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HomeMy WebLinkAboutHulskamp, Nathaniel; 2020-10-28;City Attorney Approved Version 6/12/18 1 Debbie Jo McCoolDebbie Jo McCool Megan Gilby Richard Schultz Suzanne Smithson Ed Garbo DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 AGREEMENT FOR PROFESSIONAL PERFORMANCE SERVICES NATHANIEL HULSKAMP THIS AGREEMENT is made and entered into as of the 28th day of October , 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and NATHANIEL HULSKAMP, Sole Proprietorship in Oregon, an experienced performing artist and teacher ("Contractor”). RECITALS City requires the professional services of an experienced performing artist and teacher that is experienced in providing education outreach musical programs through performance, artist talks and sharing of international music. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in Exhibit “A”, attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. TERM This Agreement will be effective for a period of one year from the date first above written. 3. COMPENSATION The total fee payable for the Services to be performed will be five thousand thirty-four dollars ($5,034). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit “A.” 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 2 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City’s execution of this Agreement. 7. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Richard Schultz Name Nathaniel Hulskamp Title Cultural Arts Manager Title Owner Department Library & Cultural Arts Address 3116 SE 80th Avenue City of Carlsbad Portland, OR 97206-1748 Address 1775 Dove Lane Phone No. 503-914-8299 Carlsbad, CA 92011 Email info@seffarine.com Phone No. 760-602-2086 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 8. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 9. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 3 10. TERMINATION City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 11. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 12. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 13. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 14. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 4 By: 15. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) SUZANNE SMITHSON Library & Cultural Arts Director, As authorized by the City Manager Nathaniel Hulskamp, Owner (print name/title) ATTEST: By: (sign here) For BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor 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: For CELIA A. BREWER, City Attorney By: Deputy / Assistant City Attorney Audra Mahoney Audra Mahoney DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 5 EXHIBIT “A” SCOPE OF SERVICES Contractor is partnering with the City on a musical production to present Seffarine, an international group of artists whose influences include Spanish flamenco, Arabic and Andalusian music, Persian classical and jazz. The presentation with include a prerecorded streaming video, a livestream educational outreach event and a livestream Artist Talk interview event. The City will provide the media to deliver the prerecorded and livestream productions to the Carlsbad community. 1. Contact Information: Contractor’s Name: Nathaniel Hulskamp Address: 3116 SE 80th Ave Portland, OR 97206-1748 Email: info@seffarine.com Phone Number: 503-914-8299 City Contacts: Megan Gilby, Coordinator Cultural Arts Richard Schultz, Cultural Arts Manager Address: Address: 1775 Dove Lane, Carlsbad, CA 92011 1775 Dove Lane, Carlsbad, CA 92011 Email: Megan.Gilby@carlsbadca.gov Richard.Schultz@carlsbadca.gov Phone Number: 760-602-2081 760-602-2086 2. Event Details: Prerecorded Event 1: Seffarine – November 1 through November 5 • Description: Streaming prerecorded performance of Seffarine’s musicians • Date(s): Sunday, November 1 through Thursday, November 5 • Time: Streaming will begin at 12 a.m. and end at 11:59 p.m. on respective days • Number of sets: one (1) set • Length of each set: 15 minutes Live Event 1: Virtual Educational Outreach – November 5 • Description: Live streaming workshop that will feature an introduction of the artists and their cultural traditions, exploration of Arabic and Persian instruments, what they are made of, tuning and scales that are unique to Middle Eastern music, and the cultural context of the traditional music. DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 6 • Date(s): Thursday, November 5 • Time: 1:00 p.m. • Number of sets: one (1) set • Length of each set: 45 minutes, including Q&A Live Event 2: Artist Talk with Seffarine – November 5 • Description: Live streaming Artist Talk event with 30 minutes of interview/discussion with artists and 15 minutes of Q&A with participants. • Date(s): Thursday, November 5 • Time: 7:00 p.m. • Number of sets: one (1) set • Length of each set: 45 minutes, including Q&A 3. Services: Contractor shall provide: Prerecorded streaming videos: • Contractor will provide prerecorded streaming video files to City at least two (2) weeks prior to event date(s) listed in Event Details. Payment cannot be authorized without receipt of prerecorded files. Live streaming event(s): • Programming and preparations for all scheduled events, including live events and educational outreach events • Performer(s) shall be available for one rehearsal via City’s virtual platform within one (1) week prior of performance date. Final rehearsal schedule will be determined and coordinated in writing between city’s community arts coordinator and Performer(s.) • Performer(s) will be available at least 30 minutes prior to live event(s) scheduled for rehearsals, technology and/or sound checks. • The city’s Community Arts Coordinator will communicate with Performer if necessary, at least one week prior to performance. Free Event: Event included in this agreement will be presented with no cost to participants or attendees. Performance Content: The Contractor 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. Contractor 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. Contractor shall be solely responsible for the content of the Performance. Subject Matter: Contractor agrees to refrain from presenting or performing material that is derogatory or critical of the City, contains sexually explicit actions or gestures, DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 7 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 Contractor because of violation of this paragraph, City shall not be liable to Contractor for the balance owed under this Agreement and all monies paid to Contractor shall be full and complete payment of Contractor’s services. In the event of this occurrence, City shall not be deemed to be in breach of this agreement. Insurance: General liability and worker’s compensation insurance is not required by Contractor for event(s) outlined in this agreement. City will provide: Program Delivery Platform: Live event streamed over City’s Zoom account. Registration will be required and coordinated by City staff. • Virtual Program Coordination Contact: Megan Gilby, Community Arts Coordinator megan.gilby@carlsbadca.gov 760-602-2081 Staffing: Staff liaison for all scheduled events, inclusive of event coordination, communication with public, live introduction of events and field technical and program questions from participants. Advertising and Publicity: The City shall pay all costs for local publicity and performance promotion. Contractor shall furnish the City with online access to the marketing no less than thirty (30) days prior to the residency, including graphics, media releases, photo and content. 4. Event Terms: • Audio/Video Recording: City reserves the right to audio and/or video record and to reproduce any live lecture, reading or speaking engagement, musical concert, interview or musical Performance performed under this Agreement, including the right to live stream the performances and reproduce them for public viewing on the City’s YouTube channel, the City’s cable channel, the City’s Library Facebook Live account, and other similar City internet platforms. City may retain the recording in its files, may replay the recordings for its employees and the public, including on the City’s online media accounts, and may make the recording available for non-circulation use at its library facilities. City shall not sell the recording. City shall provide a copy of the recording to the Performer, upon the Performer’s request. Length and duration of city’s retention and rebroadcast of recorded material will be determined in writing by mutual agreement between city and Contractor. • Cancellations due to internet connectivity, COVID-19 or other reasons: If the Performance is canceled by City due to lack of internet connectivity, new or modified restrictions in the state or county health order, acts of God, acts or any other reason, while Contractor is prepared to but has not yet performed, City will pay Contractor Contractor’s non-refundable performer out-of-pocket expenses up to time of cancellation. In the event of cancellation while Contractor is prepared for virtual event and has already set up or is in the process of setting up Contractor’s equipment, City and Contractor will discuss whether the Performance should be cancelled. If the Performance is cancelled, Contractor shall be entitled to full payment. • Contractor agrees to refrain from offering for sale or distributing material that is DocuSign Envelope ID: FDC7E7D1-AFDB-48D2-A70B-58F6B79A8EA5 City Attorney Approved Version 6/12/18 8 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 Contractor, both before and during the performance. 5. Health & Safety During the COVID-19 health-related pandemic, all activities occurring at City facilities, all Parties must adhere to the guidance from the state, county, and local authorities on health and safety protocols. City staff will inform performer(s) what the current guidelines are prior to their arrival and entering any City facility. Safety protocols may include, but are not limited to, hand washing, temperature testing, requiring face covering, maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 6. Contractor Fees Covered: All-inclusive fee to cover Contractor’s event(s) in the amount of one thousand three hundred five thousand and thirty-four dollars ($5,034). The flat fee covers the performance fee of five thousand dollars ($5,000) and thirty-four dollars ($34) for reimbursement of Carlsbad City business license. 7. Invoicing/Payment: All invoices submitted to City shall be sufficiently detailed to include related activities for review and approval by both City’s Cultural Arts Manager Richard Schultz or Community Arts Coordinator Megan Gilby. Final invoice approval will be completed by City’s Library & Cultural Arts Director or designee.