Yardberry Landscape Ex/Engr (2)Yardberry Landscape Excavating Con 4 03 -H .l' 43
EngineeringDepartnnent 2008 APPROVEI®; i0
Project 166 /Keystone lntereliartge Clearing KrW
Appropriation 4920-4470204 P.O.#18316 FC RAR BY.
Contract Not To F,xceed $16:200.00
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, b'y and,tnr,ough,its Hoard-of Public Works and Safety ("City"), and
Yardberry Landscape Excavating ('VendorN .
TERMS AND-CONDITIONS
S1. ACKNOWLEDGMENT, ACCEPTANCE-
Vendor, acknowledges that it has read and understands this Agreement,-and agrees that"-lits execution of
same constitutes its-acceplance of all of theAgreement's terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods ,and/or services (the "Goods and ,Services") from Vendor using City
budget appropriatiownumber 920-447021)4 funds. Vendor agrees to provide the Goods:and Services and to
otherwise perform the requirements of this Agreemerilby applying at all times the highest technical and
industry stanbrds:
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 Sixteen Thousand Two Hundred Dollars 016,200.00) (the "Estimate'-).
Vendor shall submit an invoice to City nomore than once-every thirty (30) days detailing the Goods
and'Services provided_lo 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,'in"voice detailing same, so
long as and to the extent such Goods and Services: are!not-disputed;, are im accordance with the
specifications: set forth in Exhibit A, are submitted on an invoice th aCcontains the information
contained on attached Exhibit B, and Vendor has otherwise performed, and satisfied :all the terms
ahd conditions of this Agreement.
3.2 Vendor, agrees notto 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.tne Estimate, unless City has
previously,agreed, in `writing, to pay an amount in excess thereof.
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 aswee provided to Vendor by City
and/or by Vendor to and acceptedbyCity pursuant to oras,partof that certain City of`Carmel Engineering
Department Request for.Quotes for ''Clearing ofRight.of Way at, 1061h Street and Keystone, Interchange"
received by the City of Carmel Engineering DepartmenUon or about March 12; 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 itknows•of.City's intended use and
expressly warrants that. the Goods and Services provided to City pursuant to thls.AgreementIhave.been
selected by Vendo based upon City's stated use andwe fit and sufficient for their pafticular'oiurpose.
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Yardberry Landscape Excavating
Engineering Department - 2008
Project: 106" /Keystone Interchange Clearing R/W
Appropriation 9920-4470204 P.O. # 18316
Contract Not To Exceed $16.200.00
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 apart of the Goods andZervices.
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
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Yardberry Landscape Excavating
Engineering Department - 2008
Project: 106" /Keystone Interchange Clearing R/W
Appropriation #920-4470204' P.O. #18316
Contract Not To Exceed $16,200.00
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.
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Yardberryl:andsca,pe Excavating
Engineering Department - 2008
Project: i 06`h /Keystone Interchange Clearing R/W
Appropriation #9204470204 P.O. 919316
Contract Not" Yo Exceed $16;200.00
16. SEVERABILITY.
If any term of'this Agreement is invalid or unenforceableunder.any°statute, regulation, ordihance; 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,theremaining provisiohs of this Agreement shall rerriain'in full force;and effect.
17. NOTICE:
Any notice provided for in this! Agree rnentwill 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
hereinr
If to City: City of,Carmel
One Civic'Square
Carmel, Indianar46032•
ATTN: Steve Engelking
AND
Douglas'C. Haney, City Attorney;
Department of Law
One Civic Square
Carmel, Indiana,46032
if to Vendor:
Yardberry Landscape Excavating
9'9405. 1000 W.
Andeison, Indiana 46017
Phone #: 765i-378 5,783
ATTENTION: Tim Yar4erry, Owner
Notwithstanding tare above; notice of termination under paragraph 18'hereinbelow shall be,effectlve if given
orally, a's tong as written notice is than provided as;seffo_ rth 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, _immedlately 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 tie provided hereunder. In 'the event of such te_rminatioh, Vendor shall'beentitled to
receive only paymenCfor the undisputed invoice amount representing :conforming Goods and
Services delivered as of the:dale of termination„except that such payment amount shall.notexceed
the Estimate, amount in effect atthe time of termination, unless.the,parties. have previously, agreed in
writing to a,greater amount
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Yardherry Landscape Excavating
Engineering Department - 2008
Pipject: 106' /Keystone .Intercltange,Clearing R/W"
Appropriation #920-4470204, P.O. #18316
Contract Not To Exceed $16;200.00
18.2 Either party hereto may terminate this Agreement.at any time upon thirty (3.0) days phornotice 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 Seivices delivered as of the date of.
termination; except thatsuch,payrierlt.amount, shall not exceed the Estimate amount in offectat-Il
time of termination, unless the parties have previously,agreed in writing to a greater amount.
19. REPRESENTATIONS AND WARRANTIES
The.parties represent and warrant thatahey,are authorized to enter into this Agreement and that.thepersons,
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 Vendorto.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 fias approved Vendors 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 byVendor
to City. A copy of the City's,authorization;documents'forthe 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
herein above, this,Agreementshalllbe in effect from thi:,Effiective Dele'through Qecember'31,°2008`arid shall,
on the first day of each January thereafter, automatically renew1cr 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 r ot,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,r'espect to all of:the covenants,.terrns,_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 Agreementand 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'With out arty duress,'undue Influence or coercion.,
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03/'12/2068 W51) 14:,58 PAX 31:71 .57.1. 2439 City of 'Carmel - - ®007Y011-
Ym dbery Undscape.Gxcavat:ng
Engine itig Department - 2008.
Project: 106°' /Keystone Interchange Clearing.R/W
Appropriation #920-A470204 P.0.1118316
Contract Not To Exceed $16;200'00
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 land- agreements regarding; same. Notwithstanding any,other-aerm°or;condition set
forth herein, Ii subjectto paragraph 16 hereof; to the extent any term or condition contained in any exhibit
attached to this Agreement or in any document.refefenced herein conflicts with' any,term or condition
contained in this Agreement, the term or., condition containk-In this Agreement shatI,govern .and prevail.
This Agreement may only be modified by written;amen'dmeht executed by",both parties hereto, or t o0
successors.in interest.
IN WITNESS WHEREOF, the parties. hereto have made and executed this Agreement as follows:
CITY OF CARMEL-,JND{ANA
YARDRERRY LANDSCAPE-EXCAVATING
by and-through itsBoard of Public
Works and Safety
By:
r'
J es Brainard, Presiding Officer
By
Authoriied Signature
Printed Name
C?J,J,ti-
ATTEST:
Diana Cordfay, IAMG, &W-Treasurer
Date: 3/iyjo
Title
`FIDIT W '35.- Efs l s I l
ISSN if Sole Proprietor`
Date,
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03/12/2008 1:51 FAX 765 378 0376 YARDBERRY 1ANPSCAPING CO. X1002
i<fluu,c wau rated. FAX 31-7.571 2439 City"af Cazmel 1007/011
YaTdberry Landscape, Excavating,
Engineering Department - 2008
Project: 106 A /Keystone: interchange. Clearing WW
'
ApproprlatioTIA920-4470204 P.C5.4jg316
Contract Not To Exceed S 1 tt,2o0.00
26. ENTIRE AGREEMENT:
This Agreement; together with any exhlbft attached hereto or,referenced herein, constitutes the entire
agreementbetween Vendor and City with respect to-the subjeotmatter hereof, and supersedes all prior+oral
or written representathn&and agrea_ments regarding same. Notwithstanding any other term or condition set
forth herein, but<subjedito 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,oondition contained In this Agreement shall govern :and prevail.
This Agreement may only be modified by written amendment -axecated.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
YARDBERRY LANDSCAPE EXCAVATING
by and through Its Board of Public
Works and Safety
By:
James Brainard,"Presiding Otfcer
Date:
Mary Ann Burke, Member
Date:
By:
gor
Autho Signature.
-r-in _A.xta I? lz A ti
.Printed Name
"0uJ,j arL.,.
71e
Lon $-Wetson, Member
Date:
ATTEST:
Diana Cordray, )AMC, Clerk-Treasurer
Date:
FIDITIN:, 35-Iarhs-74
SSN If.Sole.Pmorietot:
Date,% ?3-Z o 91
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03/12/2006'05:00 FAX 765, 378 0976 YARDBERRY LANDSCAPING CO ii 003
From:City o4 Carmel KR To:917653780376 0310fi1.2009 10:25 #128 P.0051009
CO
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PROJECT 007,-09 Rigbt-of-way Clemdog at,the1"td 5tt*et ]Intemoc.tions with Wzyetone Avenue
ITEMIZED PROPOSAL.
UNIT QUANTITX F?JCE AMOUNT
.
r Mobilisation and Demobili=% onfor Cearing EA
z Mobiiiwdon and Demobilin4oo for Seeding EA BOG
3 Claming Right-of-Way '
4 Mulched Seeding. U (Undistributed) SYS 3
TOTAL BLD AMOUNT 200;
( l 77
"EXHIBIT.
BID-4