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HomeMy WebLinkAboutCarlsbad Hi-Noon Rotary Club Foundation; 2008-09-25;AGREEMENT FOR SERVICES TO PRODUCE 2008 CARLSBAD MUSIC FESTIVAL CARLSBAD HI-NOON ROTARY CLUB FOUNDATION, INC. THISAGREEMENT, made and entered into as of the Q _ day oNT, m yq&t-^2008, by and between the CITY OF CARLSBAD, a municipal co/poraflon, hereinafter referred to as "City" and CARLSBAD HI-NOON ROTARY CLUB FOUNDATION, a non-profit corporation, hereinafter referred to as "Producer". RECITALS City requires the services of a producer to assist with the presentation of the 2008 CARLSBAD MUSIC FESTIVAL Concert Series; and Producer possesses the necessary skills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Producer agrees as follows: 1. PRODUCER'S OBLIGATIONS Within a range of music in the categories of classical and contemporary classical, Producer will procure, with confirmation to the City, contracted services of three music ensembles, a visiting composer and an Artistic Director, hereinafter referred to as "Performers". Producer will contract directly with the Performers identified in Exhibit "A", attached hereto and incorporated herein. Producer will produce three (3) concerts for the City at Schulman Auditorium on September 26, 27 and 28, 2008. Performers will play from 8:00 to 10:00 p.m. on September 26 and September 27, and from 2:00 to 4:00 pm on September 28. In addition, Producer will produce six (6) educational programs for the City, located at designated schools within the City (see Exhibit "A") on September 23, 24 and 25. These educational programs will feature Performers; each program will last fifty (50) minutes. Producer will perform all services, including, but not limited to providing transportation, lodging, and special equipment as Producer shall negotiate with Performers. Payment for all performance services at concerts and educational programs and all other activities agreed between Producer and Performers will be the responsibility of the Producer. Producer will procure and provide for all promotional and paid advertising services for the Carlsbad Music Festival, including but not limited to website design and maintenance and direct mail promotions. All promotional materials are prepared by Producer and must be reviewed and approved by City prior to pubic release. Producer will provide for all box office services for all Carlsbad Music Festival ticketed events. Producer will acquire and hold all required publishing and performance rights for music performed at the designated venues. Producer will provide for and be responsible for all required taxation of paid performers' fees. For a more complete and detailed description of the Schedule of Services required under this Agreement, please see Exhibit "A". City Attorney Approved Version #1 1 .28.06 2. CITY'S OBLIGATIONS The City sponsors the event and will schedule all educational programs, coordinate facility reservation schedules and technical services for all concerts with the Media Services Division of the Library Department, and provide staff at each concert and educational program to assist the Producer with event management. 3- FEES PAID TO PRODUCER The total fee payable shall be fifteen thousand dollars ($15,000). No other compensation from the City for services will be allowed. Fees will be payable as follows: First Payment $ 6,000 September 26,2008 Second Payment $ 6,000 September 29, 2008 Third Payment $ 3,000 October 7,2008 If a concert or an educational program has to be canceled due to any Performer's inability to perform, the compensation will be reduced as follows: $3,000 for each canceled concert $1,000 for each canceled educational program. 4. STATUS OF THE PRODUCER Producer shall perform the services provided for herein in Producer's own way as an independent contractor and in pursuit of Producer's independent calling, and not as an employee of the City. Producer shall be under control of the City only as to the result to be accomplished. The Producer is an independent contractor of the City. The payment made to the Producer pursuant to the contract shall be the full and complete compensation to which the Producer is entitled. The City shall not make any federal or state tax withholdings on behalf of the Producer. The City shall not be required to pay any workers' compensation insurance on behalf of the Producer. The Producer agrees to indemnify the City for any tax, retirement contribution, social security, overtime payment, or workers' compensation payment, which the City may be required to make on behalf of the Producer or any employee of the Producer for work done under this agreement. The Producer shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in this Agreement. 5. DURATION OF CONTRACT This Agreement shall be effective from the date first written above and shall terminate on October 7, 2008 or the date the final payment is made to Producer for the services rendered. City Attorney Approved Version #11.28.06 6. HOLD HARMLESS AGREEMENT With respect to any liability, including but not limited to claims asserted, any legal theory(ies) advanced or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Producer, or the Producer's employees, agents, and officers, arising out of any services performed under this Agreement, Producer agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, and employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Producer, its employees, agents or officers, or any third party. The Producer's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. The Producer agrees to pay any and all costs, including reasonable attorney fees, the City incurs enforcing the indemnity and defense provisions set forth in this section or Section 7 below. 7. INTELLECTUAL PROPERTY WARRANTY AND INDEMNIFICATION Producer represents and warrants that Producer holds or will hold all required intellectual property rights, whether said right or rights originate in copyright, trademark patent or other intellectual property right ("Rights"), provided under and pursuant to this Agreement, and said Rights are either original, not encumbered and do not infringe upon the copyright, trademark, patent or other intellectual property rights of any third party, or are in the public domain. If any Rights related to the subject matter of this Agreement becomes the subject of a claim, suit or allegation of copyright, trademark or patent infringement, Producer further agrees to indemnify and hold harmless the City, its officers, employees and agents from and against any and all claims, actions, costs, judgments or damages of any type alleging or threatening that the Performer's performance or Rights provided pursuant to this Agreement infringe the copyright, trademark, patent or other intellectual property or proprietary rights of any third party (Third Party Claims of Infringement). If a Third Party Claim of Infringement is threatened or made before Producer receives payment under this Agreement, City may, upon written notice to Producer, withhold some or all of such payment. 8. ASSIGNMENT OF CONTRACT The Producer shall not assign the obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due, without the City's prior written approval. Any assignment in violation of this paragraph shall constitute a Default and is grounds for immediate termination of this Agreement, at the sole discretion of the City. In no event shall any putative assignment create a contractual relationship between the City and any putative assignee. 9. SUBCONTRACTING If the Producer shall subcontract any of the work to be performed under this Agreement by the Producer, Producer shall be fully responsible to the City for the acts and omissions of persons directly employed by Producer Nothing contained in this Agreement shall create any City Attorney Approved Version #11.28.06 contractual relationship between any subcontractor of the Producer and the City. The Producer shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Producer's work unless specifically noted to in the subcontractor agreement in question and approved in writing by the City. 10. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this Agreement, shall affect or modify any of the terms or obligations herein contained nor entitle the Producer to any additional payment whatsoever under the terms of this Agreement. 11. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraphs 6 and 7 above, all terms, conditions, and provisions hereof shall insure to and bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 12. PRODUCTION RIGHTS The Producer agrees that the right to produce "The 2007 Carlsbad Music Festival" belongs to the City and Producer has no right to independently produce or sell rights of any kind to this event. Further, Producer agrees that Producer will not acquire any independent, individual or joint rights with the City to "The 2007 Carlsbad Music Festival" concerts or concert series. The Parties agree that this is a "work for hire" business arrangement under the United States Copyright Act of 1976 [17 U.S.C. §§101, etseq.] and any other applicable law. 13. INSURANCE Pursuant to Exhibit "B", attached hereto and incorporated herein, Producer is required to show proof of general liability insurance to the City before commencement of work in the performance of the 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. Although not required, Producer is encouraged to maintain any additional insurance(s) policies that Producer, in its own discretion, feels it should maintain in force and effect throughout the term of this Agreement. 14. ACCOUNTING RECORDS Producer shall maintain complete and accurate records in accordance with generally accepted accounting practices in the industry. Producer shall make available to the City for review and audit, upon request all concert related accounting records and documents, and any other financial data. Upon City's request, Producer shall submit exact duplicates of originals of all requested records to the City. 15. BUSINESS LICENSE Producer is exempt from the obtaining of a City of Carlsbad Business License under Carlsbad Municipal Code Section 5.04.080. City Attorney Approved Version #11.28.06 16. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Producer each represent and warrant that they have the legal power, right and actual authority to bind Producer to the terms and conditions of this Agreement. CARLSBAD HI-NOON ROTARY CLUB FOUNDATION *By:<""^ (sign here) (print name/title) W (g r (e-mail address) *By:|j, (sign) K;. (print name/title) (e-mail address) CITY OF CARLSBAD, a municipal Corporation of the State of California By: 5L City Manager or Mayor ATTEST: I LORRAINE City Clerk If required by City, proper notary acknowledgement 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. Chairman, President, or Vice-President *Group B Secretary, Assistant Secretary, 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: RONALD R/E^LJ-, City Attorney )eputy City Attorney City Attorney Approved Version #11.28.06 EXHIBIT "A" Schedule of Services PRODUCER will produce three concert performances at the Ruby G. Schulman Auditorium as further set forth below, and six free educational outreach programs at the below designated Carlsbad schools by the ensembles and artists ("Performers") as specified below. PRODUCER will provide pre-concert lecture/discussions and post-concert receptions attended by the Performers. PRODUCER will provide all box office services for all concerts. All of the services described in this Schedule of Services are activities for the 2008 Carlsbad Music Festival. PRODUCER will provide the following: Educational Outreach Programs Tuesday, September 23, 2008 at a time to be determined (TBD): One education session at Carlsbad High School for Music Program students by BUILD and Matthew McBane. Tuesday, September 23, 2008 at a time TBD: One education session at La Costa Canyon High School for Music Program students by Red Fish Blue Fish. Wednesday, September 24, 2008 at a time TBD: One education session at Valley Middle School for students in the Music Program by the Calder Quartet and Fabian Svensson. Wednesday, September 24, 2008 at a time TBD: One education session at Aviara Oaks Middle School for students in the Music Program by BUILD and Matthew McBane. Thursday, September 25, 2008 at a time TBD: One education session at La Costa Canyon High School for students in the Music & Media Programs by the Calder Quartet and Fabian Svensson. Thursday, September 25, 2008 at a time TBD: One education session at Pacific Ridge School for students in the Music & Media Programs by Red Fish Blue Fish. Concert Performances All the following concerts will be performed at the Ruby G. Schulman Auditorium (pre-concert lectures and concerts) and Gowland Meeting Room (post-concert receptions) at the Carlsbad City Library, 1775 Dove Lane, Carlsbad. Friday, September 26, 2008: 7pm, lecture; 8pm, concert performance The Calder Quartet premieres a new work by 2008 Carlsbad Music Festival Composers Competition Winner, Fabian Svensson, and performs a work by Tristan Perich, with both composers in attendance to discuss their creation of new works for this ensemble. Saturday, September 27, 2008: 7pm, lecture; 8pm, concert performance Red Fish Blue Fish percussion ensemble will perform, with LJCSD Distinguished Professor of Music Steve Schick, Artistic Director of the ensemble, in attendance to discuss the program. City Attorney Approved Version #11.28.06 Sunday, September 28, 2008: 1pm, lecture; 2pm; concert performance Partch ensemble will perform on unique instruments designed by the iconoclastic American Maverick composer Harry Partch, long-time resident of Leucadia and San Diego and an important part of the nation's musical history, with Partch Artistic Director John Schneider in attendance to discuss the composer's innovative music. City Attorney Approved Version #11.28.06 CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE I, Kip K. McBane, am the Treasurer of the Carlsbad Hi-Noon Rotary Club Foundation. I hereby certify that the Carlsbad Hi-Noon Rotary Club Foundation has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should the Carlsbad Hi-Noon Rotary Club Foundation employ any person during the term of the Agreement with the City of Carlsbad for the 2008 Carlsbad Music Festival then workers' compensation and employers' liability insurance will be obtained. Kip K. McBane Treasurer* Carlsbad Hi-Noon Rotary Club Foundation H:\WORD\Insurance\Admin Order #68 waiver WC.doc