CONTRACT 5357 Professional Services Agreement CLOSED Agreement No. 5357
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
JEFF CASON PRODUCTIONS
This AGREEMENT is entered into this 5th day of July, 2017,by and between the CITY
OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and JEFF CASON
PRODUCTIONS, ("CONTRACTOR").
1. CONSIDERATION.
A. As partial consideration, CONTRACTOR agrees to perform the work listed in the
SCOPE OF SERVICES,below;
B. As additional consideration, CONTRACTOR and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONTRACTOR a sum not to
exceed Thirty Four Thousand,Four Hundred Sixty Seven dollars($34,467.00) for
CONTRACTOR's services. CITY may modify this amount as set forth below.
Unless otherwise specified by written amendment to this Agreement, CITY will
pay this sum as specified in the attached Exhibit "A," which is incorporated by
reference.
2. SCOPE OF SERVICES.
A. CONTRACTOR will perform services listed in the attached Exhibit"A,"which is
incorporated by reference.
B. CONTRACTOR will, in a professional manner, furnish all of the labor,technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, Calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY,necessary or proper
to perform and complete the work and provide the professional services required
of CONTRACTOR by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONTRACTOR
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONTRACTOR's services. CITY will notify CONTRACTOR of any
deficiencies and CONTRACTOR will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONTRACTOR.
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4. PAYMENTS. CITY's payment for CONTRACTOR's work will payable in full.
Additionally, the Centennial Committee agrees to reimburse CONTRACTOR for the cost of
required insurance and business license. .
5. NON-APPROPRIATION OF FUNDS. Payments due and payable to CONTRACTOR for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONTRACTOR services beyond the current fiscal year, this Agreement
will cover only those costs incurred up to the conclusion of the current fiscal year.
6. ADDITIONAL WORK. Not applicable.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONTRACTOR agrees that it has:
i. Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONTRACTOR agrees that
CONTRACTOR has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
Should CONTRACTOR discover any latent or unknown, conditions that may
materially affect the performance of the services, CONTRACTOR will
immediately inform CITY of such fact and will not proceed except at
CONTRACTOR's own risk until written instructions are received from CITY.
8. TERM. The term of this Agreement will be from July 05,2017 to October 30,2017. Unless
otherwise determined by written amendment between the parties, this Agreement will terminate
in the following instances:
A. Completion of the work specified in Exhibit"A";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE.
A. CONTRACTOR will not perform any work under this Agreement until:
i. CONTRACTOR furnishes proof of insurance as required under Section 22
of this Agreement; and
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ii. CITY gives CONTRACTOR a written notice to proceed.
B.. Should CONTRACTOR begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONTRACTOR's
own risk.
10. TAME EXTENSIONS. Should CONTRACTOR be delayed by causes beyond
CONTRACTOR's control, CITY may grant a time extension for the completion of the
contracted services. If delay occurs, CONTRACTOR must notify the Manager within forty-
eight hours (48 hours), in writing, of the cause and the extent of the delay and how such delay
interferes with the Agreement's schedule. The Manager will extend the completion time, when
appropriate, for the completion of the contracted services.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below:
A. Exhibit A: Scope of Work and Budget
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONTRACTOR and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
13. TAXPAYER IDENTIFICATION NUMBER. CONTRACTOR will provide CITY with a
Taxpayer Identification Number.
14.PERMITS AND LICENSES. CONTRACTOR, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement.
15.WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONTRACTOR under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONTRACTOR's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement,whether of the same or different
character.
16. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
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B. CONTRACTOR may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONTRACTOR will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONTRACTOR after receiving a termination notice will be
performed at CONTRACTOR's own cost; CITY will not be obligated to
compensate CONTRACTOR for such work.
D, Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by
CONTRACTOR will, at CITY's option, become CITY's property, and
CONTRACTOR will receive just and equitable compensation for any work
satisfactorily completed up to the effective date of notice of termination, not to
exceed the total costs under Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
F. By executing this document, CONTRACTOR waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
17. OWNERSHIP OF WORK PRODUCT.
A. All production designs, artwork,original music,audio designs,animation designs,
lighting designs, technical layouts and schematics, and other elements of the
CONTRACTOR's work (Work Product) shall remain the intellectual property of
the individual creators. Other than for the live presentation of Celebrate! A
Fireworks Spectacular and the production of a limited pressing musical album,
the CITY shall not use,reproduce, or make available to any third party any of the
Work Product without the CONTRACTOR's prior written consent.
B. CONTRACTOR grants the CITY rights to use Work Product for the live public
presentation of Celebrate! on October 7, 2017. Additionally, the CITY shall be
granted the right to sell a limited pressing musical album featuring music from the
show, as part of the Centennial Celebration Committee's merchandise program, in
accordance with the guidelines of the American Federation of Musicians Local 47
- Limited Pressings Agreement, attached as Exhibit `B" to this Agreement.
Album sales may be subject to royalties payments for intellectual property
holders,to be negotiated under separate contract.
C. Under this Agreement, video recordings with accompanying audio and/or music,
audio recordings, and/or broadcasts of the live presentation of Celebrate! A
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Fireworks Spectacular may not be monetized, sold, or used for commercial
purposes without express written permission from the CONTRACTOR and
individual creators.
D. CONTRACTOR grants the CITY unlimited rights to use concept art, logos,video
recordings and/or broadcasts of the live presentation, and still photographs of the
live presentation of Celebrate! A Fireworks Spectacular in perpetuity, including
but not limited to archival,promotional and/or destination marketing purposes.
18.INDEMNIFICATION.
A. CONTRACTOR must save harmless,indemnify and defend CITY and all its
officers, employees and representatives from and against any and all suits,
actions,or claims,of any character whatever,brought for,or on account of,
any injuries or damages sustained by any person or property arising from,
pertaining to, or relating to the negligence, recklessness, or willful
misconduct of CONTRACTOR or any of CONTRACTOR's officers, agents,
employees,or representatives.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees,agents,representatives,and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions are intended to
be as broad and inclusive as is permitted by the law of the State of California and
will survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONTRACTOR as required by Section 22, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONTRACTOR
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
19. ASSIGNABILITY. This Agreement is for CONTRACTOR's professional services.
CONTRACTOR's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
20.INDEPENDENT CONTRACTOR. CITY and CONTRACTOR agree that
CONTRACTOR will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONTRACTOR will be free to contract for similar service to
be performed for other employers while under contract with CITY. CONTRACTOR is not an
agent or employee of CITY and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that
may appear to give CITY the right to direct CONTRACTOR as to the details of doing the work
or to exercise a measure of control over the work means that CONTRACTOR will follow the
direction of the CITY as to end results of the work only.
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21. AUDIT OF RECORDS. CONTRACTOR will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same and to make
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONTRACTOR will retain such financial and program service records for at least three (3)
years after termination or final payment under this Agreement.
22. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONTRACTOR will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Ine Q`Insumm Limits
Commercial general liability: $1,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements of
ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name CITY, its officials, and employees as "additional insureds"
under said insurance coverage and to state that such insurance will be deemed
"primary" such that any other insurance that may be carried by CITY will be
excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10
11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a
"claims made," basis and will not be cancelable or subject to reduction except
upon thirty(30)days prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONTRACTOR will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
CONTRACTOR for all claims made by CITY arising out of any errors or
omissions of CONTRACTOR,or its officers, employees or agents during the time
this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form CA
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00 01 06 92,including symbol 1 (Any Auto).
E. CONTRACTOR will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of"A:VII."
F. Should CONTRACTOR, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONTRACTOR's expense and deduct the cost of such insurance from payments
due to CONTRACTOR under this Agreement or terminate pursuant to Section 16.
23. USE OF SUBCONTRACTORS. CONTRACTOR must obtain CITY's prior approval to
use any subcontractors while performing any portion of this Agreement. Such approval must
approve of the proposed subcontractor and the terms of compensation.
24.INCIDENTAL TASKS. CONTRACTOR will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
25.NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
a CONTRACTOR: If to CITY:
Jeff Cason Productions City of El Segundo
531 Main St.#412 350 Main Street
El Segundo,CA 90245 El Segundo,CA
Attention: Jeff Cason, Attention: Meredith Petit, Recreation and
Producer and Director Parks Director.
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
26. CONFLICT OF INTEREST. CONTRACTOR will comply with all conflict of interest
laws and regulations including,without limitation, CITY's conflict of interest regulations.
27. SOLICITATION. CONTRACTOR maintains and warrants that it has not employed nor
retained any company or person, other than CONTRACTOR's bona fide employee, to solicit or
secure this Agreement. Further, CONTRACTOR warrants that it has not paid nor has it agreed
to pay any company or person, other than CONTRACTOR's bona fide employee, any fee,
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commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONTRACTOR breach or violate this
warranty, CITY may rescind this Agreement without liability.
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONTRACTOR and CITY and not for the benefit of any
other party. There will be no incidental or other beneficiaries of any of CONTRACTOR's or
CITY's obligations under this Agreement.
29. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
30. COMPLIANCE WITH LAW. CONTRACTOR agrees to comply with all federal, state,
and local laws applicable to this Agreement.
31.ENTIRE AGREEMENT. This Agreement, and its Exhibits, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are(2)Exhibits to this Agreement. This Agreement
will bind and inure to the benefit of the parties to this Agreement and any subsequent successors
and assigns.
32.RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
33.SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified,such portion and the balance of this Agreement will continue in full force and effect.
34. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager,or designee,may execute any such amendment on behalf of CITY.
35.ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this
Agreement, agreements ancillary to this Agreement, and related documents to be entered into in
connection with this Agreement will be considered signed when the signature of a party is
delivered by electronic (.pdf) or facsimile transmission. Such electronic or facsimile signature
will be treated in all respects as having the same effect as an original signature.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
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37.TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
39. STATEMENT OF EXPERIENCE. By executing this Agreement, CONTRACTOR
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONTRACTOR represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private CONTRACTORS, and
experience in dealing with public agencies all suggest that CONTRACTOR is capable of
performing the proposed contract and has a demonstrated capacity to deal fairly and effectively
with and to satisfy a public CITY.
[Signatures on next page]
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Agreement No. 5357
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year fust hereinabove written.
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Greg en r, Jei as
City anager Producer and Director
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APP O :D AS TO FORM:
Marls D.Hensley,
City Attorney
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Agreement No. 5357
Exhibit A
JEFF CASON PRODUCTIONS
Celebrate! A Fireworks Spectacular—Scope of Services
OVERVIEW
Celebrate!A Fireworks Spectacular is a 15-minute long fireworks and projection show
celebrating 100 years of EI Segundo history. Set at EI Segundo High School, the show will
feature pyrotechnics, original music, architectural lighting, and projection mapping.
SCOPE OF SERVICES
Jeff Cason's role will be creator, producer, director, and designer for Celebrate!:
Creator: Jeff will create the concept for the show including story development, visual look
and feel, and final script.
Producer. Jeff will serve as Producer, overseeing all production logistics. This includes
setting project scope, identifying and hiring vendors, managing production budget,
overseeing creative team, managing production schedule and deliverables, and leading
on-site rehearsals and performances. Jeff will also provide consultation for the daytime
event and concert, in collaboration with City of EI Segundo staff.
Director: Jeff will act as Director for Celebrate!which includes guiding the production
from concept to execution, providing artistic guidance to vendors and creative team,
collaborating with pyro and music designers through multiple iterations of the show,
function as lead creative agent on-site during rehearsals and performances.
Desi Jeff will design the projections and lighting for Celebrate!. For projections this
includes concept design, animation and content creation, producing animatics in
collaboration with designers, installation supervision, and programming the show on-site.
For lighting this includes concept design, production paperwork, vendor coordination,
installation supervision, and programming the show on-site. Jeff will also contribute
graphic design for the production including logo, production artwork, and presentations.
JEFF'S DELIVERABLES
Jeff agrees to provide the following deliverables;
• Develop Production Concept— 11/5/16
• Create Production Budget—2/14/17
• Select Vendors—2/14/17
• Write Show Script—3/1/17
Agreement No. 5357
• Hire Production Team —4/24/17
• Finalize Vendor Estimates— 5/15/17
• First Draft Animatic—6/10/17
• Draft Projection Assets—7/1/17
• Supervise Music Recording Sessions—7/18/17 - 7/20/17
• Design Pyrotechnics with PyroSpectaculars—8/15/17
• Final Animatic—8/25/17
• Final Projection Assets—9/1/17
• Lighting Paperwork—9/15/17
• Supervise Power& Lighting Installation — 10/2/17
• Supervise Video Installation — 10/4/17
• Supervise Audio Installation — 10/5/17
• Supervise Pyrotechnic Installation — 10/7/17
• Lead Rehearsals & Programming — 10/2/17 - 10/6/17
• Performance— 10/7/17
• Supervise Strike— 10/8/17
SUBCONTRACTORS
Jeff will hire and oversee the following subcontractors (see Appendix A for detain:
MATT GLENN & MARK CASPARY- SOUND DESIGN
Scope: Creating sound FX and soundscapes to go with the projections, designing the
sound system for the event, sourcing audio gear, leading the crew in installation, running
the audio during rehearsals and performance
Project Commitment: April 24, 2017 - October 8, 2017
CLAYTON TRIPP - SHOW CONTROL LEAD
Scope: Oversees successful integration of show systems, operates systems during
rehearsals and performances
Project Commitment: July 1, 2017- October 8, 2017
ENCOMPASS MUSIC PARTNERS
Scope: Contracting a union orchestra for recording session
Project Commitment: July 19, 2017 recording session
WARNER BROTHERS
Scope: Sound stage rental for orchestral recording session
Project Commitment: July 19, 2017 recording session
JO ANN KANE MUSIC SERVICES
Scope: Copying and music preparation for orchestral recording session
Project Commitment: July 19, 2017 recording session
Agreement No. 5357
RECORDING ENGINEER
Scope: Engineer for orchestral recording session
Project Commitment: July 19, 2017 recording session
VOX USA- ELLEN DUBIN VOICE OVER
Scope: Ellen Dubin voice over services- show narrator
Project Commitment: July 18, 2017 recording session
EARS UP SOUND DESIGN
Scope: Voice over recording session studio and engineering
Project Commitment: July 18, 2017 recording session
NATHAN BRISBY
Scope: Lyricist for finale song
Project Commitment: July 20, 2017 recording session
VOCALIST- FINALE RECORDING SESSION
Scope: Vocalist for finale song
Project Commitment: July 20, 2017 recording session
BANJO & GUITAR PLAYER
Scope: Musician for instrumental tracks
Project Commitment: July 20, 2017 recording session
MERRIWETHER &WILLIAMS INSURANCE
Scope: Liability insurance for production team
Project Commitment: July 10, 2017 - October 8, 2017
DELIVERABLE EXCLUSIONS
The following elements will be part of the Celebrate!event but will not fall under the scope of the
Production Team's final responsibility:
• Production logistics for the daytime event and concert in the park
• Budget and logistical support for non-production related rentals (crowd control, security
services, food trucks, chairs, fencing, catering, etc)
• Non-production staffing for the event (maintenance, cleaning, crowd control, guest
relations, guest safety, perimeter control, etc)
• Coordinating permits, facilities agreements, or interagency permissions
COST OF SERVICES
Agreement No. 5357
Total cost for the listed services is $34,467 and shall be payable by 7/10/17. Additionally, the
Centennial Celebration Committee agrees to reimburse Jeff for the cost of an approved
contractor insurance policy and the cost of an EI Segundo business license, both required by
the City of EI Segundo to provide consultation services for this event.
This agreement is signed and agreed upon by:
Jeff Cason, Producer and Director Approved agent for City of EI Segundo
Agreement No. 5357
Appendix A
Payment Schedule & Rates
Payment Schedule
July 5 Jeff Cason(creative team contracts) $14,200.00
Jul 5 Meniwether&Williams Insurance(Creative Team Insurance Policy) $667.00
July 10 Encompass Music Partners(orchestra and Instruments) $11,400.00
July 10 Warner Brothers(sound stage rental) $2,000.00
July 10 JoAnn Kane Music Services(music copying and prep) $1,700.00
July 10 Engineer TBD(engineer for orchestral recording session) $1,000.00
July 15 Vol USA(Ellen Dubin voice over) $2,000.00
July 15 Ears Up Sound Design(voice over recording studio rental and engineering) $300.00
July 20 Nathan Brisby(Lyricist,finale song) $500.00
July 20 Vocalist TBD(singer,finale song) $500.00
July 20 Gutarlst/Banjo TBD(home recording session) $200.00
$34,467.00
Agreement No. 5357
AMERICAN FEDERATION OF MUSICIANS LOCAL47
OF THE UNITED STATES AND CANADA AFL-CIO/CLC
LIMITED PRESSINGS AGREEMENT NON-SYMPHONIC
The Local must be notified in advance of the session anion nu
d a sessmber assigned to the project or standard
AFM recording rates will apply to the wages of all participating musicians.
1. This Agreement is made and entered into by and between
herein after called the "Company", and AFM Local 47 of the American Federation of Musicians of the United States and
Canada, hereinafter called the"Local"and relates solely to the Sound Recording project identified as:
(Album Artist) (Project Title)
2. The parties hereto agree that the sole purpose of this Agreement is to establish rates and conditions for musicians employed in the
production of digital or analog sound recordings, tapes, discs and digital downloads where the aggregate number of units produced of a
particular recording does not exceed 10,000 and where the music that is recorded and shall not be utilized for any other purpose
whatsoever (eg: live performance, soundtrack album, original cast album, symphony orchestra recording or underscoring for motion
pictures, theatrical films, television film, videotape, jingle or live television production, etc.) other than for sale to the public as a sound
recording. For the purpose of digital downloads, each album sold will count as one unit towards the 10,000 unit limit. Each download less
than a full album will count as a full unit.
3. The Company recognizes the Local as the sole and exclusive collective bargaining agent for all instrumental musicians, conductors,
copyists, orchestrators and arrangers of instrumental music, synthesizer programmers, and those who perform similar or related services
connected with the recording of Phonograph Records within the jurisdiction of the Local.
4. Any Musician who is a member of the Local on the effective date of this Agreement or who becomes a member of the Local during the
term of this Agreement shall, as a condition of employment, remain a member in good standing of the Local as that term is defined in
applicable federal law.Any Musician who,on the effective date of this agreement, is not a member of the Local shall, no later than the 30th
day after the effective date of this agreement, become, and remain, a member in good standing of the Local as that term is defined in
applicable federal law.Any Musician hired by the Company after the effective date of this Agreement shall,as a condition of employment,
become a member in good standing of the Local, as that term is defined in applicable federal law, no later than the 30th day following the
date of his first service for the Company.
5. The Company shall not require, request, induce or in any manner attempt to influence any person covered by this Agreement to render
services pertaining to the production of Phonograph Records except under the terms of this Agreement and/or of the Sound Recording
Labor Agreement of the American Federation of Musicians. The Local shall make every effort and exercise full authority to see that its
members engaged in recording activities do nothing in derogation of the terms and intent of this Agreement.
6A. The Company shall give 48 hours advance notice to the Local of all Sessions called under this Agreement.
6B. A completed B-9 Report Form shall be filed by the Company or its designee with the Local and shall accompany each payment
required under this Agreement for each recording session within 15 days of the engagement.
6C. The Company shall provide a CD of the release to the Local.
7. Representatives of the Local and/or the Federation shall have access to the place of recording for the purpose of conferring with the
musicians and enforcing the terms of this Agreement.
8. If the Company shall sell, assign, lease, license or otherwise transfer title to a recording produced under the terms of this Agreement to
any other person, firm corporation, or other business entity, it shall obtain from said buyer, assignee, lessee, licensee or transferee a
separate Agreement (Buyer's Assumption Agreement) made expressly for the benefit of the American Federation of Musicians as
representative of the musicians involved, requiring such buyer, assignee, lessee, licensee or transferee to comply with the provisions of
this Agreement with respect to additional compensation to musicians and pension and health and welfare contributions by reason of
pressings or distribution of a Sound Recording in excess of ten-thousand(10,000)units as provided in the succeeding section 9.
9. The Company agrees to deliver to the Union an executed copy of the Buyer's Assumption Agreement within thirty(30)days after the
sale, assignment, lease, license or other transfer of the recording with the name and address of the buyer, assignee, lessee, licensee or
transferee. Upon delivery of such Buyer's Assumption Agreement and on condition that the Union approves in writing the financial
responsibility of the buyer, assignee, lessee, licensee or transferee, Company shall not be further liable for payments required under
section 9 for that particular recording,except for pressings made by the Company.
9A. Should any Recording produced under the auspices of this Agreement ever, without limitation to the duration of this Agreement, be
included in any sound recording which, through one or more Pressings, reaches an aggregate production in excess of ten thousand
(10,000) units, the Company shall within 90 days inform the Local of that fact and further agrees to enter into and fulfill all conditions,
including any additional compensation due to the participating musicians required by the then current Sound Recording Labor Agreement
of the Federation and with the Sound recording Trust Agreement and the Sound Recording Manufacturers' Special Payments Fund
Agreement appropriate thereto. Payment of the then prevailing wages, benefits, and payments specified in those agreements shall be
made to all Musicians who performed services in the original Limited Pressings of the Phonograph Record, including all provisions for total
minutes of music,minimum calls,doubling,etc.,with credit applied for the original payment.
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Agreement No. 5357
For the purpose of calculating the obligation of the Company under the Sound Recording Trust Agreement and the Sound Recording
Manufacturers' Special Payments Fund Agreement, the ten-thousand (10,000) units produced or allowed under this Agreement shall be
included in the computation of said obligations.
9B. Without limitation by the duration of this Agreement,the Company shall:
(i) Keep and maintain accurate records and accounts concerning all pressing, distributions, uses and exploitations of and with
respect to recordings made under this Agreement.
(ii) Six months after the effective date of this Agreement and each six months thereafter,furnish to the Local a written report with
respect to all recordings made under this Agreement containing all information pertaining to number of pressings, distributions
and sales of recordings referred to in the preceding paragraph.
(iii) Upon request in writing from the Local, at least five(5)days before the date of examination,allow the designated agent(s)of
the Local to examine, during reasonable business hours, all records and accounts concerning all transactions with respect to
recordings made under this Agreement.
9C. In the event the Local is required to initiate any grievance, under Paragraph 14 of this Agreement, to enforce any of the provisions
and undertakings set forth in this Paragraph 9, and such grievance is submitted to final and binding arbitration with the Local adjudged as
the prevailing party therein, the Local, in addition to any other relief granted by the arbitrator, shall be awarded the total amount of the
attomeys'fees it has incurred in the prosecution of such grievance and arbitration.
10A. In the event the Company utilizes, distributes or in any other way exploits the music produced hereunder for any purpose not
expressly set forth in this Agreement(e.g. "new use" such as use in connection with a motion picture soundtrack; television production;
commercial announcement production; distribution of more phonograph/compact disc units than allowed for under the terms of this
Agreement; etc.) the Company shall pay to or on behalf of all musicians who rendered services in the preparation, production and
recording of all music recorded under and pursuant to this Agreement,all amounts(excluding Health and Welfare, but including AFM&EP
Fund and Film Musicians Secondary Markets Fund as applicable)that would be required under the applicable AFM agreement and /or
Local 47 agreement(using terms which are then in effect), as though the recordings were originally made for the purpose set forth in such
applicable AFM and or Local 47 agreement. Provided,further,that in connection with the undertakings set forth in this Paragraph 10(A), it
expressly agreed that in the event the Company utilizes, distributes or in any other way exploits the music produced and recorded under
this Agreement for any purpose not covered by this Agreement, it shall become—not more than ten (10)days after written demand from
Local 47 to do so—a signatory to any and all AFM or Local 47 Agreements that cover or pertain to the Company's other use, distribution
and/or exploitation of the music covered by this Agreement.
10B. Local 47 and the Company further agree that in the event the Company sells, transfers, licenses or in other manner allows or
facilitates another business entity and/or natural person to utilize or exploit the recordings covered by this Agreement for any purpose
whatsoever,then the Company shall(i)provide-not less than forty-five(45)days prior to the anticipated completion of such sale,transfer,
licensing, etc. - Local 47 with written notice of such sale, transfer, licensing, etc., and (ii) require-as an express condition of such sale,
license,transfer or other exploitation of the music covered under this Agreement-the purchaser and/or transferee to enter into a separate
agreement through which said transferee specifically adopts and agrees to be bound the terms of this Agreement,including,but not limited
to, the undertakings and obligations set forth in Paragraph 10(A), above. In the event the Company breaches the obligations set forth in
this Paragraph 10(B), it shall become liable and responsible for all amounts that otherwise would be due from and on behalf of such
purchaser and/or transferee.
10C. In the event the Local is required to initiate any grievance, under Paragraph 14 of this Agreement, to enforce any of the provisions
and undertakings set forth in this Paragraph 10,and such grievance is submitted to final and binding arbitration with the Local adjudged as
the prevailing party therein, the Local, in addition to any other relief granted by the arbitrator, shall be awarded the total amount of the
attorneys'fees it has incurred in the prosecution of such grievance and arbitration.
11. Additional Terms and Conditions (Addendum "A") For the services rendered by the musicians covered by this Agreement in the
making of recordings, the Company agrees to compensate the musician in accordance with the terms and conditions as provided in
(Addendum"A")which is attached and made a part hereof.
12. The Company agrees to become a party signatory and to be bound by the AFM Local 47 and Employers' Health and Welfare Trust
Agreement of February 12, 1970(as it has been and may be amended), which is incorporated herein by reference as though set forth in
full. The Company shall make contributions to that Fund on behalf of each Musician it employs at the rate of 12%of that Musician's scale
wages.
13. The Company agrees to become a party signatory and be bound by Trust Indenture dated 10/2/59, as amended, providing for
contributions to the AFM and Employers Pension Fund,and further agrees to contribute to such Fund on behalf of the musicians engaged
by the Company, an amount equal to 11%of the Limited Pressings scale wages earned by said musicians. This contribution rate shall be
deemed to include the contributions required under the rehabilitation plan adopted by the Board of Trustees of the Fund on April 15th
2010,which is incorporated herein by reference.
14. Any claim or controversy arising out of this Contract in regard to its existence, validity, construction, performance, non-performance,
breach, operation, continuance, termination, or other reason, including but no limited to the arbitrability of any dispute arising between
parties, shall be submitted to binding arbitration. Either party may request arbitration within 180 days of its first obtaining knowledge of the
circumstances giving rise to the claim or controversy. Notice of request for arbitration shall be sent in writing to the other party and to the
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Agreement No. 5357
Local, which shall send a written Arbitration Option Form to the Purchaser. Unless either party notifies the Local in writing of any changes
in its address,a notice by personal service or by certified mail to the address given by that party in this Contract shall be deemed adequate
notice of request for arbitration, notice of list of arbitrators,and notice of hearing.
Upon receipt of the written Arbitration Option form,the Purchaser shall choose one of the arbitration procedures set forth below and shall
advise the Local in writing of its choice within 15 days of the date of the request for arbitration. If the Purchaser fails to notify the Local
within this time limit, the Local shall have the right to choose which of the arbitration procedures shall be used or, alternately, may choose
to pursue a claim arising under this Contract in Small Claims Court for any amount within the jurisdiction of Small Claims Court.
Option No.1 -Hearing Board: The claim or controversy shall be forwarded to the Hearing Board of the Local for processing in
accordance with the Bylaws of the Local. The arbitration services of the Hearing Board shall be available at no cost to either
party.All rulings and awards made by the Hearing Board in arbitration shall be final and binding upon all parties to the dispute.
Option No.2 - Federal Mediation and Conciliation Service: The Local shall send for a list of arbitrators from the Federal
Mediation and Conciliation Service, and the Local and the Purchaser shall choose an arbitrator therefrom. If the Purchaser fails
to contact the Local within 15 days from the receipt of the list of arbitrators from the Federal Mediation and Conciliation Service,
then the Arbitrator will be chosen by a representative of the Federal Mediation and Conciliation Service. In any arbitration
conducted under this Option, the Rules for Labor Arbitration as promulgated by the Federal Mediation and Conciliation Service
shall apply..The Local and the Purchaser shall share equally the cost of the Arbitrator and the administrative cost of the Federal
Mediation and Conciliation Service. At the hearing, a court reporter may be present at the expense of the requesting party. If
either party has been duly notified of the arbitration hearing and fails to appear, the Arbitrator shall be authorized to hear
evidence presented by the party appearing and to render a decision.The decision of the Arbitrator shall be final and binding upon
all parties of the dispute.
If either party is found through either of the above Options to have breached this Contract,that party shall pay 12%annual interest of the
principal amount of any monetary damages awarded for such breach from the date of the breach to the date of the arbitration award.
Either party may seek to enforce an award rendered under either of the above Options as provided either by the California Code of Civil
Procedure or the Federal Court of competent jurisdiction. If court action is needed to obtain compliance by the losing party with an
arbitration award hereunder, the losing party shall pay, in addition to the principal amount of damages, interest on said principal amount
from the date of the arbitration award to the date of judgment at annual rate of 12%,and shall pay reasonable attorney's fees.
This Agreement shall be in full force and effect from to and including March 31, 2016, and, except as set forth
above,shall terminate automatically on midnight, March 31, 2016 without notice from either party to the other.The terms and conditions of
this Agreement will apply in perpetuity to any recordings made under this Agreement.
FOR THE LOCAL: FOR THE COMPANY:
....................
Company Name
Signature __......_.......
_.................. _...... ........... _.._ ............. .............
Titled Officer Date Print Name Date
817 Vine Street
Hollywood CA 90038
.. .._._...____ --
........... .........
Address Address (PO Box not acceptable)
323.993.3170 Eric,Dawson@ProMusic47.org
........_............a... ._......._.. .__........ __ ............ _.. ...._�.
Phone Email Phone Email
Rev:March 2015-page 3 of 5
Agreement No. 5357
LIMITED PRESSING AGREEMENT
ADDENDUM"A"
Wage Scales: Sixty-Two Dollars ($62.00) per hour with a two (2) hour minimum call, except in the case of an
over-dubbing where the minimum call may be one (1) hour.
Overdubbing: 50% of base scale for the 2nd and each additional track,
Overtime: To be prorated in one-half(1/2) hour segments.
Leader/Contractor: Leader, contractor or single musician shall receive not less than 150% of base scale. If twelve
or more musicians are employed a contractor is required.
Doubles: The first double shall be paid at 25% of base scale and 10% for each double thereafter all
other provisions as per Local 47 Wage Scales and Rules and Regulations (see pages 2 &24).
Finished Product: No more than seven and one-half(7'/2) minutes of music per one (1) hour session.
Rest Period: Ten (10) minutes per hour.
Pension: Shall be an additional 11% of gross scale (including overtime and doubling) made payable to
AFM-EP Fund.
Health &Welfare: Shall be an additional 12% of gross scale (including overtime and doubling) made payable to
Local 47 H&W Fund.
Cartage: A cartage fee of Thirty Dollars ($30.00) for large instruments (harp, Timpani etc.) and $10.00
each for medium sized instruments(amplifiers, drums, string bass, baritone sax, etc.)
Music Prep: The scale for all music preparation services shall be Fifty Percent (50%) of the rates set forth
in the current Sound Recording Labor Agreement of the Federation.
Cancellation: A session, once called, shall not be canceled, postponed, or otherwise rescheduled less than
seven (7) days prior to the date of the session. In the event of an emergency a session may
be canceled, postponed or otherwise rescheduled upon shorter notice with the consent of the
Office of the Local President.
Payment: Payment of wages shall be made not later than fifteen (15) working days following the
engagement. Wages not paid within this time period shall be subject to a late payment penalty
of five percent (5%) of the amount due plus an additional five percent (5%) for each additional
15-day period that the payments are late. Payment of contributions to the AFM-EPF and the
Health and Welfare Fund shall be made not later than the 15th day of the month following the
month of the engagement. Benefit contributions not paid within this time period shall be
subject to liquidated damages of fifteen percent (15%) of the amount due plus an additional
fifteen (15%) for each additional month the payments are late. An extension of these time
limits for good cause may be approved by the Local's Executive Board.
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Agreement No. 5357
DEFINITIONS
The following definitions shall apply to this Agreement:
Sound Recording shall mean any device (including any not yet developed) for the storage of sound data—digital or
analog—intended for Pressing.
Pressing shall mean any reproduction of a Sound Recording, through the medium of disk or tape or other device, the
units of which are intended for and/or available for sale and/or other distribution.
Limited Pressing shall mean a Pressing or series of Pressings of a non-symphonic Sound Recording-other than a
new-use soundtrack album or any recording intended for use as underscoring for any motion picture theatrical film,
television film, videotape, or live television production—the aggregate production of which shall not consist of more
than ten thousand (10,000) units.
Session shall mean a period of time during all or part of which a Musician's services are required for recording.
Lq ect shall mean the final product for which one or more Sessions were held under this agreement, and which is
available for Pressing.
Overtime Period shall mean any one half-hour period, or portion thereof, immediately following a Session or another
overtime period during all or part of which a Musician's s services are required for recording.
Doubling shall occur when a Musician is required to play more than one instrument in a Session with the exception of
instruments within the following respective groups: The playing of any second instrument shall be construed as
doubling, except that in the case of Percussion instruments the instruments shall be considered in categories, and the
playing of instruments within a single category shall not be regarded as a double. The categories shall be:
1) Drum Set, including cowbell and woodblock
2) Timpani
3) Chimes
4) Vibraphone
5) Mallet Keyboards other than chimes or vibraphone, including orchestra bells, marimba, and xylophone.
6) Accessory Percussion (except when included as part of a drum set), including anvil, bass drum, bamboo wind
chimes, bell plate, bird whistles, boat whistlers, brass wind chimes, gong, jingle sticks, piatti cymbals, pop gun,
ratchet, ship's bell, slap-stick, sleigh bells, slide whistle, snare drum, tabor, tambourine, tam tam, temple blocks,
tom tom, triangle, washboard, woodblock.
7) Latin Instruments, including a-go-go bells, bongos, cabasa, castanets, cencerro (Latin cowbell), chocalho (shaker)
claves, Congo drums, cuica, guiro (scratcher, jawbone (quijada), maracas, maraca sticks, pandeiro, puelli sticks,
reco reco, sand blocks, timbales, vibraslap.
Overdubbing shall occur when a Musician is required to record additional tracks for a Project covered by this
Agreement for use with tracks recorded at a Basic Session. No overdubbing of other tracks shall be permitted without
the express prior approval of the Local. Or when a musician is required to record multiple parts in a single session, the
final product of which could not be performed by a single musician in real-time.
Chamber Music shall mean music in which each of not more than 24 Musicians performs a unique part and which is
recorded without any Overdubbing or Stacking
Location Recording The Company agrees to become signatory to the Limited Pressing Agreement prior to making
any recording of a public performance. All musicians must be notified in advance that their performance will be
recorded under the terms and conditions of the Limited Pressing Agreement. Musicians must be paid for the number
of hours of recorded concert but no less than the two-hour minimum described in the Agreement. During any day, no
more than the length of the actual performance shall be recorded. Each hour of recorded product shall permit the
release of up to seven and one-half(71/2) minutes of finished product on a sound recording. The company will make
additional payments equal to the hourly rate of pay for each seven and one-half(71/2) minutes of recorded music (or
fraction thereof)that are released or in any way distributed. Payment of these additional wages must be made not later
than fifteen working days from the aforementioned date (release/distribution date) or late payments as set forth in this
Agreement will apply. The company will be given credit for the recording hours paid for at the time of the original
session.
Contract.A completed B-9 contract must be filed for all recordings made under the Limited Pressing Agreement.
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