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HomeMy WebLinkAboutMLAM Inc; 2024-02-01; PSALCA-24011CAPSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 1 AGREEMENT FOR PERFORMANCE SERVICES MLAM, INC. THIS AGREEMENT is made and entered into as of the _____ day of _________________, 2024, by and between the City of Carlsbad, California, a municipal corporation ("City") and MLAM, Inc., a California corporation ("Contractor”, “Representative”), collectively, the “Parties”.) RECITALS City requires the professional services of an established organization that warrants that they have the authority to represent and are experienced in contracting artists and performers for performances. Contractor has the necessary experience in providing these professional services, has submitted a proposal to the 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 (1) year from the date first above written. 3. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed five thousand five hundred dollars ($5,500). 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 defend (with counsel approved by the City), indemnify, and hold harmless the City and its officers, elected and appointed 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 willful misconduct or negligent act or omission 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 DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484D8 1st February PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 2 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. 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 Suzanne Smithson Name Marian Liebowitz Title Library & Cultural Arts Director Title CEO/CFO, MLAM, Inc. Department Library & Cultural Arts Address 73218 Fiddleneck Lane City of Carlsbad Palm Desert, CA 92260 Address 1775 Dove Lane Phone No. 619-988-0751 Carlsbad, CA 92011 Email marian@marianliebowitz.com Phone No. 442-339-2011 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 as required in the City of Carlsbad Conflict of Interest Code. Yes No DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484D8 D IZI PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 3 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. 10. CALIFORNIA AIR RESOURCES BOARD (CARB) ADVANCED CLEAN FLEETS REGULATIONS Contractor’s vehicles with a gross vehicle weight rating greater than 8,500 lbs. and light-duty package delivery vehicles operated in California may be subject to the California Air Resources Board (CARB) Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets webpage at https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. This Agreement may be executed in counterparts. DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484DB PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 4 17. 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 MLAM, Inc., a California Corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: MARIAN LIEBOWITZ, CEO/CFO SUZANNE SMITHSON Library & Cultural Arts Director As authorized by City Manager ATTEST: For SHERRY FREISINGER City Clerk 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: CINDIE K. McMAHON, City Attorney By:____________________________________ City Attorney DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484DB For SHERRY FREISINGER PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 5 EXHIBIT A SCOPE OF SERVICES AND FEE Contractor will provide professional services by representing talent and artists for performances for the City’s cultural arts performing arts programs at the Carlsbad City Library, Ruby G. Schulman Auditorium, 1775 Dove Lane, Carlsbad, CA. Contractor is experienced in providing professional services and advice related to talent engagement. 1.CONTACT INFORMATION Representative: Marian Liebowitz, 619-988-0751, marian@marianliebowitz.com Aaron J. Liebowitz, 619-988-0751, aaron@marianliebowitz.com City: Senior Management Analyst, Fiona Everett, 442-339-2014, fiona.everett@carlsbadca.gov Program & Venues Coordinator Thomas Johnston, 442-339-2093, thomas.johnston@carlsbadca.gov Cultural Arts General Phone 442-339-2090 2. PERFORMANCE EVENT SCHEDULE Three (3) in-person concerts on the following dates in support of the City’s Performing Arts Programs: Event Dates Event Start Time Event End Time Event Title / Group Name Genre Saturday, 2/24/2024 7:30 p.m. 8:30 p.m. Blue Note Blues / LP & The Vinyl Blues Saturday, 3/9/2024 7:30 p.m. 8:30 p.m. Irish Eyes Are Smilin’ /Finnegan Blue Irish Folk Saturday, 5/11/2024 7:30 p.m. 8:45 p.m. Bordenos / Mariachi Garibaldi de Jaime Cuellar Latin X Access to venue/stage will be coordinated by City and Contractor in thirty (30) days in advance of the performance. Any changes in dates/times can be authorized by and with notification in writing to the Senior Management Analyst or Designee at least thirty (30) days in advance to the predetermined date listed above. 3. PARKING City will provide reasonable access to the Venue Site’s stage area for Performer’s vehicle solely for the purpose of loading and unloading equipment and will provide legal parking for performer’s vehicle during the performance. At City’s option and depending on available parking at Venue Site, City may allow performer extended parking privileges when Performer is not actively performing on stage. 4. LODGING/MEALS RESERVED DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484DB • • • • • PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 6 5.SOUND City will provide a sound amplification system that is in good working order and capable of conforming to the size of the audience, acoustics of the Venue Site and producing quality sound reproduction. In the event that Performer is providing the sound system and special electrical needs are required, Performer shall notify City of its needs at least thirty (30) days in advance of the first Performance date. Failure to timely notify the City will result in Performer assuming all the responsibility of providing its own electricity for the sound system. If required by state or local laws, Performer will obtain all necessary permits and approvals associated with the provision of electricity. 6. STAGE LIGHTING City will provide stage lighting that is in good working order and capable of conforming to the size of the audience, Venue Site and the needs of the Production. In the event that Performer is providing the stage lighting system and special electrical needs are required, Performer shall notify City of its needs at least thirty (30) days in advance of the first Performance date. Failure to timely notify the City will result in Performer assuming all the responsibility of providing its own electricity for the stage lighting system. If required by state or local laws, Performer will obtain all necessary permits and approvals associated with the provision of electricity. 7. VENUE-HOSPITALITY – RESERVED 8. CONCESSION SALES Performer shall have the right to offer limited items for sale at the Performance (e.g. books, CDs, DVDs, and audio/video tapes) at a rate of 0% commission (City’s fee based on gross revenue from sales). Performer agrees to refrain from offering for sale or distributing material that is 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 Performer, both before and during the performance. 9. PUBLICITY Performer may provide publicity and promotional materials to City for advertising the Performance. Performer and/or Representative represents and warrants that City may use all promotional materials received from Performer or Representative to promote the Performance in all advertising media, including without limitation, print, TV, radio, Internet, etc., without being in violation of any third party intellectual property rights. Performer agrees to be available for personal interviews. City reserves the right to photograph the Performance for the purpose of publicizing, advertising, or promoting the City of Carlsbad and/or programs (collectively “Usage”). Performer(s) waive the right to any fees, royalties, or control, now or in the future, and Performer(s) grant full permission for the use of Performer(s)’ image, including without limitations, name, likeness, and biography related City’s Usage. Performer(s) relinquish any right that Performer(s) may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484D8 PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 7 use to which it may be applied, includingin all media now in existence or may come into existence in the future. 10.RADIO AND TELEVISION COVERAGE Performer agrees to permit reasonable Radio or Television news coverage of the Performance. City will try, but is not required, to let Performer know whether Radio or Television news coverage is planned or will be occurring during the Performance. City is not responsible for securing prior consent of Performer for said Radio or Television coverage. City is not responsible for obtaining copies of any footage that is broadcasted on any Radio or Television station for the benefit of Performer. City will assist Performer in trying to identify which Radio or Television station is on scene. In the event that Performer does not desire to have any Radio or Television coverage of the Performance, Performer shall be solely responsible for notifying the Radio or Television station(s) of this desire. If unauthorized taping or broadcasting of Performance occurs, City shall not be deemed in breach of this contract. 11.CITY AUDIO/VIDEO RECORDING City reserves the right to audio and/or video record any lecture, reading or speaking engagement; including live streaming the event to any location(s) owned and/or controlled by the City; but not any musical concert or musical Performance. City may retain the recording in its files, may replay the recordings for its employees, and may make excerpts available for public viewing. City shall make no more than three copies of the recordings. City shall not sell the recording. City shall provide a copy of the recording to the Performer, upon the Performer’s request. 12. WEATHER AND OTHER TYPES OF CANCELLATIONS RE: PERFORMANCE If Performance is canceled by City due to inclement weather, acts of God, acts or any other reason, while Performer is traveling to or is already at Venue Site, but has not yet performed, City will pay Performer’s out-of-pocket travel expenses to the Venue Site. In the event that a storm should develop while Performer is at the Venue Site and has already set up or is in the process of setting up Performer’s equipment, City and Performer will discuss whether the Performance should be cancelled. If the Performance is cancelled, Performer shall be entitled to full payment. 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. 13. GENERAL CANCELLATION The City reserves the right to cancel each engagement for any reason at any time prior to thirty (30) days preceding the engagement, voiding this contract and excusing the City from any payment or other compensation. If this contract is canceled by the Performer less than thirty (30) days prior to the scheduled engagement, the Performer will reimburse the City any deposit funds, if any, to help defray the production, promotion and labor costs that are incurred up to the date of the cancellation. DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484D8 PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 8 14.PERFORMANCE CONTENT The Performer 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. Performer 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. Performer shall be solely responsible for the content of the Performance. 15. LOSSES It is understood and agreed that the City shall not be responsible for any loss of or damage to the property of the Performer, or for the acts or omissions of the audience. 16.INDEPENDENT CONTRACTOR The Performer(s) and/or Representative are independent contractors and not employees of City. No Performer(s) or his/her employees or Representative or his/her/it employees are or shall hold themselves out as an agent or employee of the City. The Agent or Performer shall have no authority to make any commitment on behalf of the City. Performer and/or Representative shall be responsible to pay all applicable state, local and federal taxes associated with this agreement. 17. SUBJECT MATTER Performer agrees to refrain from presenting or performing material that is 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. 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 Performer because of violation of this paragraph, City shall not be liable to Performer for the balance owed under this Agreement and all monies paid to Performer shall be full and complete payment of Performer’s services. In the event of this occurrence, City shall not be deemed to be in breach of this agreement. 18. PRODUCTION RIGHTS The Performer agrees that the right to produce the event(s) which are the subject matter of this Agreement belongs solely to the City and Performer has no right to independently produce or sell rights of any kind to this event. Further, Performer agrees that Performer will not acquire any independent, individual or joint rights with the City to the event(s) which are the subject matter of this Agreement. The Parties agree that this event(s) 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. 19. HEALTH & SAFETY During any 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 Contractor 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 DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484D8 PSALCA-24011CA City Attorney Approved Version 12/22/2023 Page 9 covering, maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 20. PROJECT PAYMENT SCHEDULE The Contractor shall invoice the City for each scheduled event in the performance schedule in advance. Each invoice will detail the services to be provided and the associated costs as per the agreed performance fees for each event. The City shall pay each invoice within thirty (30) days following the completion of the respective performance. The specific payment amounts for the currently scheduled events are as follows: Event Dates City Program Artist Performance Fee Saturday, 2/24/2024 Front Row Saturday LP & The Vinyl NTE $1,500 Saturday, 3/9/2024 Showtime @ The Schulman Finnegan Blue NTE $1,500 Saturday, 5/11/2024 Showtime @ The Schulman Mariachi Garibaldi de Jaime Cuellar NTE $2,500 In the event of cancellation or postponement of any scheduled event due to circumstances beyond the Contractor's control, the City and Contractor shall engage in good faith negotiations to reschedule the event. If rescheduling is not feasible, the City, at its sole discretion, may adjust the payment owed to the Contractor on a pro-rata basis based on services rendered up to the point of cancellation or postponement. 21. INVOICING / PAYMENT All invoices shall be submitted to City’s Senior Management Analyst or Designee and shall be sufficiently detailed to include related activities and costs. All invoice approval will be completed by City’s Library & Cultural Arts Director or Designee. DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484DB DocuSign Envelope ID: 5A4D8173-4832-42A0-B696-17E18C6484DB WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s ). Requested by: Thomas Johnston, Library & Cultural Arts 1/24/2024 (Name and Department) (Date) Proposed modification(s) to the General Liability requirement(s) for ___ M_L_A_M_,_ln_c_. ______ _ (Type of insurance) (Name of contract) D Reduce coverage to the amount of: =-$ ______ _ ~ Waive coverage D Other: --------------------------------- FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) □Significance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] _______ _ □Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain: include number of candidates RFP sent to and number responded if applicable J __________ _ □Contract Amount/Term of Contract: $ _______ . Work will be completed over a period of __ _ □Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain}. ___________________________ _ ~Other (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): Musical performances at The Schulman Auditorium at 1775 Dove Lane, Carlsbad, CA 92011 on 2/24/2024, 3/9/2024 and 5/11/2024 pose minimal risk. Approved by Risk Manager for this contract only: 2/1/2024 (Signature) (Date)