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Walsh Constmction Company
Engineering Department -2008 APPROVED, AS TO
Appropriation#920-4470604; P.O..#19786 FO By
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Contract Not To Exceed,$]4;281,439.37 .-??(?_?•
AGREEMENT FOR PURCHASE-OF GOODS AND SERVICES
THIS AGREEMENT FOR PURCHASE OF GOOD&ANDS€RVICES ("Agreement") is hereby entered into..by
and between theCity of Carmel, Indiana, acting by'and`through.'its Board of Public Works and Safety ('City"), and
Walsh Construction Compaiyan entity duly authorized to do business in the Staie.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 atl;ofthe 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:920-4470604 funds. Vendor agrees to provide.the Goodsand 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#e total price for the Goods and Services to be provided to City, hereunder
shall be no more than Fourteen Million Two Hundred Eighty One Thousand Four Hundred Thirty
Nine Dollars and Thirty Seven Cerits ($14,281,439:37 ) (the "Estimate")` Vendor shall submit' an
invoice`to, City no more than once every thirty (30) days de'tailingahe Goods and Services provided
to City within such time. period. City°shall payVendor-for such Good s,and Services within sixty (66)
days after the date of Cltys 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,& are submitted on an invoice that containsrthe 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'fo exceed1he Estimate, unless City has
previously agreed,Jh,writing; to payah,emountin excess thereof.
4. WARRANTY.
Vendor expressly-warrants;that the Goods and ,Seervices covered by this Agreement will conform to those
certain specifications, descriptions andlor quotations regarding same as were provided1o ' Vendor by.Cily
and/or by Vendor'lo and-accepted by City pursuant to or as part of that certain City of Carmel Engineering
Department,Bitl Proposal Package for "Keystone Parkway and'136!h Street interchange" received bythe.City
of Carmel Board of Public Works and Safety on or about, October 15, 2008; all of which documents are
incorporated herein by reference; and that the Goods=and Services will be delivered. in a timely, good and
workmarilike 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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Walsh Construction Company
Engineer[ng,Department 2008
Appropriation #420-4470604; P:0. #19786
Contract Not To Exceed $14,781,439.37
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.lheir obligations hereunder in a timely manner. Time is of
the essence of this Agreement.,
6. DISCLOSURE AND WARNINGS:
Ifrequested by City; Vendor shall promptly furhish.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'anyhazardous material utilized in or that is a part oflhe Goods and Services.
LIENS_
Vendor shall not cause orr'permit the filing of arty lien, on any of City's property: In the,event•anysuch lien is
fled=and Vendor ails to removetsuch ljen 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:Vendoi's sole;cost and ekpense.
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 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 everit constituting ah evenf of default hereunder, Cityshall have the right to
(3) 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.andlcr inequity.
9. INSURANCEAND INDEMNIFICATION:
Vendor shall.procure and maintain in full'fprce and effect during the term of this,Agreennent, 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 cjaims for damages under any workers' :compensation, occupational disease and/or
unemployment compensation act; for bodily injuries including, bul`,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 ltiatsuch 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:limiled to, reasonable attomey
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 pursuantto,orunder this 'Agreement orVendor's; use`ofCity property.
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Walsh Construction Company
Engineering Department --200$
Appropriation #1920-4470604; P-O. 419786,
Contract Not To Exceed S 142$1.439.37
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':
Vandor.agrees to comply with alhfederal_,state and local laws, executive orders, rules; regulations and codes,
which may be applicable to Vendo s,performance pf'its obligations under this Agreement, and all relevant
provisions thereof are incorporated he by this reference: Vendor,4rees to indemnify and hold harmless
City`from any loss, damage: arldlor liability resulting, from any such violation of such laws, orders, rules,
regulations arid.codes This indemnification,obligation shall survive the•termination of this Agreement,
1.1., NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers; employees; agents; contractors and
subcontractors shall' comply with all.laws of the Uniied States, the State of Indiana and. City prohibiting
discrimination against any employee, ap Plicant for emp toYment'or,other person in the provision of any Goods
and.Services provided.by this,Agreement with respect to their hire, tenure, terms, conditions sand privileges of
employment and any other (natter'related to their employment orsubcontracting, because'of:race, religion,
color, sex, handicap; national origin; ancestryy 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 anyprovision of tfiis Agreement shah not
affect the right of such party to require.such°performance at any time-thereafter; nor shall the waiver by any
party of 4 breach of any provision of this Agreement constitute a waiver of anysucceeding,breach of the
same or any otherprovision hereof.
13. NON-ASSIGNMENT:
Vendor shall.noi assign or pledge.this Agreement; whether as collateral for @ ,loan or otherwise;-and shall not
delegate its obligations under this Agreement vitfiout City's prior written consent.
14. RELATIONSHIP OF PA, RTIES:?
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 Crty.- The contract price
set forth herein shall',bet the, full and maximum, compensatiorn, and monies required of City to be paid to
Vendor under or pursuant to this Agreement.
15. GOVERNING LAW; LAWSUITS'
This AgreemenRis to be•construed in accordance with and governed by the,Iaws,of the State,of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuits tiled hereunder, they
waive:.their righl'to a'jury trial, agree to file any such lawsuif 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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'Walsh Construction Company'
Engineering Department-'2008
Appropriation #920-4470604; P.O. 4x19786
C'ontraotNot To Exceed $14,281;439.37
16, SEVERABILIV:
If any term af.this,Agreement is invalid; or unenforceable under any statute, regulation, ordinance,nexecuiive
orderor 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,df-lhis Agreement;shali'remain in full force band effect.
17. NOTICE!
Any notice provided for in this Agreement wilt be sufficient if it is in writing and is,delivered by postage
prepaid U:5 certified mail, return receipt requested, to the party to be notified at the, address specified
herein:
If to City Cityof.Carmel
One Civic Square
Carmel, Indiana 46032
ATTN: Michael McBride
AND
Douglas C. Haney, City Attorney,
Department of,Law
One.Civic Square
Carmel', Indiana 46032
Itto Vendor: Walsh Construction Company
2749 N. State Road'39
LaPorte, Indiana 46350
Telephone: 219-324-4320
E-Mail: bkoesteranwalsiigroup.com
ATTENTION:.Brad Koester
Notwithstanding _the above, 'notice of termination under paragraph 18 hereinbeiow shall -be effective iCgiven
orally; aslong as written notice is then provided as setforth-herein above within five (5) business days from
the date of such oral notice.
18., TERMINATION-
18.1 Notwithstanding a_ nylhing to the contrary contained 'in.,this' Agreement,, City may,, upon notice to
Vendor„immediately -terminatesttis Agreement-for cause, in'the event, of a default hereunderby
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.bf terminalion;.except,that such payment amount shall not exceed
the Estimate amount in effect at the tirne of termination, unless the parties have previously, agreed.in
writing to a greater amount
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Walsh Construction Company
Engineering Depaitriient -'?008
Appropriation #920-4470604; P0.,#19786,
Contract Not To Exceed $14,281;439.37
2 City mayf
18. ermihate tf is.Agreemenl at any time upon thirty (30)`days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice.amountofconforming Goods and Services delivered as of'the date of`terminatron, except
that such.payment amount shalt no.'exceed the Estimate'amount ineffectat thetime of termination;
unless the parties have previously agreed in writing,toTa greater amount.
19. REPRESENTATIONS AND WARRANTIES
The parties representand warrant that they are authorized1c enter into this Agreement and that the persons
executing this Agreement have the,authority to bind_;the party which,they,represent.
20. ADDIT{ONAL 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 service s, desired, as we.Iz1 &the time `frame'in.Which same Eire to be
provided„ Only after City has approved Vendor's time and cosh estimate for the>provision of such additional
goods and services, has encumbered_suffcient 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 ofthe Eity's authorization document0of the purchase of,additional goods andlservices.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%termihation provisions set forth in Paragraph 18
hereinabove,, this,Agreement shall be in effect from the Effe6tive'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 Agreementare inserted for convenience only and do not form apart of this
Agreement nor limit, expand or otherwise',alterthe. 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 .respecFlo, all_ of.the covenants, terms, warranties'and obligations
set forth in Agreement,
24. NO THIRD PARTY BENEFICIARIES
This Agreement.gi"ves,no irights.or banefit'sto anyone other than City, and Vendor.
25. ADVICE OF COUNSEL:
The parties, airant that they have' read this Agreement*d understand it have -had`thedopportunity to obtain
legal advice.and'assistance of counsel throughout the negotiation of this Agreement, and enter,into-same.
freely„voluntarily, and withoutany duress, undue influence or coercion.
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Walsh Construction Company
Engineering Depanment2t2008
Appropriation#920 4470604; RO. #19786
CondrxctNnt.To Exceed S14,28-1,43937
28. ENTIRE-AGREEMENT.
.
This Agreemert,'togethar with any ezltihlts attached hereto..+of referenced herein, constitutes therentire
.agreement between'Vendorand 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, tintaubjectto paragraph 16 hereof, to the extk any#erm or condition contained in any exhibit
attached to this Agreement or to any, document referenced _herein conflicts with ,any term or condition
contained in this,Agreemeht, the term or condition contained- in,this Agreement shall''govern and prevail.
This Agreement ma`y only be modified by written amendment executed by both parties hereto, o'r their
successors in interest.
IN WITNESS WHEREOF,, the parties hereto have made andexecuted. this Agreement as follows:
CITY OF CARMEL, INDIANA
WALSH CONSTRUCTION. COMPANY
by and through its Board of Public
Works and Safety
9y. / By.
es Brainard, Pre idin ,Officer Ae it d S gnature
Date: 2
Jeffery P. punifon
Pdnted_ Name
Ma Ann rke, M ?,*r
Date: ., I-Q0 vice President
Title
Lori S. Watso , embe1 Ir.o F.IDITIN: 36,-22315'25
SSN if Sole Proprietor:, N/A
Date: December 3, 2008,
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