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Home My Public Portal About103-2005 _Board of Aviation & EddAPPEARANCE AGREEMENT THIS AGREEMENT is made and entered into this _2nd_ day of July , 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 The Eddie Falcon Show, 6416 Blow Street, St. Louis, MO 63109 (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 entertainment; and WHEREAS, Contractor is in the business of providing musical performances 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 sponsor 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) Musical performances by means of live vocals and recorded background music for the Elvis Show beginning at 7:00 p.m. and ending at 9:00 P.M. (b) Contractor shall perform 2 — 45 minute sets with '/2 hour break in between the sets. (c) Contractor shall provide teddy bears and scarves for guests. City shall pay Contractor the sum of Five Hundred Dollars ($500.00) for its services. Should Contractor be required to perform additional time, that fee, based on '/2 hour increments, will be negotiable. 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. 4. In addition, City shall, at its own expense, provide Contractor with a stage and professional sound system, RV parking spot for Friday evening and RV Parking behind or near stage. Contract No. 103 - 2005 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. 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 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, 2 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 A. Smith , Chairman Approved: _S/S Sarah L. Hutton Mayor Sarah L. Hutton Date: July 2 12005 "CONTRACTOR" THE EDDIE FALCON SHOW S/S Eddie Falcon ,President LEddie Falcon ) Print name 11