Promoter_and_Talent_Acquisition_Contract_Template.pdf

PROFESSIONAL SERVICES AGREEMENT FOR PROMOTER

This Professional Services Agreement (“Agreement”) is made and entered into as of _______________(“Effective Date”) by and between _________, (“Promoter”) and The City of Edinburg (“City”), a municipality, individually referred to as “Party” or collectively referred to as “Parties”. City engages the Promoter to provide a professional service hereinafter described with its terms set forth below.

1. PROFESSIONAL SERVICES

1.1 Scope of Services. Subject to the terms and conditions of this Agreement, Promoter agrees to provide the following services (“Services”):

The PROMOTER will identify, negotiate, and secure performers, artists, speakers, and entertainment for city events as requested by the City. This will include recommendations by the promoter and requested talent by the City. Arrange live music along with the requested light and sound production for the Artists/Talent.

Assist in the strategic promotion of booked talent, including social media, press outreach, and promotional materials as needed. Coordinate with City staff to facilitate travel, lodging, and production needs for the secured talent. The PROMOTER will coordinate with all talent schedules to ensure their riders are provided to the production team. Additionally, the PROMOTER will confirm a sound check schedule with all performing acts no later than two weeks before the event. Production will be prepared and available to all performers throughout the event, and will provide appropriate-themed music during times when there are no live performances, including prior to the first performance. A microphone will be available for the MC during the entirety of the events.

Any hospitality riders, flight arrangements, lodging, or special requests must be submitted to the City of Edinburg Cultural Arts Department no later than two weeks after the booking of talent.

1.2 Contract for Artist to Perform. Promoter warrants and represents that Promoter has a valid performance contract with Performer to perform as described above.

Promoter shall furnish evidence of its contractual relationship with the Performer no later than one week from the date of this Agreement.

1.3 Performance Standard and Warranty. Performer will cooperate with City’s staff in the performance of the Services and will ensure that the Performance by Performer will be performed in a professional and timely manner and at the direction of City staff. Promoter warrants and represents that Promoter will ensure Performer shall comply with all applicable provisions of this Agreement. Promoter understands and agrees that Promoter is responsible for the conduct of Performer and the delivery of the Performance in accordance with the terms of this Agreement.

1.4 Release. Promoter grants permission to City, and shall ensure that Performer also agrees in writing to grant permission to City, to use the Performance and any images of Performer as part of any project at City’s sole and complete discretion. Such use includes, without limitation, any and all recordings and formats now or in the future of the Performance for use in materials that include, but may not be limited to, printed materials (such as marketing material, brochures, news releases and newsletters), videos, and digital images. Such materials may be displayed and/or sold to the public in any and all formats, including on the City website, or incorporated into any and all products at the sole and absolute discretion of City.

1.5 Independent Contractor. Nothing contained in this Agreement is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor does it appoint either party as an agent of the other for any purpose whatsoever. Except as otherwise specifically provided herein, neither party shall in any way assume any of the liability of the other for acts of the other or obligations of the other.

2 ADVERTISING

2.1 Promoter agrees, and warrants and represents that Performer agrees, that City may use the name, face, logo, website, and product of Performer for purposes of marketing, advertising, publicizing and promoting (collectively “Advertising”) the Performance.

2.2 Promoter shall supply, and allow the City the use of, a selection of images of

Performer for Advertising for the event no later than two weeks after date of this agreement.

3 COMPENSATION AND PAYMENT

3.1 Fees and Expenses. For the Services provided pursuant to this Agreement, City shall pay to Promoter a total of _______, which is apportioned as _____ for the Performer’s fee, ______for production including sound, light, and all other requirements for the complete delivery of the Performance, _______for marketing, and ______ for the Promoter’s fee. Additional costs may include air travel, hotel, ground transportation, and meal accommodations, subject to the City’s travel policies. The PROMOTER will receive a deposit of ______ in hand, and the remaining balance will be paid to the Promoter one hour prior to the performance of talent.

3.2 Payment. PROMOTER will invoice City the deposit fee at the time of signing and the remaining balance no later than two weeks prior to the performance/talent appearance date.

3.3 Taxes. All fees payable under this Agreement shall be made in full, and without any withholding, deduction, or offset of any state or federal withholding taxes, FICA, SDI, or income taxes, nor shall the City be obligated to pay any of Promoter’s employees’ taxes. Promoter hereby covenants and agrees that it shall be solely responsible for all taxes, withholding, FICA, SDI, and other similar items (both employee and employer portions) with respect to all fees paid by the City under this Agreement, and agrees to indemnify and hold the City harmless with respect to such taxes and withholding.

3.4 Set-off. City is entitled to impose a set-off against payment based on any of the following:

a) Claims have been made against City based on Promoter and/or Performer’s conduct and/or the Performance, or City has incurred costs, losses, or damages resulting from the Services and/or the Performance, including but not limited to claims, costs, losses, or damages from injuries, adjacent property damage, and non-compliance with Laws and Regulations;

b) Any Services are defective;

c) City has been required to correct defective Services or has accepted defective Services;

d) Other items entitle City to a set-off against the payment amount.

If City imposes any set-off against payment, City will give Promoter written notice stating the reasons for such action and the specific amount of the reduction, and promptly pay Promoter any amount remaining after deduction of the amount so withheld. City shall promptly pay Promoter the amount so withheld, or any adjustment thereto agreed to by City and Promoter, if Promoter remedies the reasons for such action. The reduction imposed will be binding on Promoter unless it duly submits written notice contesting the reduction within 30 days of receiving City’s written notice.

3.5 Non-Performance. If Performer fails to appear for the Performance, Promoter shall refund City all amounts paid to Promoter immediately upon Performer’s default. Promoter’s obligations under this clause are in addition to the Promoter’s other expressed or implied obligations under this Agreement or state law and in no way diminish any other rights that City may have against Promoter.

4 TERM AND TERMINATION

4.1 Term. The term of this Agreement will begin on the Effective Date and will remain in full force and effect until the expiration of all Services unless earlier terminated as provided in this Agreement. The terms and conditions in this Agreement that by their sense and context are intended to survive the Services by either or both parties hereunder shall so survive the termination, cancellation, or completion of Services of this Agreement.

4.2 Termination. City may terminate this Agreement upon giving 10 days’ prior written notice thereof to Promoter. In addition, City shall have the right, upon written notice, to cancel this Agreement immediately if, in the City’s sole judgment, the Services rendered by Promoter breach or violate any of the provisions of this Agreement. Upon termination or completion of this Agreement, City shall have no liability to Promoter except for charges for Services performed by Promoter and accepted by the City prior to receipt of notice of termination or cancellation.

4.3 Suspension. The City reserves the right to suspend and/or reschedule the Services, with or without cause, in whole or in part, upon giving notice to Promoter. Promoter agrees that Performer shall resume and/or reschedule the Performance so suspended when directed to do so by the City. The City shall have no liability to Promoter except for charges for Services performed prior to receipt of notice of suspension and/or rescheduling of Services. If only a portion of the Services are suspended, Promoter shall be compensated only for Services of which are not suspended and are actually performed during such suspension.

5 LIABILITY, DAMAGES, AND INDEMNIFICATION

5.1 Indemnification.

To the maximum extent allowed by law, Promoter agrees to and shall indemnify and hold harmless the City, its officers, agents, and employees from any and all claims, losses, causes of action and damages, suits and liability of every kind, including all expenses of litigation, court costs, and attorney’s fees arising out of or directly connected with the negligent or willful conduct of Promoter, its agents, officers and employees. Promoter agrees to assist City in defense of claims or litigation brought against the City related to this project, including but not limited to providing written witness statements, documents, and witness testimony upon demand

5.2 Limitation of Liability.

Promoter agrees to limit the City’s liability arising from City’s acts, errors, or omissions such that the total liability of City shall not exceed Promoter’s total fees paid by the City for the Services rendered pursuant to this Agreement. Promoter agrees that City will not be liable for any indirect, incidental, special, or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement, Promoter’s Services, or of any other obligations relating to this Agreement, even if City has been advised of the possibility of such damages. The foregoing limitation of liability shall apply to the maximum extent allowed by law for limitation of City’s liability, regardless of the cause of action under which such damages are sought.

7 GENERAL PROVISIONS

7.1 Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

7.2 Insurance/Authorization. Promoter shall obtain and maintain professional liability insurance in the amount of $250,000; liability insurance against personal bodily injury in the overall amount of $500,000 and against property damage in the amount of $500,000, with bodily injury and property damage liability insurance in the amount of $250,000 for each person or bodily injury and $100,000 for each occurrence for property damage liability to cover such liability caused by, or arising out of, activities of Promoter and/or Performer, and their members, agents, and/or employees while engaged in preparing for, or presenting, the Performance, or such other insurance that is required by City. Promoter agrees to supply to City a certificate(s) of insurance evidencing the same. Promoter hereby represents, warrants, and covenants to City that it has and/or will have and maintain all necessary permits, license, approvals and other authorizations applicable to the performance of its obligations contemplated under this Agreement.

7.3 Notices. Any notice, request, approval, or consent between the Parties will be given in writing and will be directed as set forth below:

If to City: If to Promoter :

Business Name City of Edinburg

Street Address 415 W. University Dr.

City, State Zip Edinburg, TX, 78539

Attention: Legal Dept.

Email Address legal@cityofedinburg.com

7.4 No Waivers. No failure or delay of the City, in any one or more instances (i) in exercising any power, right, or remedy under this Agreement or (ii) in insisting upon the strict performance by Promoter of its covenants, obligations, or agreements under this Agreement, shall operate as a waiver, discharge, or invalidation thereof, nor shall any single or partial exercise of any such right, power, or remedy or insistence on strict performance, or any abandonment or discontinuance of steps to enforce such a right, power, or remedy or to enforce strict performance, preclude any other or future exercise thereof or insistence thereupon or the exercise of any other right, power, or remedy. The covenants, obligations, and agreements of Promoter and the rights and remedies of the City upon a default shall continue and remain in full force and effect with respect to any subsequent breach, act, or omission. Without limiting the generality of the above, the receipt by City of any Services with knowledge of a breach by Promoter of any covenant, obligation, or agreement under this Agreement shall not be deemed or construed to be a waiver of such breach. No acceptance of Services or payment to Promoter shall be deemed to be other than on account of the earliest installment of the amounts due under this Agreement, nor shall any endorsement or statement on any check, or any letter accompanying any check, wire transfer or other payment, be deemed an accord and satisfaction. City may accept services or make payment without prejudice to its rights under this Agreement or pursue any remedy provided in this Agreement or provided otherwise by law or equity

7.5 Counterparts/Electronic Signatures. The Parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the Party that signed it, and all of which together constitute one agreement. The signatures of all Parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile, email or other electronic transmission that includes a copy of the sending Party’s signature is as effective as signing and delivering the counterpart in person. The Parties may affix their signatures electronically to this Agreement by typing their names on the signature lines below (“Electronic Signature”). A Party who executes this Agreement by Electronic Signature agrees such signature is the legal equivalent to a hand-written signature on this Agreement, which shall have the same binding legal effect as if the Party had personally signed his or her name to paper.

7.6 Dispute Resolution. If any dispute, controversy, or claim between or among the Parties arises under this Agreement or is related in any way to this Agreement or the relationship of the Parties hereunder (a “Dispute”), the Parties shall first attempt in good faith to settle and resolve such Dispute by meeting at a mutually agreeable time and place to discuss the Dispute within seven (7) days following the original written notice of any Dispute by the party making such a claim. The Parties shall seek to resolve the Dispute in writing within fourteen (14) days following the original written notice of any Dispute by the party making such a claim. If a mutual resolution and settlement are not obtained at the meeting, the Parties shall participate in good faith in formal mediation, within thirty (30) days following the original written notice of any Dispute, with a mutually agreeable mediator at a mutually agreeable time and place. No settlement reached under this provision shall be binding on the Parties until reduced to a writing signed by a representative of both Parties. Unless the parties expressly agree otherwise, each party shall bear its own costs and legal and expert fees incurred in the mediation, and evenly share the costs of the mediator. If after proceeding in good faith the parties, with the assistance of a neutral mediator, do not resolve the dispute within forty-five (45) days following the original written notice of any Dispute, either party may initiate litigation to resolve the dispute. The Law of the State of Texas shall control the Dispute. Venue is mandatory in in State courts located in Hidalgo County, Texas.

In the event of any litigation between the parties, the parties shall bear their own costs, including attorneys’ fees and costs.

7.7 Entire Agreement. This Agreement (including any referenced Exhibits) constitutes the entire agreement between the Parties. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives, as of the Effective Date.

By signing, you acknowledge you have read and agreed to all terms in this agreement.

AGREED AND ACCEPTED

CITY OF EDINBURG:

BY: ____

Myra L. Ayala, City Manager City of Edinburg 415 W. University Dr.

P.O. Box 1079 Edinburg, Texas 78540 Phone: (956) 388-8207 Fax: (956) 383-7111

ATTEST:

BY: _

Clarice Y. Balderas, City Secretary

APPROVED AS TO FORM:

BY:

Josephine Ramirez Solis, City Attorney

Promoter/Talent Aquisition

BY: ____

Name E-mail

Address