HomeMy WebLinkAboutC-5189 - Performance Agreement for Shakespeare in the Park Play ProductionsPERFORMANCE AGREEMENT
WITH SHAKESPEARE BY THE SEA FOR
SHAKESPEARE IN THE PARK PLAY PRODUCTIONS
I\ THIS PERFORMANCE AGREEMENT ( "Agreement ") is made and entered into as of this 11th day
of June, 2012 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California Municipal
Corporation and charter city ("City"), and SHAKESPEARE BY THE SEA, a California Corpora_ tion
( "Performer "), whose address is 777 Centre St., San Pedro, CA 90731 and is made with reference to the
following:
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM
The term of this Agreement shall commence on the ( "Effective Date "), and shall terminate on July
14, 2012 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Two Shakespeare Play Productions ( "Performance ")
"Romeo and Juliet" on July 7 and "Two Gentlemen of Verona" on July 8
2.2 Performer shall provide such Performance(s) at the following location(s) and date(s):
Location: Bonita Canyon Sports Park
Date: July 7 and July 8, 2012
Performance from: 6:45 pm — 9:30pm
Set -up Complete by 5:30pm
2.3 Performer shall be responsible for:
2.3.1 Provide sound equipment and amplification system for the performance[s].
2.3.2 Provide Sound Engineer to operate sound equipment for the performance[s).
2.3.3 Provide secure portable electrical power.
2.3.4 Cooperating with requests from City staff.
2.3.5 Obtain prior written approval from City of all printed materials related to all
performances under this Agreement, including press releases, prior to any distribution.
2.3.6 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.
2.3.7 Maintaining the highest degree of participant safety possible and completely
following City procedures by immediately reporting any injuries as a result of performance participation.
2.4 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.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement and
Performer shall provide the Performance in accordance with the schedule included in Exhibit A and as
indicated above.
3.1.1 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
must return all monies advanced by the City.
3.3 For all time periods not specifically set forth herein, Performer shall respond in the most
expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail.
4. COMPENSATION TO PERFORMER
4.1 City shall pay Performer for the Performance(s) on a flat rate basis in accordance with
the provisions of this Section. Performer's compensation for all Performance(s) provided performed in
accordance with this Agreement, including all reimbursable items and fees, shall not exceed Five
Thousand Dollars and 001100 ($5,000.00) 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.
5. ADMINISTRATION
This Agreement will be administered by the Library Services /Cultural Arts. Jana Barbier 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 Services to be rendered pursuant to this Agreement.
6. HOLD HARMLESS
6.1 To the fullest extent permitted by law, Performer shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents and employees (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 on the Project (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).
6.2 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
attorney's 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.
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7. 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 Work 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 the Work, 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 of the Work 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 Services.
8. 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.
9. 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 cotenancy, 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.
10. INTELLECTUAL PROPERTY INDEMNITY
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.
11. CITY'S RIGHT TO EMPLOY OTHER PERFORMERS
City reserves the right to employ other Performers in connection with the event.
12. NOTICES
12.1 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:
Attn: Jana Barbier, Cultural Arts Coordinator
Library Services /CUltUral Arts
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949- 717 -3870
Fax: 949 -640 -5681
12.2 All notices, demands, requests or approvals from City to Performer shall be addressed to
Performer at:
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Attn: Lisa Coffi
SHAKESPEARE BY THE SEA
777 CENTRE ST., SAN PEDRO, CA 90731
Phone: 3 0- 217 -7596
Fax: 310 507 -0269
13. 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 Tort Claims Act (Government Code sections 900 et seq.).
14. TERMINATION
14.1 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. If such default is not cured within a period of two (2) calendar days, or if
more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails
to give adequate assurance of due performance within two (2) calendar days after receipt of written notice
of default, specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non- defaulting party may terminate the Agreement
forthwith by giving to the defaulting party written notice thereof.
14.2 Notwithstanding the above provisions, 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. In the event of termination under this Section, City shall
pay Performer for Services satisfactorily performed and costs incurred up to the effective date of
termination for which Performer has not been previously paid. On the effective date of termination,
Performer shall deliver to City all reports, Documents and other information developed or accumulated in
the performance of this Agreement, whether in draft or final form.
15. STANDARD PROVISIONS
15.1 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. In addition, all Work prepared by
Performer shall conform to applicable City, county, state and federal laws, rules, regulations and permit
requirements and be subject to approval of the Project Administrator and City.
15.2 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.
15.3 Integrated Coniract. 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.
15.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies
between this Agreement and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
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15.5 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.
15.6 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.
15.7 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.
15.8 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.
15.9 Equal Opportunity Employment. Performer represents that it is an equal opportunity
employer and it shall not discriminate against any subPerformer, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible
basis under law.
15.10 No Attorney's Fees. In the event of any dispute or legal action arising under this
Agreement, the prevailing party shall not be entitled to attorney's fees.
15.11 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 OF NEWPORT BEACH,
CITY ATT E A Califorrzt muni ipal corporation
Date: Date:�a�1
By: -
Harp
City Attorney --[�
ATTEST: 6
Date:'
By;.
Leilani I. B own
City Clerk
Attachments
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LiVary Services Director
PERFORMER: SHAKESPEARE BY THE SEA
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Date:- �
By:
Lis Coffi. Artistic 01—rgbr and President
Shakespeare by the
Date:
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[END OF SIGNATURES]
Exhibit A — Scope of Performance
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