Butler, Fairman & Seufert, Inc./Engr Cook s# *o( • It; • O8'•03
5 Butler. Fairman and Seufen. Inc.
Engineering Department—2008 APPROVED -
Software Purchase/Maintenance Agreement — FORM �Y TO
Appropriation#206-4462838; P.O. #17776 O�
Contract Not To Exceed S8.800.00
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
Butler, Fairman and Seufert, 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 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 206.4462838 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 Eight Thousand Eight Hundred Dollars ($8,800.00) (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 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 "Software Purchase/Maintenance Agreement "received by the City of
Carmel Board of Public Works and Safety on or about December 12, 2007, all 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 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.
R'E 6.ti.1y CorumulliRofni,o I Sm'Ica'FORiSOomb&Smko-Re 6M02 Coo:@!la'&X&2 43 PMI
Butler, Fairman and Seufert. Inc.
Engineering Department—2008
SoftwarePurchase/Maintenance Agreement
Appropriation#206-4462838: P.O.#17776
Contract Not To Exceed$8,800.00
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 pf City's property. Ih 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 inequity.
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
[ZIEBnsMy Mvmmis'Pro1s.ikkcal 5444ics FORMS Goods&Sm%as•R44 S.O>01 Ettc.UJI9'2OO1248 RM] 2
it
Butler, Fairman and Seufen, Inc.
Engineering Department—2008
Software Purchase/Maintenance Agreement
Appropriation#206-4462838: P.O. #17776
Contract Not To Exceed 88,800.00
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.
frE llos My D -ummNP,afcuion4I Smim`FORNIS Coals Sent.-Re,ettrel dor-1211920072:46%IJ 3
Butler, Fairman and Seufert, Inc.
Engineering Department—2008
Software Purchase/Maintenance Agreement
Appropriation#206-4462838; P.O. #17776
Contract Not To Exceed S8,800.00
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 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: Amanda Foley
AND
Douglas C. Haney, City Attorney,
Department of Law
One Civic Square •
Carmel, Indiana 46032
If to Vendor: Butler, Fairman and Seufert, Inc.
Address: 8450 Westfield Blvd, Suite 300
Indianapolis, Indiana 46240-8302
Telephone: 317-713-4615
E-Mail: ,j6ran/E36+C5-En7r. ce rn
ATTENTION: John W. Brand.
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, exceptthat'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.
(Z‘EMs r ,rasavf'milswica'FORM5CWhs 5m ices•Res A00-07 dm:12)197 724$raj 4
• ''Butler, Fairman and Seufeit, Inc.
Engineering Department—2008
Software Purchase/Maintenance.Agreement
Appropriation #206-4462838; P.O. #17776
Contract Not To Exceed$8,800.00
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
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.
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, 2008, 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.
IZ'R Bd& Iy Documanstroferisional Swk&WORMS Goods Unitts-Rev B-WU]d(x:131192ool 2:4 PM] '
Butler, Fainnan and Seufert, Inc.
1?ngincering Department—2008
So aware Purchase/Maintenance Agreement
Appropriation#206-4462838; P.O. #17776
Contract Not To Exceed$8,800.00
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.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA BUTLER, FAIRMAN, SEUFERT, INC.
by and through its Board of Public
Works and Safety
By: : anaiu '
Li • LC'
á1n4ng0ffic re
te:
John W. Brand
Printed Name
Mary Anr urke, Member j President
Date: // //
Title
1 Lori Si Watson r lembe FID/TIN: 35-1063590
Date: I e -0
SSN if Sole Proprietor:
ATTEST: •
Date: January 8. 2008
Di/ :a:ordraYtrk-Treasurer
Date: /—/(v -0 e
•
ALE On.My Ourvnun[Aaln,i.,ual Saskc,IORMS G h&S n,n R[.B-W 9J x.P2'O?OO "" 6
SOFTWARE PURCHASE AND MAINTENANCE AGREEMENT
1. IDENTIFICATION OF THE PARTIES. This Agreement, dated the lips—day of
,a dwt+ ry , 200 9J , is made between Cki of CcwMel , (the "Customer") located at
t fr,,,wz..f / , e/0t4NR, Indiana 44a3Land Butler, Fairman and Seufert, Inc.
(the "Developer") located at 8450 Westfield Boulevard, Suite 300, Indianapolis, IN 46240-8302.
2. PURPOSE OF AGREEMENT. The Customer desires to purchase Operation MS4 software
from the Developer and to retain the Developer to provide the computer software maintenance
for its Operation MS4 software. The Developer is ready, willing and able to provide this service
and agrees to do so under the terms and conditions set forth in this Agreement.
3. DEVELOPMENT OF SOFTWARE. The Developer shall develop Operation MS4 software
and provide one licensed version for exclusive use by the Customer Key Contact.
4. MAINTENANCE OF SOFTWARE. Beginning on the day of the execution of this agreement
the Developer shall provide the following maintenance and support services:
(a) One Customer identified Key Contact shall have access to Developer's remote
support personnel,and
(b) telephone hot-line support during the Developer's normal days and hours of business
operation. Such support shall include consultation on the operation and utilization of the
Software; and
(c) error correction services, consisting of the Developer using all reasonable efforts to
design, code and implement programming changes to the Software, and modifications to
the documentation, to correct reproducible errors therein so that the Software is brought
into substantial conformance with the Specification, and
(d) updates and enhancements to the current licensed version of the Software
The response times for correcting errors are as follows:
LEVEL ONE RESPONSE: Where a major fault occurs such that a business critical
function is not operational and major user inconvenience is being caused then; between
7 a.m. and 5.30 p.m. Monday through Friday the Developer shall endeavor to respond
within four hours; or
LEVEL TWO RESPONSE: Where a fault occurs such that a.function is not operational
but a workaround is available and is causing significant user inconvenience then;
between 7 a.m. and 5.30 p.m. Monday through Friday, the Developer Solutions shall
respond within one day; or
LEVEL THREE RESPONSE: Where a fault occurs such that a non-critical function is not
operational and is causing an inconvenient problem but is not causing significant user
inconvenience then; between 7 a.m. and 5.30 p.m. Monday through Friday, the
Developer shall respond within three working days; or
LEVEL FOUR RESPONSE: Where a fault occurs such that a cosmetic, non-urgent
problem is being caused, e.g. a field is in the wrong position then; between 9 a.m. and
Page 1 a`EXHIBIT___A l � 3 ��
t i
5.30 p.m. Monday through Friday the Developer shall respond within five days.
5. PAYMENT FOR SOFTWARE. The Customer shall .. e Developer for one licensed
version of Operation MS4 software, the lump sum of .00 payable within 30 days of
execution of this Agreement.
6. PAYMENT FOR MAINTENANCE. The Customer shall pay the Developer for' aintenance
and support services for one Customer Key Contact, the annual sum of .00 payable
annually in advance, beginning on the day of the execution of this Agreement. The annual sum
for maintenance may increase for calendar year 2009 and beyond. The annual increase may
not exceed 25% of the previous year without written approval by the Customer.
Additional Customer Key Contacts access may be added for the annual sum noted above.
7. THE CUSTOMER'S ROLE IN MAINTENANCE. The provision of the maintenance and
support services described above shall be expressly contingent upon the Customer promptly
reporting any errors or issues in the Software or related documentation to the Developer. The
Customer shall not modify the Software without the Developer's written consent
8. TERM OF SUPPORT. Subject to timely payment by the Customer of the annual
maintenance fee, the Developer shall provide the maintenance described above for a period of
1 year after completion of the development work under this Agreement.
9. THE CUSTOMER TERMINATION OF MAINTENANCE. The Customer may discontinue the
maintenance services described above upon not less than 90 days' written notice to the
Developer.
10. LIMITATIONS OF THE DEVELOPER'S LIABILITY TO THE CUSTOMER.
(a) In no event shall the Developer be liable to the Customer for lost profits of the
Customer, or special or consequential damages, even if the Developer has been
advised of the possibility of such damages.
(b) The Developer's total liability under this Agreement for damages, costs and
expenses, regardless of cause, shall not exceed the total amount of fees paid to the
Developer by the Customer under this Agreement.
11. OFFERS OF EMPLOYMENT. The Customer undertakes that no offers of employment will
be made to any employee of the Developer or introduce to a third party as a result of work
carried out by the Developer on behalf of the Customer during the currency of this agreement or
for a period of 12 months after its termination without the prior consent of the Developer. Such
restrictions shall also apply in respect of any person under contract to provide his of her
personal services to the Developer or the Customer
12. LEGAL FEES. If any legal action is necessary to enforce this Agreement, the prevailing
party shall be entitled to reasonable legal fees, costs and expenses.
"EXHIBIT K�� "
Page 2
t
13. GENERAL PROVISIONS.
(a) Complete Agreement. This Agreement together with all exhibits, appendices or other
attachments, which are incorporated herein by reference, is the sole and entire
Agreement between the parties. This Agreements all prior understandings, agreements
and documentation relating to such subject matter. In the event of a conflict between the
provisions of the main body of the Agreement and any attached exhibits, appendices or
other materials, the Agreement shall take precedence.
(b) Modifications to Agreement. Modifications and amendments to this Agreement,
including any exhibit or appendix hereto, shall be enforceable only if they are in writing
and are signed by authorized representatives of both parties.
(c) The Contract. Any contract to which these conditions apply will in all respects be
constructed and operated according to US law and will be subject to the US courts.
(d) Notices. All notices and other communications given in connection with this
Agreement shall be in writing and shall be:delivered personally to the recipient's address
as appearing in the introductory paragraph to this Agreement
Any party may change its address appearing in the introductory paragraph to this
Agreement by giving notice of the change in accordance with this paragraph.
(e) No Agency. Nothing contained herein will be construed as creating any agency,
partnership,joint venture or other form of joint enterprise between the parties.
13. SIGNATURES. Each party represents and warrants that they are duly authorized to
bind their respective principals by their signatures below.
DEVELOPER: CUSTOMER:
a/1a
John W. Brand
enerkact—
J »
"EXHIBIT A.
Page 3