Poindexter Excavating/Engr,gP,Ot1VDEXTER,EXCAVATING, INC:
Engineering Department - 2008 ?
Appropriation #202-4462859=$338;2146.64; 202-R4462859-$84,214.88:;2064 Bond,-$34;356.]3;20614462300-$90;085.12;
2006Bond;$357;32650„1205-509-$5,570.83,202',-509"$$1,40,000.00; R O.,#19141
Ap?{???/. Q
Contract Not To,Exceed $1,100,500.10 P
FORM By.. . NO
AGREEMENT F.OR.PURCHASE'OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ( Agreement'') is hereby entered into by
and between the. City of Carmei, Indiana, acting by and through its Board of Publid-Works and-Safety ("City"), and
Poindexter Excavating, Inc., an entity duly authorized to do business in:the State of Indiana, ("Vendor').,
TERMS AND CONDITIONS
.ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and `understands lhis,.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. purdhase the goods and/or services (the: "Goods and Services") from Vendor using City
budget appropriation number 19141 funds: Vendor agrees to provide the Goods and Services and 'to
otherwise perform- the, requirements of this Agreement by applying of 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.Senrices to be provided to City hereunder
shall be no more than One Million..One:HundTed Thousand Five Hundred Dollars and,Ten Cents
($1,100;500.10} (the "Estimate"). Vendor shall submit an invoice to City no more than once every
thirty(30),days detailing,& 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 recept:of
Vendor's invoice detailing same, so long as and toahe extent.such Goods and Services are not
disputed', are,in accordanc&,with the specifications set faith in Exhibit A, are submitted'on an invoice
that contains the informations contained on attached, Exhibit'B, and Vendor has otherwise performed
and satisfied all the terms and conditions of this Agreement.
32 Vendor agrees not to provide any Goods and Servicesto Clty that would cause the total. cost-of, the
Goods.and Services provided by. Vendor to City hereunder to exceed the,Estimete, unless City has
previously' agreed, in writing; to pay an amount in excess thereof.
4. WARRANTY:
'Vendor expressly warrants ahaf the Goods and'Services covered by this Agreement will conform to those
certain specifications, descriptions and/or` quotations- regarding same as were provided to Vend&'by City
and/or by Vendor to and accepted by City pursuant to oras part of that':certain City of Carmel Engineering
Department'Bid Proposal Package for`"Miscellaneous West Side Road Improvements, City of Carmel Project
#08-03':' received by ttte City of?Carmel' Board'of,Public Works:and Safety on orabout-July 22, 2008, all of
which documents are incorporated herein by referenceand that the:Goods and, Se.rvices will be.delivered`in
a timely; good and workmanlike mannerand free from defect Vendor, acknowledges that itknows of.City's
intended use and expressly warrants that the Goods and Services provided to City pursuant to ttiis.
Agreement have been selected by'Vendor based. upon City's-stated use' and are fit an&sufficientfor their
particular purpose.
[ZT PasWly lbcumannVnduvimtl FmiccAFOPT191GOaL RSaxes-PN F?Ibm,4oem1311IH?5 U' l l AMI
jPOTt MEXTER.EXCAVATING, INC.
'Engineering Department- 2008
-Appropriation .#F202-4462859-5338;246[64;?202-x4462859-$84;914 88. 2004,Bond -$94,3-16.1,3;206-4462300-$90-085.12;
2006 Bond-$357;326'.50; 1205'50945;570.83, 202-509-$S i4d,000,00 ;' P-0. #119141
Contract-Not To.Exceed ' $1.100.500.10
'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'obligatiorts hereunder in -a timely manner. Time isof
the essence;of this AgreemenL
6. DISCLOSURE AND WARNINGS'
If requested by City, Vendor:shall promptly furnish to City,, in, such, form and detaii as City may direct; a list of
all chemicals, materials, substances and items used in or during the provision of'lhe Goods and Services
provided hereunde'r,• including the quantity, quality and concentration .thereof and any other information
relating thereto..At the time of the delivery of the Goodstand 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;thefiiing!of any lien on any of City's property in the event any such lien is
filed and Vendor fails,torenove such lien within ten (10) days,affer the filing:thereof, by payment or bonding,
City shall have the=right-to pay such lien or obtain such bond, all at Vendor's sole cost and expense
DEFAULT:
In the evenlNendor. (a) repudiates, .breaches or defaults under any of the terms or conditions of this
Agreement; including Vendor's warranlies;,(b) fails to provide the Goods-and Services as specified herein;
(c) fails to make progress,so as to.endanger'timelyand;prcper provisiomof-the Goods and Sewices-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. receivers-hip, makes a general assignment for the, benefit of
crecitors,o_r,"diSsolves, each such event:constituting an event,of default hereunder,,Gity'shall-have the,nghtto
(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,andfor in equity,
9. INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain,ir.full force=and effect during?the'term of this Agreement, with,an insurer
licensed.to dd busihessin the Stale of Indiana, such insurance: as is necessary for the;protectionof City and
Vendor from all 'claims for damages under any workers' compensation, occupational disease andlor
unemployment compensation act; for bodily injuries including, but- not- limited 'to,.,personal ,injury,.sickness,
disease or death of or to any of"Vendorsagents, officers,.empldyees, contractorsand`fsubcontractors; and,
for any injury to ordeslructlon of property, including; buttnot limited to; any loss of use-resulting therefrom.
the coverage amounts shall,be no less than those amounts set forth in attached Ezhibit0. Vendor shall
cause its insurers'to,name City as an additional insured on-all such insurance policies, shall promptly provide
City, uponsequest, with copies of all such policies; and shall provide ,that_such insurance policies shall not be
canceled Without thirty (3Q) days prior notice to City. Vendor small 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 andlor damages to•any person or property arising from`or_in'connection with Vendor's
provlslon of Goods and Services,pursuantto or under this Agreement or Vendor's use of City property..
?L?[9miJ?Iy 6rwmmi$RI?(WIM.+?CpVi{v'FO33MSlGrcd SSVnax -RN b.06?)?l?ti?&IliJ??0.lILI I-AFL
POINDEXTFR EXCAVATING; INC.
Eugmeering;Department - 2008
Appropriation #202-4462859-$338,246.64; 202-84462859 $84,414 88,--2004.Bond,-S84';356.13;206 4462300-$90,085;12;
20066ond'$357,32650; 1205-509-55,570.83.202-509-' $'1,40,000.00; P'O.`#1914'1
Contract14ot;To Exceed'$1,100,500.10.
Vendorfurther 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, andlor'of any of, Vendcr.'s agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These'
indemnification obligations shall survive,the termination of thiSrAgreement-
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. Vendoragrees 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 imthe provision of any Goods
and Services provided by this Agreement with respect'to their hire, tenure, terms„cantlitions,ahc1'pnv leges of,
employment and any other matter related to theiremptoyment or subcontracting, because.of'race; religion,
coior,.sex, 'handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran
status.
T2.. 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 parry'".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. NOWASSIGNMENT:
Vendor shall not assign or pled9e,tfiis Agreement; whether as collateral for a loan or otherwise, and-shall not
delegate its obligations under this Agreeme6twithout 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, ubcontractors and agehls.are employees"of City. The cortracf'price
set, forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuantto 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-provigions. The parties agree that, in the event a,lawsuitis filed hereunder,, they
waive their right to a, jury trial, agree, to'fie any such' lawsuit in ap appropriate court in Hamilton County;
Indiana only, and agree,thatsuch-court is the appropriate venue for and has jurisdiction over same.
rr+a aa++on raa???,?.s.orwa?? s??w+rownsic,w;csw??? w.v a-uc?i:ar,<eiimoos iaL .na. 3.
Engineering
2006 Bond-$35i
Contract Not To
VATING,'INC.
Bond 484356 13;206-4462300490,085.11
')004
P.O.#19141
16.. SEVEPABILITY:
If any term of this Agreement is, invalid or unenforceable underany statute; regulation, ordinance, executive
order or other rule oflaw, such term shall be deemed'Ceformed or deleted, but only to.•the:extentnecessary 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 AgreemenFwitl be sufficlentrif it is in writing and is delivered by posfage
prepaid U.S. certified mail, ;return -receipt requested,.fo the party,to be notified at the address :specified
herein:
If to city:, City of Carmel
OreCivic Square
Carmel, Indiana 46032
ATTN: Mike McBride
AND
Douglas C. Haney, CityAttorney,
Department of-Law
One CivicSquare
Carmel; Indiana 46032
If to Vendor': Poindexter' Excavating; Ins.
P.0.Box,36399
Indianapolis, indiana 46236
Telephone! 317-823-6837
Faxf 317-8234662
E Mail: dhsperry@poindexterexcavating:com
ATTENTION: David Sperry, President'.
Nolwithstariding" the above,,nohce'of.terrr ion under paragraph 18 nereinbelow?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'ahe event of a default hereunder by-
Vendor. and/or if sufficient funds, are rtotf appropriated or encumbered to pay for'the Goods and
Services'to be provided hereunder In the event cfsuch termination, Vendor shall be-entitled to
,receive only payment far `the undisputed invoice amount representing conforming, Goods and
Services delivered as of the date of;tennr ion;. except that such payment amount shall not exceed.
'the Estimate amount in effect at the:_time of termination, unless-the parties have.preyiously.agreed in
writing 'to a greater amount.
izes,raw mwin?,.w.??rzssrR?6isn,?:wroxnisctinti`s?ne,1,.nry e.os.a?nor.Fiuerne io:u nnn 4
POIMDEXTER EXCAVA
2006 Bond-$357,'-326:50;1205-509-$5,570:83:"202=509-$$140,000.00; P.0.11#1
Contract Not To Excecd $1;100,500-10
131:20.6-44623004901,085.J2;
18.2 City may terminate this Agree rent at,any time upon thirty, (30) days prior notice to Vendor: In the
eveni 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,effecfat,the'the,of termination,
unless the parties haver previously, agreed. in writing to a greater amount.
19: REPRESENTATIONS ESENTATIONSAND WARRANTIES
The parties represent and wa?rant'.that.they are.authorized,to enter into this Agreement and that the persons
executing this Agreement'have the authority to bind the partywhich they represent.
20, ADDITIONAL GOODS AND SERVICES
Vendor understands, and agrees that City may; from'time to Bme,-requesf Vendor to provide additional goods;
and services,.to City. When City,desiras additional goods and services from Vendor, the City shall notify
Vendor of such additional goods. and services desired, as well as thei time,frame in which same are'to be
provided'. Only after City-has approved Vendors time and cost estimate foi- 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: andservices, shall,such,goodsand services be:provided.byVendor
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 ar&approved by City.
2.1, TERM
Unless otherwise terminated in accordance with the termination, provisions set. forth in Paragraph 18
hereinabove,'this_ Agreement shall be in effectfrom the Eftective`Date through December 31, 2006,-and
shall, on ttie first day of each January thereafter; automatically renew for a period ofone (1) calendar year,
unless otherwise agreed by the parfies,hereto.
22. HEADINGS
.All heading and sections of-this Agreement are 'inserted for convenience only and do not form apart of this
Agreement nor limit; expand or otherwise-alter the,meaning ofany provision hereof.
23. BINDING EFFECT
The parties, and their respective officers, officials, agents, `partners, successors, assigns and legal
representatives, are '-bound`to'tiie:ottier witft_respect to all of the covenants terms, warranties and obligations
set'forth in.Agreement.
24. NOTHIRD'PARTYBENEFICIARIES
This Agreement gives no rights orbenefitsto anyone other. than City'antl Vendor.
25, ADVICE OF COUNSEL:
The paftieswarranfthat they have read this Agreement and understandit, 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 ahy.duress, undue influence'orcoercion.
ize.,.x.,w,p.,ornrtE.a,?mza.x?ox?.sw?,?nxrew.,?R-w*encm a„vi.inui?iuiin:n 5
POINDEXTER EXCAVATING. INC.
Engineeting Department - 2008
Appropriation U02.4452859.5338:346.64: 202-8440959-S84.914.98t 2004 Bond -SE4,35E.13 206.4462300-590,085.12;
2000 Bond-5357,326.50; 1205-.503-55.570.83. 202=§09-5S'14U;000.00; Y.O..#14941,.
Contract Notll Lxcced-$1,100,500.10
26. ENTIRE AGREEMENT:
ThisiAgmement. together with any exiibiis,attached, hereto or referenced herein, constitutes the entire
agreement between Vendor and City with respect to-the subject matter hereof, and supersedes all prior.ora
or written representalions°and agreements' regarding same, Notwithstanding any other term or condition set
forth herein, but subject to paragraph 15 hereof jo-the;extent any term or condition contaihed'in any exhibit
attached to this Agreement or' in any document referenced herein conflicts with any term 61 condition
contained in this, Agreement, the term or condltidn;contained' in this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest.
IN WITNESS WHEREOF. the parties hereto have made and executed I.Ns.Agreement.as follows,
CITY OF CARMEL; INDIANA
POINDEXTER EXCAVATING. INC.
by and through its Board of Public
Works and Safety
By: By:
Gaok H/:
es Brainard, Presiding Officer Authorized Sighature
Printed Name 1---?
mery AnnpurKe, tme ner
Date: c9zQ =Z2V ??eSt G? P'Vl?
f Title
Lori 5: Nratson, f - ell r FIDlTIN> ?)CI HU t?$ cl
Dace: g1 SDI L
SSN if Sole Proprietor
Date:, '7) ? 7 ' 0`6
INII!)•:n.) t?......ieW.ua...ai sin-s.:IPM44Viim1H 5?!;?.?:.: e_,. i.01: V1.3._.II V1?? le 11 NII 6