HomeMy WebLinkAboutC-5730 - Performance Agreement for Play In The Park�1
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PERFORMANCE AGREEMENT
WITH SHAKESPEARE BY THE SEA FOR
A PLAY IN THE PARK
THIS PERFORMANCE AGREEMENT ( "Agreement ") is made and entered into
as of this 13`h day of February, 2014 ( "Effective Date ") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ( "Cit)"), and
SHAKESPEARE BY THE SEA, a California corporation ( "Performer"), whose address is
777 Centre Street, San Pedro, CA 90731 and it is mutually agreed by and between the
undersigned parties as follows:
The term of this Agreement shall commence on the Effective Date, and shall
terminate on July 21, 2014 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
date:
2.1 Performer shall provide the following type of performance:
Performance of the play, "A Midsummer Night's Dream" ( "Performance ")
2.2 Performer shall provide such Performance at the following location and
Location: Bonita Canyon Sports Park ( "Park ")
Date: July 20, 2014
Performance time: 7:00 p.m.
Performer shall complete all set -up by 5:00 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
2.4 Performer shall be responsible for:
2.4.1 Providing a Performance at the Park, including a sound check to be
completed at least two (2) hours prior to the Performance;
2.4.2 Providing all musical instruments, peripheral equipment, musicians,
vocalists and /or other participants necessary to present an excellent Performance at the
Park;
2.4.3 Providing directions and travel arrangements sufficient for all
musicians, vocalists, musical instruments andfor other participants 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,
vocalists and /or other participants;
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
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 indicated above. 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 shall return all monies advanced by
the City.
SHAKESPEARE BY THE SEA Page 2
3.3 For all time periods not specifically set forth herein, Performer shall
communicate with City in the most expedient and appropriate manner under the
circumstances, by fax, hand - delivery or mail.
a. 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 Dollars and 00/100 ($3,000.00) 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. City shall pay Performer upon
Performer's arrival for set -up on the date of the Performance.
5. INCOME TAX WITHHOLDING
Performer warrants that it is, for purposes of income tax withholding, domiciled in
the State of California and shall be solely responsible for the payment of any income tax
as required 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.
s. ADMINISTRATION
This Agreement will be administered by the Library Services Department. The
Library Services Director or his /her designee shall be the Program Coordinator and
shall have the authority to act for City under this Agreement. The Program Coordinator
or his /her designee shall represent City in all matters pertaining to the Performance to
be rendered pursuant to this Agreement.
7. 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
SHAKESPEARE BY THE SEA Page 3
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by the
Performer.
s. 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.
9. 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.
10. 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.
IWIIIIIIIIIIIII It CA
The Performer warrants that it has the legal right to utilize the songs, scripts,
and/or other intellectual property and materials in its Performance provided under this
Agreement. The Performer shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained in Performer's Performance provided under this
Agreement.
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12. C17Y'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: Tim Hetherton
Library Services
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717 -3870
112 All notices, demands, requests or approvals from City to Performer shall
be addressed to Performer at:
Attn: Lisa Coffi
SHAKESPEARE BY THE SEA
777 Centre Street
San Pedro, CA 90731
Phone: 310 -619 -5646
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 at seq.).
15. TERMINATION
In the event that either parry 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.
SHAKESPEARE BY THE SEA Page 5
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.
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.
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SHAKESPEARE BY THE SEA Page 6
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: 2-11-14
By: "�JAL&fIAIAINAQ
Aaron C. arp
City Attorney
ATTEST:
Date:
1
By: � jt4�V_
Leilani I. Brown
City Clerk
qW*A'-FORN%PP
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:---,)
e t h6, rton
rary Services Director
PERFORMER: SHAKESPEARE BY THE
SEA, a California corporation
Date: „ '—:? —Z,6 l 611
Producing ,yj4istic Director
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