Jungle JohnJungle John
Holiday Performance
Mayor - 2000
(51 Z/TZa C. 7" AI~ . I I~D I. C3t3.C)4~
APPROVED, AS TO
FORM BY'
AGREEMENT FOR PURCHASE OF GOODS AND SERVICUd)
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby
made and entered into by and between the City of Cannel, Indiana, acting by and through its Board of
Public Works and Safety ("City"), and Jungle John ("Vendor").
TERMS AND CONDITIONS
ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its
execution of same and/or its provision of any goods and/or services ("Goods and Services")
hereunder shall constitute Vendor's acceptance of all of the Agreement's terms and conditions.
PERFORMANCE:
City agrees to purchase the Goods and Services described in attached Exhibit A, which is
incorporated herein by this reference, and Vendor agrees to provide same and to otherwise
perform the requirements of this Agreement and to execute its responsibilities hereunder by
following and applying at all times the highest professional and technical guidelines and
standards.
PRICE AND PAYMENT TERMS:
The total price for the Goods and Services contemplated herein shall be no more than the amounts
set forth in attached Exhibit A. Vendor shall submit an invoice to City no more than once every
thirty (30) days detailing the Goods and Services provided to City within such time period. City
shall pay Vendor for such Goods and Services within thirty (30) days after the date of City's
receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services
are not disputed, are in accordance with the specifications set forth in Exhibit A, are submitted on
an invoice that contains detailed information regarding the Services actually performed hereunder,
and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement.
Subject to the above, if the undisputed invoice amount is not paid within thirty (30) days of its
receipt by City, Vendor shall so notify City. If such amount as is not disputed is not thereafter
paid within ten (10) business days from the date such notice is received by City, then a late charge
in a sum equal to one percent (1%) of such unpaid and undisputed invoice amount shall accrue
and be immediately due and payable by City to Vendor as a separate debt for each month it
remains unpaid. In the event an invoice amount is disputed, City shall so notify Vendor. If such
dispute is not resolved to City's satisfaction within five (5) business days after notice of such
dispute is given, City shall pay such amount as is in dispute, under protest, into the Carreel City
Court, which court shall hold such monies until provided with a settlement agreement signed by
both parties hereto or a final judgment has been entered thereon.
Jungle John
Holiday Performance
Mayor - 2000
WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform
to the specifications, drawings, samples, instructions, directions and/or descriptions thereof
fumished to Vendor by City and/or by Vendor to and accepted by City, that the Goods and
Services will be delivered in a timely, good and workmanlike manner and free from defect. In
addition, Vendor acknowledges that it knows of City's intended use and expressly warrants that
the Goods and Services covered by this Agreement have been selected and provided by Vendor
based upon City's stated use and will be fit and sufficient for the particular purposes intended by
City.
TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same
("Effective Date"), and both parties shall thereafter perform their obligations hereunder in a timely
manner. Time is of the essence of this Agreement.
DISCLOSURE AND WARNINGS:
Vendor agrees and warrants that he will use no hazardous chemicals, materials or substances in
the Services he is providing to the City hereunder.
DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of
this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as
specified herein; (c) fails to make progress so as to endanger timely and proper provision of the
Goods and Services and does not correct such failure or breach within five (5) business days (or
such shorter period of time as is commercially masonable under the circumstances) after receipt of
notice from City specifying such failure or breach; or (d) becomes insolvent, files, or has filed
against it, a petition in bankruptcy, for receivership or other insolvency proceeding, makes a
general assignment for the benefit of creditors or, if Vendor is a partnership or corporation,
dissolves, each such event constituting an event of default hereunder, City shall have the right to
(I) terminate all or any parts of this Agreement, without liability to Vendor; (2) obtain, upon such
terms and in such manner as City deems appropriate in its sole discretion, the same or similar
Goods and Services which were to be provided to City by Vendor, and Vendor shall be liable to
City for any excess costs of the City in obtaining same; and (3) exercise any other rights or
remedies as are available to City at law and/or in equity.
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Jungle John
Holiday Performance
Mayor - 2000
10.
INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with
an insurer licensed to do business in the State of Indiana and reasonably acceptable to City, such
insurance as is necessary for the protection of City and Vendor from any and all claims for
damages or otherwise under any workers' compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury,
sickness, disease or death of or to Vendor's agents, officers, employees and contractors, if any;
because of any injury to or destruction of property, including, but not limited to, loss of use
resulting therefrom; or, otherwise. The coverage amounts shall be no less than those amounts set
forth in attached Exhibit B. Vendor shall cause its insurers to name City as an additional insured
on all insurance policies, shall promptly provide City, upon request, with copies of all such
policies, and shall provide that such insurance policies shall not be canceled without thirty (30)
days prior notice to City. Vendor shall indemnify and hold harmless City from and against any
and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attomey
fees) for injury, death and/or damages to any person or property arising from or in connection with
Vendor's provision of Goods and Services pursuant to or trader this Agreement, Vendor's use of
City property, or otherwise, except for such liabilities, claims or demands that arise directly and
solely out of the negligence of City. Vendor further agrees to indemnify, defend and hold
harmless City and its officers, officials, agents and employees from all claims and suits of
whatever type, including, but not limited to, all court costs, attorney fees, and other expenses,
caused by any act or omission of Vendor and/or Vendor's agents, officers, employees and
contractors, if any, in the performance of this Agreement. These indemnification obligations shall
survive the termination of this Agreement.
GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all present and future federal, state and local laws, executive orders,
rules, regulations, codes and ordinances which may be applicable to Vendor's performance of its
obligations under this Agreement, and all relevant provisions thereof are incorporated herein by
this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or
liability resulting from any such violation of such laws, orders, rules, regulations, codes and
ordinances. This indemnification obligation shall survive the termination of this Agreement.
NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents and contractors, if
any, shall comply with all existing and future laws of the United States, the State of Indiana and
City prohibiting discrimination against any employee, applicant for employment or other person in
the provision of any Goods and Services provided by this Agreement, with respect to the hire,
tenure, terms, conditions or privileges of employment and to any other matter directly or indirectly
related to employment or subcontracting because of race, religion, color, sex, handicap, national
origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. City reserves the
right to collect a penalty as provided in IC 5-16-6-1 for any person so discriminated against.
Jungle John
Holiday Performance
Mayor - 2000
11.
12.
13.
14.
NO IMPLIED WAIVER:
The failure of either party at any time to require performance by the other of any provision of this
Agreement shall in no way affect the right of such party to require such performance at any time
thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement
constitute a waiver of any succeeding breach of the same or any other provision thereof.
RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and Vendor and
all of its officers, employees, contractors, subcontractors, agents and other persons are not and
shall not become employees of City, and the sole responsibility to pay to or for same all statutory,
contractual and other benefits shall remain exclusively with Vendor. The contract price set forth
herein to be paid hereunder by City to Vendor shall be the full and maximum compensation and
monies required of City to be paid to Vendor under or pursuant to this Agreement.
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 further agree that, in the event a
lawsuit is filed hereunder, they waive any rights to a jury trial they may have, 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 same.
SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance,
executive order or other rule of law, such term shall be deemed reformed or deleted, but only to
the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the
remaining provisions of this Agreement shall remain in full force and effect.
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Jungle John
Holiday Performance
Mayor - 2000
15.
NOTICE:
Subject to paragraph 14 hereinabove, any notice provided for in this Agreement will be sufficient
if it is in writing and is delivered by postage prepaid U.S. certified mail, return r~ceipt requested,
to the party to be notified at the address specified herein:
If to City:
City of Carmel
One Civic Square
Carmel, Indiana 46032
ATTN: Cathy Hartowicz
(with a copy to City Attomey,
One Civic Square, Carreel, IN 46032)
If to Vendor:
Jungle John
847 Noah Park Avenue
Indianapolis, IN 46202-3454
ATTN: John Cusson
Notwithstanding the above, notice of termination under paragraph 16 hereinbelow shall be
effective if given orally, as long as written notice is then provided as set forth hereinabove within
ten (10) business days from the date of such oral notice.
16.
TERMINATION:
16.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon
notice to Vendor, immediately terminate this Agreement for cause, in the event of a default
hereunder by Vendor and/or if sufficient funds are not appropriated to pay for the Goods
and Services to be provided hereunder. In the event of such termination, Vendor shall be
entitled to receive only payment for the undisputed invoice amount representing
conforming Goods and Services delivered as of the date of termination.
16.2
Either party hereto may terminate this Agreement at any time upon thirty (30) days prior
notice to the other party. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount of conforming Goods and
Services delivered as of the date of termination.
17.
REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the
persons or entities executing this Agreement have the authority to bind the party which they
represent.
Jungle John
Holiday Performance
Mayor - 2000
18.
19.
20.
21.
22.
ADDITIONAL GOODS AND/OR SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide
additional goods and/or services to City. When City desires additional goods and/or services from
Vendor, the Mayor or his duly authorized representative shall notify Vendor of such additional
goods and/or services desired, as well as the time frame in which same are to be provided. Vendor
shall then provide, at no cost to City, an estimated cost for such additional goods and/or services,
as well as the date by which same will be provided to City. Only after City has approved
Vendor's time and cost estimate for the provision of such additional goods and/or services shall
Vendor be authorized to provide same, the identification of which shall be set forth in documents
which shall be numbered and attached hereto in the order they are approved by City.
TERM
Subject to the termination provisions set forth in Paragraph 16 hereinabove, this Agreement shall
be in effect from the Effective Date through December 31, 2000, 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. If Vendor desires to revise its price terms for the Services provided
hereunder, Vendor may do so annually between December 1 and December 30 of any calendar
year, such notice to be provided as required by paragraph 15 hereof. Notwithstanding any other
term or condition of this Agreement, City may immediately terminate this Agreement without
further liability or obligation to Vendor in the event Vendor's revised price terms are not
acceptable to City.
FORCE MAJEURE
Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to
the extent, same is caused by an event or occurrence beyond the reasonable control of the party
and without its fault or negligence, provided that notice of such delay (including the anticipated
duration of the delay) shall be given by the affected party to the other party within five (5)
business days after the first day of such event or occurrence. During any such period of delay or
failure to perform by Vendor, City, in its sole option, may purchase some or all of the same or
similar Services and/or additional services from other sources and reduce the Services requested
of Vendor hereunder by such degree, or have Vendor provide some or all of the Services and/or
additional services from other sources at times requested by City and at the prices set forth in this
Agreement.
HEADINGS
All heading 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.
BINDING EFFECT
City and Vendor, and their respective officers, officials, agents, partners, successors, assigns and
legal representatives, are bound to the other with respect to this Agreement and to such other
party's officers, officials, agents, partners, successors, assigns and legal representatives in all
respects as to all covenants, agreements and obligations of this Agreement.
Jungle John
Holiday Performance
Mayor - 2000
23.
NO THIRD PARTY BENEFICIARIES
Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone
other than City or Vendor.
24.
ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, are fully aware of their
respective rights, have had the opportunity to obtain the advice and assistance of an attomey
throughout the negotiation of this Agreement, and enter into this Agreement freely, voluntarily,
and without any duress, undue influence, coercion or promise of benefit, except as expressly set
forth herein.
25.
ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the
entire agreement between Vendor and City with respect to the subject matter hereof, and
supersedes all prior oral or written representations and agreements regarding same.
Notwithstanding any other term or condition set forth herein, but subject to paragraph 14 hereof,
to the extent any term or condition contained in any exhibit attached to this Agreement conflicts
with any term or condition contained in this Agreement, the term or condition contained in this
Agreement shall govern and prevail, unless the parties hereto, or their successors in interest,
expressly and in writing agree otherwise. This Agreement may only be modified by written
amendment executed by both parties hereto, or their successors in interest.
[remainder of page intentionally left blank]
Jungle John
Holiday Performance
Mayor - 2000
1N WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, 1NDIANA
by and through its Board of Public
Works and Safety
Jungle John
847 North Park Avenue
Indianapolis, 1N 46202-3454
MarY~n Burk , ember
Date: ~vl.~e, _
ATTEST:
Disa Cor&ay, I~C, Cle~reasurer
Printed Name
Title
FID/SSN: .~5-
Date: O~
July 6, 2000
Letter of Agreement
Live Reindeer Appearance
City of Carmel, IN
Jungle John Cusson is very excited about working with the City of Carreel again this year
bringing live reindeer and elf entertainere to the downtown lighting of the square on
Saturday November 18, 2000.
Jungle John will Provide: · Two reindeer, two costumed elf handlers, and any/all equipment needed for public
interactions for event from 4:30 - 7:00pm.
Two additional elf entertainers for event: a juggler and a balloon twister.
· Two strolling careling entertainers in Victorian costume for two hours.
· Another actor/entertainer as Santa Clause for two hours, 5:00 - 7:00pm.
Santa's sleigh: Prop can be used for mini-parade, photos, and/or display.
· Proof of insurance upon request.
The City of Carmel will provide:
· Environment conducive to live animal performance, mutually agreed upon prior to
event date.
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John Cusson, President PetWorks, Inc.
Date
The City of Carmel
Date
EXHIBIT B
INSURANCE COVERAGES
Worker' s Compensation & Disability (if applicable):
Employer' s Liability (if applicable):
Bodily Injury by Accident:
Bodily Injury by Disease
Bodily Injury by Disease
Property damage, contractual liability,
products-completed operations:
General Aggregate Limit (other than
Products/Completed Operations):
Products/Completed Operations:
Personal & Advertising Injury
Limit:
Each Occurrence Limit:
Fire Damage (any one fire):
Medical Expense Limit
(any one person):
Comprehensive Auto Liability
Bodily Single Limit:
injury and property damage
Each Accident:
Statutory Limits
$100,000 each accident
$ 500,000 policy limit
$100,000 each employee
$1,000,000
$1,000,000
$100,000 each accident
$1,000,000
$1,000,000
$ 50,000
$ 1,000
$ 100,000
$ 300,000
November 3, 2000
Mr. John K. Cusson
JUNGLE JOHN
847 North Park Avenue
Indianapolis, IN 46202
Dear Mr. Cusson:
On November 1, 2000, the Board of Public Works and Safety approved a contract to do business
with your company. Enclosed is a fully executed copy of the Agreement for your records.
Please review the enclosed sample invoice (Exhibit B). You do not need to use this specific
form, but we require you to submit the requested information in a similar layout. This format
replaces any other form previously used by the City and is effective upon approval of your
contract.
Please do not hesitate to contact me at 317.571.2413 if you have any questions or concerns.
Sincerely,
COPY
Carrie A. Groce
Deputy Clerk-Treasurer
Enclosure
cc: Sherry Mielke
Mayor's Office