August Mack Enviro/Street Dept ,
August Mack Environrnental Crn Arad*. 07. 04,.05. 03
Street Dept.-2005
Appropriation#509 P.O.# 1717 APPROVED AS TO FORM BYg:
Contract Not To Exceed$5,920.00
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 August Mack Environmental ("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 509 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 Five Thousand Nine Hundred Twenty Dollars
($5,920.00) (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 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.
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.
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bpwcn raccsNp9.au✓W1O J51 1
August Mack Environmental
Street Dept. -2005
Appropriation#509 P.O.# 1717
Contract Not To Exceed$5,920.00
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 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 ally
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. 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
npcct cn2l5New/6']IW51 2
August Mack Environmental
Street Dept. -2005
Appropriation#509 P.O.# 1717
Contract Not To Exceed$5,920.00
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.
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.
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August Mack Environmental -
Street Dept.-2005
Appropriation#509 P.O.# 1717
Contract Not To Exceed$5,920.00
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: David Klingensmith, Director, Street Dept.
Douglas C. Haney, City Attorney
Department of Law
One Civic Square
Carmel, Indiana 46032
If to Vendor: August Mack Environmental
8007 Castleton Road
Indianapolis, IN 46250
ATTN: Joseph Stephens, LPG Project Manager
Notwithstanding the above, notice of termination under paragraph 18 herein below 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.
bpuermvana205/d.wfaan51 • 4 -
August Mack Environmental
Street Dept.-2005
Appropriation#509 P.O.# 1717
Contract Not To Exceed$5,920.00
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 hereii hove, this Agreement shall be in effect from the Effective Date through December 31,
J00taiYd 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.
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August Mack Environmental - - •
Street Dept. -2005
Appropriation#509 P.O.# 1717
Contract Not To Exceed$5,920.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA AUGUST MACK ENVIRONMENTAL
by and through its Board of Public
Works and Safety
•
By: f By:
ames Brainard, Presidin Of .cer Authorized Signature
- Date:
Printed Name
Mary n Burke, Me er ��
Date: — t Ge ZerOlCd
Title 22
Lori S. atsotJ ember FID/TIN: J5 I -/"f 12 7
Date: / 7 �� nS
SSN if Sole Proprietor:
ATTEST:
Date: d �/
ee �i9 ZaOs-
SandraMW.Johnson,
- iana Cordray, IA C leek-Treasurer Deputy Clerk for
Date: 7/6/o S
6
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•
• August Mack
•
• II N V I R u " M N N r A I.
•
•
June 7, 2005 •
Mr. David Klingensmith
Carmel Street Department •
3400 West 131° Street
- • Westfield,Indiana 46074 •
Re: Proposal for Environmental Services
Subsurface Investigation
2112"l Street SW
Carmel, Indiana
August Mack Proposal Number PF459.30
Dear Mr. Klingensmith:
In accordance with your request, August Mack Environmental. Inc. (August Mack) has prepared
this proposal to evaluate the subsurface conditions at the above-referenced site. The proposal is
based on. our understanding of the site and•potential development as discussed during our site
visit on June 7; 2005. While August Mack has not performed a Phase I on this site, it is our
understanding that the site was developed in the 1950s as a grain elevator and was later occupied
by the Cannel Street Department from the mid-1980s to 2003. In order to evaluate the potential
impact from past site usage, August Mack proposes to perform a subsurface investigation at the
site as described in the following paragraphs.
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SUBSURFACE INVESTIGATION
Seven (7) borings will be drilled at the site at locations depicted on the attached figure. At each
boring location, soil samples will be collected continuously from the ground surface to the water
table and visually inspected at two-foot intervals for evidence of contamination, such as staining
and/or odors: The soil will be lithologically classified and screened for the presence of total
photoionizing vapors by headspace analysis using Hnu®O photoionizing detector (Pm). The
results of the headspace,analysis will be recorded on a boring log along with the lithological
description. Once all sampling is complete, all soil borings will be sealed with bentonite and the
surface will be patched to match the existing ground or asphalt surface.
It is anticipated that soil and groundwater samples will be collected from all borings. The soil
and groundwater samples will be analyzed for volatile organic compounds (VOCs) and
polynuclear aromatic hydrocarbons (PASS). These selected parameters arc associated with
■ historical use of the study site (i.e. grain elevator, equipment maintenance, AST usage, etc.).
IS.
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Mr.David Klingensmith June 7, 2005
Page 2
REPORTING
Following completion of the field activities and receipt of the laboratory analyses, a final letter
report will be prepared that will describe in detail the work performed and will present
conclusions regarding environmental conditions at the site.
COST INFORMATION
The lump sum cost for the Geoprobet® soil sampling, laboratory analysis, and preparation of the
subsurface investigation report is $5,920. A breakdown of the proposed costs associated with
this work is provided below in Table 1.
TABLE 1
TASK COST:,:
Sample Collection and Field Activities $2,600
Laboratory Analysis $1,820
7 soil samples for VOC and PAH ($130/sample)
> 7 groundwater samples for VOC and FAH ($130/sample) _
Project Management and Reporting $1,500
Total $5,920
If during the course of the sampling operations, unusual conditions are. encountered, (e.g.,
heaving sand, bedrock, rough and blocky fill, sampler refusal, the presence of free product or
gross contamination, etc.) you will be notified and the price will be adjusted if appropriate.
Additionally, any delays, obstructions or other limitations caused by the client or his agents will
result in additional charges to the client. August Mack will have all of the underground utilities
marked by Indiana Underground and shall not be liable for damage to unmarked underground
structures such as water or steam lines, electrical or telephone cables, sewers, etc. August Mack
will not proceed with any additional work without prior approval. If it becomes apparent that
additional work is necessary, you will be notified and the options and costs to address the
situation will be discussed.
e �J `� ��
"EXHIBIT UUUtt, 99
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•
Mr.David Klingensmith June 7,2005
Page 3
If you are f work as
utlined
ve
Conditions, please sign and rent with eturn ohe ne e ocopy of this proposal to usd sthe yourttd Terms &
authorization o
proceed. We appreciate the opportunity to provide you with this proposal and look forward to
working with you on this project Please feel free to contact me if. you have any questions
regarding this submittal.
Sincerely,
2seph Stephens,LPG
Project Manager
7610
• ILen 7 hnson
Senior Manager
Accepted by:
Acknowledging the Attached Terms &Conditions
Date:
•
"°EXHIBITM "
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"EXHIBIT A ul1 99
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TERMS AND CONDITIONS
DEFINITIONS. When used herein, the terms "we", "us" "August Mack" or "our' refer to August Mack Environmental. Inc.,
and the terms"you", "your","he",'his", "it"and "its" refer to Client.
SCOPE OF WORK. Client has requested that August Mack perform the Work as specified in and for the charges set forth
in our Proposal' (incorporated by reference in its entirety herein) and as authorized by Client's representative.
COMPENSATION. Invoices for services provided are due and payable upon receipt. Balances outstanding more than
thirty (30) days after invoice date shall be deemed delinquent and shall be subject to a monthly finance charge of 11/2
percent,court costs, attorney's fees and any other cost of collection incurred by August Mack.
RIGHT OF ENTRY AND RIGHT TO PROCEED. Client grants a right of entry from time to time to August Mack, Its agents,
staff, consultants, and contractors or subcontractors, for the purpose of performing and with the right to perform all acts,
studies, and research including without limitation, the making of tests and evaluations, pursuant to the Work. Client
represents that it possesses all permits and licenses required to comply fully with all laws, ordinances and regulations
governing the performance of its activities at the site. To the extent that any of the Work requires access to property
owned or controlled by a third party, Client represents that it hes obtained all licenses, permits, and rights-of-way
necessary to grant August Mack access to such property.
STANDARD OF CARE AND WARRANTY. Professional services provided by us will be performed findings obtained and
recommendations prepared In accordance with generally accepted engineering principles and practices. THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. EITHER EXPRESSED OR IMPLIED.
• INSURANCE. August Mack maintains workers' compensation and employer's liability insurance for our employees as
required by state laws. In addition, we maintain comprehensive general liability and auto liability insurance. A Certificate
of insurance can be supplied evidencing such coverage. We will not be liable or responsible for any loss, damage, or
liability beyond the amounts, limits, coverage, or conditions of such insurance specified above.
•
PROFESSIONAL LIABILITY. Client acknowledges and agrees that our total aggregate liability to Client or any third party
arising from negligent professional acts, errors, omissions or breach of the above described standard of care and
warranty, shall not exceed the amounts, limits, coverage or conditions of our professional liability insurance or our total fee,
whichever Is less.
HAZARDOUS SUBSTANCES AND CONSTITUENTS. Client shall advise us upon execution of this Agreement of any
hazardous substances or any condition existing In, on, or near the site presenting a potential danger to human health,the
environment, or equipment. Client shall provide continuing information as Is cornea available to the attention of Client in
the future. By virtue of entering into this Agreement or of performing the Work hereunder, we do not assume control of or
responsibility for the site or the person In charge of the site or for communicating with any federal, state or local public
agencies regarding the Work or the site or undertake responsibility for reporting to any federal, state or local public
agencies any conditions at the site that may present a potential danger to public health, safety or the environment,
including but not limited to spills, releases, or leaks. Client shall bear the sole responsibility for communicating with any.
federal, state or local public agencies regarding the Work or the site, and for notifying the appropriate federal, state or local
public agencies as required by law, or otherwise to disclose, in a timely manner, any Information that may be necessary to
• present any danger to health, safety, or the environment, including but not limited to spills, releases and leaks. Client shall
indemnify and hold us harmless for the consequences of any communication or reporting by us or by Client to any such
public agency. Client shall have sole responsibility for compliance with any and all federal, state or local laws, regulations,
guidance or other requirements relating to the handling, treatment, storage or disposal of hazardous substances or
constituents, and shall have sole responsibility for any and all changed conditions at, or hazardous substances or
constituents introduced to the site by Client or any third party before, during or after the completion of the Work described
herein. Client shall have sole responsibility for compliance with all applicable laws relating to the handling, removal,
transportation, treatment, storage or disposal of hazardous substances or constituents from, to or at the site, and shall
indemnify and hold harmless August Mack for any and all liability arising from such action, including but not limited to any
allegation that August Mack is an owner, handler, generator, operator, treater, sorer, transporter, or disposer under the
Resource Conservation and Recovery Act of 1976 as amended, the Comprehensive Environmental Response,
Compensation, and Liability Act as amended, or any other similar federal, state or local regulation or law.
UNFORESEEN OCCURRENCES. If, during the performance of the Work, any unforeseen hazardous substances or
constituents or other unforeseen conditions or occurrences are encountered which, in our sole discretion affect or may
affect the Work, the risk involved in performing the Work, or the recommended scope of the Work, a will romptly notify
Client thereof. Subsequent to that notification, August Mack In its sole discittrxerli B Ii 5 19
(a) If practicable, complete the original Scope of Services in accordance with the procedures originally intended in the
Proposal:
(b) Agree with Client to modify the Scope of Services and the estimate of charges to Include work on the previously
unforeseen conditions or occurrences:
•
(C) Terminate the Work as provided herein effective on the date specified by us.
CLAIMS. In the event any third party or employee of Client brings suit or claim for damages against us alleging exposure
to or damage from material, elements or constituents at or from Client's facility before, during, or after the Work performed
under this Agreement, which is alleged to have resulted in or caused disease or any adverse health condition or resulting
In cost for remedial action, uninhabitabilfty of property, or other personal injury or property damage, then: Client shall be
liable tor, hold harmless and indemnify us in any such suit or claim of any kind or of any nature whatsoever and pay on our
behalf, to the maximum extent permitted by law, any and all damages, losses, liabilities, obligations, penalties, claims,
judgments, costs, disbursements or expenses, including but not limited to attorneys' and experts' fees and other costs,
expenses or disbursements, and personnel costs incurred by us as a result of such suit or claim, including any interest
thereon. In the event that Client makes a claim against us of any kind or nature whatsoever for any alleged error,
omission, or act arising out of the performance of the Work that cannot be mutually resolved without resort to litigation, and
Client fails to prove such claim, then Client shall pay all costs incurred by us in defending ourselves against the claim,
including, but not limited to attorneys' and experts' fees and other costs, expenses or disbursements, and personnel costs
incurred by us as a result of such claim, including any interest thereon. Client agrees that for the purposes of this
Agreement it has failed to prove its claim when the monetary amount awarded to or recovered by it is less than the highest
sum offered by us in writing to resolve the matter prior to resolution of the claim.
•
EQUIPMENT. In the event that August Mack leases certain equipment to Client in order to perform the work contemplated
by this Agreement: Client shall be responsible to August Mack for any loss, theft, damage, destruction, or other misuse'of
that equipment, and shall pay August Mack upon written demand, the amount necessary to repair or replace 'that
equipment. To cover Client's liability to August Mack for such equipment. Client may obtain and maintain appropriate
insurance against loss, theft, damage, destruction, or other misuse of such equipment, which includes August Mack as a
named Insured with a carrier acceptable to us. In the event that any third parry or employee of Client brings suit or makes
a claim for damages of any kind or of any nature whatsoever against August Mack arising out of such use of August
Mack's equipment, Client shall Indemnify and in any such suit or claim and shall pay on our behalf, to the maximum extent
permitted by law, any and all damages, losses liabilities, obligations, penalties, claims, judgments, costs, disbursements or
expenses, Including but not limited to attorneys' and experts' fees and other costs, expenses or disbursements, and
personnefcosts incurred by us as a result of such suit or claim.
DOCUMENTS. Client will furnish or cause to be furnished such reports, data, studies, plans, specifications, documents
and other Information deemed necessary by us for proper performance of our services and Client warrants and represents
that any such Information provided shall not infringe on any United States or foreign patent, copyright, trade secret or other
proprietary right of any third party, and shall hold August Mack harmless and indemnify us for any such infringement. We
may rely upon Client-provided documents in performing the services required under this Agreement; however, we assume
no.responsibility or liability for their accuracy. Client-provided documents will remain property of Client. All documents,
including, but not limited to drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations and
estimates, prepared by us as instruments of service pursuant to this Agreement, shalt be our sole property. Client agrees
and acknowledges that all documents of any nature furnished to Client or Client's agents or designees by August Mack
shall be treated as confidential, and shall be disseminated only to those employees or agents whose duties justify their
need to know such information, unless prior written authorization is obtained from August Mack or disclosure is compelled
by a court of competent jurisdiction. Client further agrees that any documents not paid for will be returned to us upon
demand and will not be used by Client for any purpose whatsoever. Client further agrees that under no circumstances
shall any documents produced by us pursuant to this Agreement be used at any location,for any project or by any person
not expressly provided for In this Agreement without our prior written permission. If Chant uses all or any of our documents
for another project or disseminates our documents in violation of this paragraph. Client shall to the maximum extent.
permitted bylaw indemnify and hold us harmless from any all claims arising from such unauthorized use. Further, no part
of any document we deliver to Client shall be reproduced or distributed, whether for advertising or any other purpose,
without our prior written consent. Any such reproduction or distribution shall be at Client's sole risk and without liability or
legal exposure to August Mack, and Client shall indemnify and hold us harmless, to the maximum extent milted by law,
from any and all claims arising from such unauthorized reproduction or dis rib ti l0 p 99 •
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TERMINATION. Either party for any reason upon 10 days' may terminate this Agreement written notice. Upon termination
of this Agreement, August Mack shalt be entitled to payment for Work performed up to and including the date the notice of
termination is received as well as all reasonable costs of demobilization and closeout of the Work.
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DUTY TO COOPERATE. The parties agree to provide reasonable access to information regarding the site or the Work
performed and to responsible personnel as may be required to address any claim made regarding the Work performed or
this Agreements. The parties further agree to provide copies to each other of any claims, demands or'notices from any
federal, state or local public agency regarding the Work performed or this Agreement.
SEVERABILITY. In the event that any provision herein shall be deemed invalid or unenforceable, the other provisions
hereof shall remain in full force and effect, and binding upon the parties hereto.
SURVIVAL. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating
responsibility or liability between Client and August Mack shall survive the completion of the services and the termination of
this Agreement.
INTEGRATION. This Agreement and the documents attached hereto and which are incorporated herein constitute the
entire Agreement between the parties and cannot be changed except by written instrument signed by both the parties.
GOVERNING LAW, VENUE AND JURISDICTION. This Agreement is and shall be deemed to be a contract entered into
and made pursuant to the laws of the State of Indiana and shall In ell respects be governed, construed, applied and
enforced in accordance with the laws of such State. Any litigation brought in connection with this Agreement shall be
commenced and maintained in the United States District Court for the Southern District of Indiana in Indianapolis, Indiana'
or the Superior Court of Marlon County, Indiana having jurisdiction over the parties and the subject matter of the dispute.
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"EXHIBIT k212 99