HomeMy WebLinkAboutProfessional Service Agreement with Tom Phelps for Musical Talent for Concerts on Broadway (2)PROFESSIONAL SERVICES AGREEMENT
MUSICAL TALENT FOR CONCERTS ON BROADWAY
This PROFESSIONAL SERVICES AGREEMENT -MUSICAL TALENT FOR
CONCERTS ON BROADWAY ("Agreement") is made this ~ C®~ay of June, 2009 ("Effective
Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the
State of Idaho ("City"); the Meridian Downtown Business Association, Inc. a nonprofit corporation
organized under the laws of the State of Idaho ("MDBA"); and Tom Phelps, doing business as Kings of
Swing, an assumed business name certified under the laws of the State of Idaho ("Performer"). (City,
MDBA, and Performer may hereinafter be collectively referred to as "Parties.")
WHEREAS, the City desires that the plaza at Meridian City Hall serve as a place where
members of the community can gather to enjoy downtown Meridian and to take part in the arts, and to
that end, the Meridian Arts Commission is assisting the Meridian Downtown Business Association in
presenting Concerts on Broadway, a series of concerts to be held in the plaza during the summer;
WHEREAS, the Parties mutually desire to present, as part of Concerts on Broadway, the music
of the Kings of Swing, aseventeen-piece band specializing in the performance of swing and big band
music;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants
herein contained, the Parties agree as follows:
I. SCOPE OF SERVICES.
A. Performance. Performer shall provide approximately seventeen (17) instrumental musicians to
perform for the public approximately thirty (30) swing and/or big band songs, from 7:00 p.m. to
at least 8:30 p.m., on Saturday June 20, 2009, in the plaza at Meridian City Hall, at 33 E.
Broadway, Meridian, Idaho. Performer may take one fifteen-minute break during this time.
B. Set-up. Performer shall set up risers, public address system, and sound or amplification system
at 2:00 p.m. on June 20, 2009 for the purpose of set-up, rehearsal, and/or sound checks.
Performer shall complete all set-up, reheazsal, and/or sound checks by 6:00 p.m.
II. COMPENSATION.
A. Total amount. MDBA shall make total payment to Performer for services rendered pursuant
to this Agreement in the amount of $1,500.00. This amount shall constitute full compensation
for any and all of Performer's services, costs, and expenses related to this Agreement.
Performer shall be responsible for payment of any and all taxes.
B. Cancellation of event. If Performer is present and prepared to perform at the time, date, and
place, and in accordance with the terms set forth herein, MDBA shall pay Performer in the
amount set forth herein, even if the event is cancelled due to inclement weather or other
unforeseen events not caused by Performer. Any decision regazding whether to cancel
Performer's performance shall be made no eazlier than 6:30 p.m. on June 20, 2009.
PROFESSIONAL SERVICES AGREEMENT -KINGS OF SWING, CONCERTS ON BROADWAY PAGE 1 Of 6
C. Method of payment. Performer shall provide MDBA with an invoice for services provided,
which MDBA shall pay within fourteen (14) days of receipt thereof. Payment of all taxes and
other assessments on such sums shall be the sole responsibility of Performer.
III. VENUE
A. Plaza. Performer shall provide and set up risers on the outdoor plaza on the east side of
Meridian City Hall, 33 E. Broadway, Meridian, Idaho, which is an outdoor, open, public venue.
Performer shall be solely responsible for any and all measures necessary to protect its
equipment, instruments, and performers from damage due to weather and other conditions that
do or may exist.
B. Public venue. Performer acknowledges that the venue is a public place and that all members of
the public shall be invited to attend. To this end, Performer shall perform such material and in
such a manner as shall be appropriate for all ages, values, and sensibilities. Performer's
performance and attire shall not include language, attire, and/or behavior that is profane, sexual,
violent, or discriminatory.
C. City policy applies. Performer shall comply with all City policies and codes applicable to use
of City property and facilities, including, but not limited to, policies of the Meridian Parks and
Recreation Department, and any requirements of the City Building Maintenance Technician,
which requirements shall be reasonable and for the purpose of protecting City facilities and
properly.
D. Sound system. Performer shall provide a public address system that is intended to be used for
verbal announcements. If Performer elects to amplify its music by means of any other sound
system, Performer shall provide and operate any and all equipment necessary to do so.
E. Photography and recording. City shall be authorized to photograph, record, video tape,
reproduce, transmit, or disseminate, in or from the plaza, Performer's performance for
educational and public information purposes, but City shall not undertake such recording
activities for commercial purposes. City shall make a verbal announcement prior to the
performance requesting that members of the public attending the concert not to take
photographs or make recordings but City shall not be responsible for the actions of persons who
are not under its employment or control.
F. Merchandising. Performer shall be authorized to sell albums and/or merchandising material at
the performance, and may retain the proceeds of such sales. City respectfully requests that
Performer voluntarily donate to the Arts Commission twenty percent (20%) of any proceeds
from merchandise sold at the Concerts on Broadway event.
IV. TERMS AND CONDITIONS
A. Time of the essence. Performer acknowledges that services provided under this Agreement
shall be performed in a timely manner. The Parties acknowledge and agree that time is
strictly of the essence with respect to this Agreement, and that the failure to timely perform
PROFESSIONAL SERVICES AGREEMENT-KINGS OF SWING, CONCERTS ON BROADWAY PAGE 2 Of 6
any of the obligations hereunder shall constitute a breach of, and a default under, this
Agreement by the party so failing to perform.
B. Promotion of event.
1. Promotion by MDBA. MDBA shall promote Performer's performance in community
media and event calendazs as available and appropriate.
2. Promotion by City. City shall promote Performer's performance in community
promotional materials and avenues, including the City newsletter, City website,
Meridian Pazks & Recreation Department Activity Guide, and local media and event
calendazs.
3. Promotion by Performer. Performer may undertake additional promotional activities
at its own expense and effort, subject only to the limitations set forth herein. MDBA
and City, respectively, hereby convey to Performer permission to use MDBA's and
City's respective names in all forms and media and in all manners, without violation of
MDBA's or City's respective rights of privacy or any other rights MDBA or City may
possess in connection with their respective roles in the production of Concerts on
Broadway, except that Performer may not use MDBA's logo in any manner whatsoever
without the express, written consent of the MDBA president, and Performer may not use
City's logo in any manner whatsoever without the express, written consent of the
Mayor's Executive Assistant.
C. Subcontracting or assignment of obligations. Performer shall not subcontract or assign
any of its obligations under this Agreement related to or that may relate to Performer's
artistic talent or expertise. Performer may subcontract or assign obligations that do not
require its artistic talent or expertise, including, but not limited to, such obligations as
transport and set-up of equipment and/or instruments. Any subcontractor or assignee shall
be bound by all the terms and conditions of this Agreement.
D. Non-waiver of breach. A waiver of any breach or default of any provision of this
Agreement shall not be construed as a waiver of a breach of the same or any other provision
hereof.
E. Indemnification. Performer shall indemnify, save, and hold harmless the City and any and
all of its employees, agents, volunteers, and/or elected officials from any and all losses,
claims, and judgments for damages or injury to persons or property, and from any and all
losses and expenses caused or incurred by Performer, its performers, assistants, servants,
agents, employees, guests, and/or business invitees, in connection with this Agreement or
activities related thereto.
F. Waiver. Performer waives any and all claims and recourse against City, including the right
of contribution for loss and damage to persons or property arising from, growing out of, or
in any way connected with or incident to Performer's performance of this Agreement,
whether such loss or damage may be attributable to known or unknown conditions, except
PROFESSIONAL SERVICES AGREEMENT -KINGS OF SWING, CONCERTS ON BROADWAY PAGE 3 Of f)
for liability arising out of concurrent or sole negligence of City or its officers, agents or
employees.
G. Relationship of Parties. Performer is an independent contractor and is not an employee,
agent, joint venturer, or partner of MDBA City. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of employer and
employee between Performer and MDBA or City or between Performer and any official,
agent, or employee of MDBA or City. Performer shall retain the right to perform services
for others during the term of this Agreement.
H. Compliance with law. Throughout the course of this Agreement, Performer shall comply
with any and all applicable federal, state, and local laws.
I. Non-Discrimination. Throughout the course of this Agreement, Performer shall not
discriminate against any person as to race, creed, religion, sex, age, national origin, sexual
orientation or any physical, mental, or sensory handicap.
J. Entire Agreement. This Agreement constitutes the entire understanding between the
Parties. This Agreement supersedes any and all statements, promises, or inducements made
by either party, or agents of either party, whether oral or written, whether previous to the
execution hereof or contemporaneous herewith. The terms of this Agreement may not be
enlarged, modified or altered except upon written agreement signed by both parties hereto.
K. Costs and attorneys' fees. If either party brings any action or proceedings to enforce,
protect or establish any right or remedy under the terms and conditions of this Agreement,
the prevailing party shall be entitled to recover reasonable costs and attorneys' fees, as
determined by a court of competent jurisdiction, in addition to any other relief awarded.
L. Agreement governed by Idaho law. The laws of the State of Idaho shall govern the
validity, interpretation, performance and enforcement of this Agreement. Venue shall be in
the courts of Ada County, Idaho.
M. Cumulative Rights and Remedies. All rights and remedies herein enumerated shall be
cumulative and none shall exclude any other right or remedy allowed by law. Likewise, the
exercise of any remedy provided for herein or allowed by law shall not be to the exclusion
of any other remedy.
N. Interpretation. Words of gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular shall be held to include the plural and
vice versa unless the context otherwise requires. The Agreement and the captions of the
various sections of this Agreement are for convenience and ease of reference only, and do
not define, limit, augment or describe the scope, context or intent of this Agreement or any
part or parts of this Agreement.
O. Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Agreement shall
not be affected.
PROFESSIONAL SERVICES AGREEMENT -KINGS OF SWING, CONCERTS ON BROADWAY PAGE 4 Of 6
P. Successors and Assigns. All of the terms, provisions, covenants and conditions of this
Agreement shall inure to the benefit of, and shall be binding upon, each party and their
successors, assigns, legal representatives, heirs, executors, and administrators.
Q. Notice. Any and all notice required to be provided by either of the Parties hereto, unless
otherwise stated in this Agreement, shall be in writing and shall be deemed communicated
upon mailing by United States Mail, addressed as follows:
C
City of Meridian
Emily Kane, Deputy City Attorney
33 E. Broadway Avenue
Meridian, Idaho 83642
Phone: (208) 898-5506
E-mail: ekane@meridiancity.org
MDBA:
Meridian Downtown Business Association
James Fullinwider, President
P.O. Box 650
Meridian, Idaho 83680
Phone: (208) 888-1465
E-mail: jamesf@aaillc.com
Performer:
Kings of Swing
Tom Phelps
10790 W. Hickory Drive
Boise, Idaho 83713
Phone: (208) 327-0049
Any party may change its address for the purpose of this section by giving written notice of
such change in the manner herein provided.
R. City Council approval required. T'he validity of this Agreement shall be expressly
conditioned upon City Council action approving the Agreement. Execution of this Agreement
by the persons referenced below prior to such ratification or approval shall not be construed as
proof of validity in the absence of Meridian City Council approval.
PROFESSIONAL SERVICES AGREEMENT-KINGS OF SWING, CONCERTS ON BROADWAY PAGE 5 Of 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the I ~~°° day
of June, 2009.
PERFORMER: STATE OF Idaho )
C~ f _ _ ) ss:
County of ~O~ )
I HEREBY CERTIFY that on this /~+' day of ~P.~aJF-
om helps,. ~ 2009, before the undersigned, a Notary Public in the State of
` ~ S tp Idaho, personally appeared Tom Phelps, known to me to be the
~ 0 , .... (y person who executed the said instrument, and ackrnowledged to me
pP • .O Tq R ~tio that she executed the same.
~ J'' : IN WITNESS WHEREOF, I have hereunto set my hand and affixed
- ~ _ my official seal, the day and year in this certificate first above written.
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qTF O F ~ 1 D P~ No Public for Idaho
R siding at x'1'1 ~~r~rq~ Idaho
My Commission Expires: ~ ~ Z~~®
MERIDIAN OWNTOWN BUSINESS ASSOCIATION:
` ~ STATE OF Idaho )
1 ) ss:
., ~-. _,^~ , County of A ~.~ ) ~
/~' I HEREBY CERTIFY that on this 15 `day of ~,
J es • ~ • 2009, before the undersigned, a Notary Public in the State of
_ Idaho, personally appeared James Fullinwider, known to me to be
\~~~ ••••••~r1I8 ~~ the person who executed the said instrument, and acknowledged to me
••••Q~* •.....~ 8~,y that she executed the same.
~'~~:•~ OT •~'9`~%' IN WTTNESS WHEREOF, I have hereunto set my hand and affixed
1`ti A,~-~'~ ~ ; my official seal, the day and year in this certificate first above written.
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y/i~~ ~O •••••• Notary blic for Idaho
~F IUD A •p•• Residing at -M er~ , c~°. ~~,e~ ,Idaho
My Commission Expires:.. ~ /i ~ OI I~
CITY OF MERIDIAN:
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BY:
Tammy de e d, Mayor
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t~~ ORPO pRr ~f
Attest• ~~~ - ~'
Jaycee Holman, City Clerk ~' ~ o ~
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