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HomeMy WebLinkAboutC-4553 - Performance Agreement for Concert in the ParkCITY OF NEWPORT BEACH %6,Q? Department of Library Services Arts and Cultural Services Division PUBLIC PERFORMANCE AGREEMENT This agreement is made on this day, May 25, 2010, by and between the City of Newport Beach, a municipal corporation and charter city (hereinafter referred to as "City "), and the Hutchins Consort Organization and its members, represented by Drew Cady, Managing Director (hereinafter jointly and severally referred to as "Performer "), a skilled, self - employed artist, to provide live, on -site performance[s] at a City venue on the dates and at the locations hereby agreed upon. The parties agree as follows 1. DUTIES OF PARTIES A. CITY AGREES TO PERFORM THE FOLLOWING DUTIES: 1. City shall provide publicity for the performance by distributing flyers at library branches and other City sites, listing the performance in the Library Calendar, listing the performance in the brochure Newport Navigator, published four times each year, where publishing schedules permit, and including the performance in relevant media announcements. 2. City shall provide and maintain a location for the performance without charging Performer any fees for the use of the facility. 1 City shall provide stage facilities for the performance[s]. 4. City shall provide sound equipment and amplification system for the performance[s]. 5. City shall provide Sound Engineer to operate sound equipment for the performance[s]. 6. 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. 7. City shall provide access to direct or portable electrical power, through City Utilities Department. 8. City shall process and obtain a permit for the performance through the City Recreation and Senior Services Department. 9. City shall provide insurance for the performance through its Special Event Insurance program. B. PERFORMER AGREES TO THE FOLLOWING: 1. Performer shall provide the following type of performance: Concert in the Park — Live Concert Performance 2. Performer shall provide such performance(s) at the following location(s) and date(s): Grant Howald Park (3000 Fifth Avenue, Corona del Mar, CA 92625) Sunday, July 25th Event Hour(s) 6:00pm — 7:30pm Set -Up and Sound Check by 4pm; Breakdown: 7:45pm PUBLIC PERFORMANCE AGREEMENT Page 2 3. 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 Library Services, Arts and Cultural Services Division, and provide two (2) weeks notice. 4. 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(s) specified above shall be provided by Performer unless otherwise specifically agreed to in writing by City. 5. Performer shall immediately notify City of any name, address, or telephone number changes. 6. 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. 7. Performer is also responsible for: Cooperating with requests from City staff. Receiving prior approval from City of all printed materials related to performances under this Agreement, including press releases, prior to any distribution. Immediately reporting to 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. City agrees to pay Performer the contract price of $3,000 per performance, due immediately upon completion of the performance. 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. 3. ADMINISTRATION This Agreement will be administered by the Arts and Cultural Division of the Library Services Department. Jana Barbier 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. 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(s), 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. PUBLIC PERFORMANCE AGREEMENT Page 3 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. 6. INDEMNIFICATION -GENERAL Performer, as a condition of this Agreement, shall indemnify City as follows: Performer shall defend, indemnify and hold 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. 7. INDEMNIFICATION — INTELLECTUAL PROPERTY Performer, as a condition of this Agreement, shall further indemnify City as follows: Performer shall defend, indemnify 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 June 1, 2010 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)(3) of this Agreement, Performer may terminate this entire Agreement by providing written notice at least 30 days prior to the first 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. The undersigned has read, understands and agrees to be bound by all of the terms as set forth herein. 9. INSURANCE By executing this Agreement, Performer certifies that Performer is aware of and will comply with Section 3700 of the Labor Code of the State of Califomia requiring every employer to be insured against liability for workers' compensation or to undertake self- insurance before commencing any work. Performer shall carry the insurance or provide for self- insurance required by California law to protect said Performer from claims under the Workers' Compensation Act. 10. COMPLIANCE WITH ALL LAWS Performer, and his /her employees, agents and subcontractors shall at all times observe and comply with all laws, ordinances and regulations. PUBLIC PERFORMANCE AGREEMENT Page 4 11. USE OF NAMES AND LOGOS: ADVERTISING, PRESS RELEASES AND PUBLICITY Performer shall not include City's name, logos or insignia, or photographs of the performance or participants, in any publicity pertaining to Performers' services in any magazine, trade paper, newspaper, radio or television production, Internet, or other printed or electronic medium without the prior written consent of City and participants. 12. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it. Any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 13. 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. 14. 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 this Agreement or any other rule of construction which might otherwise apply. 15. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties, and all preliminary negotiations and agreements are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 16. 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. 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. 18. SUBCONTRACTING 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 the 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. [SIGNATURES ON FOLLOWING PAGE] PUBLIC PERFORMANCE AGREEMENT Page 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: I/ DVWA B . rte' �i%I �b Leonie Mulvihill, Acting City Attorney City of Newport Beach My1 Ar Y� ATTEST: City of Newport Beach PERF R wcoRN,P By: Signature — Dre C y, Managing Director The H ins Consort 701 r Street Social Security or Tax ID Number a FAX CITY OF NEWPORT BEACH, A M i at C rt rata rr}' Cy it Cowell, Library Services Director City Newport Beach Encinitas, CA 92024-4413 City State Zip (760) 632-0554 Telephone info@hutchinsconsort.org Print Addrass