Professional Services Agreement with Kings of Swing for Musical Talent 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 10th day of June, 2014("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
("Promoter").
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
Kings of Swing, a seventeen -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
fifteen (15) swing and/or big band songs, from 7:00 p.m. to at least 8:30 p.m., on Saturday, July
19, 2014, in the plaza at Meridian City Hall, at 33 E. Broadway, Meridian, Idaho, with one fifteen -
minute break during this time. In case of inclement weather, the venue will be moved to an indoor
location to be determined and agreed upon separately by the Parties.
B. Sound system; set up and sound checks. City shall provide, set up, and operate any and all
sound systems and equipment necessary to electronically amplify music and spoken
announcements. City shall set up sound systems and/or related equipment by 5:00 p.m. on July 19,
2014, and Kings of Swing may rehearse and/or perform sound checks at that time. All set-up,
rehearsal, and/or sound checks shall be completed by 6:30 p.m.
C. Risers. If Promoter elects to use risers to elevate the musicians, Promoter shall provide and set up
such risers, and shall utilize such materials necessary to protect City facilities from any and all
damage therefrom.
II. COMPENSATION.
A. Total amount. City shall make total payment to Promoter for services rendered pursuant to this
Agreement in the amount of one thousand eight hundred dollars ($1,800.00). This payment shall
constitute full compensation from City to Promoter and/or to the members of Kings of Swing for
any and all services, costs, and expenses related to services performed under this Agreement.
Promoter 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.
PROFESSIONAL SERVICES AGREEMENT— CONCERTS ON BROADWAY PAGE l of 5
B. Cancellation of event. If Kings of Swing is present and prepared to perform at the time, date, and
place, and in accordance with the terms set forth herein, City shall pay Promoter in the amount set
forth herein, even if the event is cancelled due to unforeseen events not caused by Promoter 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 19, 2014.
C. Method of payment. Following the July 19, 2014 performance, Promoter shall provide City with
an invoice for the amount of one thousand eight hundred dollars ($1,800.00) 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 Promoter.
III. 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.
Promoter shall be solely responsible for any and all measures necessary to protect equipment,
instruments, and Kings of Swing members from damage due to weather and other conditions that
do or may exist.
B. Public venue. Promoter acknowledges 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. Promoter and 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 solely 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. Promoter 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. Promoter
and Kings of Swing shall be responsible for paying all sales and other taxes due and owing on the
proceeds from merchandise sold.
IV. TERMS AND CONDITIONS
A. Time of the essence. Promoter 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 any of the obligations hereunder
shall constitute a breach of, and a default under, this Agreement by the party so failing to perform.
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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. Promoter may undertake additional promotional
activities at his own expense and effort, subject only to the limitations set forth herein. City hereby
conveys to Promoter 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. To the
extent practicable, Promoter shall be given the opportunity to review, for purposes of accuracy, and
approve all promotional materials in advance of their publication, broadcast or dissemination. The
band shall be listed as "Kings of Swing" in all promotional materials that are created by City or within
the City's control.
C. Subcontracting or assignment of obligations. Promoter shall not subcontract or assign any of the
obligations of Kings of Swing under this Agreement related to or that may relate to the band's talent or
expertise. Promoter may subcontract or assign obligations that do not require the band's 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. Promoter shall, and hereby does, 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 Promoter and/or Kings of Swing, their assistants, servants, agents,
employees, guests, and/or business invitees, in connection with this Agreement or activities related
thereto. Promoter and each member of Kings of Swing acknowledge that provision of the services
described hereunder presents risks, some of which are unknown, and do agree to assume all such
known or unknown risks.
F. Waiver. Except as to rights held under the terms of this Agreement, Promoter 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
may be attributable to known or unknown conditions, except for liability arising out of concurrent or
sole negligence of City or its officers, agents or employees.
G. Relationship of Parties. Promoter 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 Promoter or any member of Kings of Swing and City or any official, agent, or employee of
City. Promoter 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, Promoter and each member of
Kings of Swing shall comply with any and all applicable federal, state, and local laws.
PROFESSIONAL SERVICES AGREEMENT— CONCERTS ON BROADWAY PAGE 3 of 5
I. Non -Discrimination. Throughout the course of this Agreement, neither Promoter 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:
City: Kings of Swing:
City of Meridian Tom Phelps
Emily Kane, Deputy City Attorney 10790 W. Hickory Drive
33 E. Broadway Avenue Boise, Idaho 83713
Meridian, Idaho 83642
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. The undersigned 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. The undersigned 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.
PROFESSIONAL SERVICES AGREEMENT—KINGS OF SWING, CONCERTS ON BROADWAY PAGE 4 of 5
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 �O d y of
ivlYq, 2014.
TWO,
PROMOTER:
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Tom- Phelps for
Kings of Swing
CITY OF MERIDIAN:
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