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HomeMy WebLinkAboutAdventures by the Book LLC; 2020-06-18; 1 City Attorney Approved Version 10.27.17 CITY OF CARLSBAD PERFORMANCE AGREEMENT FOR LIVE EVENT ADVENTURES BY THE BOOK, LLC THIS CONTRACT is made on June 16 , 2020 by and between the City of Carlsbad (City) and Adventures By the Book, LLC (Representative), who warrants that she has the authority to represent and contract on behalf of Julie Clark, Richard Farrell, Diana Giovinazzo, Jean Kwok, Aimee Liu, Kimmery Martin, Megan Miranda, Isla Morley, Kristin Rockaway, Amy Stanley, Elizabeth St. John and Abbi Waxman (Performers), for a live performance as specified below, and upon the following terms and conditions: 1. Event Name of events: Virtual author events hereinafter referred to as “performances”. Description of performances: Three 60-minute virtual author events. Venue site: From remote locations and streamed via Library’s Zoom account. Representative’s Phone No.: N/A (W), 619-300-2532 (Cell) Date(s) and times of performances: Sunday, June 28, 2-3 p.m.; Sunday, July 19, 2-3 p.m.; and Sunday, Aug. 2, 2-3 p.m. No. of sets/workshops: One (1) per date Length of each set/workshop: Author panel for 45 minutes with 15 minutes of Q&A 2. Parking – Reserved 3. Lodging/Meals – Reserved 4. Performance Fee Representative shall be entitled to a Flat Performance Fee in the amount of one thousand five hundred dollars ($1,500). City will pay 50% balance immediately after completion of Performance on June 28, 2020 and 50% final balance after Performance on Aug. 2, 2020. Performer’s invoices shall be submitted in advance and payment will be made as noted above. Payment will processed directly to Adventures By The Book. If any unperformed portion of the event or event series is cancelled due to the Performer’s inability to perform, the unperformed portion of the event or event series may be, if feasible, rescheduled to a new date(s) that is/are mutually agreeable to City and Performer. If a replacement performance cannot be rescheduled, the fee(s) due to the Performer may, at City’s sole discretion, be reduced on a pro-rata basis by the value of the performance(s) not performed. City will make all checks payable and addressed to: Name of Performer/Representative: Adventures By the Book, LLC Address: P.O. Box 421472, San Diego, CA 92142 DocuSign Envelope ID: 80286FDB-8863-4CE7-9865-8184B7D3ED57 2 City Attorney Approved Version 10.27.17 5. Sound – Reserved 6. Stage Lighting – Reserved 7. Venue Hospitality – Reserved 8. Concession Sales Performer shall have the right to offer limited items for sale at the Performance (e.g., books, CDs, DVDs, and audio/video tapes) at a rate of 0% commission (City’s fee based on gross revenue from sales). Performer agrees to refrain from offering for sale or distributing material that is derogatory or critical of the City, contains sexually explicit actions or gestures, expletives and/or other obscenities, or contains racial slurs or is otherwise derogatory of any race, religion, sexual orientation, age or national origin. City reserves the right to pre-approve items offered for sale by Performer, both before and during the performance. 9. Publicity Performer may provide publicity and promotional materials to City for advertising the Performance. Performer and/or Representative represents and warrants that City may use all promotional materials received from Performer or Representative to promote the Performance in all advertising media, including without limitation, print, TV, radio, Internet, etc., without being in violation of any third party intellectual property rights. Performer agrees to be available for personal interviews. City reserves the right to photograph the Performance for the purpose of publicizing, advertising, or promoting the City of Carlsbad and/or programs (collectively “Usage”). Performer(s) waive the right to any fees, royalties, or control, now or in the future, and Performer(s) grant full permission for the use of Performer(s)’ image, including without limitations, name, likeness, and biography related City’s Usage. Performer(s) relinquish any right that Performer(s) may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied, including in all media now in existence or may come into existence in the future. 10. Radio and Television Coverage Performer agrees to permit reasonable Radio or Television news coverage of the Performance. City will try, but is not required, to let Performer know whether Radio or Television news coverage is planned or will be occurring during the Performance. City is not responsible for securing prior consent of Performer for said Radio or Television coverage. City is not responsible for obtaining copies of any footage that is broadcasted on any Radio or Television station for the benefit of Performer. City will assist Performer in trying to identify which Radio or Television station is on scene. In the event that Performer does not desire to have any Radio or Television coverage of the Performance, Performer shall be solely responsible for notifying the Radio or Television station(s) of this desire. If unauthorized taping or broadcasting of Performance occurs, City shall not be deemed in breach of this contract. 11. City Audio/Video Recording City reserves the right to audio and/or video record any lecture, reading or speaking engagement; but not any musical concert or musical Performance. City may retain the recording in its files, may replay the recordings for its employees, and may make the recording available for non-circulation use at its library facilities. City shall make no more than three copies of the recordings. City shall not sell the recording. City shall provide a copy of the recording to the Performer, upon the Performer’s request. DocuSign Envelope ID: 80286FDB-8863-4CE7-9865-8184B7D3ED57 3 City Attorney Approved Version 10.27.17 12. Weather and Other Types of Cancellations Re: Performance If Performance is canceled by City due to inclement weather, acts of God, acts or any other reason, while Performer is traveling to or is already at Venue Site, but has not yet performed, City will pay Performer Performer’s out-of-pocket travel expenses to the Venue Site. In the event that a storm should develop while Performer is at the Venue Site and has already set up or is in the process of setting up Performer’s equipment, City and Performer will discuss whether the Performance should be cancelled. If the Performance is cancelled, Performer shall be entitled to full payment. 13. General Cancellation The City reserves the right to cancel this engagement for any reason at any time prior to 30 days preceding the engagement, voiding this contract and excusing the City from any payment or other compensation. If this contract is canceled by the Performer less than 30 days prior to the scheduled engagement, the Performer will reimburse the City the amount of $ N/A to help defray the production, promotion and labor costs that are incurred up to the date of the cancellation. 14. Performance Content The Performer represents and warrants that its Performance in all aspects (including any sheet music, lyrics or script as may be desired or required by City) will not violate any copyright, and that all necessary approvals to perform copyrighted works have been obtained. Performer agrees to indemnify, defend and save harmless the City against any copyright claim, demand, liability or expense caused by or arising out of its Performance. Performer shall be solely responsible for the content of the Performance. 15. Losses It is understood and agreed that the City shall not be responsible for any loss of or damage to the property of the Performer, or for the acts or omissions of the audience. 16. Independent Contractor The Performer(s) and/or Representative are independent contractors and not employees of City. No Performer(s) or his/her employees or Representative or his/her/it employees are or shall hold themselves out as an agent or employee of the City. The Agent or Performer shall have no authority to make any commitment on behalf of the City. Performer and/or Representative shall be responsible to pay all applicable state, local and federal taxes associated with this agreement. 17. Subject Matter Performer agrees to refrain from presenting or performing material that is derogatory or critical of the City, contains sexually explicit actions or gestures, expletives and/or other obscenities, or contains racial slurs or is otherwise derogatory of any race, religion, sexual orientation, age or national origin. Should such material be presented or performed, City, in its sole discretion, may immediately terminate the Performance. In the event City terminates the Performance of Performer because of violation of this paragraph, City shall not be liable to Performer for the balance owed under this Agreement and all monies paid to Performer shall be full and complete payment of Performer’s services. In the event of this occurrence, City shall not be deemed to be in breach of this agreement. DocuSign Envelope ID: 80286FDB-8863-4CE7-9865-8184B7D3ED57 4 City Attorney Approved Version 10.27.17 18. Indemnification Performer and its agents, employees, successors and assigns, agrees to indemnify, hold harmless, protect and defend the City and its elected officials, agents, and employees, from all claims, reasonable attorneys’ fees and court costs, out-of-pocket expenses, damages (including compensatory and punitive damages) and liabilities, arising from or relating to the Performer’s presentation of the Performance or to its obligations under this Agreement. This indemnification provision shall survive the expiration or termination of this Agreement. 19. Insurance If required by City, Performer will be required to show proof of general liability insurance to the City before commencement of any performance required pursuant to this Agreement, in a minimum amount of one million dollars, to be kept in full force and effect during the term of this Agreement. City shall be named as an additional insured by endorsement. Performer is encouraged to maintain any additional insurance(s) policies that Performer, in its own discretion, feels it should maintain in force and effect throughout the term of this Agreement. If required, Workers Compensation Insurance shall be provided as required by the State of California. Performer must also show evidence of Workers' Compensation coverage in accordance with the laws of the State of California. The Worker's Compensation policy must contain a waiver of subrogation of rights against the City of Carlsbad. 20. Production Rights The Performer agrees that the right to produce the event(s) which are the subject matter of this Agreement belongs solely to the City and Performer has no right to independently produce or sell rights of any kind to this event. Further, Performer agrees that Performer will not acquire any independent, individual or joint rights with the City to the event(s) which are the subject matter of this Agreement. The Parties agree that this event(s) is a “work for hire” business arrangement under the United States Copyright Act of 1976 [17 U.S.C. §§ 101, et seq.] and any other applicable law. 21. Complete Contract This is a fully integrated contract. It is further understood that this Agreement contains the whole Agreement between Performer and Purchaser and this document supersedes any other terms, agreements, obligations, covenants, representations, statements or conditions, oral or otherwise or any kind whatsoever concerning this contract, not expressly set forth herein. Furthermore, it is understood and agreed that this contract may not be changed, modified, or altered except by mutual agreement of both parties. All changes to the contract for this engagement must be signed by authorized signatories of both parties. 22. Governing Law This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of California. If any term or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law governing this Agreement, the validity of the remaining portions of this Agreement shall not be affected thereby. Venue for purposes of enforcing any provision of this Agreement shall be San Diego County. DocuSign Envelope ID: 80286FDB-8863-4CE7-9865-8184B7D3ED57 5 City Attorney Approved Version 10.27.17 23. Signing Authority The individual on his/her own behalf or the representative for each party signing on behalf of a corporation, partnership, joint venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other party or parties hereto harmless if it is later determined that such authority does not exist. PERFORMER/VENDOR CITY OF CARLSBAD, a municipal corporation of the State of California By: Susan McBeth Chief Executive Office & Manager (print name/title) HEATHER PIZZUTO Library & Cultural Arts Director As authorized by the City Manager By: (sign here) (print name/title) If required by City, proper notarial acknowledgment of execution by vendor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. Approved as to Form: ATTEST: CELIA A. BREWER, City Attorney By: Deputy/Assistant City Attorney By: For BARBARA ENGLESON City Clerk By: (sign here) DocuSign Envelope ID: 80286FDB-8863-4CE7-9865-8184B7D3ED57 6 City Attorney Approved Version 10.27.17 EXHIBIT “A” SCOPE OF SERVICES Contact Information Representative: Susan McBeth 11233 Alejo Lane San Diego, CA Email: susan@adventuresbythebook.com Telephone: 619-300-2532 City: Community Relations Manager Jessica Padilla Bowen E: Jessica.padillabowen@carlsbadca.gov P: 760-602-2024 Events & Services Representative shall provide agency services to schedule performers for the City. Representative’s fee for agency services shall include performer fees. Representative warrants that they have the authority to represent and contract on behalf of identified performers for live performances as specified below: Venue Site Performances will be streamed live from a remote location such as the performer's home, unless an in-person performance is approved by the City, and broadcast via the City Library’s Zoom account. Performance Date and Fees Virtual Summer Author Adventure #1 Sunday, June 28, 2020. Start time: 2 p.m. End time: 3 p.m. Authors: Julie Clark, Richard Farrell, Kimmery Martin, Isla Morley, Abbi Waxman Virtual Summer Author Adventure #2 Sunday, July 19, 2020. Start time: 2 p.m. End time: 3 p.m. Authors: Aimee Liu, Megan Miranda, Kristin Rockaway, Amy Stanley Virtual Summer Author Adventure #3 Sunday, Aug. 2, 2020. Start time: 2 p.m. End time: 3 p.m. Authors: Jean Kwok, Diana Giovinazzo, and Elizabeth St. John Description of Performances Each event features a 45-minute panel discussion and 15-minute Q&A with authors. Invoicing / Payment All invoices shall be submitted to City’s Community Relations Manager Jessica Padilla Bowen or designee and shall be sufficiently detailed to include related activities and costs. Final invoice approval will be completed by City’s Library & Cultural Arts Director or designee.