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HomeMy WebLinkAboutEly Enterprises/Com Rel/600/Jazz on Monon sQROr; PERFORMANCE AGREEMENT This Performance Agreement (the "Agreement"), which shall be effective as of the date it is last-signed by a party hereto (the "Effective Date"), is now entered into by and between the City of Carmel, Indiana, by and through its Board of Public Works and Safety (the "City"), and Ely Enterprises, LLC, an individual or entity authorized to do business in the State of Indiana and with offices located at 336 W. Main St., Carmel, IN 46032 (the "Performer"). 1. Performance. The Performer shall provide the following live entertainment: Blair Clark at Jazz on the Monon (the "Performance") on Saturday, June 7, 2014 (the Performance Date"), from 6:00 P.M. to 9:00 P.M, at Carmel Arts & Design District, Carmel, Indiana (the "Venue"). The Performer shall provide all equipment necessary or desirable for the Performance, except that the City shall provide: standard audio and lighting; mobile stage trailer. 2. Payment. The City shall pay to the Performer the sum of $600.00 (the "Payment") on the Performance Date, which payment shall constitute all monies due and owing to the Performer from the City for or related to the Performance. 3. Non-Performance. If the Performance is cancelled by the City, then the City shall pay to the Performer the full amount of the Payment sum as specified in Paragraph 2 hereinabove. If the Performance is not provided by the Performer as specified in Paragraph 1 hereinabove, the Performer shall pay to the City one-half of the Payment sum as specified in Paragraph 2 hereinabove. 4. Sales. Neither the City nor the Performer shall sell tickets or charge admission to the Performance. On the Performance Date, the Performer may, in conformance with the laws, rules, and regulations of the Venue, sell the Performer's merchandise at the Performance location, and the Performer shall retain all proceeds therefrom without contribution to the City. 5. Relationship. The Performer is not, and shall not be considered for any purpose to be, the employee of the City. The Performer hereby agrees to indemnify and hold harmless the City, and the City's officers, officials, employees, agents, and attorneys, from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from any claim for wages, benefits, or otherwise by any agent, employee, or contractor of the Performer or from any actions of the Performer and/or the Performer's agents, employees, or contractors at or regarding the Performance. 6. License. The Performer hereby grants to the City a license (the "License") to photograph, video record, or otherwise depict, in, on, or through any medium (whether print, digital, or other media format), the Performer and the Performance, for use by the City in advertising or marketing the City, the Venue, the Carmel Arts and Design District, and/or and City- sponsored or City-related events. The License shall survive the termination of this Agreement. 7. Indemnity. The Performer hereby agrees to indemnify and hold harmless the City and the City's officers, officials, employees, agents, and attorneys from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from the Performance or the breach of this Agreement by Performer. 8. Assignment. The Performer shall not assign this Agreement or any of its obligations hereunder. 9. Copyright Permission. The Performer hereby agrees to obtain all necessary permissions from BMI, ASCAP, SESAC, or directly from the copyright holder(s) of all songs or other works that is not in the public domain and that will be part of the Performance, and hereby agrees to indemnify and hold harmless the City, and the City's officers, officials, employees, agents, and attorneys, from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from the Performer's failure to obtain such permissions. 10. Compliance with Law; Lawful Orders. The Performer agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes applicable to the Performer's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. The Performer agrees to indemnify and hold harmless the City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. The Performer further agrees to comply with all lawful orders of the City with regards to or related to the Performance. 11. Nondiscrimination. The Performer represents and warrants that it and all of its officers, employees, agents and contractors shall comply with all laws of the United States, the State of Indiana and the City prohibiting discrimination against any employee, applicant for employment, or other person in the performance of the Performer's obligations under this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter • related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. Iran Certification. Pursuant to I.C. § 5-22-16.5, the Performer hereby certifies that it does not engage in investment activities within the Country of Iran. 13. E-Verify. Pursuant to I.C. § 22-5-1.7, et seq., as the same may be amended from time to time, and as is incorporated herein by this reference, the Performer hereby certifies that, to the extent the Performer has any employees, the Performer has enrolled and is participating in the E-verify program and does not knowingly employ any unauthorized aliens. Should the Performer violate Indiana's E-Verify law, the City may terminate this Agreement in accordance with therewith. 14. Governing Law; Lawsuits, This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over the same. 15. Miscellaneous. The indemnities set forth in this Agreement shall survive the termination of this Agreement. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the other terms and conditions, and this Agreement shall be construed in all respects as if such invalid or unenforceable term or condition had not been contained herein. This Agreement constitutes the entire agreement between the Performer and the City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. This Agreement may only be modified by written amendment executed by both parties hereto. The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and the assistance of counsel throughout the negotiation of this Agreement, and enter into the same freely, voluntarily, and without any duress, undue influence or coercion. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: THE CITY OF CARMEL, INDIANA, Ely Enterprises, LLC by and through its Board of Public Works ("Performer") and Safety ("City") By; t ByC J es Brainardd,, Presiding Officer Authorized Signature ate:,. l. I/ Se 171. -- ., • Ma An Burke, Member 2 Date: 6---07/4y ( ) X)C Title n-F �AP /1 f Lori S. Watson, Member FID/TIN: LIS- 2572389 Date: Last Four of SSN if Sole Proprietor: ATTIES/O/TI:I ,L / Date: 5-/ / Diana Cordray, IAMC, Clerk-Treasurer Date: /5(