James H. Drew/Engr James H. Drew e-th. yr c 4 b7 f O' 0L/
F Engineering Department 2010
Appropriation #2200- R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
APFrlOV O AS TO FORM B
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
James H. Drew Corporation, an entity duly authorized to do business in the State of Indiana "Vendor").
TERMS AND CONDITIONS
1. 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- R4462000 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 Twenty Four Thousand Seven Hundred Eighty Three Dollars ($24,783.00)
(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 "10 -05; West Road Guardrail" received by the City of Carmel Board of
Public Works and Safety on or about June 16, 2010, 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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James H. Drew
Engineering Department 2010
Appropriation #2200- R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
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 a part of the Goods and Services.
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 property.
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James H. Drew
Engineering Department 2010
Appropriation #2200- R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
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, 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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James H. Drew
Engineering Department 2010
Appropriation #2200- R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
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 shall 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 force and effect.
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, to 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: James H. Drew Corportation
8701 Zionsville Road
Indianapolis, Indiana 46268
Telephone: 317- 876 -3739
E -Mail: lacton @jamesdrew.com
ATTENTION: Gregory A. Peck, Vice President, Operations
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 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 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 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 that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
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James H. Drew
Engineering Department 2010
Appropriation #2200- R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
18.2 City may terminate this Agreement 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 amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount 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 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 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 by Vendor
to City. A copy of the City's authorization documents for the 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 Agreement shall be in effect from the Effective Date through December 31, 2010, 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 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 the other 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:
The parties warrant that they have read this Agreement 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, undue influence or coercion.
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James H. Drew
Engineering Department 2010
Appropriation #2200-R4462000 P.O. #21819
Contract Not To Exceed $24,783.00
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 and agreements regarding same. Notwithstanding any other term or condition set
forth herein, but subject to 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 condition contained In this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed 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 JAMES H. DREW CORPORATION
by and through its Board of Public
Works and Safety i f f
By: By:
F
Ar
mes Brainard, Presiding Officer 1 Aut riz.`d Sis? atu
Date:
Gregory A. "eck
Li___ Printed Name
M. An :urke, Mem•er
Date: 7 7 -/e Vice President, Operations
Title
Lori S. ats• ember FHDJTIN: 35- 0821499
Date: t r o
SSN If Sole Proprietor:
ATTEST:
Date: JUNE 30, 2010
i
e ana Cordray, IAMC Ferk- Treasurer
Date: 7
17_ Ocat: Sm4Ettturner2429ADOES K DREW COP? CnaL Soya Ar611/1010 I ;MO P/416
QUOTE PROPOSAL SUMMARY PAGE
Complete the following information and place as the cover page to your
quote packet. Insert all documents into an envelope with project name and
your company name clearly marked on the outside. Seal the envelope.
Company JAMES H. DREW CORPORATION
Project Name: WEST ROAD GUARDRAIL PROJECT
Date Submitted: JUNE 16, 2010
*Quote Amount: $24,783.00
This amount must equal the amount indicated on Part 2 "Quote Proposal" of the
contractors lump sum quote and declaration.
EXHIBIT A-
��g
CONTRACTOR'S LUMP SUM QUOTE
AND DECLARATIONS
City of Carmel
Instructions to Contractors:
This form shall be utilized by all Contractors. Except as otherwise specifically provided, all
Parts shall be fully and accurately filled in and completed and notarized.
Project: West Road Guardrail Project
Proposal For Construction of Supply and install guardrail, install pedestrian rail, install
compacted aggregate on the roadway shoulder, and install
riprap over geotextile on the banks of the stream.
Date: JUNE 16, 2010
To: City of Carmel, Indiana, Board of Public Works and Safety
QUOTE -1 r7/0-3
PART 2
QUOTE PROPOSAL
2.1 Base Quote
The undersigned Contractor proposes to furnish all necessary labor, machinery, tools,
apparatus, materials, equipment, service and other necessary supplies, and to perform and
fulfill all obligations incident thereto in strict accordance with and within the time(s)
provided by the terms and conditions of the Contract Documents for the above described
Work and Project, including any and all addenda thereto, for the Lump Sum applicable to
the Contract as stated in Part 3 hereof, Lump Sum Price totals TWENTY FOUR
THOUSAND SEVEN HUNDRED EIGHTY THREE AND 00/100 Dollars
24, 783.00 The Contractor acknowledges that evaluation of the lowest
Quote shall be based on such price and further acknowledges that the unit quantities
listed in Part 3 of this Proposal are estimates solely for the purpose of Quote evaluation
and Contract award, and are not to be construed as exact or binding. The Contractor
further understands that all Work which may result on the Contract shall be compensated
for on a Lump Sum Price basis and that the OWNER and ENGINEER cannot and do not
guarantee the amount or quantity of any item of Work to be performed or furnished under
the Contract.
QUOTE -3 3 cJ
PART 4
CONTRACT DOCUMENTS AND ADDENDA
4.1 The Contractor agrees to be bound by the terms and provisions of all Contract Documents
as defined in the Standard General Conditions and incorporates such Contract Documents
herein by reference.
4.2 The Contractor acknowledges receipt of the following addenda:
ADDENDUM NUMBER DATE
QUOTE -5
PART 6
6.1 Attachment of Contractor's financial statement is mandatory. Any Quote submitted
without said financial statcmcnt as required by statute shall thereby bc rendered invalid.
io that 0 termination of the Contractor's capability for
completing the Work/Projcct if awarded. Information on Contractor's company and
financial statcmcnt shall bc consistent with the information requested on the State Board
of Accounts Forms #96a and #102, entitled "Standard Questionnaires and Financial
Statement for Contractors Not Required
PART 7
ADDITIONAL DECLARATIONS
7.1 Contractor certifies for itself and all its subcontractors compliance with all existing laws
of the United States and the State of Indiana prohibiting the discrimination against any
employee or applicant for employment or subcontract work in the performance of the
Work contemplated by the Agreement with respect to hire, tenure, terms, conditions, or
privileges of employment or any matter directly or indirectly related to employment or
subcontracting because of race, religion, color, sex, handicap, national origin, ancestry,
age, disabled veteran status or Vietnam era veteran status. The City of Carmel reserves
the right to collect a penalty as provided in IC 5- 16 -6 -1 for any person discriminated
against.
7.2 The Contractor certifies that he /she has thoroughly examined the site of the Project/Work
and informed himself/herself fully regarding all conditions under which he /she will be
obligated to operate and that in any way affect the Work, and knows, understands and
accepts the existing conditions. The Contractor further certifies that he /she has
thoroughly reviewed the Contract Documents, including all Addenda, and has had the
opportunity to ask questions and obtain interpretations or clarifications concerning
Contract Documents.
QUOTE -7 S 4 b
CONSENT IN LIEU OF A SPECIAL
MEETING OF THE DIRECTORS OF
JAMES H. DREW CORPORATION
Effective: September 1, 2009
The undersigned, being all of the directors of James H. Drew Corporation, an Indiana
corporation (the "Corporation existing pursuant to the Indiana Business Corporation Law, as
amended, hereby consent to the following actions to be taken in lieu of a special meeting of its
directors:
WHEREAS, the directors of the Corporation wish to authorize certain officers and/or
employees of the Corporation to execute binding agreements on behalf of the Corporation.
NOW, THEREFORE BE IT RESOLVED, that any of the following are hereby
authorized to execute binding agreements on behalf of the Corporation:
John F. Fisbeck
Carter M. Fortune
Harry K. Oyler III
Gregory Peck
Ronald E. Lindley
BE IT FURTHER RESOLVED, that John F. Fisbeck, Carter M. Fortune, Harry K. Oyler
III, Gregory Peck and Ronald E. Lindley are hereby authorized to take all other actions as may
be necessary or desirable to accomplish the purpose and intent of the foregoing resolution.
BE IT FURTHER RESOLVED, that this written consent shall be in lieu of a special
meeting of the Board of Directors of the Corporation and shall be filed in the minute book of the
Corporation in place of the minutes of any such special meeting.
(1))
IN WITNESS WHEREOF, the undersigned director of the Corporation has caused this written
consent to be executed as of the i SA- day of Se -k-en►b 2009.
r
i Fisbeck
[SIGNATURE PAGE TO JAMES H. DREW CORPORATION WRITTEN CONSENT
AUTHORIZING THE EXECUTION OF AGREEMENTS SEPTEMBER 2009] q�
7c Of
IN WITNESS WHEREOF, the undersigned director of the Corporation has caused this
written consent to be executed as of the day of fi: b„ ems, 2009.
Ala
P. Andy Ray
[SIGNATURE PAGE TO JAMES H. DREW CORPORATION WRITTEN CONSENT
AUTHORIZING THE EXECUTION OF AGREEMENTS SEPTEMBER 2009]
1