HomeMy WebLinkAboutInv# 9252023 - THE POLKA BROTHERS LLC - 09/21/20231
AGREEMENT
THIS IS AN ENTERTAINMENT
July 25, 2023, between the City of Dania Beach, Florida, a Florida municipal corporation, (the
The Polka Brothers LLC Entertainer ____________ with a physical address of
__________________________________________________. The Entertainer is engaged on the
terms and conditions described within this Agreement.
1. Name and address of location for performance of services:
Dania After Dark Oktoberfest
City Hall Main Stage
100 W Dania Beach Blvd, Dania Beach, FL, 33004
2. Name of Entertainer:
The Polka Brothers
3. Schedule:
Saturday, October 14, 2023
(90) minute set
6:00 PM 7:30 PM
4.expense):
a) Entertainer shall perform live music and entertainment on the scheduled date (the
b) Entertainer shall provide all instruments and musical equipment, transportation, hotel, and
travel accommodations needed for the Performance; and
c) Entertainer shall complete set up and sound check prior to the start time of the Performance
as requested by City; and
d) Entertainer has permission from the City to videotape or otherwise record the
performance(s) mentioned in this Agreement; and
e) Entertainer ensures that compliance with all professional entertainment licensing and
royalty regulations (i.e., AEA, SAG, AFTRA, etc.) is in place at the time of signing the
Agreement; and
f) City agrees to provide the stage, lighting, front of house, monitor mix and up to four (4)
channels, in addition to dressing rooms, and technical personnel. In addition, City agrees
to furnish the stage for technical rehearsals at times to be arranged.
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5. In consideration for the Entertainment services provided to City, City shall pay Entertainer
a fee of $1,850 upon execution of contract and $3,850 which shall be due on Saturday,
October 14, 2023.
In further consideration, City shall provide Entertainer with an appropriate number of
with the Performance at City anticipated to be held at the Venue on or about Saturday,
October 14th, 2023
determined by City and Entertainer according to the number of credentials and passes
necessary to properly execute the benefits contemplated herein.
6. Entertainer warrants that it has obtained and/or will obtain all appropriate licenses, permits,
certificates authorizations or other approvals required to be obtained from any union, guild,
public authority or performing rights society, including without limitation any and all
licensing fees a at least 10 days before
the Performance
performed and that Entertainer shall comply with and fulfill all terms, conditions and
covenants set forth therein. All such licenses, permits, certificates, authorizations or
City upon request.
Failure to obtain or provide such certification shall be deemed a material breach of this
Agreement and may result in non-payment by City or refund of payment to City. City shall
have the right to terminate this Agreement immediately at no liability to City should
Entertainer commit any act which might tend to bring Entertainer into public disrepute,
contempt, scandal or which may reflect unfavorable on City, the Event, their respective
sponsors, broadcast partners or licensee of City. In the event any of the aforementioned
occurs, Entertainer shall provide City with a full refund for any payments previously paid
by City to Entertainer.
7. Entertainer consents to the creation and use of photographs, film, video tape, sound
) by City and its subsidiaries, limited liability or affiliated
companies, agents, representatives, successors and/or assigns (jointly referred to as the
as
supplied by Entertainer prior to for Marketing purposes but also Images taken during the
Event for post event recaps, marketing, etc. Entertainer agrees that the Company shall own
the Images and shall have the sole right to seek any available legal protection in the Images.
Entertainer also agrees that the Company shall have the worldwide and perpetual right to
use, copy, publish, display, edit, modify, alter, adapt, record or prerecord, distort, or make
composites of the Images, or any portion of the Images, in any manner whatever, alone or
in conjunction with any other video, audio, photographic, artist or written material, and to
purposes (including but not limited to advertising, trade, or promotional activities), in any
forms or media now known or hereafter created.
a. Entertainer releases and discharges for all time any and all claims whatsoever in
connection with any use of the Images as described above by the Company or other
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persons or firms referred to above (including but not limited to claims relating to
defamation, rights or privacy or publicity, confidentiality, trademark or copyright,
and unjust enrichment), and waive any right to inspect or approve, in whole or in
part, any form or use of the Images.
b. Entertainer has read this release and is fully aware of its contents. This release shall
be binding on Entertainer and its legal representatives, heirs, successors, and
assigns.
c. It is understood and agreed by Entertainer that the Event is a community event.
Accordingly, Entertainer agrees to perform in such a manner that is community
oriented, non-controversial and non-political. This would include but is not limited
to, selection of wardrobe, public statement or other avenues related to the
performance.
8. If required by the City Manager, prior to the scheduled Performance Entertainer shall
provide City a certificate of insurance showing evidence of liability coverage for bodily
injury and property damage with a combined single limit of not less than $1,000,000 per
occurrence, including as additional insured the Indemnified Parties. Upon execution of this
Agreement, Entertainer shall deliver to City a certificate of insurance evidencing the above
coverage. Insurance shall be primary and non-contributory over any other insurance that
may be available to an Indemnified Party. A waiver of subrogation shall apply in favor of
the Indemnified Parties. Insurance limits specified herein are minimums. Insurance
extent allowed by law, whichever is greater. Should the above described policy(ies) be
cancelled before the expiration date thereof, notice will be delivered in accordance with
the policy provisions.
9. Neither party shall be liable for any failure, inability, or delay to perform its obligations
hereunder if such failure, inability or delay arises beyond control or without fault of the
offending party (each such event, a "Force Majeure Event"). By way of example, and not
limitation, such causes of a Force Majeure Event may include acts of war, riots, sabotage,
explosion, fire, strike, hurricane, accident or casualty, rendering performance
commercially impractical. In the event of such Force Majeure Event, City or Entertainer,
as the case may be, shall use its best efforts to cure such cause and to resume performance.
10. City reserves all rights not expressly granted to Entertainer in this Agreement.
11. This Agreement does not grant Entertainer an exclusive position at the Venue. Entertainer
specifically acknowledges that City may also enter separate agreements with other
entertainers to perform during the Event.
12. This Agreement contains the entire agreement between the parties relation to the subject
matter herein. There are no promises, terms, conditions, rights or obligations other than
those contained herein. This Agreement shall supersede all previous communications,
representations, or agreements, whether verbal or written, between the parties hereto. Each
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of the individuals executing this Agreement certifies that or she is duly authorized to do
so.
13. Public records. Consultant shall maintain books, records, documents and other evidence
directly pertinent to performance of work under this Agreement in accordance with
generally accepted accounting principles and practices. The Consultant shall also maintain
the financial information and data used by the Consultant in the preparation of support of
any claim for reimbursement for any out-of-pocket expense or cost. The City shall have
access to such books, records, documents and other evidence for inspection, audit and
copying during normal business hours. The Consultant will provide proper facilities for
such access and inspection. Audits conducted under this section shall observe generally
accepted auditing standards and established procedures and guidelines of the City. The
Florida Public Records Act, Chapter 119 of the Florida Statutes, may have application to
records or documents pertaining to this Agreement and Consultant acknowledges that such
laws have possible application and agrees to comply with all such laws.
Upon request from the City custodian of public records, Consultant shall provide the City
with a copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided by Chapter 119, Florida
Statutes, or as otherwise provided by law.
Unless otherwise provided by law, any and all records, including but not limited to reports,
surveys, and other data and documents provided or created in connection with this
Agreement are and shall remain the property of the City.
Upon completion of this Agreement or in the event of termination by either party, any and
all public records relating to the Agreement in the possession of the Consultant shall be
delivered by the Consultant to the City Manager, at no cost to the City, within seven (7)
days. All such records stored electronically by Consultant shall be delivered to the City in
public records have been delivered upon completion or termination of this Agreement, the
Consultant shall destroy any and all duplicate public records that are exempt or confidential
and exempt from public records disclosure requirements.
Any compensation due to Consultant shall be withheld until all records are received as
provided in this Agreement.
the immediate termination of this Agreement by the City.
Section 119.0701(2)(a), Florida Statutes
IF THE CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
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TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS.
Custodian of Records: ELORA RIERA, CITY CLERK
Mailing Address: 100 W. Dania Beach Boulevard
Dania Beach, Florida 33004
Telephone number: 954-924-9800, Ext. 3623
Email: eriera@daniabeachfl.gov
14. Indemnification. Entertainer shall indemnify, defend and hold harmless City of City
Beach, its officers, employees, sponsors and the Broward County Office
from and against any and all claims of liability, loss, damage,
expenses, court costs and attorneys' fees in connection with, arising out of or directly or
Entertainer or its agents or employees, or (iii) Entertainer's breach of this Agreement.
determined by a court of competent jurisdiction by final and non-appealable judgment or
written settlement between the parties, to have resulted from the sole negligence, willful
misconduct, or violation of law of an Indemnified Party. Nothing herein shall be construed
15. The City is a bona fide government entity of the State of Florida with the City
which ends on September 30 of each calendar year. If the City does not appropriate
sufficient funds to purchase or continue the services required under this Agreement for any
of the City
entered into, then this Agreement shall be terminated effective upon expiration of the fiscal
year in which sufficient funds to continue satisfaction of City
Agreement were last appropriated by City and City shall not in this event be obligated to
make any further purchases or payments beyond said fiscal year.
16. The City reserves the right not to accept any substitutions or deviations made from the
agreed upon show as to form or content, including performers, storyline, music, and
instrumentation. Any substitutions found necessary must be communicated to and
approved in writing by the City.
17. Cancellation. In the event of cancellation by the City due to acts of God beyond the City s
control, or civil insurrection or other emergency, the City will not be liable for the
Agreement price or any other fees or charges. In the event of cancellation by the City due
to inclement weather, or the declaration of a hurricane watch by the National Hurricane
Center or any other event where the City cancels the performance thirty (30) days or more
prior to the date of the performance, the City s liability shall not exceed 25% of the
Agreement price. In the event City cancels the performance less than thirty (30) days in
advance of the performance date, the City s liability shall not exceed 50% of the
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Agreement price. In the event City cancels less than 24 hours in advance of the
performance, the City shall pay Entertainer 100% of the Agreement price.
If Entertainer cancels the performance, a minimum thirty-day advance notice will be given
to the City. Failure to do so may result in the exclusion of the Entertainer from any future
performances with the City.
18. RELATIONSHIP OF THE PARTIES
18.1 Independent Contractor: Entertainer, its employees, subcontractors, volunteers and
agents shall be and remain independent contractors and not agents or employees of City
with respect to the acts and services performed by and under the terms of this Agreement.
This Agreement shall not in any way be construed to create an employer/employee
relationship, a partnership association, joint venture or undertaking between the parties.
Neither party shall hold itself out a partner, joint investor or an agent of the other under
this Agreement.
18.2 No Benefits: Neither Entertainer nor any of its employees, subcontractors,
volunteers or agents shall receive or be entitled to any benefits afforded to City
employees.
18.3 Taxes and Other Employment Levies: City shall not be responsible for reporting or
paying to Entertainer employment taxes or other similar levies which may be
required by federal or state law.
18.4 Control of Work: Entertainer shall control the manner, means and procedures used
in providing the services set out in this Agreement.
18.5 Duty to Use Reasonable Care for Accident Prevention: Entertainer shall exercise
reasonable care and precaution at all times for the protection of persons and
property at the premises provided under this Agreement.
18.6 Third Party Beneficiaries: Neither City nor Entertainer intends to directly or
substantially benefit a third party by this Agreement. Therefore, City and
Entertainer acknowledge that there are no third-party beneficiaries to this
Agreement and that no third party shall be entitled to assert a right or claim against
either of them based upon this Agreement.
19. Term of Agreement. Any terms or conditions of this Agreement that require acts beyond
the date of the final performance, including, but not limited to Section 14, Indemnification,
shall survive termination of this Agreement and shall remain in full force and effect unless
and until the terms or conditions are completed and shall be fully enforceable by either
party.
20. Taxes. Entertainer shall pay all applicable sales, consumer, use and other similar taxes
required by law.
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21. License, Fees and Royalties. Entertainer shall pay all license fees and royalties and
assume all costs arising out of or from the use of any invention, design, process, product
or device which is the subject of patents rights or copyrights held by others and used in the
performance of the work which is the subject of this Agreement, except those items
specifically provided by the City.
22. Warranties. Entertainer warrants to City that it shall comply with all applicable federal,
state, and local laws, regulations and orders in carrying out its obligations under the
Agreement. Entertainer warrants to City that it is not insolvent, it is not in bankruptcy
proceedings or receivership, nor is it engaged in or threatened with any litigation or other
legal or administrative proceedings or investigations of any kind which would have an
adverse effect on its ability to perform its obligations under the Agreement.
23. Public Entity Crimes. Pursuant to Section 287.133, Florida Statutes, a person or affiliate
who has been placed on the convicted vendor list following a conviction for a public entity
crime may not submit a bid, proposal, or reply on a contract to provide any goods or
services to a public entity; may not submit a bid, proposal, or reply on a contract with a
public entity for the construction or repair of a public building or public work; may not
submit bids, proposals, or replies on leases of real property to a public entity; may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a
contract with any public entity; and may not transact business with any public entity in
excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period
of 36 months following the date of being placed on the convicted vendor list. By execution
of this Agreement, Entertainer represents that it has not been placed on the convicted
vendor list as provided in Section 287.133, Florida Statutes.
24. Discriminatory Vendor List. Pursuant to Section 287.134, Florida Statutes, an entity or
affiliate who has been placed on the discriminatory vendor list may not submit a bid,
proposal, or reply on a contract to provide any goods or services to a public entity; may not
submit a bid, proposal, or reply on a contract with a public entity for the construction or
repair of a public building or public work; may not submit bids, proposals, or replies on
leases of real property to a public entity; may not be awarded or perform work as a
contractor, supplier, subcontractor, or consultant under a contract with any public entity;
and may not transact business with any public entity. By execution of this Agreement,
Entertainer represents that it has not been placed on the discriminatory vendor list as
provided in Section 287.134, Florida Statutes.
25. Scrutinized Companies. Pursuant to Section 287.135, Florida Statutes, Entertainer certifies
that it is not on the Scrutinized Companies that Boycott Israel List created pursuant to
Section 215.4725, Florida Statutes and that it is not engaged in a boycott of Israel. Pursuant
to Section 287.135, in the event the Agreement is for one million dollars or more,
Entertainer certifies that it is not on the Scrutinized Companies with Activities in Sudan
List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List
created pursuant to Section 215.473, Florida Statutes; and Entertainer further certifies that
it is not engaged in business operations in Cuba or Syria. Pursuant to Section 287.135,
Florida Statutes, City may, at the option of the City Commission, terminate this Agreement
if Entertainer is found to have submitted a false certification as provided under subsection
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287.135(5), Florida Statutes; has been placed on the Scrutinized Companies that Boycott
Israel List, or is engaged in a boycott of Israel; has been placed on the Scrutinized
Companies with Activities in Sudan List or the Scrutinized Companies with Activities in
the Iran Petroleum Energy Sector List; or has been engaged in business operations in Cuba
or Syria.
26.Non-Discrimination. The Entertainer warrants and represents that all of its employees are
treated equally during employment without regard to race, color, national origin, sex,
gender identity, sexual orientation, age, disability/handicap, religion, family or income
status.
27.E-VERIFY - EMPLOYMENT ELIGIBILITY
27.1 Entertainer warrants and represents that it complies with Section 448.095, Florida
Statutes, as may be amended. Entertainer has: (1) registered with and uses the E-
Verify System (E-Verify.gov), to electronically verify the work authorization status
of all newly hired employees; and (2) verified that all of the Entertaine
subcontractors performing the duties and obligations of this Agreement are
registered with and use the E-Verify System to electronically verify the
employment eligibility of all newly hired workers.
27.2 Entertainer shall obtain from each of its subcontractors an affidavit stating that the
subcontractor does not employ, contract with, or subcontract with an Unauthorized
Alien, as that term is defined in Section 448.095(1)(k), Florida Statutes, as may be
amended. Entertainer shall maintain a copy of any such affidavit from a
subcontractor for, at a minimum, the duration of the subcontract and any extension
thereof. This provision shall not supersede any provision of this Agreement which
requires a longer retention period.
27.3 City shall terminate this Agreement if it has a good faith belief that Entertainer has
knowingly violated Section 448.09(1), Florida Statutes, as may be amended. If City
s subcontractor has knowingly violated
Section 448.09(1), Florida Statutes, as may be amended, City shall notify
Entertainer to terminate its contract with the subcontractor and Entertainer shall
immediately terminate its contract with the subcontractor. If
27.4 Should the City terminate this Agreement pursuant to section 27.3, Entertainer shall
be barred from being awarded a future contract by City for a period of one (1) year
from the date on which this Agreement was terminated. In the event of such
Agreement termination, Entertainer shall also be liable for any additional costs
incurred by City as a result of the termination.
28.Foreign Gifts and Contracts. Pursuant to Fla. Stat. §286.101(3), where the amount of the
grant or Contract is 100,000.00 or more, Entertainer shall disclose any current or prior
interest of, any contract with, or any grant or gift received from a country of foreign concern
with a value of $50,000 or more that was received or in force during the previous five (5)
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years. Definitions, disclosure requirements, and exceptions are found in Fla. Stat.
§268.101. Entertainer represents and warrants it has complied with Fla. Stat. §286.101, it
has properly disclosed such interests, contracts, grants or gifts to City before execution of
this Agreement, and it will remain in compliance with Fla. Stat. §286.101 for the duration
of this Agreement.
29. Governing Law, Venues. The validity, interpretation and performance of this Agreement
shall be governed by the laws of the State of Florida, without giving effect to the principles
of comity or conflicts of laws thereof. Except as set forth in Section 9, should the City or
Entertainer be involved in legal action against each other arising under, or connected to,
this Agreement, both City
and costs. The venue for any litigation will be Broward County, Florida. City and
Entertainer hereby agree to waive a jury trial and will proceed to a trial by judge if
necessary.
30. Cumulative Remedies. The remedies expressly provided in this Agreement to City shall
not be deemed to be exclusive but shall be cumulative and in addition to all other remedies
in favor of City now or in the future existing at law or in equity.
31. Severability. Should any part, term of provision of this Agreement be decided to be invalid,
illegal or in conflict with any law of this state by the courts, the validity of the remaining
portions or provisions shall not be affected.
32. Entire Agreement. This Agreement contains the entire understanding of City and
Entertainer relating to the subject matter superseding all prior communications between the
parties whether oral or written. This Agreement may not be altered, amended, modified or
otherwise changed nor may any of its terms be waived, except by a written instrument
executed by both parties. The failure of a party to seek redress for violation of or to insist
on strict performance of any of the covenants of this Agreement shall not be construed as
a waiver or relinquishment for the future of any covenant, term, condition or election but
the same shall continue and remain in full force and effect.
33. Section Headings. All section headings in this Agreement are included for convenience
only and are not to be construed as a part hereof or in any way as limited or expanding the
terms set out in this Agreement.
34. Termination. The City Manager without cause may terminate this Agreement upon ten (10)
e CITY.
35. Sovereign Immunity. Consultant acknowledges that the Florida Doctrine on Sovereign
Immunity bars all claims by Consultant against the City other than claims arising out of
this Agreement. Specifically, the Consultant acknowledges that it cannot and will not assert
any claims against the City, unless the claim is based upon a breach by the City of this
Agreement. Further, the Consultant recognizes the City is a sovereign with regulatory
authority that it exercises for the health, safety, and welfare of the public. This Agreement
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in no way estops or affects the City's exercise of that regulatory authority. In addition, the
City retains the full extent of its sovereign immunity in relation to the exercise of its
regulatory authority. The Consultant acknowledges that it has no right and will not make
claim based upon any of the following:
a. Claims based upon any alleged breach by the City of implied warranties or
representations not specifically set forth in this Agreement, as the parties stipulate
that there are no such implied warranties or representations of the Consultant. All
obligations of the parties are only as set forth in this Agreement;
b. Claims based upon negligence or any tort arising out of this Agreement;
c. Claims upon alleged acts or inaction by the City, its commissioners, attorneys,
administrators, Consultants, agents, or any Consultant employee;
d. Claims based upon an alleged waiver of any of the terms of this Agreement unless
such waiver is in writing and signed by an authorized representative for the City
and Consultant.
36. Notices:
Except as provided above, whenever either party desires to give notice to the other, it must be
given by written notice, sent by certified U.S. mail, with return receipt requested, addressed to the
party for whom it is intended, at the place last specified and the place for giving of notice in
compliance with the provisions of this paragraph. For the present, the parties designate the
following as the respective persons and places for giving of notice:
City: Ana M. Garcia, ICMA-CM, City Manager
City of Dania Beach, Florida
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
With a copy to: Eve A. Boutsis, City Attorney
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Entertainer:
SIGNATURES ON THE FOLLOWING PAGES
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IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the
day and year first above written.
CITY:
ATTEST: CITY OF DANIA BEACH, FLORIDA, a
Florida Municipal Corporation
ELORA RIERA, MMC ARCHIBALD J. RYAN IV
CITY CLERK MAYOR
ANA M. GARCIA, ICMA-CM
CITY MANAGER
Dated: _____________, 20___
APPROVED FOR FORM AND CORRECTNESS:
EVE A. BOUTSIS
CITY ATTORNEY
September 8 23