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HomeMy WebLinkAboutProfessional Service Agreement with Tom Phelps Kings of Swing for Concerts on BroadwayPROFESSIONAL SERVICES AGREEMENT MUSICAL TALENT FOR CONCERTS ON BROADWAY This PROFESSIONAL SERVICES AGREEMENT -MUSICAL TALENT FOR CONCERTS ON BROADWAY ("Agreement") is made this 6th day of July, 2010 ("Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho ("City") and Tom Phelps, doing business as Kings of Swing, an assumed business name certified under the laws of the State of Idaho, whose address is 10790 W. Hickory Drive, Boise, Idaho. 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 presenting Concerts on Broadway, a series of concerts to be held in the Meridian City Hall plaza during the summer; and 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. Tom Phelps and the Kings of Swing, shall 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, July 17, 2010, in the plaza at Meridian City Hall, at 33 E. Broadway, Meridian, Idaho, with one fifteen-minute break during this time. B. Sound system. If Tom Phelps and the Kings of Swing elect to electronically amplify their music or spoken announcements, Tom Phelps shall provide, set up, and operate any and all sound systems and equipment necessary to do so. C. Risers. If Tom Phelps and the Kings of Swing elect to use risers to elevate the musicians, Tom Phelps shall provide and set up such risers, and shall utilize such materials necessary to protect City facilities from any and all damage therefrom. D. Set-up. Tom Phelps shall, with the assistance of and at the direction of the members of the Meridian Arts Commission, set up risers and any sound systems and/or related equipment at 2:00 p.m. on July 17, 2010, and may rehearse and/or perform sound checks at that time. All set-up, rehearsal, and/or sound checks shall be completed by 6:00 p.m. II. COMPENSATION. A. Total amount. City shall make total payment to Tom Phelps for services rendered by Kings of Swing pursuant to this Agreement in the amount of one thousand five hundred dollars ($1,500.00). This payment shall constitute full compensation from City to Tom Phelps and/or PROFESSIONAL SERVICES AGREEMENT -TOM PHELPS/KINGS OF SWING, CONCERTS ON BROADWAY PAGE 1 Of $ the members of Kings of Swing for any and all services, costs, and expenses related to services performed under this Agreement. Tom Phelps and/or the respective members of Kings of Swing shall be responsible for payment of any and all taxes due and owing for payment received under this Agreement. B. Cancellation of event. If Tom Phelps and the Kings of Swing are present and prepared to perform at the time, date, and place, and in accordance with the terms set forth herein, City shall pay Tom Phelps in the amount set forth herein, even if the event is cancelled due to inclement weather or other unforeseen events not caused by Tom Phelps or the members of Kings of Swing. Any decision regarding whether to cancel the performance shall be made no earlier than 6:30 p.m. on July 17, 2010. C. Method of payment. Following the July 17, 2010 performance, Tom Phelps shall provide City with a completed W-9 form and an invoice for the amount of one thousand five hundred dollars ($1,500.00) for services provided, which City shall pay within thirty (30) days of receipt thereof. Payment of all taxes and other assessments on such sums shall be the sole responsibility of Tom Phelps and/or any other payee. I)[I. VENUE A. Plaza. City shall provide for the performance the outdoor plaza on the east side of Meridian City Hall, 33 E. Broadway, Meridian, Idaho ("venue"), which is an outdoor, open, public venue. Tom Phelps and the members of Kings of Swing shall be solely responsible for any and all measures necessary to protect equipment, instruments, and persons from damage due to weather and other conditions that do or may exist. B. Public venue. Tom Phelps and the members of Kings of Swing acknowledge that the venue is a public place and that all members of the public shall be invited to attend. To this end, the members of Kings of Swing shall perform such material and in such a manner as shall be appropriate for all ages, values, and sensibilities. Kings of Swing's performance and attire shall not include language, attire, and/or behavior that is profane, sexual, violent, or discriminatory. C. City policy applies. Tom Phelps and the members of Kings of Swing 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 property. D. Photography and recording. City shall be authorized to photograph, record, video tape, reproduce, transmit, or disseminate, in or from the plaza, the performance for educational and public information purposes. City shall not be responsible for the actions of persons who are not under its employment or control. E. Merchandising. Tom Phelps and/or Kings of Swing 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 twenty percent (20%) of any proceeds from merchandise sold at the Concerts on Broadway event be voluntarily donated to the Meridian Arts Commission. PROFESSIONAL SERVICES AGREEMENT -TOM PHELPS/KINGS OF SWING, CONCERTS ON BROADWAY PAGE 2 Of 5 IV. TERMS AND CONDITIONS A. Time of the essence. Tom Phelps and the members of Kings of Swing acknowledge 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 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. City shall promote the performance in community promotional materials and avenues, including the City newsletter, City website, Meridian Parks & Recreation Department Activity Guide, and local media and event calendars. Tom Phelps may undertake additional promotional activities at his own expense and effort, subject only to the limitations set forth herein. City hereby conveys to Tom Phelps permission to use City's name in all forms and media and in all manners, without violation of City's respective rights of privacy or any other rights City may possess in connection with its role in the production of Concerts on Broadway, except that City's logo may not be used in any manner whatsoever without the express, written consent of the Mayor's Executive Assistant. C. Subcontracting or assignment of obligations. Tom Phelps and the members of Kings of Swing shall not subcontract or assign any of their obligations under this Agreement related to or that may relate to his talent or expertise. Tom Phelps and the members of Kings of Swing may subcontract or assign obligations that do not require their artistic talent or expertise, including, but not limited to, such obligations as transport and set-up of special 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. Tom Phelps and each member of Kings of Swing shall, and hereby do, 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 Tom Phelps and/or Kings of Swing, their assistants, servants, agents, employees, guests, and/or business invitees, in connection with this Agreement or activities related thereto. Tom Phelps and each member of Kings of Swing acknowledge that provision of the services described hereunder presents risks, some of which are unknown, and does agree to assume all such known or unknown risks. F. Waiver. Tom Phelps and each member of Kings of Swing shall, and hereby do, waive 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 the performance of this Agreement, whether such loss or damage maybe attributable to known or unknown conditions, except for liability arising out of concurrent or sole negligence of City or its officers, agents or employees. PROFESSIONAL SERVICES AGREEMENT -TOM PHELPS/KQdGS OF SWING, CONCERTS ON BROADWAY PAGE 3 Of $ G. Relationship of Parties. Tom Phelps and each member of Kings of Swing is an independent contractor and is not an employee, agent, joint venturer, or partner of City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Tom Phelps or any member of Kings of Swing and City or any official, agent, or employee of City. Tom Phelps and Kings of Swing 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, Tom Phelps and each member of Kings of Swing shall comply with any and all applicable federal, state, and local laws. I. Non-Discrimination. Throughout the course of this Agreement, neither Tom Phelps nor any member of Kings of Swing shall 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. 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. O. 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. P. 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: Citv: Kings of Swing_ PROFESSIONAL SERVICES AGREEMENT -TOM PHELPS/KINGS OF SWING, CONCERTS ON BROADWAY PAGE 4 Of 5 City of Meridian Emily Kane, Deputy City Attorney 33 E. Broadway Avenue Meridian, Idaho 83642 Phone: (208) 898-5506 E-mail: ekane@meridiancity.org Tom Phelps 10790 W. Hickory Drive Boise, Idaho 83713 Phone: (208) 327-0049 Either party may change its address for the purpose of this section by giving written notice of such change in the manner herein provided. Q. Warranty of authority. Tom Phelps expressly warrants that, to the extent set forth herein, he is duly authorized to act as the representative and agent of Kings of Swing and each and every member thereof. Tom Phelps further warrants that he is authorized to bind Kings of Swing and its members to the obligations set forth herein, and to accept the liabilities as established herein on behalf of Kings of Swing and its members. R. City Council approval required. The 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 6th day of July, 2010. IQNGS OF SWING: '~~ m Phelps CITY OF MERIDIAN: _ ,~~"'""""'~~~, ~~ OF RAEi~j~j'~%,. '9~, / ~ ~~ Gp~AA rcr sY: f~ _ ~' Atte~st• Tammy eerd, Mayor _ ~E~L ayce ~ o~ ~°~ ~~i ~ ~ ~`~ Clerk PROFESSIONAL SERVICES AGREEMENT- TOM PHELPS/KINGS OF SWING, CONCERTS ON BROADWAY PAGE 5 Of 5