HomeMy WebLinkAboutC-5411 - Performance Agreement for Concert in the ParkPERFORMANCE AGREEMENT
WITH SPRINGSTEEN! TRIBUTE FOR
CONCERT IN THE PARK
THIS PERFORMANCE AGREEMENT ( "Agreement ") is made and entered into as of this _
V / day of March, 2013 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California
t Municipal Corporation and charter city ( "City "), and Josh Schreiber, a sole proprietor performing as
v SPRINGSTEEN! TRIBUTE ( "Performer "), whose address is 37 Gillman Street, Irvine, CA 92612 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 August
31, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Springsteen Tribute Concert in the Park ( "Performance").
2.2 Performer shall provide such Performance at the following location and date:
Location: Bob Henry Park, 900 Dover Dr., Newport Beach, CA ( °Park ")
Date: Sunday, July 28, 2013
Performance time: 6:00 p.m. to 7:30 p.m.
Performer shall complete all set -up by 4:00 p.m.
2.3 The City shall be responsible for:
2.3.1 Providing sound equipment and amplification system for the Performance;
2.3.2 Providing sound engineer to operate sound equipment for the Performance; and
2.33 Providing portable electrical power.
2.4 Performer shall be responsible for:
2.4.1 Providing a musical performance at the Park, including a sound check to be
completed at least two (2) hours prior to the start time of the Performance;
2.4.2 Providing all musical instruments, peripheral equipment, musicians and vocalists
necessary to present an excellent Performance at the Park;
2.4.3 Providing directions and travel arrangements sufficient for all musicians, vocalists
and musical instruments to travel to the Park for the Performance;
2.4.4 Contacting the City's contracted sound engineer in advance of the Performance
to evaluate the set up for all sound equipment on the stage;
2.4.5 Food, refreshments and personal requirements for all musicians and vocalists;
2.4.6 Following all directions of City staff as to the entry and egress from the stage in
the Park, including when loading and unloading any equipment;
2.4.7 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;
2.4.8 Immediately reporting to the Program Coordinator any damage to the
Performance facility that could cause potential injury to users of the Park, or other needed maintenance
repairs or requirements;
2.4.9 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; 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
31 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.
12 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
City shall pay Performer for the Performance on a flat rate basis in accordance with the
provisions of this Section. Performer's compensation for the Performance provided in accordance with
this Agreement, including all reimbursable items and fees, shall not exceed Three Thousand Five
Hundred Dollars and 60/100 ($3,500.00) 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. INCOME TAX WITHHOLDING
Performer warrants that he /she /it is, for purposes of income tax withholding, domiciled in the
State of California and shall be solely responsible for the payment of any income tax as required by the
State of California. Performer agrees to defend, indemnify and hold City harmless from any tax collection
efforts by the State of California, or any other governmental taxing authority, against the City.
6. ADMINISTRATION
This Agreement will be administered by the Library Services Department. Jana Barbier, Cultural
Arts Coordinator or her designee, shall be the Program Coordinator and shall have the authority to act for
SPRINGSTEEN! TRIBUTE Page 2
City under this Agreement. The Program Coordinator or her designee shall represent City in all matters
pertaining to the Performance to be rendered pursuant to this Agreement.
HOLD HARMLESS
7.1 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 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).
7.2 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.
8. INDEPENDENT CONTRACTOR
it is understood that City retains Performer on an independent contractor basis and Performer is
not an agent or employee of City. The manner and means of conducting the Performance are under the
control of Performer, except to the extent they are limited by statute, rule or regulation and the expressed
terms of this Agreement. No civil service status or other right of employment shall accrue to Performer or
its employees. Nothing in this Agreement shall be deemed to constitute approval for Performer or any of
Performer's employees or agents, to be the agents or employees of City. Performer shall have the
responsibility for and control over the means of performing any work or service provided under this
Agreement, provided that Performer is in compliance with the terms 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.
3. 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.
% 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.
11. 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
SPRINGSTEEN! TRIBUTE Page 3
United States' letters patent, trademark, or copyright, including costs, contained in Performer's
Performance provided under this Agreement.
12, CITY'S RIGHT TO EMPLOY OTHER PERFORMERS
City reserves the right to employ other Performers in connection with any City event, performance
or concert.
13. NOTICES
13.1 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
Library Services
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717 -3870
13.2 All notices, demands, requests or approvals from City to Performer shall be addressed to
Performer at:
Attn: Josh Gillman
SPRINGSTEENI TRIBUTE
37 Gillman Street
Irvine, Ca 92612
Phone: (949) 466 -5668
14. 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
seg.).
15. 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.
16. STANDARD PROVISIONS
16.1 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.
SPRINGSTEEN! TRIBUTE Page 4
16.2 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.
16.3 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.
16.4 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.
16.5 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.
16.6 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.
16.7 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.
16.8 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.
16.9 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.
16.10 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.
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: -3/ rl 13
4C
��
By: `
Aa on C. Harp
City Attorney
ATTEST: 2 /) �2
Date: J lU 7
CITY OF NEWPORT BEACH,
A Califor ' ni ioal corporation
Date:
4'
C hia Cowell
Library Services Director
PERFORMER: SPRINGSTEEN! TRIBUTE
Date:
4.
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By: "" " By:
Leilani I. Brown Josh Scl
City Clerk ��wPoRT Sole Pro
[END OF SIGNATURES]
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Attachments: Exhibit A — Performance Invoice
rietor
SPRINGSTEEN! TRIBUTE Page 5
INVOICE
Submitted to Newport Beach Public Library/Cultural Arts
For Musical or Theatrical Performance
Title of Performance: S 6 rI t'I G--S'-L�w
Date of Service/Performance: _ -� CIr2
Amount: z S-0 U
Made Payable To: JUS 4 Sc. Ar e i % P r
Street Address: 7 lel 1 m an S%
City/State/Zip:
Phone Number: 911q- 11W0' ^1`G6� Email Address: ,CLs'���irttCt lPri STP2htri�u�° •Cama
P
Social Security Number:
or
Federal Tax ID Number:
Submitted by:
Date:
Send to:
City of Newport Beach
Cultural Arts Division
1000 Avocado Avenue
Newport Beach, CA 92660