HomeMy WebLinkAboutC-8024-5B - Performance Agreement for Concert on the Green 2023AMENDMENT NO. ONE TO PERFORMANCE AGREEMENT
WITH LYNN NICHOLSON DBA TOP ROCK ENTERTAINMENT FOR
CONCERT ON THE GREEN: TIJUANA DOGS
THIS AMENDMENT NO. ONE TO PERFORMANCE AGREEMENT ("Amendment
No. One") is made and entered into as of this 31 st day of August, 2023 ("Effective Date")
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and LYNN NICHOLSON, a sole proprietor doing business as ("DBA")
TOP ROCK ENTERTAINMENT ("Contractor"), whose address is 4811 Cathy Avenue,
Cypress, California 90630, acting on behalf of itself and as the designated agent with
authority to enter into this Agreement on behalf of Matt Mauser, Jacob Bigham, Dave
Murdy, Daniel Pearson, and Sean Winchester performing as "Tijuana Dogs" (the
"Performers"). It is mutually agreed by and between the undersigned parties as follows:
TERM
Section 1 of the Agreement is deleted in its entirety and replaced with the following:
"The term of this Agreement shall commence on the Effective Date, and shall terminate
on November 1, 2023, unless terminated earlier as set forth herein."
2. SERVICES TO BE PERFORMED
The date of the Performance in Section 2.2 of the Agreement is changed to
September 24, 2023.
Exhibit A to the Agreement shall be amended in its entirety and replaced with the
Performance Invoice attached hereto as Exhibit A and incorporated herein by reference.
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remail unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Z3
By:
aro C. p-7 8•Z3.V W(-
Cit Atto , ey
ATTEST:
Date:
A
Leilani I. B
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 0 Z4hi)23
Library Services Director
CONTRACTOR: LYNN NICHOLSON,
dba TOP ROCK ENTERTAINMENT, a
sole proprietor
Date:
Signed in Counterpart
Lynn Nicholson
Sole Proprietor
[END OF SIGNATURES]
"9L! FOR•
Attachment: Exhibit A — Performance Invoice
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No.. One to be
executed on the elates written below.
APPROVED AS TO FORM
CITY ATTORNEY'S OFFICE
Date:
By:
_ /,/// .4
ren' . a Y.ZS z3 wc.
ty orn
ATTEST:
Date:
M
Leilani I. Brown
City Clerk
CITY OF INEWPORT BEACH,
a California municipal corporation
Hate: i fzK/ZebZ2:'
By;�J�L
Melissa Hartson
Library Services Director
CONTRACTOR: L'YNN NICHOLSON,
dba TOP ROCK ENTERTAINMEN a
Sole Proprietor
[END OF SIGNATURES)
Attachment: Exhibit A- Performance Invoice
Lynn Nicholson DBA Togs Rock Entertainment - Tijuana Dogs Page 2
EXHIBIT A
PERFORMANCE INVOICE
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page A-1
■
CITY OF NEWPORT BEACH
ARTS COMMISSION
INVOICE
Submitted to Newport Beach Cultural Arts
For Concerts on the Green
Band Name: Tijuana Dogs
Date of Performance: 24-Sep-2023
Amount: $$3,250.00
Made Payable To: T
Street Address: 4811
Rock Entertainment
Avenue
City: Cypress State: CA
Zip: 90630
Phone: (714 ) 403 -2310 Email: lynngtoprockentertainment.com
Names of band members:Matt Mauser, Jacob Bigham, Sean Winchester, Dan Pearson,
Dave Murdy
Submitted by: L
Date: 08/22/2023
Nicholson
co
PERFORMANCE AGREEMENT
V WITH LYNN NICHOLSON DBA TOP ROCK ENTERTAINMENT FOR
CONCERT ON THE GREEN: TIJUANA DOGS
THIS PERFORMANCE AGREEMENT ("Agreement") is made and entered into as
of this 12th day of April, 2023 ("Effective Date") by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and LYNN
NICHOLSON, a sole proprietor doing business as ("DBA") TOP ROCK
ENTERTAINMENT ("Contractor"), whose address is 4811 Cathy Avenue, Cypress,
California 90630, acting on behalf of itself and as the designated agent with authority to
enter into this Agreement on behalf of Matt Mauser, Jacob Bigham, Dave Murdy, Daniel
Pearson, and Sean Winchester performing as "Tijuana Dogs" (the "Performers"). It is
mutually agreed by and between the undersigned parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on September 1, 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall arrange for and cause Performers to provide the following
type of performance:
Concert on the Green: Tijuana Dogs ("Performance")
2.2 Contractor shall arrange for and cause Performers to provide such
Performance at the following location and date:
Location: Civic Center Green, 100 Civic Center Drive, Newport Beach, CA
92660 ("Park")
Date: August 20, 2023
Performance time: 6.-00 p.m.
Performers shall complete all set up by 5.00 p.m. However, sound check
shall not be conducted before 5:00 p.m.
2.2.1 City shall have the option, in -lieu of or in addition to providing an in -
person Performance, to record Performance and exercise its discretion in the event it
wishes to stream the Performance at a later date pursuant to Section 5.1.
2.3 The City shall be responsible for:
2.3.1 Providing sound equipment and amplification system for the
Performance;
2.3.2 Providing sound engineer to operate sound equipment for the
Performance; and
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 1
2.3.3 Providing portable electrical power.
2.4 Contractor shall be responsible for:
2.4.1 Providing a Performance at the Park, including a sound check to be
completed prior to the Performance, by the Performers;
2.4.2 Providing all musical instruments, peripheral equipment, musicians,
vocalists and/or other participants necessary to present an excellent Performance at the
Park;
2.4.3 Providing directions and travel arrangements sufficient for all
musicians, vocalists, musical instruments and/or other participants to travel to the Park
for the Performance;
2.4.4 Contacting the City's contracted sound engineer in advance of the
Performance to evaluate the set up for all sound equipment on the stage,
2.4.5 Food, refreshments and personal requirements for all musicians,
vocalists and/or other participants;
2.4.6 Following all directions of City staff as to the entry and egress from
the stage in the Park, including when loading and unloading any equipment;
2.4.7 Obtaining prior written approval from the City for all printed (including
electronically delivered) materials related to all Performances under this Agreement,
including press releases, prior to any distribution;
2.4.8 Immediately reporting to the Program Coordinator any damage to the
Performance facility that could cause potential injury to users of the Park, or other needed
maintenance repairs or requirements;
2.4.9 Maintaining the highest degree of participant and audience safety
possible and completely following all City policies and procedures by immediately
reporting any injuries as a result of the Performance;
2.4.10 Contractor and Performers shall at all times maintain professional,
courteous, and appropriate conduct for this family -friendly facility, and shall be free from
the influence of alcohol or drugs; and
2.4.11 Contractor and Performers agrees, assures and certifies that, except
as permitted by law, no person shall, on the grounds of race, religious creed, color,
national origin, ancestry, age, physical disability, mental disability, medical condition
including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any
condition related thereto, marital status, sex, sexual orientation, or any other
impermissible basis under law, be excluded from participation in or be denied the benefits
of the services provided pursuant to this Agreement, and that Performers shall not
discriminate on said grounds in the selection and retention of employees and the
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 2
procurement of materials and equipment, except as provided in Section 12940 of the
Government Code of the State of California. Contractor and Performers shall also
conform to the requirements of the Americans with Disabilities Act in the performance of
all obligations under this Agreement.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of this Agreement and Contractor
shall arrange for the Performers to provide the Performance in accordance with the
schedule indicated above. Notwithstanding the foregoing, Contractor and Performers
shall not be responsible for delays due to causes beyond their reasonable control.
3.2 In the event of illness, Contractor is required to notify City twelve (12) hours
prior to cancellation of the Performance. If canceling a Performance for any reason other
than illness, Contractor shall provide two (2) weeks' notice to the Program Coordinator.
In the event of cancellation, Contractor and Performers shall return all monies advanced
by the City.
3.3 For all time periods not specifically set forth herein, Contractor and
Performers shall communicate with City in the most expedient and appropriate manner
under the circumstances, by fax, hand -delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Performance on a flat rate basis in
accordance with the provisions of this Section. Contractor's compensation for the
Performance provided in accordance with this Agreement, including all reimbursable
items and fees, shall not exceed Three Thousand Two Hundred Fifty Dollars and
00/100 ($3,250.00) without prior written authorization from City. No rate changes shall
be made during the term of this Agreement without the prior written approval of City.
City shall pay Contractor upon Performers' arrival for set-up on the date of the
Performance.
4.2 From the compensation payable to the Contractor under this Agreement,
the Contractor hereby agrees to and shall cause to be disbursed and punctually paid to
the Performers such sum due and payable by Contractor to the Performers under the
terms of any contractual agreement or arrangement made by and between Contractor
and the Performers for services performed by the Performers in connection with the
Performance.
5. MEDIA
5.1 RECORDING/PHOTOGRAPHY. At City's discretion and expense,
Contractor and Performers grants City the absolute and irrevocable right and permission
to record video, film, photograph, make audio recordings or any other media (collectively,
the "Material") of the Performance. Contractor and Performers agree that the City will be
the owner of the Material and the Material may be incorporated in or used in connection
with media productions created by or agreed to by the City to air on Newport Beach
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 3
Television known as "NBTV", the City's government access cable TV channel, and for
promotional, advertisement and archival purposes. City agrees to limit use of such
Material to said purposes.
5.2 PRESS AND PROMOTIONS. Contractor and Performers hereby grants
City the absolute and irrevocable right and permission to include Performers' name,
likeness, voice and biographical information as well as excerpts from Performers' pre-
recorded work (CD, DVD, or other media) in promotional literature and advertisements
for the Performance, including, but not limited to, television commercials, social media
posts, on the City's website, City brochures and other media.
5.3 PUBLIC RELATIONS. Contractor shall provide biographical and
promotional material no later than June 1, 2023. Any promotional material sent to the City
shall become the property of the City for the sole purpose of marketing and promoting
Performance. Contractor is encouraged to provide City with any such promotional
materials as Contractor or Performers believes will help represent the Performers best in
this effort.
6. INCOME TAX WITHHOLDING
Contractor and Performers warrant that they are, for purposes of income tax
withholding, domiciled in the State of California and shall be solely responsible for the
payment of any income tax as required by the State of California. Contractor and
Performers agree to defend, indemnify and hold City harmless from any tax collection
efforts by the State of California, or any other governmental taxing authority, against the
City.
7. ADMINISTRATION
This Agreement will be administered by the Library Services Department. City's
Library Services Director or his/her designee shall be the Program Coordinator and shall
have the authority to act for City under this Agreement. The Program Coordinator or
his/her designee shall represent City in all matters pertaining to the Performance to be
rendered pursuant to this Agreement.
8. HOLD HARMLESS
8.1 To the fullest extent permitted by law, Contractor and Performers shall
indemnify, defend and hold harmless City, its City Council, boards and commissions,
officers, agents, volunteers, employees and any person or entity owning or otherwise in
legal control of the property upon which Performers performs the Performance
contemplated by this Agreement (collectively, the "Indemnified Parties") from and against
any and all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 4
work performed or services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor or Performers' presence or activities
conducted for the Performance (including the negligent and/or willful acts, errors and/or
omissions of Contractor or Performers, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by
any of them or for whose acts they may be liable or any or all of them).
8.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor or Performers to indemnify the Indemnified Parties from any Claim arising from
the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action on
or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the Contractor
or Performers.
9. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor and Performers on an independent
contractor basis and Contractor and Performers are not an agent or employee of City.
The manner and means of conducting the Performance are under the control of
Contractor and Performers, except to the extent they are limited by statute, rule or
regulation and the expressed terms of this Agreement. No civil service status or other
right of employment shall accrue to Contractor or Performers or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or Performers or
any of Contractor's or Performers' employees or agents, to be the agents or employees
of City. Contractor and Performers shall have the responsibility for and control over the
means of performing any work or service provided under this Agreement, provided that
Contractor and Performers are in compliance with the terms of this Agreement. Anything
in this Agreement that may appear to give City the right to direct Contractor or Performers
as to the details of the Performance or to exercise a measure of control over Contractor
or Performers shall mean only that Contractor and Performers shall follow the desires of
City with respect to the results of the Performance.
10. COOPERATION
Contractor and Performers agrees to work closely and cooperate fully with City's
designated Program Coordinator. City agrees to cooperate with the Contractor and
Performers on the Performance.
11. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Performance to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Performers, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 5
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power, or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
12. INTELLECTUAL PROPERTY AND INDEMNITY
The Contractor warrants that it and the Performers has the legal right to utilize the
songs, scripts, and/or other intellectual property and materials in its Performance provided
under this Agreement. The Contractor shall defend and indemnify City, its agents,
officers, representatives and employees against any and all liability, including costs, for
infringement or alleged infringement of any United States' letters patent, trademark, or
copyright, including costs, contained in Performers' Performance provided under this
Agreement.
13. CITY'S RIGHT TO EMPLOY OTHER PERFORMERS
City reserves the right to employ other performers in connection with any City
event, performance or concert.
14. NOTICES
14.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Performers to City shall be addressed to City at-
Attn: Melissa Hartson, Library Services Director
Library Services Department
City of Newport Beach
1000 Avocado Ave.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 717-3870
14.2 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Lynn Nicholson
Lynn Nicholson DBA Top Rock Entertainment
4811 Cathy Avenue
Cypress, CA 90630
Phone: (714) 403-2310
15. CLAIMS
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 6
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor and Performers shall submit
to City, in writing, all claims for compensation under or arising out of this Agreement.
Contractor's or Performers' acceptance of the final payment shall constitute a waiver of
all claims for compensation under or arising out of this Agreement except those previously
made in writing and identified by Contractor or Performers in writing as unsettled at the
time of its final request for payment. The Contractor and Performers, and the City,
expressly agree that in addition to any claims filing requirements set forth in the
Agreement, the Contractor and Performers shall be required to file any claim the
Contractor or Performers may have against the City in strict conformance with the
Government Claims Act (Government Code sections 900 et seq.).
16. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. City shall have the right, at its sole and absolute
discretion and without cause, of terminating this Agreement at any time by giving no less
than seven (7) calendar days' prior written notice to the Contractor.
17. STANDARD PROVISIONS
17.1 Compliance with all Laws. Contractor and Performers shall at its own cost
and expense comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now in force
or hereinafter enacted.
17.2 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
17.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
17.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the terms
of this Agreement shall govern.
17.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 7
17.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Performers and City and approved as to form by the
City Attorney.
17.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
17.8 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
17.9 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
17.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: c
Aaron C. Harp y •5 - Ls wc.
City Attorney
ATTEST: Z"
Date:4// Z
Leilani I.
City Clei
CITY OF NEWPORT BEACH,
a Californian
alifornia unicipal corporation
Date:
By:
Melissa Hartson
Library Services Director
CONTRACTOR: LYNN NICHOLSON,
dba TOP ROCK ENTERTAINMENT, a
sole propri t
Date: ll1 a 3
By. �
Lynn icholson
Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit A — Performance Invoice
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page 8
EXHIBIT A
PERFORMANCE INVOICE
Lynn Nicholson DBA Top Rock Entertainment — Tijuana Dogs Page A-1
1
W R70
CITY OF NEWPORT BEACH
ARTS COMMISSION
INVOICE
Submitted to Newport Beach Cultural Arts
For Concerts on the Green
Band Name: Tijuana Dogs_
Date of Performance: 20-Auz-2023
Amount: $$3,250.00
Made Payable To: Top Rock Entertainment
Street Address: 4811 Cathy Avenue
City: Cypress State: CA Zip: 90630
Phone: (714 ) 403 -2310 Email: lynngtoprockentertainment
Names of band members: Matt Mauser, Jacob Bigham, Sean Winchester, Dan Pearson, Dave Murdy
Submitted by: Lynn Nicholson
Date: 03/15/2023