HomeMy WebLinkAboutC-7161-36G - Performance Agreement for Lecture, the Writers Workshop, and Storytellers Writing Workshop�n
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PERFORMANCE AGREEMENT
WITH CHRIS EPTING FOR
LECTURE, THE WRITERS WORKSHOP, AND STORYTELLERS WRITING
WORKSHOP
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 10th day of July, 2024 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and CHRIS EPTING,
a sole proprietor ("Performer"), whose address is 16835 Algonquin Street, #293,
Huntington Beach, California 92649 and it is mutually agreed by and between the
undersigned parties as follows:
The term of this Agreement shall commence on the Effective Date, and shall
terminate on May 30, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Performer shall provide the following type of performances at the following
dates and times:
(A) Meet the Author
Date: September 17, 2024
Time: 7:00 PM
(B) The Writers Workshop
Dates: September 25, 2024
October 9, 2024
October 23, 2024
November 6, 2024
November 20, 2024
January 15, 2025
January 29, 2025
February 12, 2025
February 26, 2025
March 12, 2025
March 26, 2025
April 9, 2025
April 23, 2025
May 7, 2025
May 21, 2025
Time: 10 AM
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(C) Storytellers Writing Workshop — Series 1
Dates: October 15, 2024
October 22, 2024
October 29, 2024
Time: 5:00 PM
(D) Storytellers Writing Workshop — Series 2
Dates: January 7, 2025
January 14, 2025
January 21, 2025
Time: 5:00 PM
(E) Storytellers Writing Workshop — Series 3
Dates: March 4, 2025
March 11, 2025
March 18, 2025
Time: 5:00 PM
(F) Storytellers Writing Workshop — Series 4
Dates: May 6, 2025
May 13, 2025
May 20, 2025
Time: 5:00 PM
collectively, ("Performance")
2.2 Performer shall provide such Performance at the following location:
Newport Beach Central Library
1000 Avocado Avenue
Newport Beach, CA 92660 ("Library")
Performer shall complete all set up as follows:
(A) Meet the Author
Time: 6:30 PM
(B) The Writers Workshop
Time: 9:30 AM
(C) Storytellers Writing Workshop — Series 1, 2, 3 and 4
Time: 4:30 PM
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2.2.1 City shall have the option, in -lieu of or in addition to providing an in -
person Performance, to record Performance and exercise its discretion in the event it
wishes to stream the Performance at a later date pursuant to Section 5.1.
2.3 The City shall be responsible for:
2.3.1 Providing the room, seating and lighting for the Performance; and,
2.3.2 Providing portable electrical power.
2.4 Performer shall be responsible for:
2.4.1 Providing a Performance at the Library, 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;
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 the 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
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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.
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 Notwithstanding the foregoing, neither party shall be responsible for delays
or cancellations due to causes beyond that party's reasonable control which renders the
Performance impractical or impossible, such as war, pandemics, riots, strikes, terrorism,
inclement weather, fire, earthquake, tsunami or flood. The affected party shall give written
notice to the other party without unreasonable delay, and unless the parties agree in
writing to reschedule the Performance, this Agreement shall be terminated, and
Performer shall return all monies advanced by the City.
3.4 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 Performance
provided in accordance with this Agreement, inclusive of all dates, including all
reimbursable items and fees, shall not exceed Eight Thousand Eight Hundred Dollars
and 00/100 ($8,800.00) without prior written authorization from City. No rate changes
shall be made during the term of this Agreement without the prior written approval of City.
City shall pay Performer as outlined in the Invoice attached hereto as Exhibit A and
incorporated herein by this reference.
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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 August 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.
6. INCOME TAX WITHHOLDING
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
the property upon which Performer performs the Performance contemplated by this
Agreement (collectively, the "Indemnified Parties") from and against any and all claims
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(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
subcontracted out without the prior written approval of City. Any of the following shall be
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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: Library Services Director
Library Services
City of Newport Beach
1000 Avocado Ave.
Newport Beach, CA 92660
Phone: (949) 717-3870
14.2 All notices, demands, requests or approvals from City to Performer shall be
addressed to Performer at:
Chris Epting
16835 Algonquin #293
Huntington Beach, CA 92649
Phone: (714) 362-5490
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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 ATTORNEY'S OFFICE
Date:
By:?NiyAttorney
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ATTEST:
Date: (.I7
By: Y
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City Cler
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CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 7/34-0 Z�
By: -- —
Me issa Hartson
Library Services Director
PERFORMER
a sole proprie
Date: -� 1 I-1
[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
: CHRIS EPTING,
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EXHIBIT A
PERFORMANCE INVOICE
Chris Epting Page A-1
INVOICE
Submitted to Newport Beach Public Library
for Chris Epting Presentations
Title: Meet The Author
Date of Lecture: September 17, 2024
Amount: $ 300
Title: The Writers Workshop
Dates of Writers Workshops: 9/25/24, 10/9/24, 10/23/24, 11/6/24, 11/20/24, 1/15/25, 1/29/25,
2/12/25, 2/26/25, 3/12/25, 3/26/25, 4/9/25, 4/23/25, 5/7/25, 5/21/25
Amount: $ 4,500
Title: Storytellers Writing Workshop
Dates of Storytellers Writing Workshops: Series 1: 10/15/24, 10/22/24, 10/29/24 / Series 2:
1/7/25, 1/14/25, 1/21/25 / Series 3: 3/4/25, 3/11/25, 3/18/25 / Series 4: 5/6/25, 5/13/25, 5/20/25
Amount: $ 4,000
TOTAL: $ 8,800 (see payment schedule below)
Schedule of Payments:
Sep 25, 2024: $ 1,100 Oct 29, 2024: $ 1,100 Nov 20, 2024: $ 1,100 Jan 29, 2025: $1,100
Feb 26, 2025: $1,100 Mar 26, 2025: $1,100 Apr 23, 2025: $1,100 May 21, 2025: $1,100
Made Payable To: Chris Epting
Street Address: 16835 Algonquin #293
City: Huntington Beach State: CA Zip: 92649
Phone: (714) 362-5490 Email: chrisgchrisepting.com
Submitted by: Chris Epting
Date: 5/3/2024