Hittle Landscaping, Inc. Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES
APFflOY.O AS TO FORM BY
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
Hittle Landscaping, Inc., 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 44- 624 -01 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 Two Thousand Nine Hundred Eighty Dollars and Eighteen Cents ($2,980.18)
(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 Department
of Community Services Bid Proposal Package for "Dorset and Spring Mill round -about Landscaping"
received by the City of Carmel Board of Public Works and Safety on or about July 22, 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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Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
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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Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
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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Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
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: Michael Hollibaugh
AND
Douglas C. Haney, City Attorney,
Department of Law
One Civic Square
Carmel, Indiana 46032
If to Vendor: Hittle Landscaping, Inc.
17778 Sun Park Drive
Westfield, Indiana 46074
Telephone: 317- 896 -5697
E -Mail: www.hittlelanscape.com
ATTENTION: Nick Davis
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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Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
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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Hittle Landscaping, Inc.
Department of Community Services 2010
Appropriation #44- 624 -01; P.O. #21646
Contract Not To Exceed $2,980.18
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 HITTLE LANDSCAPING, INC.
by and through its Board of Public
Works and Safety
By: /v07- By:
James Brainard, Presiding Officer Authorized Signature
ate:
1\11.._CAC_ .4vz
Printed Name
Mary An Burke, MeralQer
Date: 5 -1 eEc oC (cis d- EST 1 --".k
Title
Lori S. Wd so ember FIDrTIN: S5- 21 1 `1(52
Date: 57( n
SSN if Sole Proprietor:
ATTEST:
Date: l
ana Cordray, IAM',le k- Treasurer
Date: 0 /r®
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PROPOSAL E
July 22, 2010
Hittle Landscaping, Inc.
17778 Sun Park Drive, Westfield, IN 46074
The City of Carmel Office: 317.896.5697 Fax: 317.896.2471
C /o: Parks Pifer
www.hittlelandscape.com
3400 West 131st Street
Carmel, IN 46074
RE: Dorset Spring Mill RAB Landscape Proposal
Description Size /Unit Qty. Extended
Sod RTF Fescue Sq. Ft. 1,350 0.27 367.17
Topsoil C.Y. 30 21.92 657.68
Coarse L Gravel Ton 2 19.61 39.22
Equipment and Labor 1,841.63
Sales Tax 74.48
Total: 2,980.18
Payment Terms: We hereby propose to furnish material and labor complete in accordance with
above specifications and any attachments for the above amount.
Invoice is payable upon completion of work as outlined by this proposal. A late payment charge of
1.5% per month (18% APR) shall apply to any portion of invoice not paid within terms. You shall pay
all reasonable collection expenses including reasonable attorney's fees.
Terms Of Validity: After the following date, Hittle retains the right to re -quote the proposal in
order to reflect any changes in labor costs, material cost, and or other costs.
This proposal is valid until: 8/21/2010
Warranty: We warrant that the plant material sold hereunder will be free from defects in material
or workmanship for one (1) year from completion of work. Each individual item will be limited to a
one time replacement over the course of the entire warranty period. The warranty does NOT
include the installation of sod or grass seed. We shall supply all materials as specified in the
proposal, but shall have the right to substitute like materials of equal or greater value when
necessary in our reasonable opinion. All work to be completed in a workmanlike manner according
to standard practices. Any alterations or deviations from the above specifications involving extra cost
will be executed only upon written orders, and will become an extra charge over and above the
estimate. All agreements contingent upon accidents or delays beyond our control. The warranties
provided in these section shall be in lieu of any other warranties, express or implied, including but
not limited to any implied warranty of merchantability or fitness for a particular purpose.
Should we breach any warranty provided herein, we shall repair or replace (at our discretion) such
damaged plant material. Your right to repair or replacement is your exclusive remedy hereunder and
you acknowledge and agree that Hittle Landscaping shall not be liable for other damages, whether
ordinary, incidental, consequential or punitive or for injury to person or property other than as
expressly set forth herein.
Page 1 of 2 EXHIBIT
r ev
Acceptance: The above prices, specifications and conditions as well as the additional terms and
conditions appearing on the next page are satisfactory and are hereby accepted and Hittle
Landscaping is authorized to do work as specified. Payment will be made as outlined above. By
signing below you agree this shall constitute a legally binding agreement.
Additional Terms and Conditions
Concealed Contingencies: Hittle Landscaping will not assume responsibility for damage done
to any sump pump and septic lines, landscape lighting, gas grill lines, satellite, cable or subscriber
cable, invisible fencing, drainage tile, pool or hot tub pipe and wires, electric gates, speaker wire,
sprinkler system or other concealed items unless they are appropriately marked and designated prior
to the commencement of the work. You shall be responsible for the location of all property lines,
boundaries and corners.
Entire Agreement: The terms, covenants and conditions contained in the proposal (including in
all instances these Additional Terms and Conditions) are the entire agreement of the parties, and all
prior or contemporaneous oral or written agreements are merged herein. Any other oral statements
made by any employee or agent of Hitt le Landscaping does not constitute a warranty and does not
constitute part of our agreement. No changes or modifications of the proposal shall be valid unless in
writing and signed by all parties to the proposal. No waiver of any provision of the proposal shall be
valid unless in writing and signed by the person or party against whom charged. Notwithstanding
any inference in the word "proposal the proposal is binding upon, and inures to the benefit of the
parties hereto and their respective heirs, personal representatives, successors and assigns.
Serviceability: Each Provision of the proposal is severable from every other provision of this
proposal, and if any provision is determined to be unenforceable or is revised, such determination or
revision shall not effect the enforceability or validity of any other provision.
Governing Law: The validity, interpretation and performance of this proposal or any transactions
consummated hereunder shall be governed by the laws of the State of Indiana.
Acceptance On Behalf Of The City of Carmel: Acceptance On Behalf Of Hittle Landscaping:
Signature: Signature:
Name (Printed): Name (Printed): Nick Davis
Director of
Title: Title: Sales Estimating
Date of Acceptance: Date of Acceptance:
EXHIBIT 1 A
To Carla Newcomer
From: Lisa Stewart
Date: Contract Hittle Landscaping
Please initiate a contract for landscaping services from Hittle Landscaping, Inc. Bids
were obtained from three landscaping companies, Pro -Care, Hittle and T.M.T. Although
Pro -Care was the lowest bidder the Department has opted to award the contract to the
next lowest bid, Hittle Landscaping, Inc. Due to some ongoing zoning issues with Pro
Care, it was determined that it was not appropriate to award the contract to Pro -Care at
this time.
If you need any further information, please let me know.
Lisa