Loading...
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