Loading...
HomeMy WebLinkAboutFunny Business Agency Inc; 2024-02-26; PSALCA-24006CAPSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 1 AGREEMENT FOR PERFORMING ARTS SERVICES FUNNY BUSINESS AGENCY, 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 Funny Business Agency, Inc., a Michigan corporation ("Contractor”, “Representative”), (collectively the “Parties”). RECITALS City requires the professional services of a representative who warrants that they have the authority to represent and contract artists and performers for the City. Contractor has the necessary experience in providing these professional services and advice related to performing arts services, has submitted a proposal to 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 will be Five thousand dollars ($5,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. 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 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. DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 26th February PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 2 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 Fiona Everett Name Jamison Yoder Title Sr. Management Analyst Title Corporate Accounts Department Library & Cultural Arts Address 7125 Headley Street, #1052 City of Carlsbad Ada, Michigan 49301 Address 1775 Dove Lane Phone No. 888-593-7387 x. 100 Carlsbad, California 92011 Email jamison@funny-business.com Phone No. 442-339-2014 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. DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 3 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 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 this 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 DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA1663 PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 4 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. 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 FUNNY BUSINESS AGENCY, INC. a Michigan corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: JOHN YODER President & Secretary By: SUZANNE SMITHSON Library & Cultural Arts Director as authorized by the 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: 00377F53-2176-449A-84BC-EAD11 EFA1663 CONTRACTOR FUNNY BUSINESS AGENCY, INC. a Michigan corporation By : JOHN YODER President & Secretary BY:UIA-/4it-k. ~IA, City Attorney By: SUZANNE SMITHSON Library & Cultural Arts Director as authorized by the City Manager ATTEST: j~R..--WV,~ For SHERRY FREISINGER City Clerk PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 5 EXHIBIT “A” SCOPE OF SERVICES Contractor is providing a lineup of artists for a comedy event titled "Night of a Thousand Laughs," scheduled for Saturday, April 13, 2024. The performances will focus on current themes and trends, aiming to deliver an engaging and relevant comedy experience. The scope includes coordination with the artists to confirm the nature of their acts, ensuring alignment with the event's objectives and audience expectations. 1.CONTACT INFORMATION Contractor Alicia Wobma, alicia@funny-business.com, 888-593-7387 x100 Jamison Yoder, jamison@funny-business.com, 888-593-7387, x 101 City Sr. Management Analyst, Fiona Everett, 442-339-2014, fiona.everett@carlsbadca.gov Programs & Venue Coordinator, Thomas Johnston, 442-339-2093, thomas.johnston@carlsbadca.gov Cultural Arts administration, 442-339-2090 2. EVENTS & SERVICES Representative shall provide agency services to schedule performers for the City. Representative’s fee for agency services shall include performer fees. Representative warrants that they have the authority to represent and contract on behalf of identified performers for live performances. Name of event: Comedy Night titled Night of a Thousand Laughs Venue: Carlsbad City Library, Ruby G. Schulman Auditorium 1775 Dove Lane, Carlsbad, CA 92011 Capacity of Auditorium: 215 seats Description of Performances: Comedy with Dwayne Perkins and Kira Soltanovich Fee: None – Free to public Date(s) of performance: Saturday, April 13, 2024 Time schedule: 7:30 to 8:45 p.m. Expected arrival time: 5 p.m. Access to venue/stage: 5 p.m. No. of sets/workshops: Two (one set from each performer) Length of each sets/workshop: Each to last approximately 35-40-minutes Number/length of Breaks: N/A DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 • • • • • PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 6 Any changes in dates/times can be authorized by and with notification in writing to the City’s Sr. Management Analyst or designee in writing via email at least thirty (30) days in advance to the predetermined date listed above. 3. PARKING - Reserved 4. LODGING/MEALS - Reserved 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 - Reserved 9. PUBLICITY Representative 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, if/as schedule allows. 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. 10. RADIO AND TELEVISION COVERAGE - Reserved 11. CITY AUDIO/VIDEO RECORDING - Reserved 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 Performer’s out-of-pocket travel expenses to the Venue Site. In the event that a storm should develop while DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 7 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. 13. GENERAL CANCELLATION The City reserves the right to cancel this engagement for any reason at any time prior to 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 30 days prior to the scheduled engagement, the Performer will reimburse the City the amount of $N/A to help defray the production, promotion and labor costs that are incurred up to the date of the cancellation. 14. PERFORMANCE CONTENT The Performer(s) and/or Representative 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 performer(s) 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, DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 PSALCA-24006CA City Attorney Approved Version 12/22/2023 Page 8 temperature testing, requiring face covering, maintaining physical distancing of six feet. The safety protocols may be modified at any time due to changing rules, regulations, or circumstances. 20. PERFORMANCE FEE Contract shall be entitled to a Flat Rate Fee in the amount of Five thousand dollars ($5,000) for the April 13, 2024, Saturday evening engagement. The Flat Rate fee is inclusive of all compensation for services rendered under this Agreement, including, without limitation, the Contractor’s travel expenses, and accommodations while in Carlsbad, CA. This Flat Rate Fee represents a total maximum amount payable to the Contractor as stipulated in Section 3 of this Agreement and includes the Initial Payment and Final Payment outlined below. Payment Schedule Activity Initial Payment An 80% deposit of $4,000 due upon the execution of the agreement. Final Payment A 20% payment of $1,000 due at delivery of event. If any unperformed portion of the event or event series is canceled due to the Contractor’s inability to perform, the unperformed portion of the event or event series may be, if feasible, rescheduled to a new date(s) that is/are mutually agreeable to City and Contractor. If a replacement event cannot be rescheduled, the fee due to the Contractor may, at City’s sole discretion, be reduced on a pro-rata basis by the value of the event not performed. 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. Final invoice approval will be completed by City's Library & Cultural Arts Director or designee. DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA 1663 DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA1663 ~ ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 12/08/2023 THIS CERTIFICATE IS ISSUED ASA MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: lf the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. lf SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT MARK F. SMITH NAME: SMITH & COMPANY, INC. r ... ~gN~o ~xtl• 6162853212 I FAX IA/C Nol: 616-285-0454 3333 DEPOSIT DR NE STE 310 E-MAIL msmith@smithco-insurance.com ADDRESS: INSURERISl AFFORDING COVERAGE NAIC# GRAND RAPIDS Ml 49546 INSURERA: ACCIDENT FUND COMPANY 10166 INSURED FUNNY BUSINESS AGENCY, INC. INSURERB: PO BOX 1052 INSURERC : ADA Ml 49301 INSURERD: INSURERE: INSURERF : COVERAGES CERTIFICATE NUMBER: 20231208113325164 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTVVITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICYEXP LTR TYPE OF INSURANCE INC,n wun POLICY NUMBER fMM/DD/YYYYl fMM/DD/YYYYl LIMITS COMMERCIAL GENERAL UABILITY EACH OCCURRENCE $ -□ CLAIMS-MADE □ OCCUR DAMAGE TO RENTED PREMISES /Ea occurrencel $ -MED EXP (Any ane person) $ PERSONAL & ADV INJURY $ - GEN'L AGGREGATE LIMIT APPLIES PER: GENERALAGGREGATE $ =7 □ PRO-□LOG PRODUCTS -COMP/OP AGG $ POLICY JECT OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ /Ea accidentl -ANY AUTO BODIL Y INJURY (Per person) $ -01/\/NED -SCHEDULED BODIL Y INJURY (Per accident) $ -AUTOSONLY -AUTOS HIRED NON-01/\/NED PROPERTY DAMAGE $ AUTOSONLY AUTOSONLY /Per accidentl -f-- $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESSUAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION $ $ WORKERS COMPENSATION X I ~ifrnTE I I OTH- AND EMPLOYERS" UABILITY ER Y/N A ANYPROPRIETOR/PARTNER/EXECUTIVE □ N ARP12000801600 10/25/2023 10/25/2024 E.L. EACH ACCIDENT $ 100,000 OFFICER/MEMBEREXCLUDED? N/A (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ 100,000 lf yes, describe under E.L. DISEASE -POLICY LIMIT $ 500,000 DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES (ACORD 101, Addltlonal Remarks Schedule, may be attached lf more space Is requlred) CERTIFICATE HOLDER CANCELLA TION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE FUNNY BUSINESS AGENCY, INC. THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 00377F53-2176-449A-84BC-EAD11 EFA1663 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 2/13/2024 (Name and Department) (Date) Proposed modification(s) to the General Liability requirement(s) for __ F_u_nn~y_B_u_s_in_e_s_s_A~g_en_c~y_, _ln_c_. __ (Type of insurance) (N arne of contract) D Reduce coverage to the amount of: =-$ ______ _ ~ Waive coverage D Other: --------------------------------- FACT0R(S) IN SUPPORT 0F M0DIFICATI0N(S) (check those that apply) OSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope ofwork and the quality ofthe work-product. [explain] _______ _ OSignificance 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 __________ _ OContract 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]. ___________________________ _ ~0ther (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): Comedy event at The Schulman Auditorium at 1775 Dave Lane, Carlsbad, CA 92011 on 4/13/2024 poses minimal risk. Approved by Risk Manager for this contract only: d bo..r&b 2/23/2024 (Signature) (Date)