Morton International, Inc.Morton International, Inc.
Utility Department
Rock Salt - 2000
APPROVED, AS TO
FOR/tA BY:
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
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 Board of Public Works and Safety ("City"), and Morton International, Inc. ("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.
o
PERFORMANCE:
City agrees to purchase the Goods and Services described in attached Exhibit A, which is
incorporated herein by this reference, and Vendor agrees to provide same and to otherwise perform
the requirements of this Agreement and to execute its responsibilities hereunder by following and
applying at all times the highest professional and technical guidelines and standards.
,
PRICE AND PAYMENT TERMS:
The total price for the Goods and Services contemplated herein shall be as set forth on the attached
Exhibit A. Vendor shall submit an invoice to City no more than once every thirty (30) days
detailing the Goods and Services provided to City within such time period. City shall pay Vendor
for such Goods and Services within thirty (30) days after the date of City's receipt of Vendor's
invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are
in accordance with the specifications set forth in Exhibit A, are submitted on an invoice that
contains the information contained on attached Exhibit B, and Vendor has otherwise performed
and satisfied all the terms and conditions of this Agreement. Subject to the above, if the
undisputed invoice amount is not paid within thirty (30) days of its receipt by City, Vendor shall
so notify City. If such amount as is not disputed is not thereafter paid within ten (10) business
days from the date such notice is received by City, then a late charge in a sum equal to one percent
(1%) of such unpaid and undisputed invoice amount shall accrue and be immediately due and
payable by City to Vendor as a separate debt for each month it remains unpaid. In the event an
invoice amount is disputed, City shall so notify Vendor. If such dispute is not resolved to City's
satisfaction within five (5) business days after notice of such dispute is given, City shall pay such
amount as is in dispute, under protest, into the 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.
WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to
the specifications, drawings, samples, instructions, directions and/or descriptions thereof furnished
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.
rT
Morton International, Inc.
Utility Department
Rock Salt - 2000
o
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.
PRICE TERMS:
All of the prices, terms and warranties granted by Vendor herein are at least as favorable to City as
those offered by Vendor to other customers purchasing the same or similar Goods and Services
under the same material terms and conditions.
DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly fumish 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.
FORCE MAJEURE:
Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to
the extent, that it is caused by an event or occurrence beyond the reasonable control of the party
and without its fault or negligence, such as Acts of God, actions of governmental authorities, court
injunction, fires, explosions, utility failures, power outages, dots, natural disasters, wars or
sabotage; provided that notice of such delay (including the anticipated duration thereof) is given
by the affected party to the other party within five (5) business days after discovery of the cause of
such delay. During the period of such delay or failure to perform by Vendor, City, at its sole
option, may purchase some or all of the same or similar Goods and Services from other sources
and reduce those Goods and Services provided by Vendor hereunder by such quantity, without
liability to Vendor, or have Vendor provide the Goods and Services from other sources in
quantities and at times requested by City and at the price set forth in this Agreement.
LIEN S:
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, attorney
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.
M;~rton International, Inc.
Utility Department
Rock Salt - 2000
10. 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.
11.
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, which is incorporated herein by this
reference. Vendor shall cause its insurers to name City as an additional insured on all insurance
policies, shall promptly provide City, upon request, with copies of all such policies, and shall
provide that such insurance policies shall not be canceled without thirty (30) days prior notice to
City. Vendor shall indemnify and hold harmless City from and against any and all liabilities,
claims, demands or expenses (including, but not limited to, reasonable 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.
12.
SETOFF:
In addition to any right of setoff provided by law, all mounts due Vendor shall be considered net
of indebtedness of Vendor to City; and City may deduct any amounts due or to become due from
Vendor to City from any sums due or to become due from City to Vendor hereunder.
~lorton international, Inc.
Utility Department
Rock Salt - 2000
13. 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.
14.
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.
15.
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.
16.
NON-AS S IGNMENT:
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.
17.
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.
18.
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.
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Morton International, Inc.
Utility Department
Rock Salt - 2000
19. 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.
20.
NOTICE:
Subject to paragraph 21 hereinbelow, 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: John Duffy, Director of Utilities
(with a copy to City Attorney,
One Civic Square, Carmel, IN 46032)
If to Vendor:
Morton International, Inc.
Morton Salt Division
100 North Riverside Plaza
Chicago, Illinois 60606-1597
ATTN: Peggy Vaughn
Notwithstanding the above, notice of termination under paragraph 21 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.
21.
TERMINATION:
21.1 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.
21.2
Either party hereto may terminate this Agreement at any time upon thirty (30) days prior
notice to the other party. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount of conforming Goods and
Services delivered as of the date of termination.
22.
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.
[eb:msword:\\appsl\user data~law\e bassm~y documents\profservices\goods&serviccs\utilitiesmlorlonim'l.cloc I 1/16/99] 5
Morton International, Inc.
Utility Department
Rock Salt - 2000
23. 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.
24.
TERM
Subject to the termination provisions set forth in Paragraph 21 hereinabove, this Agreement shall
be in effect from the Effective Date through December 31, 1999, 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.
25.
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.
26.
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.
27.
NO THIRD PARTY BENEFICIARIES
Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone
other than City or Vendor.
28.
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.
29.
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. Notwith-
standing any other term or condition set forth herein, but subject to paragraph 19 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.
Mgrton International, Inc,
Utility Department
Rock Salt - 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
"Billy ~alker, Member
rote: ,a/-/y- ~aZ
ATTEST:
MORTON INTERNATIONAL, INC.
Authorized Sig tu/e~%.,
Printed NallellOIllll & BIter
Gove.',hhent Bulneee Manager
Title
Pre~crlbed by Ihe ,SIRle Bored of Accounls rOmm Nn 95 {rlevised
,' Bid, Offer or Proposal for Sale or Lease of Materials
(Defined at I.C. 36-1-2-9.5)
(Please type or print)
1. Governmental Unit:
2. County:
3. Bidder (Firm):
Address:
City/State:,
4. Telephone Number:
5. Agent of B!dd.-~.':
(If applicable)
Date:- _A_ugust_.. 1__3_,_!_9.9_9 ............
H_am~.] t_on ...........................................
N_q.E~_n.__ I n _t_e ~rla_ tj_.O_Da]_ ,__ I n c. ,_ PIe r_b3 n .Salt. D i v i. s i o n
100 N. Riverside Plaza
Chicaqo, IL 60606-1597 ............
For ordering: 8Q0/3~-_988_Q ....
Peggy A. Yaughan
Pursuant to notices given, the undersigned offers bid(s) to Ci t.y nf Carmpl
(Governmental U nit) in accordance with the following attachment(s) which specify the class or item number or description,
quantity, unit, unit price and total amount.
The contract will be awarded by classes or items, in accordance with specifications. Any changes or alterations in the
items specified will render such bid void as to that class or item. Bidder promises that he has not offered nor received a less
price than the price stated in his bid for the materials included in said bid. Bidder further agrees that he will not withdraw his
bid from the office in which it is filed. A certified check or bond shall be filed with each bid if required, and liabilily for breach
g~ ~.. Vaughan
Signature of BIdder or Agenl
Hi hwa Sales Manager
BID OFFER OR PROPOSAL
Atlach separate sheet listing each item bid based on specifications published by governing body. Following is an
example ol the bid Inrmat:
Class o~ Ilem : Qu:u~lit~ Unil Description Unit Price Amounl
see attached
N.3N,.COLLUSIO,% AF.~|L"AV',T
STATE OF LtHlX~k/xx Zndiana )
) ss:
CqOk ......................... COUNTY )
The undersigned bidder or agent, being duly sworn on oath, says thai he has not, nor has any olher member, rep-
resentative, or agent of the firm, company, corporation or partnership represenled by him, entered inlo any combination,
collusion or agreemenl with any person relative to the price to be bid by anyone at such lelting nor to prevent any person
from bidding nor to induce anyone to refrain Irom bidding, and that this bid Is made wilhoul reference to any other bid and
without any agreement, understanding or combination with any other person in reference Io such bidding.
He further says that no person or personR. firms, or corporRtion has, have or will receive direclly or indirectly, any
rebate, fee, !lift, commission or thing of value on account of such ~ol~.ton International, Inc,,
OFFICIAL SEAL
THEODORE F. SZYSZKA
NOTARY .PUBUG SLATE OF ILUNOIS
COOK COUNTY
Subscribed and sworn to before me this 13th
My Commission Expires:
co..,y o, .eSide.ce:
M rt_o_n Salt Di_V.i_s..!.o__n ........................
Idder (Fmrm~ A. Vaughan
'~i"~L eggy .....
Hi ghway Sales Manage~d~; ~; Ageni '
day of August 19 ~9
ACCEPTANCE
There now being sulflclent unobligaled appropriated funds available, the contracting authority of
................. (Governmental Unit) hereby accepts the lerms of Ihe altached bid for classes or
items numbered __ and promises to pay the undersigned bidder upon delivery the price quoted for
the materials stipulated in said bid.
Contracti~g Authority Members:
Date:
Class or Item
Quantity
6,000
Unit
Tons
Description
Morton Bulk White Crystal Southern Coarse Rock Salt
22 ton minimum dump truck delivery
Unit Price
$34.55/ton
Amount
$207,300.00
Terms: Net 30 days
Prices quoted herein are firm from 1/1/00 to
12/31/00.
For ordering: 800/_321-9880
Bid Bond enclosed for $20,730.00
Ui'iLESS SPECIFIED OTHERWISE IN YOUR
PROPOSAL, ALL PRICES QUOTED HEREIN
ARE SUBJECT TO ACCEPTANCE WITHIN
30 DAYS AND SHALL BE DEEMED
AUTOMATICALLY TO HAVE BEEN WITHDRAWN
IF, BY THE END OF THAT PERIOD, NO
AWARD HAS BEEN/VIADE,
Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
EXHIBIT B
Goods and Services Invoice
Date:
Project Name:
Invoice No:
Person
Performing
Service
Service
Date
Services Provided
(Describe in detail in
tenth hour units)
Hourly
one- Rate
Hours
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:
$1,000,000
$1,000,000
Personal & Advertising Injury
Limit:
Each Occurrence Limit:
Fire Damage (any one fire):
Medical Expense Limit
(any one person):
$1,000,000
$1,000,000
$ 50,000
$ 5,000
Comprehensive Auto Liability
Owned, hired and non-owned
Bodily Single Limit:
injury and property damage
each accident
$1,000,000
Umbrella Excess Liability
Each occurrence and aggregate
Maximum Deductible
$1,000,000
$ 10,000
': CityoqCarme'_
January 26, 2000
Peggy Vaughn
Morton International, Inc.
Morton Salt Division
100 1'4. Riverside Plaza
Chicago, IL 60606-1597
Dear Ms. Vaughn:
On January 19, 2000, the Board of Public Works and Safety approved a contract to do
business with your company. Enclosed is a copy of the signed agreement.
Please review the enclosed sample invoice (Exhibit B of your contract). You do not
need to use this specific form, but we require you to submit the requested information in
a similar layout. This format replaces any other form previously used by the City and is
effective upon approval of your contract.
Please call Clerk-Treasurer Diana Cordray at 571-2414 if you have any questions.
Sincerely,
Robin L. Butler
Deputy Clerk
Enclosure
pc: John Duffy, Director of Utilities
ONE CIVIC SQUARE CARMEL, INDIANA 46032
317/571-2400