Mattingly Concrete, Inc./StreetMattingly Concrete, Inc. 4k-L7;# 03'' `/
Street-Department - 2009
Appropriation (10043-509:00,. P.O.-#] 8769 APPROC ED, TO
CotniactNot To,Fxceed $10;000:00
FORM RY:
AGREEMENT FOR. PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICE IS ("Agreement"), is hereby made and
-entered into by and,between the City of Carmel, Indiana, actin by and through its Board of Public' Works
and Safety (hereinafter "City" ),;and Mattingly Concrete,'Inc.,(hereinafter "Professional"):
RECITALS
WHEREAS City owns and is responsible for the operation aiid anainteriance of its property,
personnel; public works and'infrastructure; and
WHEREAS, from. time to'time, City weeds professional assistance in "fulfilling its foregoing
responsibilities,; and.
WHEREAS, Professional is experienced in providing and desires to, 'provide to City the
professional services ('Services') referenced`herein; and
WHEREAS-,,City desires, to, engage Professional as an,independent contractor for the purpose of
providing to City the Services,referenced,herein;
NOW, THEREFORE,, in consideration of the foregoing recitals and the covenants and conditions
set forth herein, City and. Professional mutually agree as follows:
SECTION 1. INCORPORATION OF RECITALS
The foregoing Recitals are,hereby incorporated, into this Agreement and made a part hereof.
SECTION 2. SCOPE OF'SERVICES
2.1 City desires to engage Professional as an independent contractor for the Services set forth in
attached Exhibit A, incorporated'herein bythis reference.
2.2 Professional understands and agrees that City may, from time to time request Professional to
provide additional or modified Services to City. When City desires, additional Services, from
Professional, the City:shall;notify Professional,of•such additional Services desiied; as well as the
time fraiile in which same are to be provided. Only after .City has approved Professional's time
and costestimate for,the provision ofisuch additional Services has encumbered sufficient ironies
to pay for:,same, and has-authorized' Professional, in writing, to provide.such additional Services,
shall such Services be provided by `Professional to City.. A copy of the City's authorization
documents for the, purchase of additional Services shall he numbered and attached hcreto in the
order. in which they a"re approved.by City.
2.3. Time.is;of-the essence of"this,,•Ageement
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M att i ng l yCo n cre t e„ Inc.
Street Department- 2009
,Appropriation #0043-509.00; P:0. 418769
Contract Not To Exceed $10;000.00.
SECTION 3. CITY'S RESPONSIBILITIES
3.1 City shall provide,such,infonnation,as is reasonablynecessary.f6r Professional to.understand the
Services requested.
32 City shall provide all data required for provision of Services. Professional may:assume that all
data so provided is correct and complete,
3.3. City shall.airange'for Professionai to enter upon publicand-privatew•property as reasonably required
for Professional to perform the Services:
3.4 City shall designate payment of the Services from City budgetlappropiiation'nutnber; funds.
.3.5 City shall designate the Mayor.orhis duly authorized. representative to act on. City's behalf on all
matters regarding=the Services:
SECTION 4.. PROFESSIONAL'S RESPONSIBILITIES
4.1 Professional shall perform the Services pursuant to the terms ofthi"s Agreement and within any
applicable time and cost estimate.
4.2 Professional shall. coordinate with City its`performanceof the•Services..
4.3 Professional shall provide the Services by following and applying at all tunes reasonable and
lawful standards as accepted in the industry.
SECTION 5. COMPENSATION
5.1 Professional estimates that'the.total price for the Services to be;prpyided-to City, hereunder. shall be
no more than Ten ;Thousand Dollars' ($10;060:00) (the "Estimate"),. Professional shall submit an
invoice, to City no moresthan once every thirty (3,0) days, forSetvices provi'd'ed. City during the
time period encompassed` by such invoice, htvoices+shall be ;submitted on A form containing the
same information as that.contained on the. Professional Services Invoice attached hereto as Exhibit
B, incorporated herein by this reference. City shall pay Professional %forall undisputed Services
rendered and stated on such invoice within sixty (60) daysIrom the date of City's-receipt of same;
or be subject to a late charge of one percent (1%) of such unpaid and undisputed invoice amount
for each month same:xemains unpaid.
5.2 Professional agrees°not'to provide any Services to City that would cause the=total cost of same?to
exceed the Estimate; wiihoui City's prior written consent..
SECTION 6. TERM
Unless otherwise iefrninated' in accordance with the termination provisi,ons?set forth,i_n Section 7.1
hereinbelow, this Agreement shall be in effect from the Effective.Date through' December 31,
2007, ahd.shall, on the first day ofeach January thereafter,.-automatically renew fora period,of one
(1) calendar year, unlcss-otherwise agreed.by':the parties hereto.
3
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ManinglyConcrete; Inc.
Streat.I?epariment.- 2009
Appropriation 1;-0043-k MO; P.O..91$769
Contract Not To Exceed $10,000' 09
SECTION 7. MISCELLANEOUS
7.1 Termination.
-7,11 The obligation to provide all of anyportron"rof the Services,under-this Agreement: may be
terminated byCity'orProfessional, withoutrcause,'upon thirty (30) days' notice.
7.1.2 The obligation `-to.proJide all or anyport.ion 'of the Services ,under this Agreement;maybe
terminated by City, for cause,,' immediately' upon_Professional's receipt of City's ``Notice
to Cease Services.
7.13 In the event; of full or partial Agreement termination, and as full and complete
compensation' hereunder, Professional ;shall ®be: paid for all 'such Services rendered:and
expenses' incurred as of the date of termination'that-,are.not:in dispute, except,that such
payment amount::shall not exceed the Estimate. Disputed comnensaion,aiitounts shall be
resolved as allowVd by law.
7.2 Bindin Effect.
City and Professional, and their respective. officers, officials, agents, partners and successors in
interest are,bound,to the other as to all Agreement terms, conditions and obligations.
7.3 No Third Party Beneficiaries.
Nothing -contained:hercin shall.be construed to give rights or "benefits to, anyone other than the
parties hereto,.
7.4 Relationship.
The relationship of the.,parties hereto shall be as 'provided for in this Agreement,, and neither
Professional no°r'any of its.agents, employees or contractors are City employees. Professional shall
have the sole responsibility, to pay to or for its, agents,. employees and contractors all statutory,
contractual and other,benefits and/or obligations--as they become due. Professional hereby warrants
and indemnifies, City for. and from, any and all costs, fees; expenses and/or damages. incurred by
City as a result, of°any claim for wages, benefits, or otherwise by anyagent employee or contractor
of Professional regarding or related to the subiect'matter of this.Agreement. This indemnification
obligation,shall survive the termination of ibis Agreement.
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Mattingly Concrete, Inc.
SfreetDeparlydent- 2009
Appropriation 90043-509.00, P:O. #18769
,Contiact'Not To Exceed $10;000:00
7.5 Insurance
P.rofessional;shall _PTO curd.a'ad maintain with an insurer licensed to:db business in-the State'-of
Indiana such insurance as istrecessary=for the protection of City and Professional. from all claims
under workers' compensation, :occupational disease' and/or unemployment compensation acts,
because of errors and omissions;, because of bodily injury, including,, but 'not limited to, the
personal, injury, sickness, :disease, or death of any of Professional's employees, ;agents or
contractors and/or because of any injury to or destruction of property; including, butnot limited to,
any loss of use resulting therefrom. The'coverage amounts shall.bc;no less than those amounts set
forth on.attached Exbibit C. Such insurance policies shall not be-canceled toithout thirty-(30)
days' prior written notice to City.
7.6 Liens.
Professional. shall not cause or permit the filing of any lied on.any of,City',s property. In,tlie event
such a lien is filed and Professional fails to remove it within ten (10) days-after the date of filing,
City shall haveahe right to pay or bond over such:lien at Professional's sole cost-and expense.
7.7 Default.
In the event Professional: (a) repudiates, breaches or defaults'under any of the.terms or conditions
of this Agreement, including ProfessionaPs warranties;: (b) -fails to perform the Services as
specified; (c) fails to, make Of gross so as to endanger' timely and proper completion of the
Services and does=not correct:such failure or breach within five (5)'busmess days after receipt of
notice .from, City specifying same; or (d) becomes insolvent, fides„qr has filed against it, a petition
for 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 light to terminate all or any
part of this Agreement; `without liability to Pr=ofessional :and to exercise any other rights or
remedies available to it at law orin equity.
7.8 Government Compliance.
Professional-aSrees.,to comply with all laws, executive orders, rules and, regulations applicable to
Professional's performance of its obligations under this Agreement, all relevant.-provisions of
which being hereby incorporated herein by this reference,, to keep all, of P'rofessionals' required
professional lieeiises and certifications valid.and current,. and to indemnify and hold harmless City
from any and.alllosses, damages; costs,.liabilities; damages, costs and,attorney fees resulting from
any failure by Professionalto do so. This iiid_e_miiification'obligatioh shall.sur'vive-the termination
of this Agreement.
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Mattingly Cancrete,. inc.
Street Department 2609
Appropriation.#0043-509.00; P.O..#18769
Contract Not To Exc"d 510,000.00
7.9 Indemnification.
Professional shall indemnify and hold harmless City and its: officers,. officials, employees and
agents from all losses, liabilities; claims, judgments and liens, 'including, but;not limited to, all
damages, costs„ expenses and attorneyfees arising out of`any-intentional or negligent act or
omission of Professional,and/or-any of its employees; agents,or contractors,in tlie-performance of
this Agreement. This indemnificationobligation sltall'survive the termination ofthis.Agreement.
7.10 Discriminaiion,Prohibition.
Professional represents and warrants that-it and; each. of its employees, agents,arid. contractors shall
comply with all existing and future, laws prohibiting, discrimination against. any employee,
applicant for employment and/or other person in the subcontracting of work and/or in the
performance of any Services contemplated. by this Agreement-with respect to hit&,'tenure, terms;
conditions or pri-,Jleges of employment or any matter directly or indirectly related to employment,
subcontracting or work perfor•ruance'hereunder because of race,, religions color, sex, handicap,
national origin, ancestry;, age, disabled veteran status or Vietnam era veteran status. This
indemnification obligation shall survive the'termindtion of this Agreement,
7.11 Severability.
If any provision of this. Agreement is held to be invalid, illegal or, unenforceable by a court of
competent jurisdiction, that provision, shall be stricken,.and all other provisions of this.-Agreement
that can operate independently ofsame shall continue in full forceand effect.
7.1.2 Notice.
Any notice, 'invoiee,[order or other correspondence required dr-allowed to e sent pursuant to this
Agreement-shall bewritten and either hand=delivered or sent by prepaid'U.S. certified. mail, return
receipt. requested, addressed to the,parties as; follows:,
CITY:
City of Camel
Department of Administration
One Civic Square
Carmel, Indiana-46032
ATTENTION; David I-luffinan
PROFESSIONAL:
Mattingly Conerete,lnc.,
15936 Joliet Road
Westfi eld;, lnd Tana-:46074
ATTENTION: Dan Mattingly
Douglas C. Haney
Carmel City -Attorney
One Civic'Square
Carmel, Indiana 46032
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MaetinglyConcrete, Inc.
Street Department - 2009
Appropriation #0043-509_0.0; P.O. #18769
Contract NarTo Exceed $10,000.00.
Notwithstanding the above,; City may orally provide to Professional any notice •required or
permitted by this, Agreement, provided-that such notice.shall also then'be sent as required by this
paragraph within ten (10) business days from the.date of such oral notice.
7.13 Effective Date.
The effective date ("Effective Date') of-this Agreement shall be, the date on which the last of the
parties hereto executes,same.
7.14 Governing -Law ; Lawsuits.
This Agreement shall be governed.by and construed.in accordance with the laws of,the State of
Indiana, except.-for its contliet,of laws provisions, as,well as by all ordinances and codes of the
City of C,amwl,- Indiana: The parties agree that,,in the event a lawsuit is, filed, hereunder, they
waive any right to,a jury trial they may have, agree to file such lawsuit in, an ;approlanate court in
Hamilton County,'Indiana only, ryand bgree that such court is the Appropriate venue for and has
jurisdiction "oversame.
7.15 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its rights and/or
remedies hereunder or under'law shall not operate to waive anysw h=rights and/or remedies nor_ in
any way affect the rights.of,such party to require such perfanriance at,any'tirna'thereafler.
7.16 Non-Assignment.
Professional shall not: assign or pledge this Agreement nor, delegate its obligations hereunder
without City's prior written consent.
7.17 Entire Agreement:
This Agreement: contains the emiresagreement.of.and between the parti'es:hereto with respect to the
subject matter hereof; and,no=prior agreement,,understanding, of representation-pertaiTning to such
subject matter, written or oml,.-shall be effective foranypurpose. No provision of this Agreement.
may be amended, added to or subtracted from, except 'by an agreement in writing-signed by both
parties hereto and/or their respective successdrs1ri i terest To the extent any provision contained
in this Agreement conflicts with any provision contained in any exhibit attached hereto, the.
provision contained in this Agreemeritshall prevail..
7.18 Representation and Warranties.
Each,party.hereto,represents and warrants that it.is°authorize&to enter into this Agrecment_and that
any personror entity, executing this Agreement, on, behalf of such party Has the authority 'to bind
such party or the.partywhich-they represent; as the case maybe.
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Mattingly.Concrete, Inc.
Streei Department - 2009
Appropriation.g0043-509.00; P.O. #18769
Con(ract -Nor To Exceed $10,000:00
7.14 Head.
All headings and sections of this Agreement are inserted for convenience pnly'and donot`form a
part of this Agreement nor limit, expand or-otherwise`alter the,meaning of any provision hereof.
7.20 Advice of Counsel.
The parties warrant that they have read this Agreem'e'nt and fully understand it, have had an
opportunity to obtain the°advice and assistance of counsel. throughout the negotiation of same, and
enter into same freely, voluntarily„and without any. duress, undue influence orcoercion.
7.21 Con tt.
City acknowledges' that various materials which may be_used-and/or`generated by Professional in
performance of Services, including forms,, job, description formats,; comprehensive position
questionnaire, compensation and classification plan and reports are •copyrighted_ Cityagrees that
all ownership rights and copyrights thereto ,lie with.Professional, and,City, will use them solely for
and on behalf of its own operations. City agrees that it will take appropriate action with its
employees to satisfy its obligations with respect to use, copying; protection and security of.
Profess ionalls property.
7.22 Personnel..
Professional represents that it has, or will secure.at its'own expense, all -personnel required in
performing the services under this agreement. S. personnel shall not be employees of or have
any contractual 7elationship'cvith City- All ;of the services required hereunder will be performed
by Professional or under his supervision and all personnel engaged in the work shall be fully
qualified to, perform such.services.
7.23 Records anflnst)ections
Professional' shall-maintainfull and accurate records with respect,to,all-matters coveredrunder this
agreement for three (3) years afier, the expi.ration,onearly termination of this agreement. City shall
have free access at. all proper times to such records and the right' to examine and audit the same
and to make transcripts there-from, and, io inspect all.program data, documents; proceedings and
activities.
7.24 Accomolislvnentof Proiect
Professional shall commence„carry on, and complete the,project rwith all practicable dispatch,'in a
sound economical and efficient manner; in accordance with the provisions thereof and all
applicable laws: In accomplishing the project; Professional I shall take such steps as:are appropriate
to ensure that the wo&involve& s properly coordinated- with related .workbeing,carried on within
City's organization..
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Mattingly Concrete, Inc.
Street Department -2009
Appropriation 40043-509:00; P :Q. 419769
Contract Not To Exceed $10,000,00
IN WITNESS WHEREOF; the parties hereto.have made and executed this Agreernentas'-follows:
CITY OF CARMEL, INDIANA
by and through its
Works and 'Safety
BY
Bate:
Lori S.
Date:
Board of Public
-MATTINGLY CONCRETE; INC.
Printed Name:
SSN if S'9le. Proprietor::
Date: 1. 2,5a D°I
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