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Home My Public Portal About069-2011 - Sanitary - MacAllister Machinery -PURCHASE AGREEMENT THIS AGREEMENT made and entered into this _26th day of _April 2011 by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Sanitary Commissioners (hereinafter referred to as the "City") and MacAllister Machinery Company, Inc., 7515 E. 30'h St., Indianapolis, IN 46219 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby agrees to purchase from Contractor one new, current model Caterpillar 826-H Landfill Trash Compactor, with trade-in of City's 2007 model 826-H Caterpillar Trash Compactor, serial number LRX14218, for a trade-in value of $252,000.00. A Bid Specification sent out February 11, 2011, has been made available for inspection by Contractor, is on file in the offices of the Richmond Sanitary District, and is hereby incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same, and shall provide said landfill trash compactor conforming with the requirements outlined in the Bid Specifications. Delivery of any equipment that does not meet all specifications listed on "the Bid Specifications" will be considered a breach of this Agreement. The response of Contractor to said Bid Specifications is attached hereto as Exhibit "A," which Exhibit is dated March 21, 2011, consisting of six (6) pages, and is hereby incorporated by reference and made a part of this Agreement. Contractor shall provide all equipment, services, and warranties, and abide by all terms, including but not limited to guaranteed buy-back amounts (but not including finance/lease options) listed on Exhibit "A." Contractor shall not modify or alter any standard warranty from the manufacturer of the above described vehicle or equipment. Nothing contained herein shall prevent Contractor from providing any additional or supplemental warranty in addition to that provided by the Manufacturer. Further, Contractor shall provide City with copies of its warranty upon receiving a written or verbal request to receive such warranty. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. No work shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; and 2. A purchase order has been issued by the Purchasing Department. SECTION IL STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. Contract No. 69-2011 Page 1 of 5 SECTION III. COMPENSATION City shall pay Contractor a total sum not to exceed Two Hundred Fifty -Four Thousand Nine Hundred Twenty Dollars and Zero Cents ($254,920.00), after trade-in, for the above described equipment, delivered. SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect until completion of the project. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice, whether oral or written, by the Contractor to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Page 2 of 5 Coverage Limits A. Worker's Compensation & Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $1,000,000 each occurrence $2,000,000 aggregate Section 2. Property Damage $1,000,000 each occurrence D. Comprehensive Auto Liability Section 1. Bodily Injury $1,000,000 each person $1,000,000 each occurrence Section 2. Property Damage $1,000,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $1,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VIL PROHIBITION AGAINST DISCRIMINATION Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; Page 3 of 5 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION VIIL RELEASE OF LIABILITY Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of the same from all liability which may arise in the course of Contractor's performance of its obligations pursuant to this Agreement. SECTION IX. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such assignment or delegation without the prior written consent of the other party shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. Both parties expressly agree that this document supersedes all previous negotiations, discussions, or conversations relating to the subject matter herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising under this Contract, must be filed in said courts. By signing this agreement, both parties are estopped from bringing any action in alternative courts or venues. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in Wayne County Circuit or Superior Court. Any person executing this Contract in a representative capacity hereby warrants that he has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City due to the enforcement of this Agreement, including but not limited to City's reasonable attorney's fees. Page 4 of 5 In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. If any portion of this agreement is declared unenforceable by a court or tribunal, all other portions shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Sanitary Commissioners By:_S/S Richard Bodiker Richard Bodiker, President S/S Gil Klose Gilbert Klose, Vice President S/S Greg Stiens Greg Stiens, Member Date: April 26, 2011 APPROVED: S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: April 27, 2011 "CONTRACTOR" MACALLISTER MACHINERY COMPANY, INC. By:_S/S Chris MacAllister Printed name: ( Chris MacAllister Title President Date: May 4, 2011 Page 5 of 5