Yardberry Landscape/EngrAS TO
.11 Yardberry Landscape Excavating' Company lD ?l D? y O By- D,
?Engineenng Department'-2008..
Appropriation42200-R4462200-$254:800:00;-203-R4462200-$22',955-18;,203-4462200432'381.22; 211-R4452200-
$51,02d 60; P;0_#197,75
ContracrNot To:Exceed $361;160.00
AGREEMENT FOR'PURCHASE-OF GOODS AND SERVICES
THIS AGREEMENT'FOR' PURCHASE OF GOODS AND SERVICES ("Agreement") is hereby entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("City"), and
Yardberry Landscape Excavating Company, an entity duly authoriied.'t_o do business ;in the State of Indiana
("Vendof').
TERMS AND CONDITIONS
ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges ihat'it has read and understands this Agreement, and "agrees that its execution.of
same constitutes its acceptanmalf all of. the Agreement's terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods 'and/or services. (tlie "Goods and Services'') from Vendor using City
budget appropriation number, 2200-84462200, 203-R4462200; 203-446220021 funds. Vendor
agrees to provide the Goods and Services and to otherwise- perform the requirements,of this Agreement by
applying at all times the highest' technical and industry standards.
3: PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the totai price forthe Goods and Services to be provided to City Hereunder
;shall be no more than Three Hundred. Sixty-One Thousand One Hundred Sixty Doilars'
?$S61,160.06) ((he "Estimate"). Vendor--shall submit an invoice to City no more than once every thirty
(30) days.;deta1 ng the-G6ods and Services provided'to"City within-such time period. City shall pay
Vendor'for such Goods,and=Services within sixty @0),days after;the date of'City's receiptof 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, arembmitted 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
12 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 pagan amount.in excess thereof:
WARRANTY:
Vendorexpressly 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
andlor by Vendor to and accepted,by City pursuant to or as part of-that certain City of Carmel Engineering
Department Bid Proposal Package for "Project #08-o8, Main;Slreet-Sidewalk -.Phase 1'' received'by the City
of Carmel Board of Public.Works'and Safety on or about September3,;2008, 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'freefrom.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,useand are fit and sufficient fortheir' particular purpose.
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Yardberry Landscape Excavating Company
Fngineering Department, 2008
Appropriation fJ2200-R4462200-$254:800.00;203-R4462200-522,955.1$; 203-4462200-'$32.3811`.22; 211-R4462200-
$51,023.60; P.O.#f19775
Contract Not To Exceed $361,160.00
5. TfME AND'PERFORMANCE:
This Agreement shall become effective as of the last date on'which of 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 ahe quantity, quality and concentration. thereof ant},any other information
relating thereto. At the, ime of the delivery of the•.Gcods,and Services provided hereunder, Vendor agrees to
furnish to City sufficient written Warning and notic6.(including appropriate labels on:containers.and packing)
of any hazardous,material utilized in or that isa part of,the Goods and Services.
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
fled-and Vendor.fails to,remove such lien within ten (10) days after the filing thereof; by payment or bonding,
City shall have the`rightto pay such lien or obtain such bond, all at Vendor's sole cost and expense,
a. DEFAULT:
In the event Vendor: (a) repudiates, :breaches or defaults under any of the terms or conditions of this
Agreement, including Vendor's warrantles (b) fails to,provide`the Goods' and Services as specified herein;
(c) fails to make progressso 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;evem of "default liereunder; 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 availableit Eity at law and/or'in,equity.
9. INSURANCE AND INDEMNIFICATION:
Vendor shall procure and mainlain.in full fofce 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:protectionof 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 ordeath,of-or to any of Vendor's agents,, offcers,.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: fhan 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 policiesshall,not be
canceled" without'ttlirty(30) days:prior'notice to City. Vendor,shall indemnify an 'hold harmless City from and
against any,and all liabilities, claims, demands or:expenses (including,: but not Iimited;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'pursdant to or under this Agreement or Vendors use of City property.
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Yardberry Landscape Excavating Company
Engineering Department.-2908
Appropriation #2200-R4462200-$254;800.00; 203-R4462200-$23;955:18;`203-4462200-$32.381:22: 21 i-R4462200-
$51;023.60;- F,O.-#119775 - "
Contract Not-To Exceed $361,160.00
Vendor further agrees to'indemnify, defend and hold harmless City andits officers, officials, agents and
employees from sli claims, and, suits of whatever type, includiriliufnot limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission, of Vendor,andlor of-,any of Vendors agents,
officers; employees, contractors or subcontractors in the, performance of. this Agreement. These
indemnification obligations shall survive the terminatiorrof this Agreement..
10.. GOVERNMENT COMPLIANCE:
Vendor agrees to complywith all,federal, state and.local laws, executiveordersi rules, regulations and, codes
which may be applicable'to Vendor's performance of its obligations under this Agreertienl, and.all relevant,
provisions`ahereof 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,indemnificatlon 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
discnmination:against any employee, applicant for employment or other person in,tfie 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 6ecause?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_hot
affect the right of such partyto require such performance.at any time thereafter,, nor. shall the waiver by any
party of a breach of any provision of this Agreementconstitute a waiver of any succeeding breach of the
same or any other provision hereof.
13. NON-ASSIGNMENT,:
Vendor shall notassign-.orpledge 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 irl: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 maximdrn 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.ahd governed by'the laws',of the State.of.Indiana,
except for its conflict of laws"prodisions., The parties agree that; in.the event a,lawsuit isrfiled hereunder, they
waive their.rightao 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 venuefor and has jurisdiction over same..
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Yardlierry Landscape Fwavating Company
Engineering Department -2008
Appropriation #2200-R4462200-5254,800.00; 203=R4462200-522955)18 203-4462200-X532381`22; 21 i-R4462200-
$51,023.50; P.O #19775'
Contract Not;To Exceed 5361,160:00
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 shad 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 foirce and effect.
17. NOTICE:
Any notice provided for in this,Agreement,will be sufficient if it is to writing and is delivered by postage
e notified at the address specified.
prepaid U:S, certified mail-, return receipt requested, to'the party to be"
herein:
If to City: City of Carmel
One: Civic-Square
Carmei,andiana 46032
ATTN: Mike McBride
AND
Douglas C: Haney; City Attorney,
Department of Law
One dvic Square
Carmel, Indiana 46032.
If to"Vendor: Yardberry Landscape Excavating Company
9940 W. 1000 W.;
Anderson; indiana.46017
Telephone' 765=378,5783
E,Mail; tyarberry,@acl.com
ATTENTION: Tim Yardberry, Owner
Notwithstand ing'the above;,notice;of termination under,paragraph 18 hereinbelow shall be effecNe.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 Agreemenh_for cause, in`the:eyent 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.pf the date.of termination, except,that such payment amount shalt not exceed
the Estimate amount in effect at the-time of termination, unless-the parties,have previously agreed in
writing to a greater amount.
Yardberry Landscape Excavating.Company
Engineering Department - 2008
Appropriation #2200-R4462200-$254;800.00; 203-114462200-522;955118;; 203,4462200-$32381.22;"211-84462200-
551,023.60; P;0.#19773
Contract Not.To Exceed $361,160.00
18.2 City may terminate this Agreement at any time upon;tiirly (30) days' prior notice to Vendor: 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 paymentAmount shall notexceed the Estimate amount in effectat the time of termination,
unless the parties have previously agreed in writing1o a,greater amount
19. REPRESENTATIONS AND WARRANTIES
The parties represent and.warrant•that they are authorized to enterinto_this Agreement and that the persons
executing this Agreement have the authority to bind the party which-they' represent.
20. ADDITiONAL.000DS 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,seryices, 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'oftt e City's,authorizatton documeritstforthe 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 Agreemeit;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 n0l"form;a part of this
Agreement nor limit,.expand or'otherwise, after the meaning of any provision fiereof.
23. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners,. successors, assigns, and legal
representatives, are bound to therother with.respect to all,ot,the covenants, terms, warranties?and obligations
set forth in Agreement.
24. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to ariyone other than City and Vendor.
25. ADVICE OF COUNSEL:
The parties,warrant that they have'reaflhis Agredit*t 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, untlue.influence or coercion.
[Z15 fi'aaAMY I#?mmtlWaf i®al5oncePENGINEERIN4'1EIXI111YVtlMrf Ex[a'n?mA? &5,- 1.r'. 1' 1512fy l L;IV AM]
00/23/2008 11:28 FAX 765376 03778- YARDBERRY LANDSCAPING CO
09/23/2008 TUB 11123 PAZ 31'71571. 2939 CITY OP CARIOL
721002
0907/012
Yardbe y;LandsoapeExCavating Company.
Engineering Department - 200$
Appropriation #2200-84462200-8254,800:00;-203-84462200-$22,955:18;203-446220p432.381.22,^113-R4462200-
$ 51,023.60; 'P.O. #19775
GonrractNot To Exceed $361.160.00
26. ENTIRE'AGREEMENT:
This Agreement,.,together with any,exhibits..attached_hereto or referenced herein, constitutes the entire
agreement between Vendor aid 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 hsrejn,'but.subject to paragraph 16 hereof, to the extent any term of condition•contained in any exhibit
attached to, this "Agreement or in any document. referenced herein conflicts with any term or condiiion-
contained in this Agreement, the term or co ndition:,contained;in this Agreement,shsll.govern and prevail,
This Agreement may only be modified by written amendment executed by bath parties "hereto, or their
successors in Interest.
IN WiTNESS WHEREOF, the parties,herete.have made, and execi ted'this Agreement as, follows:
CITY OF CARMEL, INDIANA
YARDBERRY.I_ANDSCAPE EXCAVATING
COMPANY
by and through its Board`of Public
WorRs and Safety
By:
ATTEST:
a a Cords i C, rk-Treasurer
ate:
tho ze gnature
Printed'Nsme..
Title
FIDFTIW 3s- tgi'"i i4
SSN if Sale Proprietor:
Date q, _ ? 3 -08
't?C OmNi.IM„ISNFY'IRMImiM YuvseldMOIAFQM(.?i4Fm?i?1?tY CrwWIM6 Gmu ? imrslar W tYhY? 1 ?;l! AAII.
Wv'sa,7 t
James Brainard. Presiding Officer
X
V
Aik
City of Carmel
Main Street.Sidepath - Phase
ITEMIZED PROPOSAL
Item D
i
ti
I Q
tit
, Unit Unit Cost Total Amount
tem
escr
p
on uan
y .
1 Mobilization/Demobilization 1 LSUM I. Soot l2•?ad'
2 Construction Engineering 1 LSUM
3 Clearing 1' LSUM 0, 00o ° Q , O oo "
4 Trees, 6"„Remove 3 EA soo' 1.506"
5 Headwellsand Partial Stone Wall, Remove 1 LSUM Soo " .2.Soo'
6 Valve Covers, Adjust to Grade 3 EA a0
°
1,500
7 B-Borrow for Structure Backfill 271 CYD 22? 5962
8 Flowable BackFill for Pipes 44 CYD 1.5. S 060 `
9 Storm Sewer Pipe, 12" 354 LIT -5 ' (5,930-
10 Storm Sewer Pipe, 18" 487 LFT 5a?' .214,350-
11 Draintile; PVC, 4" 20 LFT S0 5o0 `
12 Arch CMP, 95x67 16 LFT .37 3 79Z `
13 Inlet E-7 8 EA 't.50 11,6606
14 Inlet J-10 .5 EA 1,45o, , z Sd '
15 Manhole C-4 3 EA ao= S yoo'
16 Cared Holes-in Structures 2 EA 800
"
('600
17 Class A Concrete-for Structures 1b CYD 47 T -T ° j q, 2S `
18 Geote)Wle. 30 SYD. S ° 150 `
19 Class 11 Ri ra 15 TON dD , o 0 `
20 Curti Ram s incl. truncated domes 96 SYD / c Iq 8o '
21 4" Concrete Sidewalk 1,342 SYD r' 6575 `
22 Concrete Sidewalk, Removal 98 SYD: o ` 980 `
23 Concrete Curb & Gutter 550 LFT 600 `
24 Concrete Curb 220 LFT X2111 5.2%86 °
25 Concrete Curb or, C&G Removal 250 LIFT `5 ° 25b `
26 Concrete Pavement for Drive, 6" 224 SYD ?1 l $ `
27 Modular Block Retainin Wall 70 LFT 2,5 " 750 °
28 RebuileStone Wall 20 EFT 13o' .6,01 `
29 Pedestrian Railing 36 LFT 93 ° • `1' &
30 Flowabie Backfill for Roadway "Patchin '30 CYO , C Sb "
31 Linear Grading 2,085 LFT o a 2 or 850 `
32 Unsuitable. Materials Remove/Replace
undistributed
250
CYD
s:-
8-2.500
33 Compacted A . ForBase,.53 358 TON .2 s ? 54)2 a
34 HMXSurface for Road Patching 12 TON /5 . 3 8 C) s
35 Maintenance of Traffic 1 LSUM 10,066. 000`
36 Construction Signs, A '20 EA
37 Barricade, Type III undistributed 12 EA 2.5` Sa
P-3 "?1C?1?121 c ?-•~ g9
38 Sift Fencing 975 LFT 60
39 Construction Fencing 200 LFT 1-00`
40 Ditch Inlet Protection 7 EA '
41 Curb Inlet Protection 6 EA
42 Tree Protection 6 Trimming 1 LSUM mom -7Z/-,F00 r
43 Topsoil undistributed 150 CY s , 6,10-
44 Sod Nurse 2100 SYD $ y0 0
45 W a t e r 1 LSUM ead' o a o
46 Signs, Relocate 6 EA boa" I , Z o 0 °
47 Mailbox Relocate 10 EA so o'
48 aC Testi / Videotaping 1 LSUM acto ° 066'
TOTAL:
"EXHIBIT L 93
P-4