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HomeMy WebLinkAboutMuseum of Making Music, The; 2008-05-08;AGREEMENT FOR SERVICES WITH MUSEUM OF MAKING MUSIC, A DIVISION OF THE NAMM FOUNDATION TO PRODUCE TWO PETER SPRAGUE CONCERTS THIS AGREEMENT, made and entered into as of the /day of ^7^— 2008' by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City" and THE MUSEUM OF MAKING MUSIC, A DIVISION OF THE NAMM FOUNDATION, a non-profit corporation, hereinafter referred to as "Producer". RECITALS City requires the services of a producer to assist with the promotion and presentation of TWO (2) PETER SPRAGUE CONCERTS; 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 Producer will procure, with confirmation to the City, contracted services of two music ensembles headed by the San Diego County-based musician, Peter Sprague, hereinafter referred to as "Performers". Producer will contract directly with the Performers identified above and as further described in Exhibit A, attached hereto and incorporated herein. Producer will produce two (2) concerts for the City at the Ruby G. Schulman Auditorium on June 7 and June 28, 2008. Performers will play from 7:00 to 10:00 p.m. on June 7 and from 7:00 to 10:30 pm on June 28. If a concert has to be cancelled due to any Performer's inability to perform, it will be rescheduled at a date mutually agreed upon by City and Producer. 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 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 two Peter Sprague Concerts, 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 public release. Producer will provide for all box office services for both ticketed events. Producer will acquire and hold all required publishing and performance rights for music performed at the designated City venues. Producer will provide for and be responsible for all taxes, including taxes related to paid performers' fees. 2. CITY'S OBLIGATIONS The City sponsors the event and will 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 to assist the Producer with event management. 3- FEES PAID TO PRODUCER The total fee payable by the City to the Producer shall be $3,000. Producer shall be responsible for payment to the artists. Producer shall receive all proceeds from ticket sales. First Payment $ 2,000. June 2,2008 Final Payment $ 1,000. June 30,2008 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 June 30, 2008 or the date the final payment is made to Producer for the services rendered. This Agreement may be extended, by written amendment for one additional year period, based upon satisfactory performance of Producer and the City's needs. 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 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 "Peter Sprague in Concert X 2" 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 "Peter Sprague in Concert x 2" 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, et seq.] 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 and workers' compensation 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. 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. MUSEUM OF MAKING MUSIC, A Division of the NAMM Foundation, A 501 (c)3 Non-Profit Corporation *By: |\ (sign) CITY OF CARLSBAD, a municipal // Corporation Af the State of < (print name/title) (e-mail address) **By: LO City Clerk (sign) * *i *o (print name/title) S) (e-mail address) 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. By: EXHIBIT "A" Schedule of Services PRODUCER will produce two concert performances at the Ruby G. Schulman Auditorium as further set forth below. All of the services described in this Schedule of Services are activities for the "Peter Sprague in Concert x 2" concerts. PRODUCER will provide the following: Concert Performances The following concerts will be performed at the Ruby G. Schulman Auditorium at the Carlsbad City Library complex, 1775 Dove Lane, Carlsbad. PRODUCER will provide all box office services for both concerts and will receive proceeds of all ticket sales. Tickets to each concert are $10, no discounts. CONCERT # 1: NA PALI COAST TRIO Saturday, June 7, 2008, 7:00 - 10:00 pm Peter Sprague-guitar Steve Kujala-flute Bob Magnusson-bass CONCERT # 2: THE PETER SPRAGUE STRING CONSORT Saturday, June 28, 2008, 7:00 - 10:30 pm Peter Sprague — guitar Bob Magnusson — bass Duncan Moore — drums Bridget Dolkas — violin Jeanne Skrocki — violin Pam Jacobson — viola Carter Dewberry — cello There will be a 20-minute intermission in each concert, from 8:20pm to 8:40pm. Musicians unavailable to perform due to illness may be replaced by Peter Sprague, after consultation with and agreement by the PRODUCER. EXHIBIT "B" Insurance Requirements A. POLICY TYPES AND LIMITS 1. General Liability: [ ] Existing Policy Limits [ ] $500,000 [xx] $1,000,000 [ ] Waived 2. Worker's Compensation: [xx] Per Labor Code { } N/A 3. Other: B. ADDITIONAL REQUIREMENTS All required insurance is primary to any insurance carried by the CITY and must be provided by insurance carriers with a Best's Key Rating of not less than "A-:VII" who are authorized to do business in the State of California. The insurance carriers must also waive any right of subrogation against the CITY, its officers, agents, employees, volunteers and elected officials. In addition, the CITY must receive ten (10) days written notice of a cancellation, modification, or termination of any required insurance policy and be permitted, upon request, to receive complete and certified copies of any required insurance policy and endorsement. An additional insured endorsement naming the City, its officers, agents, employees, volunteers, and elected officials as additional insured's [ x ] is [ ] is not required for the general liability insurance policy. APPROVED: Risk Manager 80639606 State of California Secretary of State I, BRUCE McPHERSON, Secretary of State of the State of California, hereby certify: That the attached transcript of 3 page(s) has been compared with the record on file in this office, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the JAN 3 1 2006 BRUCE McPHERSON Secretary of State Secfttale Form CE-107 (REV 03X1/05)OSP 05 94200 HI-&-06 11:47 From- A0639606 T"545 P-OD3/OD5 F"850 ENDORSED - FILEDIn the office of the Secretary of Stateof the State of California RESTATED ARTICLES OF INCORPORATION JAN 2 4 2006 OI? INTERNATIONAL FOUNDATION FOR MUSIC RESEARCH a California nonprofit public benefit corporation Joseph Lamond and Kevin Cranley certify thai: ] They are the President and Secretary, respectively, of International Foundation for Music Research (the Corporation), a California nonprofit public benefit corporate 2, The following restatement of the Corporation's Articles of Incorporation h^^rj^;,,,; /;,.Vv approved by the Board of Directors: . :• ^'^niV'^'y •'.'" '....'•::•" •<!S-'^' .'• 4-Cj>:','•"' V 'A '--. I .'-";':'""" '~"'•"- '•'"'•' The name of this corporation is NAMM Foundation. fl This coloration is a nonprofit public benefit «f^» organised for the private gain of any person. It is organized under the Public Benefit Corporation Law for charitable purposes. m A The specific purpose of this corporation is to perform the specified in Section 509(a)(3) of the Internal Revenue Code (the Code ). B The directors of the corporation shall determine the amount and the nature 5 the support to bo provided to the orgam.atian described m Paragraph A of this Artie] em S^A^ Code; or (2) an organization described in Section 501(0(4) or (6) of the Code C If the organization listed in Paragraph A of this Article m declines to participate in a relationship of support by the corporation or ceases to £ miSLd organization (as defined below ), .ceases to exist, or experiences a ?^£Sn^*to«^ of its purposes or operations <»*»*»£** he XL of this corporation in their sole discretion), then such WOT*™ no longer be supported by the corporation and the cbtem JJLSccment organization or organizations whose purposes are dedicated gSddnt music education and/or music researc organization must be a "qualUiec organiz^n ," QI-&-06 !i:4? fro,,.T-545 P.004/005 F-850 which would be described in Section 509(a)(2) of the Code if it were an organization described in section 50] (c)(3). IV A. This corporation is organized and operated exclusively for chJiritable purposes described in Section 501(c)(3) of the Internal Revenue Code, B. Notwithstanding any other provision of these articles, this corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3) of die Internal Revenue Code or (b) by a corporation contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code. C. No substantial part of the activities of this corporation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in or intervene in any political campaign (including the publishing or distribution of statements) on behalf of, or in opposition to, any candidate for public office. V The propeity of this corporation is irrevocably dedicated to charitable purposes, and no pan of the net income or assets of this corporation shall ever inure to the benefit of any director, officer or member thereof or to the benefit of any private person. Upon the dissolution or winding up of the corporation, its assets remaining after payment, or provision for payment, of all debts and liabilities of this corporation shaJ] be distributed to one or more nonprofit funds, foundations, trusts, or corporations that are organized and operated exclusively for charitable purposes and that have established their tax-exempt status under Section 50l(c)(3) of the Internal Revenue Code, as selected by this corporation's board of directors in its sole discretion. This corporation has no members. Kevin Cranley, Secretary 0!-124-06 from-T-545 P. 005/005 F-850 Such of the undersigned declares under penalty of perjury that the statements contained in the foregoing certificate are true and correct of his own knowledge, and that this declaration executed on January l_8.t 2006, at Anaheim •_ . California.was Kevin Cranley # 3'iB39fl2_v3