HomeMy WebLinkAboutPK18-448 - Original - Ethan Tucker Music - Kent Summer Concert Series - 05/21/2018 T Records Management Document
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253-856-5725.
Vendor Name: Ethan Tucker
Vendor Number (]DE): 1827319
Contract Number (City Clerk):
Category: Kent Summer Concert Series
Sub-Category (if applicable): Thursday's at the Lake
Project Name: Kent Summer Concert Series
Contract Execution Date: 4/20/1 8 Termination Date: 8/3/1 8
Contract Manager: C. Bidman Department: Parks
Contract Amount: 2500.00
Budgeted: ) Grant?
Part of NEW Budget: 0 Local: State: O Federal: 0
Related to a New Position: 0
Basis for Selection of Contractor? Direct Negotiation
Approval Authority: O Director O Mayor Q City Council
Other Details:
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KENT t
CONTRACTOR SERVICES AGREEMENT
between the City of Kent and
Ethan .tee
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation (hereinafter the
"City"), and Ethan Tucker Music, clo Paradigm Talent Agency, located and doing business at 200 W. Superior, Suite
202, Chicago, IL 60654(hereinafter the"Contractor"):
I. DESCRIPTION OF WORK.
Contractor shall perform the following services for the City:
Description: Ethan Tucker will present one performance as part of the Kent Arts Commission's Summer Concert Series,
Start Time/Duration/Stop Time: 7 p.m./g0 minutes, one set straight through or two sets with a short break/8,30 p.m.
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Day, Date, Year: Thursday, August 2, 2018
Event Location: "Thursdays at the Lake" at Lake Meridian Park, 14800 SE 272nd St., Kent, WA.
Merchandising: Contractor shall have the sole and exclusive right, but not obligation, to sell souvenir posters, programs,
CDs, DVDs and other merchandise directly pertaining to and/or bearing the likeness of the Artist at the
performance, City will retain 10% of the receipts when Contractor provides sales staff and 15°%of the
receipts when City provides sales staff.
Contractor further represents that the services furnished under this Agreement will be performed in accordance
with generally accepted professional practices in effect at the time those services are performed,
IL COMPENSATION. The City shall pay Contractor the total surn of$2,500,00 for the work to be performed
under this Agreement, upon satisfactory completion of all services and requirements specified in this Agreement A
$1,250.00 deposit wit be paid„ by City of Kent check, to Paradigm"talent Agency. LLC upon complete execution of the
contract.The balance of$1,250.00 will be paid, by City of Kent check, to Ethan Tucker Music on the day of the
performance. The City shall also pay Contractor a dinner buy-out of$150 on the day of the performance.
III. PRESS MATERIALS. Contractor agrees to provide to the City where appropriate, at his or her own
expense, complete press materials, Including hard copy or high resolution electronic photographs, biographic
descriptions, and program materials, not Mess than six (6) weeks: prior to the Initial event date for the City's use in
promoting the event, All publicity and promotional materials regarding the event released to the rvedia or public by the
Contractor shall credit the City of Kent for its Support of the event or project.
IV. PERFORMANCE SPACE. The City agrees to furnish, at MIS sole cost and expense, a place of
performance on the date(s) and at the time(s) contained in Section I. The City Sri also provide ushers, a house
manager, and box office staff and any additional services and personnel as required by the City, for(tie efficient operatdorp
of the engagement. Other arrangements will be the responsibility of the City and Contractor as follows beiow:
Venue: City will provide covered outdoor stage.
Sound; City will provide; Contractor will provide technical requirements no later than 30 days prior to
performance date.
Lights: City will provide general lighting as needed.
Dressing Rooms: None available.
Technical Staff: City will provide sound technician.
V. INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor-Employer
Relationship will be created by this Agreement. By their execution of this Agreement, and in accordance with Ch 51.08
RCW, the parties make the following representations
A. The Contractor has the ability to control and direct the performance and details of its work, the
City being interested only in the results obtained under this Agreement„
B. The Contractor maintains and pays for its own place of business from which Contractor's services
under this Agreement will be performed.
CONTRACTOR SERVICES AGREEMENT - 1
(Under$10,000-Sole Performer)
i
C. The Contractor has an established and independent business that is eligible for a business
deduction for federal income tax purposes that existed before the City retained Contractor's
services, or the Contractor is engaged in an independently established trade, occupation,
profession, or business of the same nature as that involved under this Agreement.
D. The Contractor is responsible for filing as they become due all necessary tax documents with
appropriate federal and state agencies, including the Internal Revenue Service and the state
Department of Revenue.
E. The Contractor has registered its business and established an account with the stale Department
of Revenue and other state agencies as may be required by Contractor's business, and has
obtained a Unified Business Identifier (UBI) number from the State of Washington.
F. The Contractor maintains a set of books dedicated to the expenses and earnings of its business.
The parties intend that an Independent Contractor-Employer Relationship will be created by this Agreement and that the
Contractor has the ability to control and direct the performance and dettalls of its work, the City being interested primarily
only in the results obtained under this Agreement and compliance with its terms and conditions.
8 Vf. WORK PERFORMED AT CONTRACTOR'S RISK. Contractor shall be responsible for the safety of its
�I employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary
for that purpose,
VII. INDEMNIFICATION. Contractor shall defend, indemnify and hold the City, its officers, officials,
employees, agents and volunteers harmless from any and all claims, injuries,damages, tosses or suits, Including all legal
costs and attorney fees, arising out of or in connection with the Contractor's performance of this Agreement, except for
that portion of line injuries and damages caused by the City's negligence, including assertions that the use or transfer of
any software, book, document„ report, fiim, tape or sound reproduction delivered in accordance with this Agreement
constitutes an infringement of any copyright, patent trademark, trade name, or otherwise results in unfair trade practices.
The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of
these covenants of indemnification.
The provisions of this section shall survive the expiration or termination of this Agreement.
Vlll. INSURANCE. The Contractor shall procure and maintain for the duration of the Agreement, insurance of
the types and in the amounts described in Exhibit A attached and incorporated by this reference,
IX, TERMINATION AND BREACH. Either party may terminate this Agreement, with or without cause, upon
providing the other party ninety (90) days written notice at its address set forth on the signature block of this Agreement,
All costs incurred by the City due to Contractor's failure to comply with the terms and conditions of this Agreement shall be
the responsibility of the Contractor, The City may deduct its costs from any payments due to the Contractor or pro-rate
the Agreement amount based upon the actual time of Contractor's performance compared to the contracted performance
schedule.
X. IMPOSSIBILITY OF PERFORMANCE. Outdoor performances are considered "rain or shine " In the
event that extreme Inclement weather renders an outdoor performance impossible, the City will attempt to arrange an
alternate performance space and Contractor will employ its best efforts to provide the contract work in that alternate
performance space. Neither party shall be udder Vlability for failurer to perform in the event that such failure is caused by
or due to acts or regulations of public authorities, civil tumult„ strike, epidemic or any olhor cause beyond the control of
either party. In the event of a failure to perform as provided in this section, neither party shall be liable for the balance of
the Agreement.
Xt. MISCELLANEOUS PROVISIONS.
A. Diitnirnation. In the performance of work under this Agreement or any sub-contract, the Contractor
shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory,
mental, or physical disability, discriminate against any person.
B. Rec4cflabie Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City requires its Contractors to
use recycled and recyclable products whenever practicable, A price preference may be available for any designated
recycled product.
C Non-Waiver of Breach, The failure of the City to insist upon strict performance of any of the covenants
and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more
instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the
same shall be and remain in full force and effect.
D. Resolution of DiaouIpg „ �glpti,g�rining Law. This Agreement shall be governed by and construed in
,pfid
accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim
CONTRACTOR SERVICES AGREEMENT -2
(Under$10,000—Soie Performer)
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EXHIBIT A
INSURANCE & INDEMNITY REQUIREMENTS
J No Insurance is required for this Contract,
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CONTRACTOR SERVICES AGREEMENT - 4
(Under$10,000-Sole Performer)
FthaviTucker
Fand
Hummus & Pita
Chips & Salsa
Fresh Fruit - (Bananas and Orange are fine)
6 Coconut Waters
6 Vitamin Waters
12 Assorted Energy Bars '
2 Bet +es 4 ed Wir+ c /`, pot no 'Ico " f
24-Seer3
1 lattle-Bewbon-
1 Case. Bottled Still Water
Dinner Buyout for 6
For any questions, please call Rob Fairbrother (360) 490-3746.
�.�„ may.
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PAR no I c hl TALENT AGENCY PERFORMANCE CONTRACT # 166116 1 PAGE 1 OF 2
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Agent: Michael Morris 1 mmvrdsisparadlgmagency.mm
THIS PERFORMANCE CONTRACT is dated Wednesday, February 21, 2018 by and between ETHAN TUCKER MUSIC
("ARTIST COMPANY"), which shall furnish the services of Ethan Tucker ("ARTIST"), and KENT ARTS COMMISSION ("PURCHASER")
for the engagement listed below on the terms and conditions set forth in this Agreement,
This Performance Contract between ARTIST COMPANY and PURCHASER consists of this principal agreement together with the
Additional Terms and Conditions, ARTIST'S RIDER (if any) and any other exhlbits and addenda which are attached hereto and
incorporated herein by this reference (collectively, this"Agreement"),
For good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, PURCHASER and ARTIST COMPANY
hereby agree as follows:
1. ENGAGEMENT VENUE:
VENUE: Kent Summer Concert Series
ADDRESS: 14800 SE 212nd St
Kent, WA 98042
United States
DATE OF SHOW(S); Thu,Aug 2, 2018 7:00PM SET LENGT :90 Minutes
NO OF SHOWS, 1 AGES; All Ages
DOORS 6:00PM
ARTIST TIME: 7:00PM
CURFEW: 9:00PM
Z. COMPENSATION:
$ 2,500.00 guaranteed to ARTIST(the"Guarantee"),
list Guarantee
Artist to perform in band format.
3, PAYMENT TERMS:
PURCHASER shall pay a deposit In the amount of 1 1,250,00 to PARADIGM TALENT AGENCY,LLC no later than Sunday,July 1,
2018.
All deposits shall be payable by baoP,wire to:
PARADIGM TA-ENT AGENCY, LLC City National Bank
ACCT: 113264764 100 N RDxhUry Dr
ABA: 122016066 Beverly Hills,CA 90210
SWIFT CODE. CINAUS6L
The balance of the Guarantee shall be paid to and in the name of ARTIST COMPANY by cash or cashier's meek not later than the
evening of the Engagement. If the percentage of gross ticket receipts exceed the Guarantee,the overage amount due shall be
paid in full to ARTIST COMPANY In rash or by cashier's check or bank wire('g 0esttti by ARTIST COMPANY)immediately
following the Engagement ,,,
4, PRODUCTION: X/1/'/ / L+"" /' > y WA' *
PURCI IASER to provide and pay for Sound and 11 tts,laPorpved by ARTIST W
S. BILLING:
100% Festival
6. TICKET SCALING AND PRICES:
DESCRIPTION QUANTITY COMP PRICE TOTAL
Free Adrrrl.slon 1,200 - 0p0 u.o0
CAP, 1,200 TOTALS: 1,200 0 ;0.00 GROSS POTENTIAL
SCAZNb"NOTES
Performance Contract 166116.put page I oft
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PERFORMANCE CONTRACT # 166116 PAGE 2 OF 2
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7,. MERCHANDISE
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CONTACT DETAILS:
ARTIST: . Etham Tucker,
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Exhibit "A" PARADIGM ADDITIONAL TERMS & CONDITIONS
As used herein, the term "Company' shall have the same meaning as the term "Artist Company" as defined in the
facing pages of this Agreement.
1. VENUE:
1.1 Under no circumstances may the Purchaser change the Venue for the Date of Engagement without Agent's
or Company's prior written consent, which may be withheld in Agent's or Company's sole discretion, as
applicable. Notwithstanding anything to the contrary contained herein, a change of Venue by the Purchaser in
the absence of such consent shall constitute a material breach of this Agreement and Purchaser shall be liable
for the full amount of Compensation due hereunder regardless of the date on which such change takes place.
i
1,2 In addition to Venue, Purchaser hereby agrees to provide all necessary permits and licenses required by all
applicable laws for purposes of lawfully conducting the Event. Unless otherwise agreed to by Agent in writing
prior to the Date of Engagement, it is hereby acknowledged and agreed that Artist shall perform in the primary
(main)featured performance area of Venue.
2. DATE(S)OF ENGAGEMENT„
2.1 Artist's appearance on the Date of Engagement (hereinafter, the "Performance"), together with all other
performances at the Venue on the Date of Engagement, is hereinafter collectively referred to as the "Event."
Unless otherwise expressly agreed in writing by Agent, Purchaser may not make any announcements regarding
the Performance contracted for hereunder until Company has received the initial deposit set forth in the
paragraph titled "Payment Terms" of the Facing Pages)of this Agreement and written authorization from Agent
that such an announcement may be made. In the event that Purchaser breaches the terms contained in the
foregoing sentence,Agent or Company may elect to immediately terminate this agreement upon giving written
notice to Purchaser, without prejudice to any rights or claims Agent or Company may have. In the event of such
termination, Company shall be entitled to retain any payments previously made by Purchaser hereunder and
shall have no obligation to furnish Artist to perform on the Date of Engagement.
2.2 Purchaser hereby acknowledges that, except as otherwise expressly set forth herein, each and every
Deposit payment made hereunder is non-refundable. Contemporaneous with payment of the Deposit(s)
hereunder and subject to the terms of paragraph 4.1 herein below, Purchaser is being granted the limited right
to immediately exploit artist's approved name, image and logo(hereinafter, the "NIL Rights")solely for purposes
of advertising, marketing and promoting the Event and the sale of tickets with respect thereto.Purchaser further
acknowledges that the aforesaid grant of NIL Rights constitutes a value in consideration of the payment of any
and all monies paid to Company hereunder prior to the Date of Engagement, For the avoidance of doubt,
except as otherwise expressly set forth in writing between the parties hereto, the NIL Rights granted hereunder
shall immediately revert to Company upon the earlier of(a) completion of the Performance, (b) material uncured
breach of the Agreement by Purchaser, (c) cancellation of the Performance,or(d)termination of this Agreement
by either party in accordance with the terms hereof.
3. TICKET PRICE:
3.1 Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, Purchaser shall
be solely responsible for payment of all taxes (including, without limitation, state and local sales taxes)
associated with the sale of tickets for the Event.
3.2 Purchaser shall not charge a surcharge, tax, or fee of any kind in addition to the ticket price stated herein.
3.3 Purchaser shall not increase or decrease a ticket price, nor charge a fee based on an age differential,
without prior agreement between Purchaser and Agent.
3.4 Intentionally Omitted.
3.5 Subject always to the applicable data protection legislation, Purchaser shall make the Database available to
Company free of charge. "Database" shall mean all statistical and demographic data gathered in connection
-aye I ot:
Purchaser Initials
......_.._...
Company Initials _
I
with ticket sales for the Performance, including, without limitation, e-mail addresses of purchasers of tickets for
the Performance.
4. LINE-UP, BILLING,AND PROMOTION:
4.1 (a) Purchaser shall obtain the approval of Agent by e-mail over all advertisements and promotional material
(including flyer design) using the Artist's name, likeness and/or logos prior to producing and/or
disseminating any such materials.
(b) In respect of the Date of Engagement hereunder,Artist shall receive mutually agreed upon festival billing
'...... with respect to all artist performances taking place at the Venue on all materials distributed by Purchaser to
press and public.Artist shall be billed in no other way without the prior written consent of Agent.
(c) Purchaser must use Artist's NAME/IMAGE/LIKENESS/LOGO template (hereinafter, the "NIL Template")
j in all Event advertising (including, without limitation, poster,flyer, Internet, radio,TV, and print advertising).
The NIL Template shall be provided by Agent promptly fallowing execution of this Agreement.
(d)Intentionally Omitted.
(a) Purchaser acknowledges and agrees that the Artist's name or likeness may not be connected in any
way with any form of sponsorship or endorsement of any kind, including but not limited to commercial and
political, without the prior written consent of Company. Without limiting the foregoing, there shall be no
sponsorship branding on the stage on which the Performance takes place without Agent's prior written
approval, which may be withheld in Agent's sole discretion..
4.2 (a) Intentionally Omitted.
(b) Company reserves the right to be meaningfully consulted the performing artist who will perform
immediately prior to and/or immediately after Artist's set time.
4.3 (a)Purchaser shall use best efforts to adequately promote the Performance by manufacturing and sending
announcements, displaying posters, placing advertisements and by utilizing all other promotional methods
that are standard practice in the industry.The costs of promotion shall be borne solely by Purchaser.
(b)Any materials made available to Purchaser by Agent or Company, including,without limitation, materials
embodying Artist's name, Artist's image and/or logo, and any other intellectual property owned or
controlled by Artist (hereinafter "NIL Materials") shall be used solely in connection with promotion of the
Performance on the Date of Engagement and shall remain the property of Company or Artist, as applicable.
Company shall have approval over each use of the NIL Materials hereunder. In the event that Company
determines, in Company's sole discretion,that any use of the NIL materials may adversely affect Company,
Artist or Company's or Artist's intellectual property rights, as applicable, upon receipt of Company's written
notice of the foregoing, Purchaser will use best efforts to immediately discontinue dissemination of the
promotional materials identified in said notice and shall promptly destroy the unused materials or return
them to the requesting party at Purchaser's sole cost and expense,
S. PRODUCTION:
5.1 Purchaser shall provide and pay for all mutually agreed upon production elements at no cast to Artist.
Purchaser hereby warrants and represents that the level of production of the Event and all elements thereof
shall be commensurate with Artist's stature in the musical artist market, and shall be appropriate for the size of
the Venue, as determined by Company's Representative. For the avoidance of doubt, unless otherwise
expressly agreed in writing between the parties hereto, Purchaser shall be responsible for any and all
production costs.
5.2 In the event of a breach of paragraph 5.1 herein above, without limiting any other rights and
remedies Company may have under this Agreement, Company shall (1) have the right to refuse to furnish Artist
to perform on the Dale of Engagement and (ii) shall be entitled to retain any payments previously made by
Purchaser hereunder.
r"rnn^ce P Purchaser Initials
Company Initials
6. COMPENSATION:
6.1 (a) Company hereby directs and authorizes Purchaser to make all payments due hereunder as directed in
the Payment Terms of the facing pages of this Agreement.
(b) Such payment as aforesaid shall be made as an accommodation to Company and nothing herein
contained shall constitute Agent as a beneficiary of or party to this Agreement. Such payment to Agent
shall constitute payment to Company for all purposes of this Agreement and Purchaser will have no liability
to Agent by reason of any erroneous payment Purchaser may make or failure to comply with such
authorization. Company hereby indemnifies and holds Purchaser harmless against any claims asserted
against Purchaser by reason of any such payment made pursuant to the terms of this paragraph 6,1(b).
6.2 Company reserves the right to have Agent renegotiate the terms of compensation set forth in the
paragraphs titled "Compensation" and "Payment Terms," respectively, of the Facing Page(s)of this Agreement
in the event that attendance at the Event exceeds the "Capacity" amount set forth in the paragraph titled
"Ticket Scaling and Prices" of the Facing Page(s)of this Agreement.
6.3 Intentionally Omitted,
6.4 Intentionally Omitted.
7. TAXES AND VISAS:
7.1 Purchaser shall pay for any and all taxes (excluding any income or Non-resident Withholding Tax that may
be owed by Company), which may become due in connection with the Performance. For the avoidance of
doubt Purchaser shall be responsible for any airport arrival and departure taxes incurred in respect of Artist and
Artist's guest's travel. Purchaser shall not offset any expenses or taxes of any type against the Guarantee
hereunder.
7.2 Notwithstanding anything to the contrary contained herein, Company's federal non-resident withholding tax
amount hereunder may not exceed the required amount established by the applicable tax authority. Purchaser
must make withholding payments to the U.S. Internal Revenue Service and any other applicable state and/or
local tax authority (individually and collectively, the "Tax Authority") in accordance with the terms of applicable
law, but in no event later than thirty (30) days from the Date of Engagement. Purchaser shall promptly provide
Agent with wire confirmation evidencing that Purchaser has withheld and paid over to the Tax Authority in a
timely manner the requisite amount. In the event that Purchaser is in breach of the terms of this paragraph 7.2
and fails to remedy such breach within five (5) business days of receipt of Company's written notification of
such breach. Company shall have the right to immediately terminate this Agreement by written notice to
Purchaser(the "Termination Notice") and any and all rights granted to Purchaser hereunder(including, without
limitation, rights of exclusivity)shall be immediately revoked. In the event of any such termination, within five(5)
business days of Purchaser's receipt of the Termination Notice,Purchaser shall pay to Agent the balance of the
Guarantee and Agent shall become the withholding agent with respect to the Date of Engagement. Without
limiting the foregoing, Purchaser shall be liable for any and all penalties assessed by the Tax Authority against
Company and/or Artist for Purchaser's failure to make timely payment to the Tax Authority of amounts required
to be withheld hereunder.
7.3 Under no circumstances may Purchaser make cash payments under this Agreement. Purchaser hereby
acknowledges that (i) Agent will not accept cash deposits as payment hereunder and (ii) any cash payments
made in violation of the foregoing provision will be forfeited to Agent and not be deemed to be compensation to
Company or applied to offset any payments due to Company hereunder
7.4 Purchaser, where applicable, shall be responsible for obtaining and paying for any work permits and visas
(U,S. work permits excluded) required for Artist and any member of Artist's crew to work legally in country of
performance on the Date of Engagement which shall be valid for the duration of Artist's stay in country of
performance. Purchaser shall be responsible for paying for any additional costs incurred in obtaining a visa,
including but not limited to courier fees,travel and accommodation expenses,and taxi fare.
8. MERCHANDISE:
Page 3 of k Purchaser Initials
Company Initials
8.1 Purchaser hereby gives permission to Company to sell merchandise and other Artist-related products
before, during and after the Performance, Purchaser shall receive the mutually agreed upon commission with
respect to such sale of merchandise or other Artist-related products hereunder.
8.2 Intentionally Omitted.
9. EQUIPMENT AND HOSPITALITY:
9.1 (a)Purchaser agrees to setup an appropriate performance area that is free from interruption.
� (b) Purchaser hereby agrees to provide, at Purchaser's sole cost and expense, afirst-class sound and
li h1i to include the equipment and technical specifications set forth on the Artist Rider.
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(c) Purchaser shall check all equipment for defects and to ensure proper functioning on :he Date of
Engagement prior to the Performance. Purchaser will indemnify Company, Agent and Artist from any
liability resulting from damage to equipment arising at any time before, during or after the Performance
hereunder, except in respect of damage caused by any intentional act or omission by Artist or Artist's grass
misconduct,
(d) At any time and without prior notice, Company shall have the right to cancel or shorten the
Performance hereunder if, in Company's reasonable business judgment, Purchaser has failed to adhere to
the requirements set forth herein in respect of the equipment or if the equipment fails to function properly
on inspection or during the Performance.
9.2 Purchaser shall provide ArCa .C...W11h d clean and..comfortable dressing room or exclusive trailer area
conforming to the spEcf6:053 satforIffWITIN6 Artist Rider.
9.3 Company shall have the right to invite the number of guests referred to as"Artist Comps" in the paragraph
titled "Ticket Scaling and Prices"of the Facing Page(s) ("Artist's Guests")to attend on the Date of Engagement,
and each of Artist's Guests shall he given access to the Venue free of charge-Company's list of Artist's Guests
will be honored throughout the entire Date of Engagement from doors to closing.The Agent's guest list shall not
be deducted from Company's guest allotment set forth in this paragraph 9.3.
10. RECORDING:
10.1 Company's Recording:
Purchaser hereby acknowledges and agrees that Company and/or anyone engaged, authorized, employed or
supervised by Company, may photograph, video tape, and/or otherwise record, reproduce and distribute such
recordings of the Event including the Performance hereunder("Recordings"), in whale or in part, in any manner
or media, and any such Recordings from the inception of recording thereof, and all copies manufactured
therefrom, together with the images and/or performances embodied thereon, shall be the sole property of
Company or Company's designee, as applicable ("Copyright Holder"), throughout the world, free from any
claims whatsoever by Purchaser or any third party(including, without limitation, Purchaser's affiliates, partners,
investors and the Venue owner) ("Third Party"), and Copyright Holder shall have the exclusive right to copyright
such Recordings in its name as the sole and exclusive owner and author thereof and to secure any and all
renewals and extensions of such copyright. Neither Company, Artist nor Company's or Artist's designee shall
have any obligation to obtain permission from or provide credit to Purchaser, except as otherwise required by
law. For the avoidance of doubt, Company shall be solely responsible for the following in connection therewith.
(a) any and all costs and expenses, including without limitation, additional labor costs that Company may incur in
connection with the Recordings(all of such costs and expenses being specifically excluded from show costs and
expenses), (b) any and all liabilities, and (c) any and all appropriate third party clearances, authorizations and
approvals.
10.2 Other Recordings:
(a) Purchaser warrants that Purchaser shall not, nor shall Purchaser, authorize others to photograph, video
tape, record or otherwise reproduce Artist's likeness or image in any manner, nor shall Purchaser record
(in any medium) or broadcast (via any means, including, without limitation, radio or internet), or authorize
others to record or broadcast, any portion of the Performance without Company's prior written consent,
which may be withheld in Company's sole discretion, as applicable. If it becomes evident to Artist or
Company that any of the foregoing prohibited activities is occurring during the Event, Artist may
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discontinue Artist's Performance immediately and neither Agent, Artist nor Company shall be obligated
to return any monies previously paid by Purchaser under the Agreement.
(b) Purchaser warrants and represents that Purchaser will use Purchaser's best efforts to prevent the
recording, by any means or media,and dissemination of the Performance hereunder except as otherwise
expressly permitted herein.
(c) Purchaser will be liable to Company and Artist for any loss, damage or expense (including reasonable
attorneys' fees) incurred or suffered by Artist as a result of a breach of subparagraphs 10.2(a)or 10.2(b)
herein above. For the avoidance of doubt, except as otherwise expressly permitted in writing by
Company, Purchaser shall be strictly liable for any damages suffered by Company or Artist as a result of
(1) the creation of an unauthorized recording of Artist's performance hereunder by means of the sound
board, artist equipment, monitors or any other part of the Venue's audio-only and audio/visual
installation, and(2)the dissemination of any such recording.
!II 11. CANCELLATION.
1 11.1 Company Cancellation of Performance:
(a) Without prejudice to any rights, claims or remedies Company may have under this Agreement at law or in
equity, in the event that Purchaser breaches any term of this Agreement and such breach is not cured in
accordance with the terms of paragraph 14.1 herein below, Company shall have the right to immediately
cancel this Agreement.Such breaches include,but are not limited to,the following:
(i) Purchaser does not make timely payment to Agent any amount due as set forth on the Facing Page(s),
of this Agreement herein above or otherwise materially breaches the terms of this Agreement, including,
without limitation, as contained in the paragraphs titled "Compensation" and "Payment Terms,"
respectively, of the Facing Page(s), or fails to perform any material obligation required of Purchaser
hereunder;
(ii) On or before the Date of Engagement, Purchaser has failed, neglected or refused to perform any
contract with any other performer for any earlier engagement and,following receipt of Company's written
demand therefor,Purchaser fails to promptly make full payment of the Guarantee due hereunder, or
(iii)Agent, in its sole discretion, determines that Purchaser is unable to pay its debts as they became due
in the ordinary course of business;or
(iv) A voluntary or involuntary bankruptcy petition is filed by or against Purchaser, Purchaser goes into
compulsory liquidation, makes an assignment for the benefit of creditors, is in receivership or makes any
composition with creditors.
(b) In the event of any cancellation by Company under 11.1(a)herein above,
(i) Neither Agent, Company, nor Artist shall be obligated to refund any payments made by Purchaser
hereunder prior to the date on which cancellation takes place, nor shall Agent, Company nor Artist have
an obligation to mitigate with respect to amounts owed by Purchaser hereunder,
(li) Purchaser shall remain liable to Company for the full amount of the Guarantee;
(iii) Company shall have no obligation to furnish Artist to perform for Purchaser hereunder and Company
may contract with one or more third parties for Artist to perform for such third party(ies) on the Date of
Engagement; and
(iv) Neither Company, Agent nor Artist shall be liable to Purchaser for any costs or losses of any kind
whatsoever suffered by Purchaser as a result of such cancellation.
11.2 Purchaser Cancellation of Performance:
If,for any reason (including, without limitation, a cancellation under paragraph 11.3 herein below), Purchaser
cancels the Performance following the date of execution hereof, Purchaser shall remain liable to Company
for the full amount of the Guarantee due hereunder.
11.3 Cancellation of the Performance due to Force Majeure Event:
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(a) Notwithstanding anything to the contrary contained herein, the Performance may be cancelled by either
party due to cause(s) beyond the reasonable control of the parties hereto that would render the
Performance hereunder impossible or make conditions for the Performance hazardous. Such causes
shall include,but not be limited to: acts of God;weather; acts of war;riot;fire; explosion; accident;flood;
sabotage or terrorist act;transportation failure or delay; governmental or court ordered laws, regulations,
requirements, orders or actions; injunctions or restraining orders; strikes) or injunction (provided that
neither party shall be required to settle a labor dispute against its own best judgment),technical failures
beyond the reasonable control of the parties hereto, or other causes of a similar or different nature
beyond the reasonable control of the parties hereto (hereinafter "Force Majeure Event"). Neither
Company, Agent nor Artist shall be held liable for any losses, casts or damages whatsoever suffered by
Purchaser due to Artist's failure to perform as a result of a Force Majeure Event.
(b) (i) In the event that the Performance is cancelled due to a Farce Majeure Event and Artist is ready and
! willing to perform, Company shall be entitled to retain or receive, as applicable, within ten (10) days of
the cancelled Date of Engagement,one hundred percent(100%)of the Guarantee.
'.. (ii) In the event the Performance is cancelled pursuant to a Force Majeure Event that renders Artist
unready and/or unable to perform, Company shall be entitled to retain or receive, as applicable, within
ten(10)days of the cancelled Date of Engagement, fifty percent(50°%)of the Guarantee.
i
11.4 Cancellation of the Performance due to Incapacitating Illness or Accident to Artist:
In the event of an incapacitating illness or accident to Artist or essential crew member or the death or terminal
illness of a member of Artist's family that prevents Artist from being ready, willing and able to perform a Date of
Engagement hereunder,it is understood and agreed that(1)Artist shall not be required to perform the scheduled
engagement(s), (ii) neither Company, Agent nor Artist shall be liable for any costs or losses of any kind
whatsoever suffered by Purchaser and fill) Purchaser agrees to release Company, Agent and Artist from any
liability with respect thereto. Unless otherwise expressly agreed in writing between the parties, in the event of
cancellation by Company under this paragraph 11.4, Company shall return to Purchaser within ten (10) business
days following the Date of Engagement, all sums received by Company under this Agreement less Artist's bona
fide reasonable out-of-pocket expenses incurred in connection herewith.
11.5 Company warrants and represents that Company has accepted this engagement in good faith and will use
Company's reasonable good faith endeavors to cause Artist to fulfill Artist's obligations hereunder.
12. SECURITY AND INSURANCE:
12.1 (a) Purchaser shall be solely responsible to provide a safe environment for the Event including regarding
the staging, stage covering, electrical grounding, supervision and direction of the Performance, and adequate
security, so that the Performance and all persons and equipment are free from adverse weather and other
unsafe conditions, situation and events ("Dangerous Conditions"), Dangerous Conditions may include but not
be limited to recent acts of violence, riots or political unrest;faulty or insufficient electrical power; inadequate or
unsafe staging; inadequate crash barrier; rain penetration or any other hazardous condition which, in the
reasonable opinion of the Company or Artist, may result in damage or injury to Artist or Artist's equipment,or to
anyone engaged or furnished by Artist, or to any other persons or equipment for wham or which Artist may be
held responsible. Company and Artist shall not have any liability for any damage or injury caused by such
Dangerous Conditions, except to the extent such is solely and directly caused by Company's or Artist's
negligence or willful misconduct.
(b) Notwithstanding anything to the contrary contained herein, Company reserves the right to decline to furnish
Artist perform if, in its sole discretion, Company deems conditions at the Venue to be Dangerous Conditions. In
the event that the Performance is cancelled due to Dangerous Conditions (as defined in paragraph 12.1(a)
herein above), Purchaser shall be obligated to pay Company one hundred percent(100%)of the Compensation
due in connection with the Performance cancelled.
(c) Purchaser will provide and pay for an adequate number of sober, able-bodied and clearly identifiable
professional security persons for the scale of the Event and in accordance with the terms of the Artist Rider
Security must ensure safety of Artist, Company's and Artist's equipment, personal property, Artist's crew and
vehicles for the duration of the Artist's stay at the Venue (Including, without limitation, the parking facilities and
surrounding grounds).
12.2 (a) Purchaser agrees to provide public and general liability insurance coverage (including automobile,
liability and comprehensive) to protect against any claim for personal injury or property damage or
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otherwise brought by or on behalf of any third party, person, firm or corporation as a result of or in
connection with the Date of Engagement, including as a consequence of the installation and/or operation
of the equipment provided by Artist. In addition, it is agreed that Purchaser shall maintain in effect a
policy of workmen's compensation insurance covering all of its employees and other personnel who are
involved in the installation, operation and or maintenance of the equipment provided by Producer. The
Purchaser further agrees to provide full insurance coverage for all equipment provided by Artist or Artist's
agents, contractors and employees against fire, theft, riot or any other type of act that would cause harm
or damage to equipment. Without limiting the foregoing, Purchaser shall also secure and maintain a
commercially standard event cancellation insurance policy for the Event which does not exclude
cancellation for a Force Majeure Event or an inclement weather cancellation, except for the following
exclusions: acts of war; failure of means of transportation; terrorist act; governmental or court ordered
laws, permitting, zoning, licensing or other city/municipal/state/parish issues, or other commercially
reasonable exclusions. Purchaser shall supply Agent with certificates of insurance showing coverage of
the above at least ten (10) days prior to the show date. However, if said certificate is not received by
Agent prior to the above date, then Company at Company's election may terminate this Agreement. If
Company elects to furnish Artist to perform the Engagement and the certificates of insurance have not
been received, Purchaser is still solely responsible for complete coverage as specified above.
(b) Purchaser shall obtain and maintain, from the date hereof through completion of the Engagement,
commercial general liability insurance coverage as required under sub paragraph 122(a)hereinabove and
shall name Company, Artist, and Agent as additional named insureds in an amount of not less than Five
Million Dollars ($5,000,000) per occurrence(but in no event in amounts less than the limits require by the
venue) and workers compensation and employer's liability insurance (including stop gap liability where
applicable) with minimum limits of One Million Dollars($1,000,000) per claim (but in no event in limits less
than those required by law and/or less than the limits required by the venue and/or as set forth in the
Artist rider, if any).
(c) Purchaser hereby agrees to indemnify and hold Company, Artist, Agent and their contractors,
employees, licensees, designees and agents (individually and collectively, the "Artist Indemnitees")
harmless from and against any loss, damage or expense including reasonable attorneys' fees incurred or
suffered by or threatened against the Artist Indemnitees in connection with or as a result of any claim for
personal injury or property damage or otherwise brought by or on behalf of any third party, person, firm,
entity or corporation as a result of or in connection with the Engagement, which claim does not result
directly from the gross negligence or willful misconduct of Artist and/or Company's employees,
contractors, licensees,designees or agents.
(d) Purchaser also hereby indemnifies the Artist Indemnitees from and against any and all lass, damage or
expense resulting from any damage or destruction to Artist's equipment or that of its employees,
contractors and agents, inside or outside the Venue, including but not limited to damage or destruction
occasioned by Force Majeure events.
(a) The Artist Indemnitees shall not be responsible for damage or injury to any patrons, or the venue, or
any fixture or personal property therein, caused by fans or any others not engaged by Company or Artist.
Purchaser shall indemnify and hold the Artist Indemnitees harmless from any third party claims concerning
the foregoing (as provided above)and no claim, deduction or offset shall be made by Purchaser in respect
of same.
13. PURCHASER'S WARRANTIES AND REPRESENTATIONS:
13.1 Purchaser hereby acknowledges that Agent is only responsible for procuring bookings and may not be
held liable for any breach of contract by Company or Artist hereunder or under any other agreement between
Company or Artist and Purchaser.
13.2 Purchaser warrants that Purchaser shall not advertise the Performance prior to (i)Company's receipt of the
initial deposit specified in the paragraph titled "Payment Terms" of the Facing Page(s) and (ii) Purchaser's
receipt of Agent's written authorization to advertise the Performance.
13.3 Purchaser represents and warrants that Purchaser is the responsible party for making all payments
hereunder and has sufficient funds, financing and/or insurance to honor all of Purchaser's obligations
hereunder.
14. DEFAULT, NOTICE AND CURE:
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14.1 Except as otherwise expressly set forth herein, neither party to this Agreement shall be deemed to be in
breach of any of its obligations hereunder unless the party not in breach serves specific written notice of such
alleged breach upon the party in breach and the party in breach shall have failed to cure such breach, if any,
within five(5) business days following receipt of such written notice(but in no event later than 5:00 p.m. EST on
the date that is three(3)business days prior to the Date of Engagement hereunder).
14.2 All notices to be given to either party hereto shall be in writing and shall be delivered to the addressee at
the respective addresses hereinabove set forth, or such other address or addresses as may be designated by
either party, by(i) mail (registered, or certified, return receipt requested, postage pre-paid); fill overnight courier
with proof of receipt; (ii) telefax (with a copy by express courier service); or (iv) e-mail (provided recipient has
responded by email or otherwise in writing to confirm receipt). Notices shall conclusively be deemed to have
been given seventy-two (72) hours after the date of mailing or twenty-four hours (24) after the date of
transmission by telefax or e-mail. The addresses of the parties, until further notice to the contrary, are as first
written above.
14.3 In the event of default by Purchaser hereunder, in addition to any other amounts due to Agent and
Company hereunder, Purchaser shall be liable to Agent or Company, as applicable, for any costs and fees
Incurred by Agent or Company (Including, without limitation, all attorney's fees, costs of debt collection or In
respect of any legal action taken by Agent and/or Company)in connection with amounts due hereunder.
14.4 Without limiting the foregoing, interest at the highest rate permissible under the laws of the State of
California shall accrue on any amount due to Company hereunder from and after the date upon which such
payment is due.
15. MISCELLANEOUS:
15,1 This Agreement sets forth the entire understanding between the parties, oral or written,regarding the
subject matter hereof, and supersedes all prior or contemporaneous negotiations or understandings between
the parties. No amendment, modification,or waiver of these Terms will be valid unless set forth in a written
instrument signed by both parties hereto. Should any portion of this Agreement be deemed null and void under
the law,the remainder shall remain in full force and effect.
15.2 Purchaser agrees to indemnify Company, Artist and Agent for any loss, costs, damages or liabilities
(including, without limitation damages for any loss of good will and injury to Artist's reputation)and Company's
and/or Artist's actual attorney's fees and costs in connection with any suit or arbitration or other proceeding,
whether or not reduced to final judgment or award, arising from Purchaser's breach of this Agreement.
15,3 (a)This contract shall be governed by and construed under the laws and judicial decisions of the State of
California. All claims and disputes arising out of the interpretation, performance or breach of this
Agreement shall be submitted exclusively to the jurisdiction of the courts of the State of California(state
and federal) located in Los Angeles County; provided however if Agent and/or Artist is sued or joined in
any other court or forum in respect of any matter which may give rise to a claim by Agent or Artist
hereunder, Purchaser hereby consents to the jurisdiction of such court or forum over any such claim
which may be asserted by Company and/or Artist.
(b)The prevailing party in any legal action (after all appeals have been taken or the time for taking such
appeals has expired) brought by one party against the other and arising out of this Agreement shall be
entitled, in addition to any other rights and remedies available to it at law or in equity, to reimbursement
for its costs and expenses (including court costs and reasonable fees for outside attorneys and expert
witnesses) incurred with respect to the bringing and maintaining of any such action. The term "prevailing
party" for the purposes of this paragraph shall include a defendant who has by motion, judgment verdict
or dismissal by the court, successfully defended against any claim that has been asserted against it.
15.4 All rights not expressly granted herein are reserved to Company and Artist.
15.5 Additional riders supplied by Company, including, without limitation, Artist's technical and hospitality
riders(individually and collectively,the"Artist Rider")are annexed hereto and made a part hereof.
15.6 Facsimile and scanned copies hereof shall be deemed to be originals,
15.7 Wherever in this Agreement approval or consent is required, communications may be made via e-mail and
approvals made via e:mail shall be deemed written approvals for purposes of this Agreement.
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15.8 This Agreement may be executed in counterparts, each of which shall be deemed an original but all of
which together shall constitute the same instrument. The counterparts of this Agreement may be executed and
delivered by electronic or digital means and the receiving party may rely on the receipt of the electronically or
digitally signed or delivered document as a binding and enforceable agreement.
15.9 Purchaser may not transfer or assign this Agreement or any rights, interests or obligations without the
prior written consent of Company. Any assignment in violation of this paragraph 15.9 shall be void.
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