Yardberry Landscape Ex/EngrAPPROVED, AS TO
FOW BY:
Yardberry Landscape Excavating Company '
Engineering Department -.2008
Appropriation #2200-R4462200-$254,800.00;203-R4462200-$22,955.18;203-4462200-$32.381.22; 21I-R4462200-
$51.623.60; P.O. #19775
Contract Not 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 authorized to do business in the State of Indiana
("Vendor").
TERMS AND CONDITIONS
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 2200-R4462200; 203-R4462200; 203-4462200; 211-R4462200; 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 Three Hundred Sixty-One Thousand One Hundred Sixty Dollars
($361,160.00) (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 "Project #08-08, Main Street Sidewalk -Phase 1" received by the City
of Carmel Board of Public Works and Safety on or about September 3, 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 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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Yardberry Landscape Lxcavating Company
Engineering Department.- 2008
Appropriation #2200,84462200-3254;800.00;203-84462200-$22,955.18;203-4462200-$32.381322;211-R4462200-
$51,023.60; P.O.#39.775
Contract Not To Exceed $361.160.60
5. TIME-AND, PERFORMANCE:
This Agreement shall become effective as of tthe last date on which a party hereto executes same ("Effective
Date"), and both parlies,shall thereafter perform theihobligations- hereunder.in a,timely manner. Time is of
the,essence of this Agreement,
6. DISCLOSURE AND WARNINGS:
If requested by City; Vendor shat( promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and iitems, 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 sufficieht written warning and notice (including appropriate labels on containers-land pack ing)
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 Gity`s property. In the event'any such lien is
filed and Vendor fails to ferneve such lien within ten (10) day's after the filirig-thereof, by pay'nnent 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 Vendors warranties; (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 Cityspecifying.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.cgnstituting,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.
INSURANCE AND INDEMNIFICATION;
Vendor shall procure. and'maintam in full force and effect,during the term of1hisAgreement, with an insurer
licensed to do-business in,the State of Irdiana,.such insurance as is.necessary for the protection of City and
Vendor from all claims for damages under any workers' compensation, occupational disease andlor
unemployment. compensation act, for bodllynjuries including, but not limited_to, persona; 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, iircludingi 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.suci :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 withoutthirty (30) days. priornotice to City. Vendor'shall,indemnify and-hold harmless Dty'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 oir under this. Agreement or Vendor's use of City property.
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Yardberry Landscape Be avating.Company
Engineering Dcpaitment-:2008
Appropriation #22007844622004254,800 OOC 203-84452200-522,955:18;`203-4462200-$32.381.22; 21 I-R44622oc-
$51;023.60; 0.0.-#19775
Contract Not, To Exceed $361.160.00
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, buLiiot 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 terminaticn,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 Vencl&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. hit laws; of the United States, the State of Indiana and City prohibiting
discrimination againstany employee, applicant for employment or other person'in the provision of any Goods
and Services provided by this Agreementwith,respect to their.hiire.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 ofany provision of this'Agreement shall not
affect the right of such party to require such performance,at: any time thereafter;-norshall 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 hereoi
13: NOWASSIGNMENT'.
Vendor shall notassign'on pledge this Agreement, whether as collateral for a loan or otherwise; and shall not
delegate.1s. 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 norany
of its officers, employees, contractors, subcontractoils4nd agents-are employees of City. The contract price
set fort In herein shall be the full and maximum compensation and moriies required of City to_be,paid to
Vendor under or pursuant tottis.Agreement..
15. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed.by the laws-of the-State of jrdiana,.
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.iury 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:
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Yardberry LandkardT3wavating.Company
Engineering Department-. 2008
Appropriation#2200-R4462200:$254,800:00.203`-R4t362200=$22;955.181 203-4462200432.381:22.21I R4462200
$51.023.60; Y:O.A19775
Contract Not 7;a Exceeds $361,160.00
16, SEVERABILITY:
If any term„of'this,Agreement is,ihvaW or unenforceable under --any statute, regulation, ordinance, executive
order or other rute.of law; such term shall be: deemed.reformed',or deleted, but only to the,extent necessary to
comply with,same, and the remaining proGisions of this Agreement shall,remafn in full force andeffect.
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, too- 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 W. 1000 W,
Anderson; Indiana 46017
Telephone:; 765-378-5783
E-Mail: iyarberry@aol:com
ATTENTION:'. Tim.Yardberry, Owner
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 setforth hereinabove within five (5) business days from
the date of such orar.notiee.
18. TERMINATION:
18.1 NoWthstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, 1mmediately°terminate, this Agreement. for cause, in'the event of a default hereunder by
Vendor andlor 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 thavsuch.paymentamount shall not exceed
the Estimate amount in effectat the time of termination, unless the parties have previously agreed;in
writing, toa greater,amount:
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Yardberry Landscape Excavating Company
Engineering Department - 2008
Appropriation #2200-3844622004254,800.00. 20344462266-$22,955.18; 203-4462200432.381 :22:211-R4462200-
$51,023.60; P.O..419775
Contract Not-To Exceed $361,160.00
113.2 City may terminate this Agreement at any time upon, thirty (30) days prior notice to Vendor. Inrthe
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'thee Estimate. amodrit;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 agreesthat`City may, from time'lo 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,whlch 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 ehcumbered sufficierit monies :to pay for same, and has authorized Vendor; in
writing, to provide such additional goods -and services shill such goods and services be'prodided by Vendor
to City. A copy Of the City!s_authorization documents for the`purchase of additional gdods;ar1services shall
be numbere&and attached hereto in they-ordIer in which they are approved,by City:
21. TERM
Unless otherwise terminated in accordance with (he termination provisions set forth in Paragraph 18
hereinabove, this Agreement shall be in effect ffom the Effective Date through December 31, 2008, and
shalt, on the first day of each January thereafter, automatically renew for a period of one (3) calendar year,
unless otherwise agreed by'the,p.arties hereto..
22. HEADINGS
All heading and_ sections of this Agreerilenf are inserted for conyehience 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'lheother 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:
;read;this Agreement and understand
Theparties warrant thatthey have it, have had the cpportunity 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.
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09/23/2008 11;'28 FAX 765 378 0576 YARBBERRY LANDSCAPING Cp
99/23/20,00 TUU 11123 FAE 31'7 571 2439 CITY OF CARNSL
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YardbeMU. Ld9eape BvayRting COmPany
Engineering Dgwtmefu -2008
Appmpndtioq#2200•R4462200.8254,600.00; 203-R4462200-$22,955,18;203-4462200-$32-391.22.21 =84462200-
$51,023.60; P:Q.#14775
CiintraehNot To Exceed 5361,160.00
26. ENTIRE:AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, oonstitutes the entire
agreement between Vendor acid City with respect to the subject matter hereof, and supersedes all prior oral.
or written representetionsandIagreements.regarding same, Notwithstanding, any other term or condition set
forth herein, but, subject to paragraph 4fi hereof, to the extent any term orwr4tion,contained in any exhibit
attached to this Agreement or in any dDCUment referenced herein conflicts wlth any term or condition
contained' in this Agreement, the term or condition contained in this AgreemeZshall govern and prevail.
This Agreement may only 6e modified by written amendment executed by:both parties hereto; or their
successors.in `interest.
IN WiTNESS'WHEREOF, the parties,hereto'riaye made and executed,this Rgreement'as'follow$:
CITY OF CARMR, INDIANA
YARDBERRY LANDSCAPE EXCAVATING
COMPANY
by and through its Board of Public
Works and Satety
By:
ATTEST:'
D' a-Cobra 1' C; rk-Treasurer
On
tho ze ignature
:S.- J". ,-I
Printed Name:
Title
FIDITIN; 35 191-IS-24
SSN it Sole Proprietor.
Date; 1-d 3-09
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,(/CF- 9VUa17 t
James Brainard, Presiding Officer
X
x
City of Carmel
IVlain.Street-Sidepath -,Phase ITEMIZED PROPOSAL
Item t a
ti ` Unit st
Unit C Total Amount
I
em Description u
n o
.
1 Mobilization/Demobilization 1 LSUM i - •50c,
2 Construction Engineering 1 LSUM. e,000 Q g coo,
3 Clearing 1 LSUM O, 00o.4 O, o 00 '
4 Trees; 6", Remove. 3 EA boa • /, 5 a 6'
5 Headwalls;and Partial Stone Wall, Remove 1 LSUM 500
6 Valve Covers Ad•ust to Grade 3 EA oo " (•So 0 °
7 B-Borrow for Structure Backfill .271 CYl) 2z $ Z 96 2-
8 Flowable BackFill for Pipes 44 CYD /5 m S o 60 `
9 Storm Sewer Pi' e, 12" 354 LFT 's ° is, 3a "
10 Storm Sewer Pipe, 16" 487 LFT :50 .2 50 °
11 ,Draintlle, PVC 4" 20 LFT S0 500.
12 Arch CMP, 95x67 16 LFT 37 °f 31-2130 A
13 Inlet E-7 8 EA 450 ' .60c>
14 Inlet J-10 5 EA /430, . L SO °
15 Manhole C4 3 EA so` S `i °p
16 Cored Holes in Structures 2 EA god' 1, 6 oo
17 Class A Concrete for Structures 15 CYD ° LtA2_S__
18 Geotextile• 30 SYD S ° ):So `
19 Class 11 Ri ra 15 TON 6o s D 6 `
20 Curb Ramps incl. truncated domes 96 SYD 1.36 v z:4 go "
21 4" Concrete Sidewalk 1,342 VI) 9 65?5
22 Concrete Sidewalk, Removal 98 SYD o=` 9,8,6 `
23 Concrete Curb & Gutter 550, LFT O , 600.`
24 Concrete Curb 220 LFT L'>' d S,z$o
25 Concrete Curb orC&G Removal 250 LFT 5 ° , 256 `
26 Concrete Pavement for Ddve, 6"' 224 SYD 2,
27 Modular Block Retaining Wall 70 LFT' Z5" 73-0 °
28 Rebuilt Stone Wall 20 LFT 1,36' ' ;?.66is `
29 Pedestrian Railing 36 LFT Q Q cf g,. L?l 19
30 Flowable Backrill for Roadway Pstchin " 30 CYD 1(541
S6 °
31 Linear Grading 2,085 LFT b X 0,: 856 `
32 Unsuitable Materials Remove/Replace,
undistributed
250
CYD
3 S °
?50 °
33 Compacted Aga. For Base, 53 358` TON 2 y ' 01592 a
34 HMA Surface for.Road Patching 12 TON /S °
'
A-380"
35 MaintenanceofTraffic 1 LSUM 0 • 0016 `
36 Construction Si ns;.A 20 Fes` ;2 ao° o oa"
37 Barr}cade, T e:III undistributed 12, EA ZS`
P- "EXHIBIT
38 Silt Fencing 975 LFT 66
39 Construction Fencing 200 LIFT 1-00`
40 Ditch Inlet Protection 7 EA S ? s`
41 Curb Inlet Protection 6 EA 11254 750
42 Tree Protectlon & Trimming 1 LSUM oc`B • 00 r
43 Topsoil undistributed ISO CY
p::::: 61600-
44 Sod Nursery 2100 SYD At- $ yo D
45 Water 1 LSUM oaf' ? o e o
48 Signs, Relocate 6 EA .4oe" uZ o 0 °
47 Mailbox Relocate 10 EA ' $OO'
48 QC Testi 1 Videota in 1 LSUM 6aa • 066 '
TOTAL: 36/ /&-
"EXHIBIT A 2( L "
P-4