair, and maintain, at Performer's own expense, such supplies, equipment and additional personnel as deemed necessary for Performer's own use in performing the services in this Agreement. Additional personnel and necessary supplies, equipment, additional publicity and materials for the performance specified above shall be provided by Performer unless otherwise specifically agreed to in writing by City. 8. Performer shall immediately notify City of any name, address, or telephone number changes. 9. 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 or sexual orientation, 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 this Agreement. 10. Performer is also responsible for: • Cooperating with requests from City staff. • Receiving prior approval from City of all printed materials related to performance under this Agreement, including press releases, prior to any distribution. • Immediately reporting to the Program Coordinator any damage to the program facility that could cause potential injury to users of City venue, or other needed maintenance repairs or requirements. • Maintaining the highest degree of participant safety possible and completely following City procedures by immediately reporting any injuries as a result of performance participation. 2. COMPENSATION City agrees to pay Performer the contract price of Two Thousand, Nine Hundred and Twenty -Five Dollars ($2,925.00), which will include compensation for $200 in audience PUBLIC PERFORMANCE AGREEMENT Page 3 prizes that are appropriate for this type of family event (i.e. no fireworks, etc.). The fee of $2,962.00 shall be payable within 30 days upon receipt of invoice from Performer. Payment shall be made only if Performer actually provides the performance contracted for under this Agreement. If the performance is cancelled by either party, City is under no obligation to pay Performer. The City will require Performer to provide a Certificate for Additional Insureds naming the City of Newport Beach, Newport -Mesa Unified School District and Mariners School Foundation. Performer agrees to provide evidence of coverage no less than ten (10) business days prior to performance to the Program Coordinator. 3. ADMINISTRATION This Agreement will be administered by the Recreation & Senior Services Department. Matthew Lohr, Recreation Manager, shall be the Program Coordinator and shall have the authority to act for City under this Agreement. The Program Coordinator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. The Program Coordinator can be contacted at the following information below: 949 - 644 -3164 — Office 949 - 274 -6249 — Cell (after working business hours) mloh r@city. newoort- beach.ca.us 4. STATUS OF PERFORMER The parties intend and agree that at all times during the course of this Agreement, Performer, and any assistants, employees, technicians, co- performers or subcontractors Performer may retain in the course of providing the performance, shall be acting as an Independent Contractor and shall not be considered an agent or employee of the City. As such, Performer shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers compensation and unemployment insurance and that of his/her assistants, employees or co- performers, or subcontractors. City shall not be liable for any payment or compensation in any form to Performer, or his/her assistants, employees, co- performers or subcontractors other than as provided herein. 5. OTHER PERFORMERS The City reserves the right to employ other Performers for the 4"' of July event. 6. INDEMNIFICATION -GENERAL Performer, as a condition of this Agreement, shall indemnify the City, its elected and appointed agents, officers, representatives, employees, City Council, boards and commissions harmless with respect to any loss, liability, injury or damage that arises out of, or is in any way related to, the acts or omissions of Performer, his/her employees, officers and agents in the course of performance of services under this Agreement, except that Performer shall not be required to indemnify City from any claim arising from the sole negligence or willful misconduct of City, its officer, agents or employees. PUBLIC PERFORMANCE AGREEMENT Page 4 7. INDEMNIFICATION — INTELLECTUAL PROPERTY Performer, as a condition of this Agreement, shall further indemnify City and hold City, its elected or appointed agents, officers, representatives, employees, City Council, boards and commissions harmless with respect to any proceedings brought against City for any intentional or unintentional violation by Performer of the legally protected rights of any third parties with respect to works performed under this Agreement. Such legally protected rights of third parties include but are not limited to U.S. patents, trademarks, and copyrights issued as of the effective date of this Agreement. If Performer will be providing a public performance of musical compositions or arrangements which are subject to a license held by a third party, it is the responsibility of Performer to obtain the appropriate license to perform the material prior to the performance(s) contracted for in this Agreement. 8. TERM OF AGREEMENT The term of this Agreement shall commence on July 4, 2009, and shall remain in effect until all performances agreed upon herein have been performed, or the Agreement has been otherwise terminated as follows: In addition to the individual performance cancellation provisions of Paragraph 1(B)(6) of this Agreement, Performer may terminate this entire Agreement by providing written notice at least 30 days prior to the performance. It is understood that City may, at its sole discretion, terminate this Agreement without cause by giving ten (10) calendar days written notice, subject to payment to Performer for services rendered prior to the date of termination. City reserves the right to cancel or postpone a performance due to emergencies. 9. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Performer. Assignments of any or all rights, duties or obligations of Performer under this Agreement will be permitted only with the express written consent of City. Performer shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 10. 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. 11. WAIVER Performers agree on behalf of themselves and /or their heirs, executors or administrators, to waive and release any and all claims for personal injury or property damage, of whatsoever form or nature, that they may have against the City that may arise from their participation in this Performance. PUBLIC PERFORMANCE AGREEMENT Cage 5 12. 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. The undersigned has read, understands and agrees to be bound by all of the terms as set forth herein. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By; MynB efte eauchamp, Assistant City Attorney ATTEST:�j�` B. h By: Leilani Brown, City Clerk City of Newport Beach PERFORMER: By: Y&a yn Sty h, Social Security or Tax ID Number CITY OF NEWPORT BEACH, a municipal corporation Laura Detweil'er, Director reation & Snior, Services Dept. Date Signed Addres§,. City/StateZip r 0"5 -?a Telelihone Fax f Email �G Variety Arts LIVEI 26621 Cortina Dr. Mission Viejo, Ca. 92691 (949) 215 -8970 Email: Magicbarn@msn.com Invoice #:070409 Date: February 23, 2009 Client: City of Newport Beach Attn: Matthew Lohr Address: 3300 Newport Blvd. Newport Beach, CA 92663 Phone#: 949 - 644 -3164 Fax#: 949 - 644 -3155 Cell# 949 - 394 -1060 INVOICE Event Date: Saturday July 4th, 2009 Performance Time: 11:00a. —�00 p.m. (Please notify if differentp hour time slot) Event Location: Mariners Park, Newport Beach Please Notify of Any Errors in This Proposal! It is VERY IMPORTANT for the Client to understand the area needed to perform our "Interactive Gameshow ". If this has not been decided or discussed by the client and Interactive Events, please be sure to do so. Our "BARNABY LIVE" Entertainment Includes: 3 hour Picnic Entertainment $200.00 in Prizes Actual Performance Time: 11:00 — 2:00 P.M. Price for Complete Show ......................... ......................$2,625.00 Total: $2,625.00 Please Make Check Payable to: Variety Arts Live Performance Agreement & Contract... Dated: February 23, 2009 1.Variety Arts Live (V.A.L.) and City of Newport Beach herein after referred to as the "client ", agree on the following terms and conditions for the clients showlime event scheduled: Event Date: July 4th, 2009 Event Time: 11:00 A.M. —2:00 P.M. Location: Mariners Park, Newport Beach The Fee For This Performance Will Be: ............................... ......................$2,625.00 1 V.A.L. agrees to perform all services and provide all products in accordance with the included proposal. 3. N/A 4. The balance of the showtime event fee shall be paid within,4days of this even or sooner. 5. LIABILITY: The client shall indemnify, defend and hold harmless V.A.L. and its employees against and from any and all claims, costs, expenses, obligations, liabilities, damages and recoveries arising from client or their guests use of the event facilities and grounds ... as well as any Injury (bodily or otherwise) or property damage suffered by any guest during participation In arty event conducted by "Barnaby" (AXA. Barryn Stroh) or V.A.L...... (Specifically to include water damage to any article ... Le; clothing, cameras, beepers etcl) Client should make their guests aware in every manner possible (memos, etc.) that their attending guests or employees will participate of their own free will and are responsible for the results (bodily injury, property damage, act.) of their own physical participation. Specifically, Bamaby or his attending crew will not be held responsible in any way shape or form for any accident or injury before or during the above - mentioned event. Client will be willing to defend V.A.L. in the event of any claim by their attending guests. (V.A.L. does carry its own $1,000,000 liability policy). If Client desires to receive a certificate as "Additionally Insured" there will be a fee of $100.00 for this addition. This amount will be added to the final invoice and is to be paid with total amount due. 6. In the event that rain or other severe weather condition not conducive to an outside event should occur, the client may reschedule the event to the next available date on this season's calendar (if no further date is available, then fifty percent of your deposit will be ref puled). The election to reschedule must take place prior to 6:00 A.M. dre morning ofthe scheduled showlime event. Please notify Barnaby Live at (449- 215.8970 7. The client agrees not to furnish any music or entertainment whether live or recorded without specific notification to V.A.L. Exempted are personal radios, cassette and, or CD players of employees and guests. g. VERY IMPORTANT: Client will be responsible for obtaining any PERMITS or CLEARANCES for the sound equipment that will be used by V.A.L. If the permits are not obtained, or park clearance for our D.J. Sound System is not approved, V.A.L. has the right to terminate or not perform the agreed performance. resort to leggier to enfwwwfla ' ' ns of this_agreent&tt Variety and found 10. This agreement, together with the documents and attachments referred to herein, embodies the entire understanding among the parties and merges all, prior discussions or communications among them, mid nor party shall be bound by any otiher definitions, conditions, warranties, or representation other than as expressly stated in the agreement or as subsequently set forth in waiting signed by the duly authorized representative of all the parties hereto. 11. This agreement may only be changed or modified by an agreed verbal communication between both pmtic& If changes are substantial, a written document will be resubmitted and signed and deed by both parties. Signature: Date:Febtuary 23, 2009 Contact Signature: Date: Please Make Check Payable to: Variety Arts Live