Loading...
HomeMy WebLinkAboutMr. Window CompanyMr. Windo ~v Company Fire Department - 2000 APPROVED, AS TO AGREEMENT FOR PURCHASE OF GOODS AND ~ I THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby made and entered into by and between the City of Carmel, Indiana, acting by and through its Bom'd of Public Works and Safety ("City"), and Mr. Mick Widmeyer, d/b/a Mr. Window Company ("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 ~s 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 in~,oice 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 the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. Subject to thc 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 Carmel 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. Mr. Window Company Fire Department - 2000 WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will contbrm 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: 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. Prior to and with the delivery of the Goods and Services provided 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 Goods and Services. 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. Vendor shall indemnify and hold harmless City from and against any and all liabilities, losses, claims, costs and expenses, including, but not limited to, attomey fees incurred by City in connection with any such lien and/or the removal thereof. This indemnification obligation shall survive the termination of this Agreement. 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 reasonable 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 (1) 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. Mr. Window Company Fire Deparlment - 2000 10. ll. 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 any and all of Vendor's agents, officers, employees, contractors, subcontractors and other persons; 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 C. 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 ti'om 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, 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 of any of Vendor's agents, officers, employees, contractors, subcontractors and other persons in the performance of this Agreement, or otherwise. 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, contractors, subcontractors and other persons 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. Mr. Window Company Fire Department - 2000 13. 14. 15. 16. 17. 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. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or othersvise, and shall not delegate its obligations under this Agreement without City's prior written consent. 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. NOTICE: Subject to paragraph 16 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 receipt 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: Douglas Callahan, Fire Chief (with a copy to City Attorney, One Civic Square, Carmel, IN 46032 If to Vendor: Mr. Window Company 902 East 106~1' Street Indianapolis, Indiana 46280 ATTN: Steven F. Smalley Mr. Window Company FLre Department - 2000 18. 19. 20. 21. 22. Notwithstanding the above, notice of termination under paragraph 18 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. TERMINATION: 18.1 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. 18.2 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 conti~rming Goods and Services delivered as of the date of termination. 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. 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 18 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. 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 Mr. Window Company Fire Department - 2000 23. 24. 25. 26. 27. 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. NO THIRD PARTY BENEFICIARIES Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone other than City or Vendor. 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 attorney 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. 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 16 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] ML Window Company Fire Department - 2000 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety MR. M1CK WIDMEYER, D/B/A MR. WINDOW COMPANY Mary Ann Burke, Member ATTEST: ~/g~ ]/'//D t'ZTEY'E~ Printed Name FID/SSN: a'~/-C'''' SHOWROOM AND OFFICES AT 902 E. 106th St. INDIANAPOLIS, INDIANA 46280 (317) 848-7282 MR. WINDOW COMPANIY i','l I: I,I.'L'I CONTRACT d Ttlf-o l r b el s For the sum of $ to be paid as follows Sales tax $ Total cash price $ Purchaser(s) and Company agree that the net cash price shall bear interest at sixteen and one-half percent (1 61/2%) per annum from the date of the completion of the specified work untie paid, In the event the Purchaser does not desire to pay all cash, the Purchaser may pay for the items above set out on a time price basis as follows: By down payment $ and by executing and delivering to the MR. WINDOW CO. a note payable to its order for the time price balance payable in monthly installments of $ each, the first installment being due and payable days after completion of work on the above Contract. All work shall be done in a good and workmanhke manner and in strict accordance with the ordinances rules and requirements of the city town or v~llage. wherein the above mentioned property ~s located NO wolk shall be done or materials furnished except as here~n specified in wrihng and expressly agreed to by the Mr Window Company EXTRA OR ADDITIONAL WORK will be handled by an additional and separate work form, s~gned by both parties Any work under this agreement shah be guaranteed by Ihe Mr. WIndow Company of One year, to be free from defects m material and wolkmansh~p under normat use and service in the event that any materla~ and/or labor are found to be defective withlr~ the guarantee period, Mr Window Company shall repair or at the option of the Company, replace Ihe defective material and/or labor without charge to the Purchaser(s) Company gives no other warranties, either expressed or implied, other than manufacturer's warranties MI Window Company does not guarantee any Ieplacement w~ndow to be free of condensation Or frosl If you have this probrem, it ~ndlcates a relative humidity problem and not a laulty product In no event shall the Mr W~ndow company be liable for delays caused by strikes, weather cond~bons, delay in obtaining materials, or other causes beyond ~ts control If accepted, this Contract may be assigned by Ihe ME Window Companv and the terms and agreements heroin centtuned shall bind, apply and ~nsure to the heirs assigns successors executors arid adminislrators Of Ihe parties thereto Cost and Attorney's Fees: To the extent allowable under the laws of the lunsdict~on where the Contract was entered into, Mr W~ndow Company shall be enhtled to recover from Purchaser(s) al~ costs and expenses including attorney's fees in enfolc~ng any term or prowsion of ~hls Contract II ~s understood and agreed that all payments hereunder shall be made at Ihe ofhce to the Mr. Window company or of the assignee. P U RCHASEB'S RIG HT TO CANCEL: you, the Purchaser. may cancel th,s agreement at any time prior to midnight Of the thffd business day after you sign this agreement You may do so by nolOlying Mr. Window Company at the above printed address You may use any wntten statement that Is signed and dated by you and states your ~nlention to cancel This proposal is made by the Mf Window Company subject to the approval of credit. PurchaserIs) agree{s) that ~n the event Purchaser cancels or refuses Io perform this Contract before work is started, In any Other manner than as provided for in the Consumer Credit Protection Act Purchaser(s) sha]l pay seller 60% of the Contlact price as stipulated as heuidated damages for the breach of this agreement The undersigned acknowledges receipt of a true Copy of this Contract acknowledges that he has read and knows the Contents heroin and undecstands that no other agreement, verbal Or otherwise, is binding upon parties hemto, and the same conterns the entire Contract COMPANY'S R~GHT TO CANCEL THIS CONTRACT MAY 8E CANCELLED IF NOT SIGNED BY AUTHORIZED SIGNATURE OF MR WINDOW COMPANY By Mr. Window Company is Licensed, Insured and Bonded. A~proxirnate Stad Date Approximate Completion Date, MR. WINDOW COMPANY MICK WIDMEYER OWNER Prinled Name Signature Phone Num~r SHOWROOM AND OFFICES AT 902 E. 106th St INDIANAPOLIS, INDIANA 46280 (317) 848-7282 MR. WINDOW COMPANY , CONTRACT ,,e ToVo ." ° m sf lc fi, &c For the sum of $ '] , ~ ~'6 "' to be paid as follows Sales tax $ Total cash price $ Purchaser(s) and Company agree that the net cash price shall bear interest at sixteen and one-half percent (16V2%) per annum from the date of the completion of the specified work until paid. in the event the Purchaser does not desire to pay all cash, the Purchaser may pay for the items above set out on a time price basis as follows: By down payment $ and by executing and delivering to the MR. WINDOW CO. a note payable to its order for the time price balance payable in monthly installments of $ each, the first installment being due and payable days after completion of work on the above Contract. All work shal~ be done in a good and workmanlike manner and in strict accordance with the ordinances, ru~es and requirements of the city, town or village, wherein the above mentioned property is located No work shah be done or matehale furnished except as harem ~pecified ~n wribng and expressly agreed to by the Mr W~ndow Company EXTRA OR ADDITIONAL WORK will be handled by an adQbo~a~ and separate work form, signed by both parties Any work under this agreement shaft be guaranteed by the Mr Window Company of one year, ~o be free from defects in material and workmanship under normal use and service. in the event that any material and/or labor are found to be defective within the guarantee period, Mr Window ComC~any shall repair or at the option of the Company replace the defective material and/or labor without charge to the Purchaser(s) Company gives no other warranties, either expressed or implied, other than manufacturer's warrenhas Mr Window Company does not guarantee any replacement window to be free Of condensation or frost If you have this problem it indicates a relative humidity problem and not a faulty product In no event shah Ihe Mr Window company be liable for delays caused by slfikes, weather conditions, delay iR obta~mng rllaterl~ls, Or other causes beyond its contlol g accepted, this Contract may be assigned by the Mr Window Company, and the terms and agreements heroin contained shall bind, apply and insure to the heirs assigns successors, executors and admLmstrators of the pathos thereto Cost and Attorney's Fees: TO the exter~t allowable under the laws of the iunsdict~on where the Contract was entered ~nto, Mr Window Company shall be antitied to recover from PurchaserIs} all costs and expenses, including attorney's lees in enforcing any term or provision of this Contract It i~ understood and agreed that all payments hereunder shall be made at the office to the Mr Window company or of the assignee P URCHASER'S B {G HT TO CANCEL: ~'o., the Purchaser may cancel this agreement at any time prior to m~dn~ght Of the third business day after you sign thee agreement You may do so by notifying Mr W~ndow Company at the above pnnted address YOU may use any written statement that ~S ragned and anted by you and states your mtent~on to cancel This proposal LS made by the Mr Window Company subjeol to the approval of cretin Purchaser(s) agree(s) that in the event Purchaser cance~s or teluses to perform this Conlract before work Is started, in any ether rnal~ner than as provided tot in the Consumer Credit Protection Act, Purchaser(s( shah pay seller 60% of the Contract price as stipulated as hauldated damages for the breach of this agreement The undoreigned acknowledges receipt of a true copy of th~s Contract, acknowledges that he has read and knows the contents heroin, and understands that no other agreement, verbal or etherwise is binding upon parties hereto and the same contains the entire Contract COMPANY S RIGHT TO CANCEL THIS CONTRACT MAY BE CANCELLED [F NOT SIGNED B'( AUTHORIZED SIGNATURE OF MR WINDOW nOMPA'T'/ By MR. WINDOW COMPANY MICK WIDMEYER OWNER Ec,3t- loaf" Name of Company: Address & Zip: Telephone No.: Fax No.: EXHIBIT B Invoice Date: ProjectName: InvoiceNo: Person Performing Service Service Services Provided Date (Describe in detail in tenth hour units) Hourly Hours one- Rate Worked Total GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker's Compensation & Disability Statutory Limits Employer's Liability: Bodily Injury by Accident: Bodily Injury by Disease Bodily Injury by Disease $100,000 each accident $500,000 policy limit $100,000 each employee Property damage, contractual liability, products-completed operations: General Aggregate Limit (other than Products/Completed Operations ): Products/Completed Operations: $500,000 $500,000 Personal & Advertising Injury Limit: Each Occurrence Limit: Fire Damage (any one fire): Medical Expense Limit {any one person): $500,000 $500,000 $ 50,000 $ 5,000 Comprehensive Auto Liability Owned, hired and non-owned Bodily Single Limit: injury and property damage each accident $500,000 Umbrella Excess Liability Each occurrence and aggregate $500,000 Maximum deductible $ 10,000