HomeMy WebLinkAboutCarmel High School Band Booster/Com Rel/10,000/Perform in and around AD&D Carmel High School Band Boosters
Department of Community Relations and Economic Development- 2013 �}}
Appropriation#4359300; P.O.#26838 3 •j•�
Contract Not To Exceed$10.000.00 "EXHIBIT AWN
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is hereby made and entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (hereinafter
"City"), and the Carmel High School Band Boosters, Inc. (hereinafter"CHSBB").
RECITALS
WHEREAS City owns and is responsible for the operation and maintenance of its property, personnel, public
works and infrastructure; and
WHEREAS, from time to time, City needs professional assistance in fulfilling its foregoing responsibilities;
and
WHEREAS, CHSBB is experienced in providing and desires to provide to City the professional services
("Services") referenced herein; and
WHEREAS, City desires to engage CHSBB as an independent contractor for the purpose of providing to City
the Services referenced herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth
herein, City and CHSBB mutually agree as follows:
SECTION 1. INCORPORATION OF RECITALS
The foregoing Recitals are hereby incorporated into this Agreement and made a part hereof.
SECTION 2. SCOPE OF SERVICES
2.1 City desires to engage CHSBB as an independent contractor for the Services set forth in attached Exhibit A,
incorporated herein by this reference.
2.2 CHSBB understands and agrees that City may, from time to time, request CHSBB to provide additional or
modified Services to City. When City desires additional Services from CHSBB, the City shall notify CHSBB of
such additional Services desired, as well as the time frame in which same are to be provided. Only after City
has approved CHSBB's time and cost estimate for the provision of such additional Services, has
encumbered sufficient monies to pay for same, and has authorized CHSBB, in writing, to provide such
additional Services, shall such Services be provided by CHSBB to City. A copy of the City's authorization
documents for the purchase of additional Services shall be numbered and attached hereto in the order in
which they are approved by City.
2.3 Time is of the essence of this Agreement.
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Carmel High School Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300; P.O.#26838
Contract Not To Exceed $10,000.00
SECTION 3. CITY'S RESPONSIBILITIES
3.1 City shall provide such information as is reasonably necessary for CHSBB to understand the Services
requested.
3.2 City shall provide all data required for provision of Services. CHSBB may assume that all data so provided is
correct and complete.
3.3. City shall arrange for CHSBB to enter upon public and private property as reasonably required for CHSBB to
perform the Services.
3.4 City shall designate payment of the Services from City budget appropriation number 4359300 funds.
3.5 City shall designate the Mayor or his duly authorized representative to act on City's behalf on all matters
regarding the Services.
SECTION 4. CHSBB'S RESPONSIBILITIES
4.1 CHSBB shall perform the Services pursuant to the terms of this Agreement and within any applicable time
and cost estimate.
4.2 CHSBB shall coordinate with City its performance of the Services.
4.3 CHSBB shall provide the Services by following and applying at all times reasonable and lawful standards as
accepted in the industry.
4.4 CHSBB hereby certifies that they have obtained the proper ASCAP, BMI, or SESAC license to play all songs
that are not in the public domain. Further, CHSBB indemnifies the City from any claims of copyright
infringement for the music provided under this Agreement.
SECTION 5. COMPENSATION
5.1 CHSBB estimates that the total price for the Services to be provided to City hereunder shall be no more than
Ten Thousand Dollars ($10,000.00) (the "Estimate"). CHSBB shall submit an invoice to City no more than
once every thirty (30) days for Services provided City during the time period encompassed by such invoice.
Invoices shall be submitted on a form containing the same information as that contained on the CHSBB
Services Invoice attached hereto as Exhibit B, incorporated herein by this reference. City shall pay CHSBB
for all undisputed Services rendered and stated on such invoice within sixty (60) days from the date of City's
receipt of same.
5.2 CHSBB agrees not to provide any Services to City that would cause the total cost of same to exceed the
Estimate, without City's prior written consent.
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Carmel High School Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300: Y.O. #26838
Contract Not To Exceed$10,000.00
SECTION 6. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Section 7.1
hereinbelow, this Agreement shall be in effect from the Effective Date through December 31, 2013, and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
SECTION 7. MISCELLANEOUS
7.1 Termination.
7.1.1 The obligation to provide all or any portion of the Services under this Agreement may be terminated
by City or CHSBB, without cause, upon thirty (30)days' notice.
7.1.2 The obligation to provide all or any portion of the Services under this Agreement may be terminated
by City, for cause, immediately upon CHSBB's receipt of City's "Notice To Cease Services."
7.1.3 In the event of full or partial Agreement termination, and as full and complete compensation
hereunder, CHSBB shall be paid for all such Services rendered and expenses incurred as of the
date of termination that are not in dispute, except that such payment amount shall not exceed the
Estimate. Disputed compensation amounts shall be resolved as allowed by law.
7.2 Binding Effect.
City and CHSBB, and their respective officers, officials, agents, partners and successors in interest are
bound to the other as to all Agreement terms, conditions and obligations.
7.3 No Third Party Beneficiaries.
Nothing contained herein shall be construed to give rights or benefits to anyone other than the parties
hereto.
7.4 Relationship.
The relationship of the parties hereto shall be as provided for in this Agreement, and neither CHSBB nor any
of its agents, employees or contractors are City employees. CHSBB shall have the sole responsibility to pay
to or for its agents, employees and contractors all statutory, contractual and other benefits and/or obligations
as they become due. CHSBB hereby warrants and indemnifies City for and from any and all costs, fees,
expenses and/or damages incurred by City as a result of any claim for wages, benefits or otherwise by any
agent, employee or contractor of CHSBB regarding or related to the subject matter of this Agreement. This
indemnification obligation shall survive the termination of this Agreement.
Cannel High School Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300: P.O.#26838
Contract Not To Exceed $10,000.00
7.5 Liens.
CHSBB shall not cause or permit the filing of any lien on any of City's property. In the event such a lien is
filed and CHSBB fails to remove it within ten (10) days after the date of filing, City shall have the right to pay
or bond over such lien at CHSBB's sole cost and expense.
7.6 Default.
In the event CHSBB: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including CHSBB's warranties; (b) fails to perform the Services as specified; (c) fails to make
progress so as to endanger timely and proper completion of the Services and does not correct such failure or
breach within five (5) business days after receipt of notice from City specifying same; or (d) becomes
insolvent, files, or has filed against it, a petition for receivership, makes a general assignment for the benefit
of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right
to terminate all or any part of this Agreement, without liability to CHSBB and to exercise any other rights or
remedies available to it at law or in equity.
7.7 Government Compliance.
CHSBB agrees to comply with all laws, executive orders, rules and regulations applicable to CHSBB's
performance of its obligations under this Agreement, all relevant provisions of which being hereby
incorporated herein by this reference, to keep all of CHSBBs' required CHSBB licenses and certifications
valid and current, and to indemnify and hold harmless City from any and all losses, damages, costs,
liabilities, damages, costs and attorney fees resulting from any failure by CHSBB to do so. This
indemnification obligation shall survive the termination of this Agreement.
7.8 Indemnification.
CHSBB shall indemnify and hold harmless City and its officers, officials, employees and agents from all
losses, liabilities, claims, judgments and liens, including, but not limited to, all damages, costs, expenses and
attorney fees arising out of any intentional or negligent act or omission of CHSBB and/or any of its
employees, agents or contractors in the performance of this Agreement. This indemnification obligation shall
survive the termination of this Agreement.
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Carmel High School Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300; P.O.#26838
Contract Not To Exceed $10.000.00
7.9 Discrimination Prohibition.
CHSBB represents and warrants that it and each of its employees, agents and contractors shall comply with
all existing and future laws prohibiting discrimination against any employee, applicant for employment and/or
other person in the subcontracting of work and/or in the performance of any Services contemplated by this
Agreement with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly
or indirectly related to employment, subcontracting or work performance hereunder because of race, religion,
color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran status.
This indemnification obligation shall survive the termination of this Agreement.
7.10 E-Verify
Pursuant to I.C. § 22-5-1.7 et seq., CHSBB shall enroll in and verify the work eligibility status of all of its
newly-hired employees using the E-Verify program, if it has not already done so as of the date of this
Agreement. CHSBB is further required to execute the attached Affidavit, herein referred to as Exhibit C,
which is an Affidavit affirming that: (i) CHSBB is enrolled and is participating in the E-verify program, and (ii)
CHSBB does not knowingly employ any unauthorized aliens. This Addendum incorporates by reference, and
in its entirety, attached Exhibit C. In support of the Affidavit, CHSBB shall provide the City with
documentation that it has enrolled and is participating in the E-Verify program. This Agreement shall not take
effect until said Affidavit is signed by CHSBB and delivered to the City's authorized representative.
Should CHSBB subcontract for the performance of any work under this Addendum, the CHSBB shall
require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not knowingly employ or
contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is participating in the E-
verify program. CHSBB shall maintain a copy of such certification for the duration of the term of any
subcontract. CHSBB shall also deliver a copy of the certification to the City within seven (7) days of the
effective date of the subcontract.
If CHSBB, or any subcontractor of CHSBB, knowingly employs or contracts with any unauthorized
aliens, or retains an employee or contract with a person that the CHSBB or subcontractor subsequently
learns is an unauthorized alien, CHSBB shall terminate the employment of or contract with the unauthorized
alien within thirty (30) days ("Cure Period"). Should the CHSBB or any subcontractor of CHSBB fail to cure
within the Cure Period, the City has the right to terminate this Agreement without consequence.
The E-Verify requirements of this Agreement will not apply, should the E-Verify program cease to exist.
7.11 Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent
jurisdiction, that provision shall be stricken, and all other provisions of this Agreement that can operate
independently of same shall continue in full force and effect.
7.12 Notice.
Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to this Agreement
shall be written and either hand-delivered or sent by prepaid U.S. certified mail, return receipt requested,
addressed to the parties as follows:
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Carmel High Schpol Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300: P.O.#26838
Contract Not To Exceed $10,000.00
CITY:
City of Carmel Douglas C. Haney
Department of Community Relations Carmel City Attorney
One Civic Square One Civic Square
Carmel, Indiana 46032 Carmel, Indiana 46032
ATTENTION: Nancy Heck
CHSBB:
Carmel High School Band Boosters
P.O. Box 65
Carmel, IN 46082-0065
ATTENTION: Timothy J. Dawson
Notwithstanding the above, City may orally provide to CHSBB any notice required or permitted by this
Agreement, provided that such notice shall also then be sent as required by this paragraph within ten (10)
business days from the date of such oral notice.
7.13 Effective Date.
The effective date ("Effective Date") of this Agreement shall be the date on which the last of the parties
hereto executes same.
7.14 Governing Law; Lawsuits.
This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana,
except for its conflict of laws provisions, as well as by all ordinances and codes of the City of Carmel,
Indiana. The parties agree that, in the event a lawsuit is filed hereunder, they waive any right to a jury trial
they may have, agree to file 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 same.
7.15 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its rights and/or remedies hereunder
or under law shall not operate to waive any such rights and/or remedies nor in any way affect the rights of
such party to require such performance at any time thereafter.
7.16 Non-Assignment.
CHSBB shall not assign or pledge this Agreement nor delegate its obligations hereunder without City's prior
written consent.
7.17 Entire Agreement.
This Agreement contains the entire agreement of and between the parties hereto with respect to the subject
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Carmel High School Band Boosters
Department of Community Relations and Economic Development-2013
Appropriation#4359300; P.O.#26838
Contract Not To Exceed $10,000.00
matter hereof, and no prior agreement, understanding or representation pertaining to such subject matter,
written or oral, shall be effective for any purpose. No provision of this Agreement may be amended, added to
or subtracted from except by an agreement in writing signed by both parties hereto and/or their respective
successors in interest. To the extent any provision contained in this Agreement conflicts with any provision
contained in any exhibit attached hereto, the provision contained in this Agreement shall prevail.
7.18 Representation and Warranties.
Each party hereto represents and warrants that it is authorized to enter into this Agreement and that any
person or entity executing this Agreement on behalf of such party has the authority to bind such party or the
party which they represent, as the case may be.
7.19 Headings.
All headings and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
7.20 Advice of Counsel.
The parties warrant that they have read this Agreement and fully understand it, have had an opportunity to
obtain the advice and assistance of counsel throughout the negotiation of same, and enter into same freely,
voluntarily, and without any duress, undue influence or coercion.
7.21 Copyright.
City acknowledges that various materials which may be used and/or generated by CHSBB in performance of
Services, including forms, job description formats, comprehensive position questionnaire, compensation and
classification plan and reports are copyrighted. City agrees that all ownership rights and copyrights thereto lie
with CHSBB, and City will use them solely for and on behalf of its own operations. City agrees that it will take
appropriate action with its employees to satisfy its obligations with respect to use, copying, protection and
security of CHSBB's property.
7.22 Personnel.
CHSBB represents that it has, or will secure at its own expense, all personnel required in performing the
services under this agreement. Such personnel shall not be employees of or have any contractual
relationship with City. All of the services required hereunder will be performed by CHSBB or under his
supervision and all personnel engaged in the work shall be fully qualified to perform such services.
7.23 Records and Inspections.
CHSBB shall maintain full and accurate records with respect to all matters covered under this agreement for
three (3) years after the expiration or early termination of this agreement. City shall have free access at all
proper times to such records and the right to examine and audit the same and to make transcripts there from,
and to inspect all program data, documents, proceedings and activities.
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Cannel High school Band Boosters
Department of Community Relations and Economic Development- 2013
Appropriation#4359300; P.O.#26838
Contract Not To Exceed$10.000.00
7.24 Accomplishment of Project.
CHSBB shall commence, carry on, and complete the project with all practicable dispatch, in a sound
economical and efficient manner, in accordance with the provisions thereof and all applicable laws. In
accomplishing the project, CHSBB shall take such steps as are appropriate to ensure that the work involved
is properly coordinated with related work being carried on within City's organization.
7.25 IRAN CERTIFICATION.
Pursuant to I.C. § 5-22-16.5, the Consultant shall certify that, in signing this document, it does not engage in
investment activities within the Country of Iran.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA CARMEL HIGH SCHOOL BAND BOOSTERS
by and through its Board of Public
Works and Safety
BY: BY:
Ar James rainard, Presiding Officer Authorized Sign. ure
Date: (o- I t - us _ r�
Printed Name: T M , d , ` y, �zos ofr-D
/71 / /, Title: 1�(e5 cLrct
Mary�Ar�9Burke, 'ember
Date: r -"/ —/ FIDTIN: -3 - 15 -7' :53
;
A
Lori S. ' tatson, Member Date: �,- 71 c)o t 3
Date: la/r q ' 13
ATTEST: //,, _
Diana Cordray, IAMC, Clerk-Treasurer
Date: L' 797 -/ 3
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EXHIBIT A
CARMEL HIGH SCHOOL BAND BOOSTERS
SUMMATION OF SERVICES
Not to exceed contract amount: Ten Thousand ($10,000) dollars.
CHSBB desires to enter into an Agreement with the City to provide Carmel High School music
students as musical street performers on the public streets of the City. CHSBB shall bill the City
monthly, listing the students that worked and the number of hours each student worked within that
month.
Hourly rate per student - $10.00/hour- CHSBB shall monitor hours worked by students and bill the
City appropriately pursuant to terms in the Agreement.
Scope of Services shall include:
A. Duties and Responsibilities
1. CHSBB shall provide the City with musical street performers ("Performers") who shall
entertain upon the public streets of the City. The Performers shall not use electronic
amplification but only acoustic instruments.
2. The street performers shall perform on a regular and consistent schedule from June,
2013, through October, 2013. The schedule shall be as follows:
• Every Thursday through Saturday from 6:00pm through 10:00pin,
weather permitting.
• Any other time/ day approved by the City and CHSBB
3. The street performers shall locate anywhere on public streets in the Arts & Design
District and Carmel City Center, after consultation with the designated City official.
However, the street performers shall not locate in a place that would block pedestrian
traffic.
4. The street performers would be allowed to enter into restaurants with the restaurant
owner and/or manager's permission.
5. Street performers would not be required to perform during inclement weather.
B. Child Labor Laws — CHSBB must comply with all federal and state enforcement and other
laws.
SIN
tir
ACKNOWLEDGEMENT OF RECEIPT OF CONTRACT
WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Cannel, Indiana, is authorized to enter
into contracts; and
WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's Mayor shall sign all contracts of the City;
and
WHEREAS, pursuant to his authority under Indiana law, the City's Mayor, the Honorable James C.
Brainard, has signed the City contract attached hereto as Exhibit I (the "Contract"); and
WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works
and Safety for it to be publicly acknowledged, filed in the City's Clerk-Treasurer's Office, and made available
to the public for review.
NOW, THEREFORE, the City of Carmel Board of Public Works and Safety states and directs as
follows:
I. The foregoing Recitals are incorporated herein by this reference.
2. The receipt of the Contract is hereby acknowledged by the Board.
3. The Contract shall he promptly filed in the Office of the City's Clerk-Treasurer and made available
to the public for review.
SO STATED AND DIRECTED.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
B Y:
g) Tintson
James Brainard, Presiding Officer
Date: , /1 /nJ
Mary A n Burke, Met ber
Date: / 7- � 3
Lori�a—W: son, M nbe
Date: ji ti to i&
ATTES tad
%//////////
ana Cordray, IMC4`IIerk-Treasurer
Date: !a 1 q—/_3
EXHIBIT C
AFFIDAVIT
Tr S , being first duly sworn, deposes and says that
he/she is familiar with and has personal knowledge of the facts herein and, if called as a witness in this
matter, could testify as follows:
1. I am over eighteen (18) years of age and am competent to testify to the facts contained
herein.
2. I am now and at all times relevant herein have been employed by
C (3mt4ers , (the "Employer")
in the position of Q2es.2OC:.0 i •
3. I am familiar with the employment policies, practices, and procedures of the Employer and
have the authority to act on behalf of the Employer.
4. The Employer is enrolled and participates in the federal E-Verify program and has
provided documentation of such enrollment and participation to the City of Carmel,
Indiana.
5. The Company does not knowingly employ any unauthorized aliens.
FURTHER AFFIANT SAYETH NOT.
EXECUTED on the l day of - t—L'- , 201-S .
Printed: ` 1.---,o4-k,-sZ( • Dowse
I certify under the penalties for perjury under the laws of the United States of America and the State of
Indiana that the foregoing factual statements and representations are true and correct.
Printed: t . Cps-N sp