HomeMy Public PortalAbout072-2005 _Board of Aviation & DacyAPPEARANCE AGREEMENT
THIS AGREEMENT is made and entered into this 31st day of May , 2005, by
and between Richmond, Indiana, a municipal corporation through its Board of Aviation
Commissioners with its office at 50 North 5th Street, Richmond, Indiana, (hereinafter referred to
as "City"), and Dave Dacy Airshows, Inc., P.O Box 225, Harvard, IL 60033 (hereinafter referred
to as "Contractor").
WHEREAS, City is the owner of certain property known as the Richmond Municipal
Airport (hereinafter referred to as "Airport") located at 5169 South State Rd 227, Richmond,
Indiana; and
WHEREAS, City desires to sponsor an Airshow at Airport on July 2, 2005 in
conjunction with the 2005 City Fireworks Display; and
WHEREAS, City desires to provide entertainment at the Airshow and hire persons or
companies who provide aviation related entertainment; and
WHEREAS, Contractor is in the business of providing aviation related entertainment
and wants to make an appearance at the Airshow 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:
The City shall hold an Airshow on July 2, 2005, or on such other date as City
may determine.
2. Contractor shall be retained by City to appear at the Airshow on July 2, 2005,
and provide entertainment and services, including but not limited to:
a. Aviation performances by the following persons: Davy Dacy; Phil Dacy;
Tony Kazian; Clyde Zellers; Joe Dooley; Jim Maroney and Mike Keenum.
b. All necessary acts required in filing and coordinating all appropriate FAA
paperwork in conjunction with Contractor's performance;
c. Providing an airshow announcer and sound system.
d. Ensuring that Contractor and its agents who will perform sign liability
waivers prepared by the City Attorney's Office; and
e. Taking all necessary steps to accomplish the above.
City shall pay Contractor the sum of Fourteen Thousand Nine Hundred Twenty -
Five Dollars ($14,925.00) for its services, of which One Thousand Dollars
($1,000.00) shall be paid upon the execution of this Contract. The remaining
balance shall be paid upon the completion of the Airshow, July 2, 2005. In the
event Contractor cannot fully perform or its agents cannot perform, excluding
non-performance as a result of inclement weather that makes performing
unreasonably dangerous, Contractor's payment shall be pro -rated based upon its
actual performance. If inclement weather makes performance unreasonably
dangerous, Contractor will be paid in full. City shall provide all reasonably
necessary fuel and oil Contractors needs in its performance.
Contract No. 72-2005
City shall additionally provide five (5) automobiles for Contractors use. The
make and model of such automobiles shall be determined solely by the City.
4. In addition, City shall, at its own expense, provide Contractor with eight (8) hotel
rooms, at a hotel to be chosen by the City, on the following dates:
7/1/05
7/2/05
Said hotel rooms will be at a hotel in the City of Richmond, Indiana. Room
service, movies, or other entertainment shall not be paid for by the City.
Contractor expressly warrants that it is fully insured. Contractor is responsible for
any and all injury and damage to any person, persons, or property it causes in
connection with the Festival. Contractor shall maintain insurance in an amount
that is satisfactory to the City with minimum limits of liability of not less than
$1,000,000.00 coverage for any occurrence. Contractor further agrees that it will
be solely responsible for any and all claims exceeding its insurance coverage. All
of the above- described policies shall include a waiver of subrogation clause. A
copy of the above -required policy shall be provided to City prior to July 2, 2005,
together with certificates of insurance acceptable to City.
6. Contractor further agrees to indemnify and save harmless the City against any
and all claims, losses, costs, damages, and expenses arising out of or from the
conduct or management of, or from any event or anything whatsoever done in
and about the Airport during the Festival, causing injury or damage to any person
or property due to any act or neglect of the Contractor, Contractor's agents, to
sub -contractors, or employees, or due to any failure of the Contractor,
Contractor's agents, sub -contractors, or employees, to comply with or perform
any requirements of the provisions of this Agreement, on Contractor's part to be
performed, or due to any use made by the Contractor of the Premises. Contractor
also agrees to indemnify and hold harmless the City against any and claims,
losses, costs, damages and expenses arising from or out of any act Contractor,
Contractor's agents, sub -Contractors or employees perform in connection with
the operation of vehicles the City will provide, regardless of whether such act is a
result of Contractor's negligence or omission or the result of an intentional act.
Contractor further agrees that it will be solely responsible for any fees incurred in
connection with its use of vehicles provided by the City, including but not limited
to, cleaning fees, repairs necessitated by Contractor's use, gasoline, oil and any
other cost attributable to Contractor's operation of vehicles provided by City. In
case of any action or proceeding, being brought against the City by any reason of
any such claim, Contractor, on notice from City, shall resist, and defend such
action or proceeding. Contractor further agrees that it is providing entertainment
services at its own risk and that City shall not be liable for any loss Contractor
suffers as a result of theft of Contractor's property or equipment. By executing
this agreement, Contractor hereby releases the City from and any and all liability
that arises from spectators, other participants, trespassers, hotel guests, or other
persons causing, whether by intentional act or accident, damage to Contractor's
property, equipment or personal injury to Contractor's employees. Contractor
agrees that any appearance it makes at the Festival may result in damage to its
equipment and that the City shall not be liable, and Contractor is estopped from
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bring any legal or administrative action against the City on account of any loss
the Contractor suffers as a result of weather conditions or other disasters,
including but not limited to, lightning, hail, tornado, wind, fire, flood, acts of war
and other catastrophes.
7. 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.
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. Any delegation or assignment of this agreement,
without the prior written consent of the other party, shall be void. 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.
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. 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, the State of
Illinois, 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.
11. 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.
12. By executing this Agreement, Contractor hereby grants City the permission to
telecast its services, to videotape, photograph or make other reproductions of its
performance and agents. Contractor further agrees to allow City to use such
reproductions in any and all promotion or advertisement relating to future events
or publications. Contractor waives any right it has in its likeness or performance
and any other intellectual property right it maintains in connection with its
performance at the Festival and is estopped from asserting such rights in a legal
or administrative action against the City.
13. 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.
14. 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 execute this Agreement effective the day and year first
above written, although signatures may be affixed at different times.
"CITY"
Richmond, Indiana,
By: Board of Aviation Commissioners
S/S William Smith _ Chairman
Approved:
_S/S Sarah L. Hutton
Mayor Sarah L. Hutton
Date: May 31, 12005
"CONTRACTOR"
D/B/A DAVE DACY AIRSHOWS, INC.
S/S David Dacv President
( David Dacv )
Print name
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