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HomeMy WebLinkAboutSHAKESPEARE BY THE SEA (5)INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES CITY CLERK DATE: O; Y'ir-J+lAavtilsut May 31, 2023 NShakespeare by the Sea ("Speaker/Performer") co Attn: Stephanie A. Coltrin, Festival Producer N 777 Centre Street San Pedro, CA 90731 Re: Speaker/Performer Engagement Agreement N-2023-153 This letter represents your agreement with the City of Santa Ana ("City") as entered into on the above date for the engagement described below: 1. Event Description: As further provided in Exhibit A, attached hereto, Speaker/Performer shall provide free for the public performances of works by William Shakespeare. 2. Date(s): July 22, 2023 3. Event Time(s): 7:00 p.m. — 9:00 p.m. 4. Location ("Property"): Birch Park, 210 N. Birch Street, Santa Ana, CA 92701 ("Property"). 5. Compensation: The total amount to be expended under this Agreement shall not exceed Six Thousand Dollars and Zero Cents ($6,000); Speaker/Performer must provide IRS form W-9 before payment can be made. a. Payment of half of invoiced amount for each event shall be processed and paid one month prior to the event, subject to City accounting procedures. b. Remaining balance shall be processed and paid immediately after the event, subject to City accounting procedures. C. Payment need not be made for work that fails to meet the standards of performance that may reasonably be expected by City. 6. Provided by City: 9K Whisper generator/spider box and special 100-ft cord. 7. Provided by Speaker/Performer: Insurance as prescribed in Exhibit B as well as other equipment and materials necessary, including, but not limited to: all equipment, props, costumes, materials, actors, and personnel for engagement. 8. City Contact Person (for coordinating purposes only): Elena Martinez x4286 9. Independent Contractor: Speaker/Performer shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Speaker/Performer performs the services that are the subject matter of this Agreement; however, the services to be provided by Speaker/Performer shall be provided in a manner consistent with all applicable standards and regulations. Speaker/Performer shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. Letter Agreement — Shakespeare by the Sea Page 2 10. Indemnification: Speaker/Performer, his or her agents, or employees (if applicable) agrees to and shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from and against all loss, expenses, or liability (including costs and attorney's fees) arising from the negligence or willful misconduct of Speaker/Performer, his or her agents, or employees. Speaker/Performer shall indemnify the City against any liability or damages, including attorney's fees, that may arise as a result of violation by Speaker/Performer of copyright laws. 11. Release: Speaker/Performer accepts the Property and any City -provided equipment used in connection with the performance in their "as -is" condition, with all faults. Speaker/Performer fully releases, waives and discharges forever any and all claims, demands, rights, and causes of action of any kind or nature against, and covenants not to sue, City, its elected officials, officers, employees, agents and volunteers, and all persons acting on behalf of, by, through or under each of them, under any present or future laws, statutes, or regulations for any claim or event relating to the condition of the Property or City -provided equipment or Speaker/Performer's use thereof. 12. The City shall have the right and royalty -free license to simulcast or produce and show a tape -delayed broadcast of Speaker/Performer's presentation to the City community or general public, through webcast or any other means. This license shall be non-exclusive and the copyright shall remain with the Speaker/Performer. Copies of Speaker/Performer's presentation may be maintained by the City, and Speaker/Performer consents to use of such recordings. 13. Speaker/Performer is solely responsible for payment of royalty fees, performance fees, or similar fees that may be required by unions or similar organizations. 14. Speaker/Performer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, generic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Speaker/Performer affirms that they are an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. This Agreement shall in all respects shall be interpreted, enforced, and governed exclusively by and under the laws of the state of California. Both parties agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. This Agreement represents the complete and exclusive statement between the City and Speaker/Performer regarding the subject matter herein and supersedes any and all other agreements, oral or written, between the parties. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Speaker/Performer. 1 CITY OF SANTA A SHAKESPEARE BY THE SEA Knstme Ridge Stephanie A. Coltrin City Manager Festival Producer [signatures continued on next page] Letter Agreement — Shakespeare by the Sea Page 3 ATTEST: Jennif 4ty Clerk RECOMMENDED FOR APPROVAL Hawk Sc Executive Parks, Recreation, Community Services Agency APPROVED AS TO FORM: Brandon Salvatierra Deputy City Attorney EXHIBIT A Exhibit A SCOPE OF SERVICES VENDOR INFORMATION: Shakespeare by the Sea EVENT: Shakespeare in the Park SERVICE DATE(S): July 22, 2023 COMPENSATION DUE TO THE VENDOR: Total Not to Exceed $6,000 DESCRIPTION: Shakespeare by the Sea LLC, will provide: • Theater entertainment at the City's Shakespeare in the Park event. • Performance schedule to be determined at a later time The Vendor will be paid 50% of the total one month prior to the event date and 50% on the day of the event via check. EXHIBIT B Exhibit B Prior to undertaking performance of work under this Agreement, Speaker/Performer shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder and the results of that work by the Speaker/Performer, their agents, representatives, employees or subcontractors. a. Minimum Scope and Limit of Insurance Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Speaker/Performer has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with a limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Broader Coverage: if the Speaker/Performer maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Speaker/Performer. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Speaker/Performer including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to the Speaker/Performer's insurance (at least as broad as ISO Form CG 20 10 1185 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). 2. Primary Coverage: For any claims related to this contract, the Speaker/Performer's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Speaker/Performer's insurance and shall not contribute with it. Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. 4. Waiver of Subrogation: Speaker/Performer hereby grants to City a waiver of any right to subrogation that any insurer of said Speaker/Performer may acquire against the City by virtue of the payment of any loss under such insurance. Speaker/Performer agrees to obtain any endorsement that may be necessaryto affect this waiverof subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 5. Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require the Speaker/Performer to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. 6. Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City. Verification of Coverage: Speaker/Performer shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Speaker/Performer's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies,including endorsements required by these specifications, at anytime. Subcontractors: Speaker/Performer shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Speaker/Performer shall ensure that City is an additional insured on insurance required from subcontractors. 9. Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances.