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HomeMy WebLinkAboutDonley & Associates, Inc./CFD ao`(\ 0t 02.E 0 'A �Co Donley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 FOR By j p 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 Donley Associates, 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 appropriate 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 One Hundred Eighty Five Thousand Nine Hundred Forty Six Dollars ($185,946.00) (the "Estimate Vendor shall be paid from funds arranged through the City's agreement with PublicFinance.com, upon receipt of the items with the specifications set forth in Exhibit A. 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 pursuant to or as part of that certain City of Carmel Fire Department Bid Proposal Package for "2010 Fire Vehicle Bid (Ambulance)" received by the City of Carmel Board of Public Works and Safety on or about May 6, 2010, 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. 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. bonley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 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 waming 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 hen 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 Toss 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. 'Donley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 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. 'Donley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 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: Keith Smith, Fire Chief AND Douglas C. Haney, City Attorney, Department of Law One Civic Square Carmel, Indiana 46032 If to Vendor: Donley Associates, Inc. 5546 Elmwood Court Indianapolis, Indiana 46203 Telephone: E -Mail: ATTENTION: 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. 'Donley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 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, 2010, 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. However, to the extent allowed by law, other jurisdictions may be allowed to utilize the same pricing contained within the bid referenced in Paragraph 4, above. 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. Donley Associates, Inc. Fire Department 2010 Contract Not To Exceed $185,946.00 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 govem 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 DONLEY ASSOCIATES, INC. by and through its Board of Public Works and Safety By: By: 17 q t, a AL P /La A 01111 Jfes es Brainard, Presiding Officer Authorized Signature late: (0 gi►-rrn-/ Printed Name M.ry A'* embe Date: PZ Es I DC N T 1 Title ii Lori S�. Wat Member FIDfTIN: 55 I s 4/ k2 5 Date: Ce/4 /o SSN if Sole Proprietor: ■A1- ATTEST: Date: 5 nf, /A liana Cordray, IAMC, Cler r surer Date: AGREEMENT This agreement is made this the 21st day of April, 2010, by and between Donley Associates, Inc., 5546 Elmwood Court, Indianapolis, IN 46203, (hereinafter "Company and City of Carmel, One Civic Square, Carmel Indiana 46032, (hereinafter "Buyer 1. Purchase. The Company agrees to sell, and the Buyer agrees to purchase, the 2010 Horton 555 Custom Ambulance and Equipment described in the Company's Proposal attached hereto and hereby incorporated by reference (the "Apparatus all in accordance with the terms and conditions of this Agreement. The apparatus is currently in "Demonstrator" service with the Company. Changes to the Apparatus hereto will only be executed by the Company if documented by a Change Order signed by both parties and at an agreed upon price beforehand. In the event of any conflict between the Company's Proposal and the Buyer's Specifications, the Company's proposal shall prevail. 2. Delivery. The Apparatus shall be delivered at the Company's facility, delivered by the Company unless otherwise directed for pick -up by the Buyer, F.O.B. Indianapolis, IN, approximately 150 calendar days after receipt of signed contract. It is agreed that such delivery is subject to delays caused by war, civil unrest, strikes, inability to obtain materials, and other causes beyond the control of the Company. In the event that Buyer fails to take possession of the Apparatus, Company reserves the right to arrange for pick -up of the Apparatus by the drive -away service of Company's choice and at Buyer's sole expense. 3. Price. Buyer agrees to pay a Purchase Price of ONE HUNDRED EIGHTY -FIVE THOUSAND, NINE HUNDRED and FOURTY -SIX dollars ($185,946.00). Unless otherwise specified, this Purchase Price is exclusive of all Federal, State, or local taxes of any nature. Any such taxes are the sole responsibility of the Buyer unless specifically added to the Purchase Price, at which time they will be paid by the Company; provided, however, if the Buyer claims exemptions from any tax, Buyer agrees to furnish the applicable exemption certificate to the Company and to hold the Company harmless from any damage which may result from the Company ultimately having any such tax assessed against it. Buyer agrees that the terms of payment shall be cash due upon delivery to buyer. If other than cash due upon pick -up, check the appropriate box. PAYMENT TERMS: BUYER TO ISSUE A CHECK UPON DELIVERY 4. Title. The Company and Buyer agree that title shall remain with the Company only until the time the Apparatus is delivered to the buyer. Upon pick -up by Company, all title, ownership and risk of loss shall remain with the Company until delivery to Buyer. In the event of default by the Buyer, the Company has the right to take possession of the Apparatus and all payments made by the Buyer shall be applied as rent for use of the Apparatus until the date of retaking by the Company. The Buyer further agrees that the Apparatus will not be placed in active service until the full purchase price has been paid to the Company. CI "EXHIBIT 5. Warranty. Horton Emergency Vehicles warrants each item of Apparatus manufactured by it against defects in material and workmanship; as described in the Statements of Warranty previously provided to the Buyer. Certain additional warranties are applicable to certain components of the Apparatus as described in the Statements of Warranty previously provided to the Buyer. Buyer hereby acknowledges receipt of Horton's preprinted Statements of Warranty. With respect to any item of Apparatus which is not manufactured by the Company, such items shall not be warranted by the Company but shall be subject to the warranty provided by the manufacturer. These warranties are in lieu of all other warranties express or implied, including without limitation any implied warranties of MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Neither Horton nor the Company shall warrant the operability of any chassis. 6. Notices. The parties to this Agreement designate Keith Smith, Fire Chief or Mark Hulett, Chief of EMS: (317- 571 -2600) as representative of the Buyer and Jon Emshwiller (Representative Donley Safety) or Michael Smith (President Donley Safety): (317) 786 -2268 as representative of the Company for purposes of all communications regarding this Agreement. 7. Entire Agreement. This Agreement, including its attachments and exhibits, constitutes the entire understanding between the parties relating to the subject matter contained herein and merges all prior discussions and agreements. No agent or representative of the Company has authority to make any representations, statements, warranties or agreements not herein expressed and all modifications or amendments of this agreement, including its attachments and exhibits, must be in writing signed by an authorized representative of each of the parties hereto. 8. No Discrimination. Pursuant to I.C. 22- 9 -1 -10, the Company represents that it and its subcontractors shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to the employee's or applicant's hiring, tenure, terms, conditions or privileges of employment or any matter directly or indirectly relating to employment, because of the employee's or applicant's race, religion, color, sex, disability, national origin, or ancestry. Breach of this covenant may be regarded as a material breach of the Agreement. IN WITNESS WHEREOF, The Company and the Buyer have caused this Agreement to be executed by their duly authorized representatives as of the date set forth by each. PV --q 9. Extension Clause. Pending mutual agreement between the Buyer and the Company, the Buyer may purchase additional Apparatus and equipment off the contract for the period of ten (10) years from the date of the signed and dated contract. The Company shall not substitute a brand of Apparatus different from the bid of the Buyer. The Company shall be responsible for advising the Buyer of any upgrades, improvements, up- grades, or engineering changes made to the Apparatus as agreed upon in this contract. The purchase price may be subject to any supplier price increases caused by GSA, EPA, NFPA, DOT, or spot market prices of aluminum or other raw materials and /or supplier price increases. Normal cost adjustments for inflation may also apply. 10. Tao on Clause. Any interested Fire Department, Government Agency, or Emergency Medical Service provider may purchase Apparatus from this contract, for the duration of this contract. Any changes to Apparatus purchased from this contract must be made with the approval of the Company. City of Carmel Donley Associates, Inc. By: By: Title: Title: Date: Date: 4b EXHIBIT April 9, 2010 City of Carmel One Civic Square Carmel, Indiana. 46032 We are providing, at your request a list of items exclusive to the Horton Emergency Vehicles' ambulances proposed in response to the 2010 Carmel Bid Process. All of the following items are standard in all Horton Custom Series ambulances and rescue vehicles. 1. Horton is the only ambulance manufacturer to fully crash test its module's; both dynamically and destructively in a controlled scientific arena. All tests are done by a 3rd party and certified by a 3rd party Engineering Firm. Tests are conducted at IMMI in Westfield, IN. 2. The Horton Occupant Protection System. The industry's only Roll -Over protection system fitted to an ambulance. This incorporates 3 Roll -Tech SRS Airbags in the main cabinet wall, highenergy absorbing head impact foam in all upper upholstery, a fixed barrier at the head of the bench and 3 -Point seat belts in all seating positions that have load sharing barriers. 3. The ambulance specified is calling for the GMC C4500 chassis. Horton has the last one available for up -fit secured and on property to ensure this ambulance can be built as needed. This will allow for absolute commonality of the ambulance fleet, reducing cost in spares, training and downtime due to parts acquisition. 4. Anti Microbial materials are manufactured into all upholstery, flooring, Formica, ceiling material, and paint used in the patient care area. 5. VI -Tech Body Mounts: Afully floating outrigger body mount designed to absorb minor vibrations generated by the chassis. These are designed and made to each chassis as they all have different vibration resonance requirements. These mounts are also the only ones tested to 35g's without failure in impact testing. Local Horton Warranty Service of the vehicle is available through the Donley Safety Service Center located at 5546 Elmwood Court, Indianapolis IN 46203. Donley is the only full service ambulance dealership in central Indiana. Keith Smith, Fire Chief Mark A. Hulett, EMS Division Chief City of Carmel Fire Department City of Carmel Fire Department as 98 IT