HomeMy WebLinkAboutThe Museum of Making; 2009-01-21;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 O\ \ day of j\i/\r>\A%f^MA
by and between the CITY OF CARLSBAD, a municipal corporation, h^einafter 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 2009 concert
series in the Ruby G. Schulman Auditorium; 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 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 at 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 2009 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 herein. Exact dates and concert times with 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 City and Producer. If the concert cannot be rescheduled, the fee due to
Producer shall be reduced by the value of the performance not rescheduled on a pro-rata 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 box office services for any
concert that require 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 concert 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 $20,100. 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 followed; subject only to
deduction for pro-rata adjustment pursuant to Section 1 above:
First Payment $2,872 Shall be due 72 hours before the first performance
Second Payment $2,872 Shall be due 72 hours before the second performance
Third Payment $2,872 Shall be due 72 hours before the third performance
Fourth Payment $2,872 Shall be due 72 hours before the fourth performance
Fifth Payment $2,872 Shall be due 72 hours before the fifth performance
Sixth Payment $2,872 Shall be due 72 hours before the sixth performance
Seventh Payment $2,868 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 artist. 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, 2009 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 agree that 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 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 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 "Carlsbad City Library's Seven-Concert Series"
(currently a working title) 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 "Carlsbad City Library's Seven-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 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:
CITY OF CARLSBAD, a municipal
Corporation
Cftyl^arfager
ATTEST
ite of California
(print name/title)
(e-mail address)
*By:
LORRAINE M.
City Clerk
(sign)
Larry A. Manley
(print nameW"ldlldal0ta
(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 Rv&Al-U* City Attorney
/^{Deputy City Attorney
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 2009
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) concerts (one each in February, June and August) will be
presented in the evening. Four (4) concerts (one each in 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 2009 daytime
CONCERT # 2: February 2009 evening
CONCERT #3: April 2009 daytime
CONCERT #4: June 2009 evening
CONCERT #5: August 2009 evening
CONCERT #6: October 2009 daytime
CONCERT #7: December 2009 daytime
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, mutually
agreed upon in writing by City and 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