HomeMy WebLinkAboutC-9240-7 - Performance Agreement for Summer Reading Program: Dig Dug and the Dino-Mites Puppet and Magic Showr
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PERFORMANCE AGREEMENT
WITH HEY HEY ENTERTAINMENT, LLC FOR
SUMMER READING PROGRAM: DIG DUG AND THE DINO-MITES PUPPET AND
MAGIC SHOW
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 8th day of February, 2024 ("Effective Date") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and HEY
HEY ENTERTAINMENT, LLC, a California limited liability company ("Performer"), whose
address is 3441 Faust Avenue, Long Beach, CA 90808 and it is mutually agreed by and
between the undersigned parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2024, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performance:
Summer Reading Program: Dig Dug and the Dino -Mites Puppet and Magic
Show ("Performance").
2.2 Performer shall provide such Performance at the following locations
("Library"), dates and times as follows:
Location: Newport Beach Central Library
1000 Avocado Avenue, Newport Beach, CA
Date: June 25, 2024
Time: 11:00 a.m.
Location: Newport Beach Library — Balboa Branch
100 East Balboa Boulevard, Newport Beach, CA
Date: June 26, 2024
Time: 3:00 p.m.
Location: Newport Beach Library — Corona Del Mar Branch
410 Marigold Avenue, Corona Del Mar, CA
Date: June 27, 2024
Time: 3:00 p.m.
Location: Newport Beach Library — Mariners Branch
1300 Irvine Avenue, Newport Beach, CA
Date: June 29, 2024
Time: 11:00 a.m.
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Performer shall complete all set up as follows:
Central Library:
10:30 a.m.
Balboa Branch:
2:30 p.m.
Corona Del Mar Branch:
2:30 p.m.
Mariners Branch:
10:30 a.m.
2.2.1 City shall have the option, in -lieu of or in addition to providing an in -
person Performance, to record Performances and exercise its discretion in the event it
wishes to stream the Performances at a later date pursuant to Section 5.1.
2.3 The City shall be responsible for:
Performance;
2.3.1 Providing sound equipment and amplification system for the
2.3.2 Providing lighting and seating for the Performance; and
2.3.3 Providing portable electrical power.
2.4 Performer shall be responsible for:
2.4.1 Providing a Performance at the Library, in accordance with the
schedule set forth herein, including a sound check to be completed at least two (2) hours
prior to the Performance;
2.4.2 Providing all musical instruments, peripheral equipment, musicians,
vocalists and/or other participants necessary to present an excellent Performance at the
Library;
2.4.3 Providing directions and travel arrangements sufficient for all
musicians, vocalists, musical instruments and/or other participants to travel to the Library
for the Performance;
2.4.4 Contacting the City's contracted sound engineer in advance of the
Performance to evaluate the set up for all sound equipment on the stage;
2.4.5 Food, refreshments and personal requirements for all musicians,
vocalists and/or other participants;
2.4.6 Following all directions of City staff as to the entry and egress from
the stage in the Library, including when loading and unloading any equipment;
2.4.7 Obtaining prior written approval from the City for all printed (including
electronically delivered) materials related to all Performances under this Agreement,
including press releases, prior to any distribution;
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2.4.8 Immediately reporting to the Program Coordinator any damage to the
Performance facility that could cause potential injury to users of the Library, or other
needed maintenance repairs or requirements;
2.4.9 Maintaining the highest degree of participant and audience safety
possible and completely following all City policies and procedures by immediately
reporting any injuries as a result of each Performance;
2.4.10 Performer shall at all times maintain professional, courteous, and
appropriate conduct for this family -friendly facility, and shall be free from the influence of
alcohol or drugs; and
2.4.11 Performer agrees, assures and certifies that, except as permitted by
law, no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, age, physical disability, mental disability, medical condition including the
medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition
related thereto, marital status, sex, sexual orientation, or any other impermissible basis
under law, be excluded from participation in or be denied the benefits of the services
provided pursuant to this Agreement, and that Performer shall not discriminate on said
grounds in the selection and retention of employees and the procurement of materials
and equipment, except as provided in Section 12940 of the Government Code of the State
of California. Performer shall also conform to the requirements of the Americans with
Disabilities Act in the performance of all obligations under this Agreement.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of this Agreement and Performer
shall provide the Performance in accordance with the schedule indicated above.
Notwithstanding the foregoing, Performer shall not be responsible for delays due to
causes beyond Performer's reasonable control.
3.2 In the event of illness, Performer is required to notify City twelve (12) hours
prior to cancellation of the Performance. If canceling a Performance for any reason other
than illness, Performer shall provide two (2) weeks' notice to the Program Coordinator.
In the event of cancellation, Performer shall return all monies advanced by the City.
3.3 For all time periods not specifically set forth herein, Performer shall
communicate with City in the most expedient and appropriate manner under the
circumstances, by fax, hand -delivery or mail.
4. COMPENSATION TO PERFORMER
City shall pay Performer for the Performance on a flat rate basis in accordance
with the provisions of this Section. Performer's compensation for the
Performanceprovided in accordance with this Agreement, inclusive of all dates, including
all reimbursable items and fees, shall not exceed One Thousand Five Hundred Five
Dollars and 00/100 ($1,505.00) without prior written authorization from City. No rate
changes shall be made during the term of this Agreement without the prior written
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approval of City. City shall pay Performer upon Performer's arrival for set-up on the date
of the Performance.
5. MEDIA
5.1 RECORDING/PHOTOGRAPHY. At City's discretion and expense,
Performer grants City the absolute and irrevocable right and permission to record video,
film, photograph, make audio recordings or any other media (collectively, the "Material")
of the Performance. Performer agrees that the City will be the owner of the Material and
the Material may be incorporated in or used in connection with media productions created
by or agreed to by the City to air on Newport Beach Television known as "NBTV", the
City's government access cable TV channel, and for promotional, advertisement and
archival purposes. City agrees to limit use of such Material to said purposes.
5.2 PRESS AND PROMOTIONS. Performer hereby grants City the absolute
and irrevocable right and permission to include Performer's name, likeness, voice and
biographical information as well as excerpts from Performer's pre-recorded work (CD,
DVD, or other media) in promotional literature and advertisements for the Performance,
including, but not limited to, television commercials, social media posts, on the City's
website, City brochures and other media.
5.3 PUBLIC RELATIONS. Performer shall provide biographical and
promotional material no later than June 1, 2024 Any promotional material sent to the City
shall become the property of the City for the sole purpose of marketing and promoting
Performance. Performer is encouraged to provide City with any such promotional
materials as Performer believes will help represent the Performer best in this effort.
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Performer warrants that it is, for purposes of income tax withholding, domiciled in
the State of California and shall be solely responsible for the payment of any income tax
as required by the State of California. Performer agrees to defend, indemnify and hold
City harmless from any tax collection efforts by the State of California, or any other
governmental taxing authority, against the City.
7. ADMINISTRATION
This Agreement will be administered by the Library Services Department. City's
Library Services Director or his/her designee shall be the Program Coordinator and shall
have the authority to act for City under this Agreement. The Program Coordinator or
his/her designee shall represent City in all matters pertaining to the Performance to be
rendered pursuant to this Agreement.
8. HOLD HARMLESS
8.1 To the fullest extent permitted by law, Performer shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in legal control of
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the property upon which Performer performs the Performance contemplated by this
Agreement (collectively, the "Indemnified Parties") from and against any and all claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement, any work
performed or services provided under this Agreement including, without limitation, defects
in workmanship or materials or Performer's presence or activities conducted for the
Performance (including the negligent and/or willful acts, errors and/or omissions of
Performer, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
8.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Performer to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by the Performer.
9. INDEPENDENT CONTRACTOR
It is understood that City retains Performer on an independent contractor basis and
Performer is not an agent or employee of City. The manner and means of conducting the
Performance are under the control of Performer, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
status or other right of employment shall accrue to Performer or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Performer or any of
Performer's employees or agents, to be the agents or employees of City. Performer shall
have the responsibility for and control over the means of performing any work or service
provided under this Agreement, provided that Performer is in compliance with the terms
of this Agreement. Anything in this Agreement that may appear to give City the right to
direct Performer as to the details of the Performance or to exercise a measure of control
over Performer shall mean only that Performer shall follow the desires of City with respect
to the results of the Performance.
10. COOPERATION
Performer agrees to work closely and cooperate fully with City's designated
Program Coordinator. City agrees to cooperate with the Performer on the Performance.
11. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Performance to be
provided under this Agreement shall not be assigned, transferred contracted or
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subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Performer, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Performer is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Performer. Control means fifty percent (50%) or more of the voting power, or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
12. INTELLECTUAL PROPERTY AND INDEMNITY
The Performer warrants that it has the legal right to utilize the songs, scripts, and/or
other intellectual property and materials in its Performance provided under this
Agreement. The Performer shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained in Performer's Performance provided under this
Agreement.
13. CITY'S RIGHT TO EMPLOY OTHER PERFORMERS
City reserves the right to employ other Performers in connection with any City
event, performance or concert.
14. NOTICES
14.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Performer to City shall be addressed to City at:
Attn: Melissa Hartson, Library Services Director
Library Services Department
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717-3870
14.2 All notices, demands, requests or approvals from City to Performer shall be
addressed to Performer at:
Attn: Richard Edward Woloski
Hey Hey Entertainment, LLC
3441 Faust Avenue
Long Beach, CA 90808
Phone: 562-420-1905
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15. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Performer shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Performer's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Performer in writing as unsettled at the time of its final request for payment.
The Performer and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, the Performer shall be required to file any claim
the Performer may have against the City in strict conformance with the Government
Claims Act (Government Code sections 900 et seq.).
16. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. City shall have the right, at its sole and absolute
discretion and without cause, of terminating this Agreement at any time by giving no less
than seven (7) calendar days' prior written notice to Performer.
17. STANDARD PROVISIONS
17.1 Compliance with all Laws. Performer shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
17.2 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
17.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
17.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the terms
of this Agreement shall govern.
17.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
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17.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Performer and City and approved as to form by the
City Attorney.
17.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
17.8 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
17.9 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
17.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date:I/� Date: �/l Y/2a-2:
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A r C. Harp My Melissa Hartson
City Attorney a��/�� Library Services Director
ATTEST: PERFORMER: Hey Hey Entertainment,
Date: l LLC, a California limited lia ility company
Date: T
By: JByI-FR�i
Leilani I. Brow hard Edward Woloski
City Clerk Member
Dal
By:
Member
[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
Sarah Woloski
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EXHIBIT A
PERFORMANCE INVOICE
Hey Hey Entertainment, LLC Page A-1
Hey
Hey Entertainment
3441 Faust Ave.
Long Beach, Ca 90808
(562)420-1905 (562)684-0446fax
BOOKING CONFIRMATION
& INVOICE
Date of Show: Start Time (± 15 min): End Time:
Contact Name: Jasmin Avila Address:
Home Phone: Work Phone:
Party Address: Mariners Library
1300 Irvine Avenue
Newport Beach Ca 92660
Party Phone: 949.717.3824
Guest of Honor: Age: #Children: #Adults:
Service Ordered: Dig Dug and the Dino -Mites Puppet & Magic Show
Central Library - 6/25 (11 a.m.) Corona Del Mar Library - 6/27 (3 p.m.)
Balboa Library - 6/26 (3 p.m.) Mariners Library - 6/29 (11 a.m.)
Total Amount: $1,505.00 Minimum Deposit Required: $0.00
Deposit Received: $0.00 Balance Due: $1,505.00
Please make checks payable to
Hey Hey Entertainment
3441 Faust Ave.
Long Beach, Ca 90808
Thank You