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Home My Public Portal About082-2017 - Parks - Jim McKenney - Entertainment - Elstro Plaza - July 26, 2017ENTERTAINMENT AGREEMENT THIS AGREEMENT is made and entered into this /esday of �uly , 2017, by and between Richmond, Indiana, a municipal corporation through its Board of Parks and Recreation with its office at 50 North 51h Street, Richmond, Indiana, (hereinafter referred to as "City"), and Jim McKinney (hereinafter referred to as "Contractor"). WHEREAS, City is the owner of certain property known as Jack Elstro Plaza ("Plaza") located at 47 North 61h Street, Richmond, Indiana; and WHEREAS, City desires to sponsor a Summer Concert Series at the Plaza; and WHEREAS, Contractor provides musical entertainment professionally, and desires to arrange an appearance at the Plaza for the purpose of providing entertainment. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, including the above stated recitals, City and Contractor hereby agree as follows: 1. Contractor shall be retained by City to appear at the Plaza on July 26, 2017, and provide musical entertainment beginning at 11:30 a.m. and ending at 1:00 p.m. Contractor shall be present at the Plaza and have necessary equipment in a performance ready state at least one-half (1/2) hour prior to the above -stated time so that appropriate sound checks may be conducted in accordance with an appointed City representative. 2. City agrees to pay Contractor a total sum of $100.00 in full payment for services rendered under this Agreement. 3. Should any of the provisions, terms, or conditions contained in any of the documents attached hereto as exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. 4. Contractor agrees to indemnify City for any claim, injury, or other damage caused by any negligent or intentional act performed by contractor or its employees, agents, representatives, and crew. Contractor hereby agrees to release and hold harmless, City, its agents, employees and independent contractors from any claim, cost, damage or liability arising out of Contractor's performance at the Plaza, including, but not limited to any claim resulting from an intentional act of any spectator, hotel guest or trespasser. It is Contract No. 82-2017 Page 1 of 5 expressly agreed that City has no duty to provide any security or safekeeping for Contractor's equipment or instruments and that in no way shall City be liable for any act of theft or vandalism. 6. Contractor agrees that the facilities provided by the City for Contractor's performance are being received in an "as-is/where-is" condition, with all faults and that City, other than providing, reasonable space and electricity, does not guaranty or represent that its facilities shall be suitable for any particular performance or use. 7. In no event shall City be liable for any consequential or special damages incurred by Contractor in connection with its performance or any cancellation of said performance. In the event that the performance must be cancelled due to inclement weather, or any act of God, the City, in its sole discretion, may determine that the performance must be cancelled and will attempt to arrange a subsequent performance at a later date, for which this Agreement shall, in all material respects, control. The City, however, is under no obligation to ensure the rescheduling of a performance, and if it cannot be rescheduled, the Contractor understands and agrees that it would not be entitled to any fee referenced herein. 8. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Contract, if any, must be filed in said courts. Both parties specifically waive any right to alternative venues or courts such party may have whether such right arises under the laws of the State of Indiana, or any other State of territory of the United States or the laws of the United States. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this agreement, Contractor agrees that it will not raise and is estopped from raising, lack of personal jurisdiction as a defense to any action brought in Wayne County, Indiana. 9. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 10. This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. It shall be controlled by Indiana law and shall be binding upon the parties, their successors, and assigns. It constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. Any previous discussion, negotiation or dialogue relating to the subject matter contained herein is expressly superseded by this agreement. Furthermore, both parties agree that any no discussion, representation or negotiation, other than that contained herein, has transpired relating to the subject matter of this agreement and that neither party is relying upon any negotiation or discussion that took place prior to this agreement. Page 2 of 5 11. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City due to the enforcement of this Agreement, including but not limited to City's reasonable attorney's fees. Contractor acknowledges that its services are unique and that City is entitled to specific performance of the agreement or other equitable remedies, if Contractor commits an act that amounts to an anticipatory repudiation of this agreement. 12. In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 13. Any person executing this Contract in a representative capacity hereby warrants that he has been duly authorized by his or her principal to execute this Contract. 14. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. 15. Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. 16. Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event City determines during the course of this Agreement that this certification is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to Page 3 of 5 demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety (90) day period set forth above. 17. This Agreement shall become effective when signed by all of the parties hereto and shall continue until such time that Contractor performs the services as set forth herein. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by specifying the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner its obligations under this Agreement; b. ineffective or improper use of funds provided under this Agreement; c. unavailability of sufficient funds to make payment on this Agreement. This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. 18. Contractor may utilize its own sound equipment; however, such equipment must be approved by the appropriate City representative(s) prior to such use. Any use of personal sound equipment will not interfere or cause damages, of any kind, to the sound equipment owned, controlled or operated by the City. The City undertakes not responsibility for Contractor's sound equipment and all provisions herein relating the release of liability and indemnification apply to this section. In the event that the Contractor utilizes equipment owned, controlled or operated by the City, it shall be responsible for any and all damages that might result to such equipment due to the negligent or intentional acts of Contractor. 19. Contractor agrees that any person affiliated with Contractor will conduct themselves in accordance with generally accepted principles of decorum and behavior when considering that the performance is being endorsed by the City. Contractor shall refrain from using foul language, and engaging in any other behavior that can reasonably be expected to offend any spectator of the performance. The City shall have sole discretion in cancelling this Agreement, at any moment, should it determine that this provision has been breached. 20. The person signing this Agreement on behalf of Contractor represents that he or she has full and complete authority to execute the same and bind the Contractor, and any persons affiliated with the Contractor to the provisions herein. The signatory to this Agreement is either the sole Contractor, a member, principal, or shareholder of the Contractor, or has been provided adequate agency authority to act on behalf of the Contractor. Page 4 of 5 IN WITNESS WHEREOF, the parties execute this Agreement effective the day and year first above written, although signatures may be affixed at different times. "CITY' "CONTRACTOR" THE CITY OF RICHMOND, INDIANA by JIM MCKINNEY and through its Board of Parks and Recreation LOW Date. 0/ APPROVED: ( - --Q- - - - i — or Date: Q � Z- — LOW Page 5 of 5