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Cargill, Inc./Street Cargill,lne. V Ur.C4 " i .d 7..CT• O 2i Street Department-2007 g -200g-sate , AS i0 ?:ppropriatiom#2201-365:00 :P.O.#1897 FORM �Y: Contract Not To Exceed S2181488.65 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 Cargill, Inc.,("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 Agreements termsiand conditions. 2. PERFORMANCE: City agrees to purchase the goods:and/or services (the "Goods. and Services") from Vendor using City budget.appropriation number.2201-365;00 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 Two Hundred Eighteen Thousand Four Hundred EightyEight Dollars:and Sixty Five Cents ($218,488.65) (the "Estimate"). Vendor shalt°submit an.invoide to City,no,more.than once every thirty 00). 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 onan,invoice that contains the information contained on attached ExhibitB, 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 orthe Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless.City has previouslyagreed, in writing,to:payanamount 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 quotation`s regarding same•-as were provided to,Vendor by City and/or by Vender-to and accepted by City pursuant to or-as part of that certain City of Carmel Street Department Bid Proposal Package,for "2007-2008 SALT BID" received by the City or Carmel Board of Public Woks and Safety on or about August 13, 2007, ail of which documents are incorporated herein by reference, 'and that the Goods and Services-will-be delivered in a timely;.good and workmanlike manner and free from defect. Vendor acknowledges th_at.iti 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 theirparticular purpose: ¶ZiE6: 'N�Wt PIRf05iell St niRSSTFEEPLugl41nc.189'Ifo[:lu<'3M]Ikd]PMI -.t Cargill, Inc. Street Department—2007 • 200g Salt Appropriation#2201-365.00 P.O.#1897 Contract Not To Exceed$218,488.65 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. 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 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. 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 • [Z:.E6u0.\ty paummu'Prufesioua Savi[n`STREEECapll at.1697 64:I09,20011247 PM) 2 Cargill,Inc. • Street Department—2007 200$1Salt .Appropriation #2201-365.00 P.O. #1897 Contract Not To Exceed$218,488.65 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, 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. • rZ'E Bass'Aly Documents���Sa'* STREEMvBdl Irc.1897 Ecc:IPWM]J 1299 PMJ 3, Cargill, Inc. Street Department—2007 2008.Salt Appropriation#2201-365.00 P.O. #1897 Contract Not To Exceed$218,488.65 16. SEVERABILITY: If any term of this.Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 17. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel One Civic Square Carmel, Indiana 46032 ATTN: Steve Engleking AND Douglas C. Haney, City Attorney, Department of Law One Civic Square Carmel, Indiana 46032 If to Vendor Cargill, Inc. 24950 Country Club Blvd. North Olmsted, Ohio 44070 Telephone: 1-800-600-7258 E-Mail: ATTENTION: Notwithstanding the above,.notice of termination under paragraph 18 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 18. TERMINATION: 18.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at t the time of termination, unless the parties have previously agreed in writing to a greater amount. (ME eusMY Dot-auras Parma.,SmY&'STREETcvplLNt.lS 7doc'.109]ORI 12,t]PM] 4 Cargill, Inc. Street Department—2007 200$ Salt Appropriation#2201-365.00 P.O.#1897 Contact Not To Exceed$218,488.65 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'tithe order in which they are approved by City. 21. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 18 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 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 the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. (Z'E 0430741 Docama&Pro1uiowl$tnictSSTREETCrgill Inc.1 S97 doc',I000,200712.47 PM) 5 Cargill,Inc. Street Department—2007 2008 Salt Appropriation#2201'-365 00 P.p.#1897 Contract Not T°Exceed$2 t 8,488.6 26. ENTIRE AGREEMENT: This Agreement,. together with any ekhi&its attached hereto or referenced'herein, constitutes the entire agreement between Vendor end City with respect to the subject matter hereof,and supersedes all prior ipral or written representations and agreements regarding same: Netwithstandingany°other term or'condition set forth herein, but-subject to paragraph 16 hereof,.tolhe extent any term or conditionfcontained`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. • IN WITNESS WHEREOF, the parties hereto have made-and executed this Agreement as.follows: CITY OF CARMEL,IINDIANA, Cargill, Inc: by and through its Board.of Public 24950 Country Club Blvd Works and Safety North Olmsted,.Ohio 44070 • By: �� By: 1fi 7?)/i ti �1 WCSfYet % - Jarries Brainard, Presiding Officer. Authorized Signature. ate: Chet/ WOrnWV- rJ Printed Name Mary ArBurk ,;Member 1 Date: / —7 • DD' 1-K i'c.k°•-/ 'Mot VI A o1-€ r• Title �1 Lon S. Lsorn ' T FIDITI . N: LE — °1 ` 716 C? Date: '—� f' /01/07 1 SSN if Sole Proprietor: • ATTEST: Date:, f.1/45 - 3 0 - 07 ana ordra l . Chlerk-Treasurer. Date: /6/ 7 (Z:F B s4]y Parisians.Prolnfronnl SLD eeSTREETICvgll:Inc.1E974.:]a9RW7 I:etPMI 6 A n CI o ti ° EL JAMES BRAINARD, MAYOR October 2, 2007 To Whom It May Concern: The Carmel Street Department has just opened bids for road salt for the 2007/2008 winter. Cargill, Inc.. P. O. Box 98220, Chicago, IL 60693 was the low bidder. We have enclosed two purchase orders to complete this contract. One purchase order is for 2,1 35.68 tons at $56.54 per ton, for a total amount of$120, 751.35 and will be for the remainder of 2007. The second purchase order is for 2008, and is for 3,864.32 tons at $56.54 per ton for a total of$218,488.65. Added together this will total 6,000 tons for a total contract price of$339,240.00. Please do not hesitate to contact me if you have any questions. • David Huffman Carmel Street Commissioner "EXHIBIT CARME. STREET DEPARTMENT 3400 \C 7315r STREET. WEST FIELD, IN 46074 Orr•ICE 317 733.2001 FAX 317.733.2005 PART BID.PROPOSAL 2.1 ProjectRid. 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..stribt accordance with and within the time(s) provided by the terms arid conditions ;of the Contract Documents for the above described project, including any and all addenda thereto, for the total "sum of• Three hundred thirty-nine thousand two hundred forty dollars' and zero cents 'Dollars ($339,2'45, 0 J. The Bidder acknowledges;that evaluation of the lowest Bid shall be'based on such price: The Bidder further understands that all work:which.may result on the.Contract shall be compensated-for on a.lump.sum basis and that.the OWNER cannot-,and does not guarantee the amotu t:o_r quantity.of,any item of work to be performed or fum shed under the Agfeement: • 'EXHIBIT, ��' "