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HomeMy Public PortalAbout069-2020 - Parks - Joe Augustine - Music Event at Elstro Plaza - Farmers MarketAGREEMENT THIS AGREEMENT made and entered into this JD day of jv1' z , 2020, and referred to as Contract No. 69-2020 by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Parks and Recreation, with its office at 50 North 5th Street, Richmond, Indiana, 47374 (hereinafter referred to as the "City") and Joe Augustin/,Upr 714 Peacock Road, Richmond, Indiana, 47374 (hereinafter "Contractor"). Ii'1 SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide professional services as a performance booking agent for various future dates to be determined to reserve and schedule musical performances to be held at the Jack Elstro Plaza during the Farmers Markets for the Richmond Parks and Recreation Department (the "Project"). Contractor's proposal, dated May 14, 2020, consisting of two (2) pages, is attached hereto as Exhibit A, which Exhibit is incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same. There is estimated to be approximately twenty-three (23) performance event dates to be scheduled and booked by Contractor. In connection with the guidelines set forth by the Governor of the State of Indiana published on May 4, 2020, as a part of the COVID-19 "back on track" schedule to re -open locations and venues, the musical performances described in this Agreement are deemed to be entertainment as listed on the schedule, wherein entertainment events are closed until June 13, 2020, and wherein events are permitted to open or occur at no more than fifty percent (50%) capacity from June 14, 2020, through July 3, 2020. Said May 4, 2020, schedule issued by the Governor of the State of Indiana is attached hereto as Exhibit B, which Exhibit is incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same. As such, no bookings or reservations shall take place on or before June 13, 2020, with said date subject to change as altered by the Governor of the State of Indiana in coordination with the federal Centers for Disease Control and Prevention ("CDC"). No bookings or reservations shall exceed fifty percent (50%) capacity which are scheduled during the dates described above (June 14, 2020, through July 3, 2020), with said dates subject to change as altered by the Governor of the State of Indiana in coordination with the CDC. Protective facial coverings are optional from June 14, 2020, through July 3, 2020, unless the dates or facial covering recommendations are altered by the Governor of the State of Indiana in coordination with the CDC. During the dates in which the musical performances will be held, the Tuesday performances are anticipated to be held from 5:00 p.m. until 7:00 p.m. and the Wednesday performances are anticipated to be held from 11:00 a.m. until 1:00 p.m. Performances on other days of the week which are yet to be determined will be held at times mutually determined by the Contractor and the Parks Department. The Contractor shall be responsible for payments to the performance artists and the same are deemed to be subcontractors of Contractor. Contract No. 69-2020 Page 1 of 7 Contractor will invoice the City's Parks Department after services have been rendered. This Agreement shall not be construed to apply any third -party beneficiary status to any individual. Contractor shall be solely responsible for the following: 1. Negotiating compensation for all performers as well as for actually tendering such compensation to performers. Contractor shall be responsible for compensation performers from his own funds, and Contractor acknowledges and agrees that any invoice submitted to the City for any performance contemplated herein shall not be satisfied by the City as it shall remain the sole obligation of the Contractor to compensate the performers with which he contracts. 2. Contract with performers to ensure compliance with this Agreement with the parties to such contracts being the Contractor herein and the performers. Each performer will be advised, in writing, that the City is not a party to the contract between Contractor and performer; and as a result, has no legal obligations, express or implied, to the performers. 3. Schedule, at minimum, two (2) performers per act unless a solo act is pre -approved by the City. 4. Ensure that each show is as least two (2) hours in duration. 5. Secure authorization from the City prior to hiring each performer(s). 6. Undertake reasonable marketing efforts by working directly with the City so as to develop and distribute such materials with the same being uniform in design for each individual event. 7. Coordinate and provide sound equipment as needed for performer(s). 8. Ensure that all performers provide live entertainment at Jack Elstro Plaza in Richmond, Indiana. 9. Ensure that live performances are secured for the dates ultimately determined and discussed by the Contractor and the Parks Department. Contractor is solely and individually liable for ensuring compliance with the terms and conditions of this agreement. Further, Contractor shall be solely liable to any performer(s) relative to any dispute, in any manner whatsoever, arising out of Contractor's independent actions in securing such performer(s) for the dates ultimately determined to be secured. Any dates rescheduled due to rain cancellations shall first be approved by the Richmond Parks Department, which approval shall not be unreasonably withheld. Should any 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. Contractor shall perform all work herein in a timely manner, conforming to all applicable professional standards. The Contractor shall furnish all labor, material, equipment, and services necessary which are incidental to the proper completion of all work specified. Page 2 of 7 No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance and/or warranties; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION City shall pay Contractor an amount not to exceed Five Thousand Five Hundred Dollars and Zero Cents ($5,500.00) for satisfactory completion of the Project. SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect until the end of the 2020 Farmer's Market Season which shall be concluded no later than the end of the fall of 2020. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and 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 and proper manner its obligations under this Agreement; b. submission by the Contractor to the City of reports that are incorrect or incomplete in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. Page 3 of 7 In the event of such termination, the City shall be required to make payment for all work performed prior to the effective date by Contractor, but shall be relieved of any other responsibility herein. This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. This Agreement may also be terminated by the City if a force-majeure event occurs and the results or aftereffects of said event causes the performance of this Agreement to become impossible or highly impracticable. Said event or results or aftereffects of said event would include events or effects which the parties to this Agreement could not have anticipated or controlled. Examples of a force-majeure event, or its results, would include, but would not be limited to, events such as an Act of God, an Act of Nature, an Act of Law, or an Emergency Act of Executive Enforcement of the Federal government, the State of Indiana, or local government. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor's obligation to indemnify and defend the City shall extend to any lawsuit or formal complaint submitted by any of the performers (considered to be subcontractors) that Contractor secures pursuant to this Agreement. SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS 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 Page 4 of 7 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. SECTION VIII. IRAN INVESTMENT ACTIVITIES 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 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. SECTION IX. PROHIBITION AGAINST DISCRIMINATION A. 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. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: 1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; Page 5 of 7 2. That Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION X. RELEASE OF LIABILITY Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of the same from all liability for negligence which may arise in the course of Contractor's performance of its obligations pursuant to this Agreement. SECTION XI. MISCELLANEOUS This Agreement is personal to the parties hereto and neither parry 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. 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. 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. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. 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. Page 6 of 7 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, whether or not suit is filed. 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. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Parks and Recreation By: Mike Foley, Preside t Date: "CONTRACTOR" JOE AUGUSTR4 J 714 Peacock Road I" Richmond, IN 47374 By: L- To-eA'g'ustin/ ff A Title: Ott\\ APPROVED: i . Sno , a Date: Date: 610 ,, ., Page 7 of 7 2020-05-14 Estimate No. 0002 Thank you for your business!' The following is an outline of music booking and performance services to be provided by Joe Augustin to Richmond Parks Department/Richmond Farmers Market in 2020.. Quantity Description Unit Price Total 23 Booking $53.25 $1224.75 1 Performance 1 (date TBD) 250 250 1 Performance 2 (date TBD) 150 150 1 Performance 3 (date TBD) 150 150 1 Performance 4 (date TBD) 150 150 1 Performance 5 (date TBD) 150 150 1 Performance 6 (date TBD) 200 200 1 Performance 7 (date TBD) 200 200 1 Performance 8 (date TBD) 150 150 1 Performance 9 (date TBD) 150 150 1 Performance 10 (date TBD) 150 150 1 Performance 11 (date TBD) 250 250 1 Performance 12 (date TBD) 150 150 1 Performance 13 (date TBD) 150 150 1 Performance 14 (date TBD) 150 150 1 Performance 15 (date TBD) 150 150 1 Performance 16 (date TBD) 175 175 1 Performance 17 (date TBD) 300 300 1 Performance 18 (date TBD) 200 200 Joe Augustin ties ten, y Text: 765-914-1802 714 Peacock Rd achillestenderloin.com Richmond, IN 47374 achillestenderloin@gmail.com �,ai'alT FADE -it—OF a- 1 Performance 19 (date TBD) 150 150 1 Performance 20 (date TBD) 150 150 1 Performance 21 (date TBD) 150 150 1 Performance 22 (date TBD) 300 300 1 Performance 23 (date TBD) 300 300 Total $5499.75 ERP:Ba�� GE�01 2 �m J a � x41 �m n C zi ; - , tllk ; .... , G u Z W? eF O 1 a gAW i CL a C O o LL 09 a aFAR, IA L_ � k cc 'aN- . Q ou 08 Fa a Ng a tx M r � J '-F � IL TA C '4 ASS t ++^^ •i 6 u � a 3 C C V C M a.' :a L �. rn E C H u c 1 O C b Gfra 9 7� w. X O a - m .: 6 :.,' c C. t ¢' O .00 = a