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HomeMy WebLinkAboutMuseum of Making Music; 2009-12-14;AGREEMENT FOR SERVICES WITH MUSEUM OF MAKING MUSIC, A DIVISION OF THE NAMM FOUNDATION TO PRODUCE SEVEN CONCERTS THIS AGREEMENT is made and entered into as of the /^ clay of /(jUL(Lg>t«i^v2009. 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 presentation of the 2010 concert series in the Ruby G. Schulman Auditorium; and Producer possesses the necessary skills and qualifications to provide services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Producer agree as follows: 1. PRODUCER'S OBLIGATIONS Within a wide range of music in the categories of jazz, classical and world music, Producer will procure and confirm by contract the services of seven (7) different and unique music ensembles ("Performers") in a variety of musical styles. Producer will produce seven (7) concerts for the City of Carlsbad at the City's Ruby G. Schulman Auditorium, 1775 Dove Lane or other designated City venue site in the City of Carlsbad. The concerts will be held during the 2010 calendar year and during the following scheduled months: two in February, one in April, one in June, one in August, one in October and one in December, as further described in Exhibit "A" Schedule of Services, attached hereto and incorporated within. Exact dates and concert times will be determined and shall be confirmed by Producer with City's approval. If any concert has to be cancelled due to the Performer's inability to perform, the cancelled concert will be rescheduled at a date mutually agreed upon by the City and Producer. If the concert cannot be rescheduled, the fee due to the Producer shall be reduced by the value of the performance not rescheduled on a pro-rate basis. Producer will perform all services, including, but not limited to providing transportation, lodging, and any 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 seven concerts, including but not limited to website design and maintenance and direct mail promotions. All promotional materials are to be prepared by Producer and must be reviewed and approved by City prior to public release. Producer will provide for all box office services for any concert that requires tickets for admission into the venue. 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 concerts and will coordinate venue reservation schedules and technical services for all concerts with the City's Media Services Division of the Library Department, and provide adequate 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 not exceed $23,900. No other compensation or expenses shall be paid by the City for the services contemplated by this Agreement. Producer shall be responsible for all fees, including performance fees paid to the performing artists. Producer shall receive all proceeds from concerts that require ticket sales, as itemized in Exhibit "A." Payments to Producer by City shall be made as follows; subject only to deduction for pro-rata adjustment pursuant to Section 1 above: First Payment $7,966.66 Shall be due 72 hours before the first performance Second payment $7,966.67 Shall be due 72 hours before the fourth performance Final Payment $7,966.67 Shall be due 72 hours before the final performance 4. STATUS OF THE PRODUCER Producer shall perform the services provided for herein in Producer's own way, as an independent contractor of the City, and in pursuit of Producer's independent calling. Producer is not an employee of the City. Producer shall be under control of the City only as to the result to be accomplished. The payment made to the Producer, pursuant to this Agreement, 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, any agent or employee of Producer or any performing artist. The City shall not be required to pay any workers' compensation insurance on behalf of the Producer, its agents or performing artists. 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 the later of December 31, 2010 or the date the final payment is made to Producer for the services rendered. This Agreement may be extended before termination, by written amendment to this Agreement, 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 negligent or intentional 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. The Parties agrees to pay any and all costs, including reasonable attorney fees, incurred in enforcing the indemnity and defense provisions set forth in this section or Section 7 below shall be awarded to the prevailing party. 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"), necessary for Producer's performance of its obligations under this Agreement, and said Rights are either original, 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 necessary for Producer's performance of its obligations under 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 this Agreement infringe the copyright, trademark, patent or other intellectual property 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 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 8 and 9 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 Gartner Concert Series" belongs to the City and Producer has no right to independently produce or sell rights of any kind to this event except for ticket sales as set forth herein. Further, Producer agrees that Producer will not acquire any independent, individual or joint rights with the City to "The Gartner 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 reasonable request during normal business hours, all concert related accounting records and documents, and any other financial data directly related to this Agreement. City shall be permitted, at its own expense, to make copies of all such documents. 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 for each party hereto 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:•f\ CITY OF CARLSBAD, a municipal Corporation of the State of California By: City Manager ATTEST (print name/title) (e-mail address) *By: LORRAINE M. City Clerk (print name/title) KM /M /v^ (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: BALL, CjtyAttorney ^pity Attorney i EXHIBIT "A" Schedule of Services PRODUCER will produce seven (7) concert performances at the Ruby G. Schulman Auditorium, or other designated City venue in the City of Carlsbad, as further set forth below during the 2010 calendar year. All of the services described in this Schedule of Services are activities for the 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 or other designated City venue in the City of Carlsbad. Dates and times will be set based on performer and staff availability and availability of Schulman Auditorium. Three (3) of the concerts (one each for February, June and August) will be presented in the evening. Four (4) concerts (one each on February, April, October and December) will be presented in the daytime. PRODUCER will provide all box office services for the three evening concerts. Tickets to the three evening concerts will be $10 each, no discounts. Producer will receive all proceeds of the ticket sales. Tickets to the remaining four daytime concerts will be free and given out on a first-come, first-served basis. City and PRODUCER will work together to develop criteria for best selecting musicians to participate. All selected musicians will be approved by City. CONCERT #1: February 2010 daytime CONCERT #2: February 2010 evening CONCERT #3: April 2010 daytime CONCERT #4: June 2010 evening CONCERT #5: August 2010 evening CONCERT #6: October 2010 daytime CONCERT #7: December 2010 All performances will be two hours in length, unless otherwise agreed upon in writing between City and PRODUCER. Musicians unavailable to perform due to incident beyond the musician's reasonable control (e.g. illness, hospitalization, death in the family) may be replaced with alternate musicians, after consultation with and agreement by the PRODUCER. EXHIBIT "B" Insurance Requirements A. POLICY TYPES AND LIMITS 1. General Liability: [XX] Existing Policy Limits [ ] $500,000 [ ] $1,000,000 [ ] Waived 2. Worker's Compensation: [ ] Per Labor Code {XX} 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-:V" 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 thirty (30) 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 [ ] is [ ] is not required for the general liability insurance policy. APPROVED: Risk Manager