Yardberry Landscape/Engr
Yardberry Landscape Excavating Company
Engineering Department - 2007
07-05 Drainage Project
Appropriation #206-4462300 P.O. #16845
Contract Not To Exceed $193.585.00
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APPROV'Oi ;~
FORNI ifi' : .
.................- '-..
AGREEMENT FOR PURCHASE OF GOODS AND. SERVICES
THiS AGREEMENT FOR PURCHASE OF GOODS Ai'JD SERVICES ("Agreement") ishereby entered into by
and between the City of Carmel, Indiana, acting by and through its Board of. Public Works and Safety ("City"), and
Yardberry Landscape Excavating Company ("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 206-4462300 funds. Vendor agrees to provide the Goods and Services and to
otherwise pertorm the requirements of this' Agreement by applying at all times the highest technical and
iildustry standards.
3. PRICE AND PAYMENTTERMS:
3.1 Vendor estimates that the totai price for the Goods and Services to be provided to City hereunder
shall be no more than One Hundred Ninety Three Thousand Five Hundred Eighty Five Dollars
($193,585.00) (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
irivoice detailing same, so long as and to the extent s~ch 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 pertormed and satisfied
all the terms and conditions of this Agreement.
3.2 Vendor agrees nollo 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 Engineering
Department Bid Proposal Package for "07'05 Drainage Project" received by the City of Carmel Board of
Public Works and Safety on or about September 5, 2007,all of which documents are incorporated hereinby
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.
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YardberiyLandscipe'Excavating Conipany
Engineering' Deparrment -,2007
07-05 DrainagePioJect
Approprialion#206A4623QO PO,:#!'6845
c(lli!r~ctNo!To'E>;ceed '$193,585,60
5TIMEANDPERFORMANCE:
This,Agreement, shall become effeCtive as 01. the last date, on ,which a'party hereto exe,clites'same ("EffectiVe,
Date"}:'and both~partiesshall thereafter periorm their obligations hereunder in a time)ymanner. Time ,is of
the essence, oj this Agreement:
6, DISCLOSURE AND WARNINGS:
If r,e~~esleq by City, Veridwshall prolT)ptly furnlsn to Cily;ib,such Ibrm'and detail as City may direct; a Iislot
Ill! cherrical~, r(laterial,s, subslflncesaM items used Ifl or during:tt18 proyisioO olth,e Goods and, Services
provided hereunder, ,including the quantity, quality and concenlraliorithereof' and aIJY other information
r,elating thereto,Nthe time at the deliverY ofth., Goods:ghcj SeNices proviC/ed h~re.u)ld~i" VeIJdor agrees to
'furnish.to City sufficient written warning and ,notice (including appropriate labels on'coritainers'andpacking)
of ariyhazard6ushfaterial utiiized inor,tnatis a part'of the Gooe!s and SeNices,
7, LIENS:
Ve~dor,~hall ~bt c,au~e 9f permit th~!filing 01, any lieri,on abY 9.1 fiity's property, In the event any'such lien is
,filed and.VendorfailslQJemOve such,lien within,ten (10) e!ays'afterlhe filing thereof, by paymentor,bonding,
City shall nave the lignt to pay such lien or bblalnsuch~ond,allat VendQr'ssoleco~1 ana expense,
B" DEfAULT:
In the evelitV~naor:; (a) rePcudiates; oreacb,es or clefa9ns~ne!e! any of \he term~ qr condltiQ[is 'of this
Agreement; including Vene!or's warranties;:(b) fails to provide the Goods'and SeNices as'specifiee!::herein;
(c) fails to make pi9Qress:soas'tb 'endangeriirhelyand properp[ovisioncoflhe Goods'ana'Services,ftne! does,
not :cOrrectsuch failure or breach within Jive (5) business days (or such shorter' perioe! of time as is
commercially reasonable under.the circumstances) a1ter receipt of notice from City speCifying slJch failUre OJ
breach; or (e!l.becomes insolvent, is pJaced intorecEllvership; makes,Ergenerai'assignn:entfonh."benefit of
creditors'or dissolves, each such event constituting an event of defaull hereunder, City shall have the right to
(1) ,terminate all 6rahy parts of this'Agr,eement, wlHi()ut liaoilityto Venqor;;ane! (2) exercise all otheriights
and'reme~ies available to City,allay/.and/or in equity,
9, INSURANCE AND INDEMNIFICA T:ION:
Vendor shall procure-and'maintainiri fuli iorce and'effecLduringthe term of this Agreement, with an insurer
licensed to do business in'the Stale ()flne!iana, suchinsu!angeasis nece,ssaryfbr tl1.e protection of C:itY and
Vendor from all ,claims .for damages under'any workers' compensation, occupational disease ane!/or
unemployment compensation' act; for bodily ihjuries, including, but notliniitedtb, personal irijurpickness:
e!isease"cir death of or to'anY o!'Vendor'sagents, ofiicecs; erhployee~; contragtorsanqsubcontractors; and,
for <:ny-injury to or'destruciion of property; including, butnot limitee! to, any'loss of use resulting therefrom,
The c6verageamourits shall be no less than those' a(l1ot;mts:set lorlh ,in 'attachedExhibil'C. Vendor shall
cause its insUrers' to name Gityas an additionalinsured on all such insurance policias,. shall promptly provide
City, upon request, with copies of ail such poliCies, and srallproviae'lhatsuch insurarice policies.shal,1 rioj be
ca:nc~leg withoiJUhirty (30) dElVS prior notice to 8ity, Vendbrshall ine!emnify ane! hold harmless City from
and against, any and all liabilities, claims, demandsoi expenses (including, but not limitea to, reasqhable
attor~ey fees):for injury, dealh:an~/or damages,toapy,perso[j or'prope~y arising from 91'In cqnnectionwith
Vendor'sprovision of Goods and SeNices pursuant:to or underlhisAgreemenlorVene!o'r's'use:dfCity
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Yardberry Landscape.Excayating Company'
E.ngine.eringDepartment -2007
07'-05 Drainage Project
Appropriation#2Q64462300 ,P~O:,#16S45'
Contract Not'To Exceed.$193;5S"OO
pr(lperty, Vendor further_ agreesto'indelTlnifj!, d,efend:and'hold harii1l~ss City and its officers,:officials, agents
and employees from all claims and suits of whatever fype, including, but not limited to, all court' costs.,
,attorney fl?es, and other 'expenses, caused by any act or omission ',01 Vendor ,and/or of any 6f Vendor's
agents, officer9;tlmployeei, cohtractors or ,subcontractors in the pen.9rmange of t.his"Agreement: These
.indemnification obligailons shall survive the terminaiiorMf this Agreement:
10, GOVERNMENT COMPLlANCE:-
Vendor agreest6 co'm'ply with all federal,state,and localli'iws,e;o::ecutive cirders, rules, regulatib'nsand codes
which mgy be applicable toVendo(spe,riorm,ance o!"its obligations. under this Agreement, and ail releyant
,provisions thereof are incorporated herein by this reference, Vendor agrees to indemnily and,hold harmless
City trom a~y loss, damage and/or liapility resujting'from any such~iolatioh of such laws, orders, rules,
regulations and codes,_This indemnification obligation snail surviveithe termination of this Agreement
11, NONDIS8RlM INATION:
Vendor represents - and warrants that 'it and all of its offlcer9' employees, agents, contractors and
subcontractors shall complY with '~lIlawsof the United Slates, the State of Indiana and City prohibiting
discrLminationagainstaryemployee,'applicant for employment or other person in the provision at any Goods
ani:lServices'provided by ttlisAgreement,with [espectto their tlire"lenure, terms, co.hditions and privileges of
employment ana any other matter related to their emplbym,enl orsubcontraeting, because. of riice, religion,
eoior; sex, handicap"national origin,ancestry, age, disabled veteran status and/or Vietnam era veteran
,status.
12, NO IMPLlEDWAIVER:
The fa,!lure of either pam to requi're perfo(mance by t,he other afany provision ot this .Agreementshall not
affect the right 6fsuch,party to require such.periormance at any time-thereafter, nor shallthe'waiver by any
party of a, breadj of ilnyprovisi()1) of this Agreement constitute a.waiyer of 'any succeeding breach 'of the
same or any other provision hereof.
13, tJON,ASSIGNMEt:ll
Vendor shall not assign'orpledgeJhis Agreement; whether aseollateral'for'a,loan or otherWise,an-d shall not
delegateitsoOligatibns under tnis_Agreemenl\\ilthoUt City's prior "'iri1!ej1consent
14, RELATIONSHIPOFPARTIES:
~herelationship otth.e;PCi[1iesheretosha[ be as provided for in this Agreement, and neither Vendor nor any
of its officers; employees, contractors" subcontractors ana agents' are!employees of City, Tne contract price
set forth herein shaWbe IbeJul1 and'maximum compensation and monies required of City to be paid to
Vendor under or pursuant 10 this Agreement
15, GOVERNING LAW; LAWSU-ITS:
This,Agreement is to be construec in acca'rdance :with and,90yerhed'bythe laws ojthe Stale at Indiana,
excepUor its conflicl.of laws provisions, The parties agree t~at, 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 C(lunty,
Indiana only"ang'agree thatsucn coUrt isthe:approp[iale ~enue jor and:,hp,s'jurisdictlcin over same.
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YardbeITY Landscape Excavating Company
Engineering Depanment - 2007
07-05 Drainage Project
Appropriation #206-4462300 P.O. #16845
Contract Not To Exceed $193.585.00
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 Agreem'ent 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: Mike McBride
AND
Douglas C. Haney, City Attorney,
Department of Law
One Civic Square
Carmel, Indiana 46032
If to Vendor: Yardberry Landscape Excavating Company
9940 S. 1000 W.
Anderson, Indiana 46017
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.
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Yardberry Landscape Excavating Company
Engineering, Department - 2007
07 -05 Drainage Project
Appropriation #206-4462300 P,O, #16845
Contract Not To Exceed $193,585,00
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
undil1Puted 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 oftermination, 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 iNhich 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 a~d 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 1,8
hereinabove, this Agreement shall be in effect from the Effective Date through December' 31, 2007, 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 th,e negotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
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09/12/2007 10:44 FAX 786 378 0378 YARDBERRY LANDSCAPING CO
O~/12/2007 WHO 11152 ~AX 317 571 243~ Ci~f of carmel
Ial 002/002
IilI007/012
Y BnIberry LandscBpe Bxalvatlng Company
Englncerinl: Departmcnl- 2007
07..05 Dralnllll" ProjBct
AI'PfOllritltlon 1I:2ll6-44l52300 P.O. #\6845
ContnlCl Not To Exceed $J93.585.00
26. ENTIRE AGREEMENT:
This Agreemen~ together with any exhibits attached haretoor referencecl herein, constit1Jtes the entire
agreement between Vendor and City with respect to the subject matter heren', and supersedBS all prior oral
or written representations and agreements regarding same. Notwithstanding ~ny other tenn or condition set
lorth herein, but subject to paragraph 16 hereol, to the extent any term or C( Idltion contained In any exllibit
attached to thIs Agreement or In any document referenced herein confli'::S with any tenn or condition
contained in this Agreement, the term or condition contained In this Agrement shall govem and prevail.
This Agreement may only be modlfled by wrltlen amendment executed t';' both parties hereto, or their
successors In Interest.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as foll()ws:
By:
Yardbeny Landsca:'e Excavating Company
9940 S. 1000 W.
Anderson. Indiana :6017
By:
~;?
~riZ~si~;9
CI1Y OF CARMEL, INDIANA
by and through Its Board of Public
Works and Salety
J;;", j~"'CL.~~~~~U
Printed Name ./
() >..]....1'-
1ltIe
F1DrrlN: 3S- l'b~ 1'51-4
BIlf' M~r 7
' Date: -I -f)
~ ,r?!- l{AtLS0/0t
Lor S. Watson, rmb7 oJ--
Date: q It:!
ATTEST:
SSN II Sole Propri,!:or:
Date: '1- \;;I..C,'
Sandra M J
Deputy CI ohnsoJJ,
erk tor
W.:\Ihfo.I.\IrDtal",_~knkWJCIlrt''''>>kn't~~Ml'I'Ma'~II:MoA''f1 6
PART 2
BID PROPOSAL
2.1 Base Bid
The undersigned Bidder proposes to furnish all necessary labor, machinery, tools,
apparatus, materials, equipment, service and other necessary supplies, and to perform and
fulfill all obligations incident thereto in strict accordance with and within the time(s)
provided by the terms and conditions of the Contract Documents for the above described
Work and Project, including any and all addenda thereto, for the Unit Prices applicable to
the Contract Items as stated in Part 3 hereof, which Unit Prices, when multiplied by
estimated unit quantities for such Contract Items, total
0/"( ~~'V.',_J.I..jl,."1Y"^-' R,L,:, t:. J Dollars ($ Iq3..58S~ ). The
Bidder acknowledges that evaluation of the lowest Bid shalL be based on such price and
further acknowledges that the unit quantities listed in Part 3 of this Proposal are estimates
solely for the purpose of Bid evaluation and Contract award, aIld are not to be construed
as exact or binding. The Bidder further understands that all Work which may result on
the Contract shall be compensated for on a Unit Price basis lind that the OWNER and
ENGINEER cannot and do not guarantee the amount or quantity of any item of Work to
be performed or furnished under the Contract.
"EXHIBIT
A t ()
"
BlD-3
P-=rtIm br' 8lIW IlcIad of A/:ll:lcI.nlI
oo,a ~. ~...... W 1240
FclmI-.DllCRMMd2ClClOJ
CONTRACTORS BID FOR PUBLIC WORKS
PART I
(To be completed for all bids)
(Please type or print)
Date:
September 5, 2007
1. Govemmental Unit (Owner): Ci ty of Carmel , IN
2. County:
Hamilton
Address:
Yarcjberry Landscape Excavating Company
9940 S 1000 W
3. Bidder (Firm):
City/State:
Anderson, IN 46017
(765) 378-5783
4.. Telephone Number:
5: Agent of Bidder (if applicable): Tim Yarberry
Pursuant to notices given, the undersigned offers to fumlsh labor and/or material necessary to complete the
public works project of Carmel View Drainage Proiect Phase I
(Govemmental Unit) In accordance with plans and specifications prepared by
CrossRoad ~ineers and dated ? ~$- 0 :?
1&)3,S8S.
for the sum of
$
The undersigned further agrees to fumlsh a bond or certified check with this bid for an amount specified In the
notice of the letting..!f altemative bids apply, the undersigned submits a proposal for each in accordance with the
notice. Any addendums attached wiil be specifically referenced ai the applicable page.
If additional units of material included in the contract are needed, the cost of units must be the same. as that
shown in the original contract if accepted by the Govemmental Unit. If the bid is to be awarded on a unit basis,
the Itemization of the units shall be shown on a separate attachment.
The Contractor and his subcontractors, if any, shall not discriminate against or intimidate any employee, or
applicant for employment, to be employed in the performance of this contract, with respect to any matter directly
or Indirectly related to employment because of race, religion, color, sex, national origin or ancestry. Breach of this
covenant may be regarded as a material breach of the contract.
CERTIFICATION OF USE OF UNITED STATES STEEL PRODUCTS
(If appllcab,le)
I, the undersigned bidder or agent as a contractor on a public works project, understand my statutory obligation
to use steel products made in the United States. I.C. 5.16.8.2. I hereby certify that I and all subcontractors employed
by me for this project wiil use U.S. steel products on this project If awarded, I understand that violations hereunder
may result in forfeiture of contractual payments,
Jl, z-(-z.
"EXHIBiT {1 } "
~~/~i/L~~1 1/:1~
~lll~!lb~L~
CROSSROAD ENGINEERS
PAGE 05/24
Itemized Proposal
Carmel View Drainage Project Phase I . Including Misc. Dndnage Corrcctio~s at 116th and
Eden Glen Drive and alol1RWestfield Boulevard north of 1Iltb
Item # Item Quantity Unit Unit Cost Total Cost
1 Construction Emrineering 0 L8 jJ-ff
2 Mobilization / Demobilization ] L8 g,ooc' 13,000.
3 Maintenance of Traffic I L8 5" ~(}. 5000'
4 Clearing Right of Way 1 L8 . 7S".... 76000
5 Utility Exploration and Relocation 2 EA /'!!:J:)o'- 3ooC'
6 Ditch Grading 1671 LFT \2G- ..;zo,05i!.'
7 Drive Culvert Cleaning 43 LFT ;2s' \,07S.
8 Core Existing Structure I EA 750' 750'
9 12" CMP 937 LFT 47" 1.,Ii, o~.
10 12"-22.5 deg. CMP Bend 2 EA 550' l, 00'
11 18"RCP 72 LFT 65" 4,UD'
12 21" RCP 72 LFT ,2" S I Sf #
13 18" Concrete Pipe End Section 6 EA 8 'i'O .' -=;0'40 .
14 21" Concrete Pipe End Section 6 EA "iSO" SBeo-
IS Inlet, E-7 15 EA 1650- ",..1 -50'
16 B-Borrow for Structure Backfill 144 CYS 30" 4, "32-0"
17 Paved Side Ditch 230 LFT .24 . 5520"
18 HMA Surface. 9.5 mm 13 TON 130" Ib'70"
19 HMAIntermediate,19.0mm 18 TON I"., , .02160 .
20 PCCP for Driveways - 6" . 14 SYS 55" "7"'0 ..
Concrete for Street Cut Repair,. Depth.
21 12 in.. 45 SYS Ibo' 4soo'
22 Flowable Fill for Street Cut Repair 44 CY8 \C!b' t.I 'tOe ..
23 Compacted Aggregate, No. 53 Base 65 TON ..;;J1V I $ 2o~
24 Rill Rap, Revetment 70 SYS ?::s p Szsc'
25 Drop Fabric Inlet Protection IS EA \50.' 2250 .
26 Temporary Rock Check Dam 8 EA J7S~ 1400 ~
27 Temporary Silt Fence 480 LFT 3" ,j ,+40"
Erosion Control Blanket with ,1. ? s- 1-Z,o'-fS; 0'
28 Mulched Seeding 4380 SYS
Sidewalk Repair, Concrete, 4 in. 45~ t../ 770 .
29 (Undistributed) 106 SYS
30 Tree Removal, 3 in. (Undistributed) 2 EA .:;l~ ., . 400.
31 Tree Removal, 12 in. (Undistributed) 3 EA ~otY J atb(j .
32 Tree Removal, 24 in. (Undistributed) 3 EA ,/ (Jot!? ~oo",
Total 19.:J.s;;-s "
"EXHIBIT
* 31)
"
September 20, 2007
Mr. Tim Yardbeny
YARDBERRY LANDSCAPE EXCAVATING COMPANY
9940 S. 1000 W
A nderson, IN 46017
RE: Agreement for Purchase of Goods and Services
City of Carmel, Engineering Department
No. 09.19.07:02
Dear Mr. Yardberry:
On September 19,2007, the Board of Public Works and Safety approved the above-referenced
Agreements to do business with your company. Enclosed is a fully executed copy for your
records.
Please review the enclosed sample invoice, Exhibit B of your contract. Although we do not
require you to use this specific form, we do ask that you please submit the information requested
on the sample invoice in a similar layout when submitting an invoice for sei'vices rendered. This
format replaces any other form previously used by the City and is effective upon approval of your
contract.
If you .have any questions or concems, please do not hesitate to contact me at 317.571.2628.
Thank you for your attention to the above-referenced matters.
Sincerely,
Sandra Johnson
Deputy Clerk-Treasurer
Enclosures