MacDonald Machinery Co./StreetMacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucket Model 560 Asphalt Paver
AGREEMENT FOR PURCHASE OF GOODS AND
APPROVED, A~.~
FORM
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 McDonald
Machinery("Vendor").
TERMS AND CONDITIONS
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.
PERFORMANCE:
City agrees to purchase the goods and/or services (the "Goods and Services")
from Vendor using City budget appropriation number 660 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.
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 Forty Four Thousand
Three Hundred Ninety Five Dollars ($44,395.00) (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. Subject to the above, if an
undisputed invoice amount is not paid within sixty (60) days of its receipt
by City, then a late charge in a sum equal to one percent (1%) of such
amount shall accrue and be due and payable by City to Vendor as a
separate debt for each month it remains unpaid.
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.
[Mod/good&servs./macdonald/03/26/03] 1
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucker Model 560 Asphalt Paver
WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this
Agreement will conform to the specifications, samples 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. 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.
T1ME 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. 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.
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.
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 fights and remedies available to City at law
and/or in equity.
[Mod/good&servs./macdonald/03/26/03] 2
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucker Model 560 Asphalt Paver
INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full fome 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. 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,
roles, 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, roles, 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.
[Mod/good&servs./macdonald/03/26/03] 3
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation 4/660
Towmaster T-16 PRS Paver Roller Trailer
Pucket Model 560 Asphalt Paver
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 fight 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.
16.
SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute,
regulation, ordinance, executive order or other role 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:
(with a copy to City Attorney,
One Civic Square, Carmel, IN 46032)
[Moddgood&servs./macdonald103126/03] 4
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucket Model 560 Asphalt Paver
If to Vendor: MacDonald Machinery Co., Inc.
4445 Decatur Blvd.
Indianapolis, IN 46241
ATTN: Randy Manning
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.
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 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.
[Mod/good&servs./macdonald/03/26/03 ] 5
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucket Model 560 Asphalt Paver
21.
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, 2003,
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.
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.
[Remainder of page intentionally left blank]
[Mod/good&servs./macdonald/03/26/03] 6
MacDonald Machinery Co., Inc.
Street Dept. - 2003 Appropriation # 660
Towmaster T-16 PRS Paver Roller Trailer
Pucker Model 560 Asphalt Paver
IN W1TNESS 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
By:
/f.a~es Brainar~ Pre,ding Officer
M~y Ant/B~rk, ~Mermber
Date: ',~-%-~-
Loft S. Wat~ ~mb~
Date~
/ /
Diana Cor~IA~ _Cle~-Treasurer
Oate:
MacDonald Machinery Co., Inc.
Authorized Si~tur
Printed?~/,~~
Title
FID/TIN:
SSN if Sole Proprie. tor:
Date:
/' /
[Mod/good&servs./macdonald/03/26/03 ] 7
SALES OFFICE
Account #
SALES ORDER
MacDonald
Machinery
Co., Inc.
L~3911 Limestone Dr.
Ft. Wayne, IN 46809
[~4445 Decatur Blvd.
Indianapolis, IN 46241
E~2691 Schuyler Ave.
Lafayette, IN 47905
E~3953 Ralph Jones Dr.
South Bend, IN 46628
DATE:
(260) 747-1561
(800) 552-0875
(317) 856-3000
(877) 856-3001
(765) 742-2080
(800) 382-0978
(574) 271-0800
(800) 521-9578
3/11/2003
Purchaser
Address
City/State/Zip
Phone #
Contact:
Stock #
Make
Description
S/N
Hours
Equipment:
City of Carmel Street Dept.
211 2nd Street S.W.
Carmel,In. 46032
317-571-2637
Dave Klin9ensmith
TBA
Towmaster Model T-16PRS
Paver / Roller Equipment Trailer
TBA
New Year
Towmaster T-16PRS Trailer
New
[ Base Price
16,000 lb. load capacity, tandem axle ( 4 wheel )
paver/roller equipment trailer.
(Meets all minumum bid specs as requested.)
TERMS (CHECK ONE)
[] Due on Delivery
[] Rental/Pumhase
[] Rate:
[--]# of Months
% Applies to Purchase
[] Financing: (Application Attached)
[] Down Payment:
[]Amount Financed:
[]# of Months
7,795.00
Total Equip. $ 7,795.00
Trade-Information Stock # Trade -In
Make: Model: Allowance
Description: Year: Sub Total $ 7,795.00
Equipment: Sales Tax
S/N: Hours: Total Price $ 7,795.00
Warranty: NEW EQUIPMENT CARRIES ONLY THE MANUFACTURER'S STATED WARRANTY. USED EQUIPMEN
IS SOLD "AS IS, WHERE IS" BASIS UNLESS SPECIFICALLY NOTED ON THE FACE OF THIS ORDER.
Date Accepted By Randy Manning
Order subject to (Salesperson Signature}
dealer acceptance
(Purchaser Signature-Title) By: Date: March 11,200
Account #
Purchaser
Address
City/State/Zip
Phone #
Contact:
Stock #
Make
Description
S/N
Hours
Equipment:
SALES ORDER
MacDonald
Machinery
Co., Inc.
City of Carmel Street Dept.
211 2nd Street S.W.
Carmel,In. 46032
317-571-2637
Pucker
Dave Klin~ensmith
TBA
Model
Asphalt Paver
56O
TBA
New
Base Price
New Year
Pucker Model 560 Asphalt Paver
6 Ton Hopper Capacity w/4.5'- 13' pavin~ width
(Meets all Minimum bid specs as requested.)
Total Equip.
Trade -In
Allowance
Sub Total
Sales Tax
Total Price
SALES OFFICE
] 13911 Limestone Dr.
Trade-Information Stock #
Make: Model:
Description: Year:
Equipment:
S/N: Hours:
Ft. Wayne, IN 46809
[~]4445 Decatur Blvd.
Indianapolis, IN 4624'~
r--12691 scl~uyler Ave.
Lafayette, IN 47905
r~3953 Ralpl~ Jones Dr.
South Bend, IN 46628
DATE: 3/11/2003
TERMS (CHECK ONE)
[] Due on Delivery
[] Rental/Purchase
[] Rate:
F-I# of Months
% Applies to Purchase
[] Financing: (Application Attached)
[] Down Payment:
]Amount Financed:
I~# of Months
36,600.00
(260) 747-1561
800) 552-0875
317) 856-3000
877) 856-3001
765) 742-2080
800) 382-0978
574) 271-0800
800) 521-9578
$ 36,600.00
$
$ 36,600.00
$ 36~600.00
Warranty: NEW EQUIPMENT CARRIES ONLY THE MANUFACTURER'S STATED WARRANTY. USED EQUIPMEN
IS SOLD "AS IS, WHERE IS" BASIS UNLESS SPECIFICALLY NOTED ON THE FACE OF THIS ORDER.
Date Accepted By Randy Manning
Order subject to (Salesperson Signature}
dealer acceptance
(Purchaser Signature-Title) By: Date: March 11,200