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HomeMy WebLinkAboutType A Productions, LLC/DOCS o n tac-4 .0q Type A Productions, LLC Department of Community Services 2009 Appropriation #1192- 404.00; P.O. #20667 �9 Contract Not To Exceed $3,750.00 r; AGREEMENT 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 Type A Productions, LLC, 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 1192 404.00 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. 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 Three Thousand Seven Hundred Fifty Dollars ($3,750.00) (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 sixty (60) 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. 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 hereunder 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, 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 Goods and Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's stated use and are fit and sufficient for their particular purpose. [Z:\E Bas, My Documans\Prof .clonal Savicae\ DOCS'2009 \TYPE A PRODUCTIONS Good S, vico.doci 1/25/2009 It AMA Type A Productions, LLC Department of Community Services 2009 Appropriation #1192 404.00; P.O. #20667 Contract Not To Exceed $3,750.00 5. 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. 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 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 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 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, is placed into 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 (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise 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 damages 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, contractors 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 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 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. [Z:AE Bas, My Documuus\Pm(ssional SuvicesVDOCS\2009ATYPE A PRODUCTIONS Goads Savicecdoc:I I/25/2009 11.30 AM] Type A Productions, LLC Department of Community Services 2009 Appropriation #1192 404.00; P.O. #20667 Contract Not To Exceed $3,750.00 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 or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. 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 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 and codes. This indemnification obligation shall survive the termination 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 respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and /or Vietnam era veteran status. 12. 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 Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 13. NON- ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City's prior written consent. 14. 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. 15. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. [Z 3E Bass My Docu,, ,t \Pro0.5ional Save, \DOCS\2009 \TYPE A PRODUCTIONS Goods Services dm, 1125/2009 I 30 AM] Type A Productions, LLC Department of Community Services 2009 Appropriation #1192- 404.00; P.O. #20667 Contract Not To Exceed $3,750.00 16. 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 same, and the remaining provisions of this Agreement shall remain in full force and effect. 17. 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 One Civic Square Carmel, Indiana 46032 ATTN: Michael Hollibaugh AND Douglas C. Haney, City Attorney, Department of Law One Civic Square Carmel, Indiana 46032 If to Vendor: Type A Productions, LLC 3635 Camberwood Court Indianapolis, Indiana 76268 Telephone: 317- 408 -4068 E -Mail: samccomasgmail.com ATTENTION: Sarena A. McComas 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 five (5) business days from the date of such oral notice. 18. 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 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 invoice amount representing 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. [Z:\E Ba+s\My Documulis DOCS\2009 \TYPE A PRODUCTIONS Goods Servicu..dm. 11/25/2(X19 1430 AM] Type A Productions, LLC Department of Community Services 2009 Appropriation #1192- 404.00; P.O. #20667 Contract Not To Exceed $3,750.00 18.2 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. 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. 20. 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 services 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 monies 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. 21. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 18 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2009, 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. 22. 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. 23. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 24. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 25. 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 negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. Z:\E Bass\My Documnits\Pro[ aonal Scrvicu,\DOCS\2009 \TYPE A PRODUCTIONS Good, 8 Swic4s. 1 I /25/2009 I]1:30 AM] Type A Productions, LLC Department of Community Services 2009 Appropriation #1192- 404.00; P.O. #20667 Contract Not To Exceed $3,750.00 26. 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 or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA Type A Productions by and through its Board of Public Works and Safety By: By: 1 a, t mes Brainard, Presiding Officer Authorized Signature ate: 7 A 4 I`4 LU I -t.Ac, f Printed Name Ma Ann ',:urkeiNdcmbef Date: 6 —07 7 j'i -rki� Title Lori S. Wats• ember FID/TIN: Je& 351 74/ Date: fa—I (0/04 SSN if Sole Proprietor: ATTEST: Date: SI 0 7 ei/ArlD ana Cordray, IAM Cler Treasurer Date: i /G Z:\E Bass\My cumuus\Professional Swic &DOCS\2U119 \TYPE A PRODUCTIONS Goods S v ccs.doc: 1125/21NI9 1)1:311 AM] Type Productions, LLC 3 6 3 5 C a m b e r w o o d C o u r t I n d i a n a p o l i s I N 4 6 2 6 8 Sarena A. McComas Jennifer L. Rueth samccomas©gmail.com jlrueth@gmail.com (317) 408 -4068 (317) 523 -3545 Type A Productions, LLC ABBREVIATED FORM OF AGREEMENT BETWEEN OWNER AND LIGHTING CONSULTANT AGREEMENT Made as of the 12th day of October in the year 2009. BETWEEN the Owner (hereinafter referred to as Client): Michael P. Hollibaugh Director, Department of Community Services City of Carmel One Civic Square Carmel, IN 46032 and the Consultant: Type A Productions, LLC 3635 Camberwood Court Indianapolis, Indiana 46268 For the following Project: City of Carmel Outdoor Lighting Ordinance Hourly Lighting Consulting Article I SCOPE OF WORK 1.1 This Agreement is based upon the City's existing outdoor lighting ordinance, current proposed changes to that ordinance, and a meeting with City of Carmel representatives on 1 October, 2009. Article II SCOPE OF SERVICES 2.1 The Consultant shall provide the following professional lighting design services for the project listed above. 2.1.a Compliance with guidelines set forth by the Owner, Design Team, National Electric Code, and the Illuminating Engineering Society to provide safe, efficient, and aesthetically pleasing lighting design standards. 2.1.b Assist in re- organizing and re- wording the city lighting ordinance with legally defensible language and measurable metrics that result in lighting solutions that meet the city's energy efficiency and electric lighting aesthetic goals. 2.1.b.1 Define technical terms and design criteria. 2.1.b.2 Define areas where specific lighting parameters are to be met. 2.1.b.3 Establish numeric parameters and guidelines for lighting equipment and layouts for meeting lighting design criteria. 66 s�• 9! t Type Productions, LLC 3 6 3 5 C a m b e r w o o d C o u r t I n d i a n a p o l i s I N 4 6 2 6 8 Sarena A. McComas Jennifer L. Rueth samccomas @gmail.com jlrueth @gmail.com (317) 408 -4068 (317) 523 -3545 Article III CONSULTANT RESPONSIBILITIES 3.1 The Consultant shall not be responsible for the acts, errors or omissions of the Client, or the Client's other Consultants. The Consultant shall not be responsible for the means, methods, techniques, sequences or procedures on construction, fabrication, procurement, shipping, delivery or installation, for the acts and omissions of the Client, the Client's other Consultants, the Contractor, any Subcontractors or any of their agents or employees, Manufacturers, Suppliers or Shippers of equipment, or any other persons performing any of the work. 3.2 The Consultant shall not be responsible for services normally within the scope of the architectural, structural, and mechanical or electrical engineering disciplines, including but not limited to structural supports, ventilation, wiring, circuiting, code compliance, emergency lighting, security lighting and exit lighting. Article IV COMPENSATION 4.1 Basis of Compensation 4.1.a Lump Sum Fee. The base contract price for work to be performed by the Consultant shall be $3,500.00. Reimbursable expenses will not exceed $250.00. 4.2 Reimbursable Expenses 4.2.a Reimbursable expenses include printing fees, postage and shipping fees and travel expenses directly related to the project, including mileage at $0.55 per mile, air fare and hotel. All reimbursable expenses will be pre- approved by the Client. 4.3 Additional Services 4.3.a All work above and beyond the project scope as defined in Articles I II will be performed by the Consultant on an hourly basis, and billed at a rate of $150.00 per hour. The Client and Consultant will agree in advance to the services and various stages of work to be performed, and the consultant will provide hourly estimates for the completion of said work. If this project extends beyond one year, rates may be subject to change. The Consultant will notify the Client of the need for additional services and/or any change in rates prior to commencing work. 4.4 Fee Payment Schedule 4.4.a Invoices will be sent monthly for work performed during the previous period. These invoices will also include reimbursable expenses incurred to date. 4.5 Fee Payment Provisions 4.5.a The Consultant shall submit invoices for services and reimbursable expenses in accordance with the Agreement. The Client shall review such invoices and, if they are considered incorrect or untimely, the Client shall review the matter with the Consultant, and confirm in writing to the Consultant within seven days from receipt of the Consultant's billing, the Client's understanding of the disposition of the issue. 4.5.b All fees invoiced will be net payments, payable in United States dollars, and drawn on a United States bank or branch therein. The Client will pay any customs duties, excise taxes, or similar fees. 4.5.c Payment is due within 30 days of receipt of invoice. These invoices are not related to the invoicing of these services from a third party. The Consultant will be entitled to discontinue work without penalty upon 7 days written notice if payment for outstanding invoices has not been received within 30 days of invoice date. Payments due and unpaid under the Agreement shall bear interest from the date payment is due at the rate of 1.5% per month, or the highest legal rate, whichever is less. 2 9 2 Type A Productions, LLC 3 6 3 5 C a m b e r w o o d C o u r t I n d i a n a p o l i s I N 4 6 2 6 8 Sarena A. McComas Jennifer L. Rueth samccomas@gmail.com jlrueth @gmail.com (317) 408 -4068 (317) 523 -3545 4.5.d The Consultant shall be entitled to recover reasonable attorney fees and costs incurred in the collection of any amounts past due. 4.5.e If the project is suspended for more than twelve months or abandoned in whole or in part, the Consultant shall be paid compensation for services performed prior to the receipt of written notice from the Client of such suspension or abandonment, together with Reimbursable Expenses then due. The amount due to the Consultant as compensation for the Consultant's basic services shall be computed as set forth under Termination of Agreement. If the project is resumed after being suspended for more than twelve months, the Consultant's compensation shall be subject to renegotiation. Article V TERMINATION, SUSPENSION OR ABANDONMENT 5.1 This Agreement may be terminated by either party upon not less than seven days' written notice. 5.2 In the event of Termination, Suspension or Abandonment of the Project, not the fault of the Consultant, the Consultant shall be compensated in full for each completed part of the Consultant's Basic Services and any Additional Services performed and Reimbursable Expenses incurred during that part of the Consultant's work; plus such fees and expenses for work in progress since the last completed part. 5.3 Failure of the Client to make payments to the Consultant in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. This Agreement entered into as of the day and the year first written above. CLIENT CONSULTANT 47/.44414_,..„. 9 (Signature) (Signature) Sarena A. McComas, Partner (printed name and title) (printed name and title) 66 E fr 3/ 3 3