HomeMy WebLinkAboutMorphey Construction Inc./ENG/$1,460,000/Illinois & Zotec Dr RABMorphey Construction, Inc.
Engineering Department - 2020
Appropriation #44-628.71 2016 Bond Fund; P.O. #104110
Contract Not To Exceed $1,460,000.00
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AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES (“Agreement”) is hereby entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (“City”), and
Morphey Construction, Inc., an entity duly authorized to do business in the State of Indiana (“Vendor”).
TERMS AND CONDITIONS
1. ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of
same constitutes its acceptance of all of the Agreement’s terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods and/or services (the “Goods and Services”) from Vendor using City
budget appropriation number 44-628.71 2016 Bond Fund funds. Vendor agrees to provide the Goods and
Services and to otherwise perform the requirements of this Agreement by applying at all times the highest
technical and industry standards. Vendor will not perform any of the Services detailed in Exhibit A prior to
obtaining a written Notice to Proceed from the City. Upon receiving a Notice to Proceed, the Vendor shall
perform only those Services specifically detai led in the Notice. If the Vendor desires clarification of the scope
of any Notice to Proceed, the Vendor shall obtain such clarification from the City in writing, prior to
performing the service set forth in the Notice to Proceed. Any services performed without the City’s prior
express written authorization will not be compensated.
3. PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder
shall be no more than One Million Four Hundred Sixty Thousand Dollars ($1,460,000.00) (the
Estimate”). 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-five (35) 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
conformance with the specifications set forth in Exhibit A, are submitted on an invoice that contains
the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied
all the terms and conditions of this Agreement.
3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the
Goods and Services provided by Vendor to City hereunde r to exceed the Estimate, unless City has
previously agreed, in writing, to pay an amount in excess thereof.
4. WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those
certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by City
and/or by Vendor to and accepted by City pur suant to or as part of that certain City of Carmel Engineering
Department Bid Proposal Package for “Project 19-04; Roundabout Improvements Illinois Street & Zotec
Drive” received by the City of Carmel Board of Public Works and Safety on or about July 1, 2020, all of which
documents are incorporated herein by reference, and that the Goods and Services will be delivered in a
timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of City’s
intended use and expressly warrants that the Goo ds and Services provided to City pursuant to this
Agreement have been selected by Vendor based upon City’s sta ted use and are fit and sufficient for their
particular purpose.
By Jon Oberlander at 1:12 pm, Jul 14, 2020
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
Morphey Construction, Inc.
Engineering Department - 2020
Appropriation #44-628.71 2016 Bond Fund; P.O. #104110
Contract Not To Exceed $1,460,000.00
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5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last da te 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.
6. DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services pro vided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City’s property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor’s sole cost and expense.
8. 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 Serv ices 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 reasonable under the circumstances) after receipt of notice from City specifying such failure or
breach; or (d) becomes insolvent, is placed into receiv ership, 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
1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) ex ercise all other rights
and remedies available to City at law and/or in equity.
9. 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, such insurance as is necessary for the protection of City and
Vendor from all claims for da mages 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 any of Vendor’s agents, officers, employees, contracto rs and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City, upon request, with copies of all such p olicies, 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 attorney
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 under this Agreement or Vendor’s use of City property.
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever typ e, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor’s agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
Morphey Construction, Inc.
Engineering Department - 2020
Appropriation #44-628.71 2016 Bond Fund; P.O. #104110
Contract Not To Exceed $1,460,000.00
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10. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Vendor’s performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herei n 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 and codes. This indemnification obligation shall survive the terminatio n of this Agreement.
11. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, contractors and
subcontractors shall comply with all 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 re spect 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. 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 “Indiana E -Verify Law”), Vendor is required to enroll in and verify the work
eligibility status of its newly -hired employees using the E-Verify program, and to execute the Affidavit
attached herein as Exhibit D, affirming that it is enrolled and participating in the E -verify program and does
not knowingly employ unauthorized aliens . In support of the Affidavit, Vendor shall provide the City with
documentation indicating that it has enrolled and is participating in the E-Verify program. Should
Vendor subcontract for the performance of any wor k under and pursuant to this Agreement, it shall fully
comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Vendor or any
subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and ther eafter, if
no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or
those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E -
Verify program cease to exist.
13. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
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 Agreeme nt constitute a waiver of any succeeding breach of the
same or any other provision hereof.
14. NON-ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and sha ll not
delegate its obligations under this Agreement without City’s prior written consent.
15. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
Morphey Construction, Inc.
Engineering Department - 2020
Appropriation #44-628.71 2016 Bond Fund; P.O. #104110
Contract Not To Exceed $1,460,000.00
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16. 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 provi sions. The parties agree that, in the event a lawsuit is filed hereunder, they
waive their right to a jury tr ial, agree to file any such lawsuit in a n appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue fo r and has jurisdiction over same.
17. SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinan ce, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the ex tent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18. NOTICE:
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 receipt requested, to the party to be notified at the address specified
herein:
If to City: City of Carmel AND Douglas C. Haney,
One Civic Square Corporation Counsel
Carmel, Indiana 46032 Department of Law
One Civic Square
Carmel, Indiana 46032
If to Vendor: Morphey Construction, Inc.
1499 N Sherman Drive
Indianapolis, Indiana 46201
Notwithstanding the above, notice of termination under paragraph 1 9 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove w ithin five (5) business days from
the date of such oral notice.
19. TERMINATION:
19.1 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 or encumbered 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 invo ice amount representing conforming Goods an d
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. 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, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
19.3 The City may terminate this Agreement pursuant to Paragra ph 11 hereof, as appropriate.
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
Morphey Construction, Inc.
Engineering Department - 2020
Appropriation #44-628.71 2016 Bond Fund; P.O. #104110
Contract Not To Exceed $1,460,000.00
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20. REPRESENTATIONS AND WARRANTIES
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.
21. ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and servi ces from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor’s time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient mo nies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City’s authorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City.
22. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2020 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.
23. 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.
24. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, succ essors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
26. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the ne gotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
27. IC 5-16-13.
The provisions of IC 5-16-13 are hereby incorporated into this Agreement by reference.
28. DEBARMENT AND SUSPENSION
28.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its
subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from entering into this Agreement by any federal agency or by any dep artment, agency or political
subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer,
director, owner, partner, key employee or other person with primary managemen t or supervisory
responsibilities, or a person who has a critical influence on or substantive control over the operations of the
Vendor.
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
7/15/2020
7/15/2020
7/15/2020
7/15/2020
EXHIBIT
A(1of19)
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EXHIBIT
A(2of19)
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EXHIBIT
A(3of19)
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EXHIBIT
A(4of19)
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EXHIBIT
A(5of19)
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EXHIBIT
A(6of19)
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EXHIBIT
A(7of19)
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EXHIBIT
A(8of19)
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EXHIBIT
A(9of19)
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EXHIBIT
A(10of19)
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EXHIBIT
A(11of19)
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EXHIBIT
A(12of19)
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EXHIBIT
A(13of19)
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EXHIBIT
A(14of19)
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EXHIBIT
A(15of19)
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EXHIBIT
A(16of19)
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EXHIBIT
A(17of19)
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EXHIBIT
A(18of19)
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EXHIBIT
A(19of19)
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EXHIBIT B
Invoice
Date:
Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No.
Purchase Order No:
Goods Services
Person Providing
Goods/Services
Date
Goods/
Service
Provided
Goods/Services Provided
Describe each good/service
separately and in detail)
Cost Per
Item
Hourly
Rate/
Hours
Worked
Total
GRAND TOTAL
Signature
Printed Name
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
EXHIBIT C
INSURANCE COVERAGES
Worker’s Compensation & Disability Statutory Limits
Employer’s Liability:
Bodily Injury by Accident/Disease: $1,000,000 each employee
Bodily Injury by Accident/Disease: $1,000,000 each accident
Bodily Injury by Accident/Disease: $1,000,000 policy limit
Commercial General Liability:
General Aggregate Limit (other than
Products/Completed Operations): $6,000,000
Products/Completed Operations: $5,000,000
Personal & Advertising Injury
Each Occurrence Limit: $5,000,000
Comprehensive Auto Liability (owned, hired and non-owned)
Bodily Injury and Property Damage: $5,000,000 each occurrence
Umbrella Excess Liability
If a commercial umbrella liability policy is used to satisfy the minimum limits of liability
requirements, the combined limits must equal these minimum limits of liability.
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590
DocuSign Envelope ID: 983A2733-FB76-403C-9632-32509CF3D590