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HomeMy WebLinkAboutJBM Contractors/CRC/1,240,000/Palladium LandscapeAGREEMENT City of Cannel, Indiana THIS AGREEMENT is made and entered into by and between the City of Carmel. Indiana, acting by and through its Redevelopment Commission ("OWNER") and ("CONTRACTOR"), concerning the project ("Project`) described more particularly in Appendix A which is attached hereto and incorporated herein by reference. RECITALS: A. The OWNER has heretofore caused to be prepared certain plans, specifications and other documents (collectively. the "Contract Documents") as hereinafter listed pertaining to the Project, and the CONTRACTOR has filed a bid proposal ("Proposal") to furnish labor, tools, material, equipment and/or services, and to perform the work ("Work") called for in the Contract Documents pertaining to the Project, upon the temts and for the price(s) therein fully stated and set forth; and B. The said Contract Documents accurately and fully describe the terms and conditions upon which the CONTRACTOR is willing to furnish the labor, tools, material, equipment, services, and perform the Work called for by the Contract Documents and in the manner and time and for the price(s) set forth therein. THE OWNER AND CONTRACTOR AGREE AS FOLLOWS: 1.0 Contract Documents This Agreement consists of the following Contract Documents all of which are as fully a part of this Agreement as if set out verbatim herein or attached hereto and the same do in all particulars become the Agreement between the parties hereto in all matters and things set forth herein and described: a. This Agreement, including any attachments hereto; b. All Addenda issued prior to receipt of bid proposals, whether or not receipt thereof has been acknowledged by CONTRACTOR in its Proposal; c. The Specifications; d. The Additional Requirements; e. Notice to Bidders; f. Instructions to Bidders; g. Plans and Drawings; h. Performance, Payment Bonds; CONTRACTOR'S Proposal and Declarations; and A-1 1.2 All other documents defined as Contract Documents in any of the above listed documents. In resolving conflicts; errors, discrepancies and disputes concerning the nature, character, scope and/or extent of Work to be performed or furnished by the CONTRACTOR hereunder, or other rights and obligations of the OWNER and/or CONTRACTOR, the provision of a Contract Document expressing the greater quantity, quality or scope of the Work, or imposing a greater obligation upon the CONTRACTOR, or affording a greater right or remedy to OWNER, shall govern, without regard to the party who drafted such provision; otherwise; the Documents shall be given precedence in the order as listed in paragraph 1.1 herein above. 2.0 Contract Price 2.1 The CONTRACTOR shall, in strict conformity with the Contract Documents, furnish all necessary labor, tools, materials, equipment, services, assume and fulfill all obligations and perform all Work required to construct, complete, and make ready for use by the OWNER for a total contract price of $ 1,243,000 Base Bid, subject to any additions or deletions based on actual approved quantities of the respective unit price items, which price the CONTRACTOR agrees to accept as full payment for all such Work actually performed and accepted as described in the Contract Documents (the "Contract Price"). The CONTRACTOR agrees that the Contract Price shall be deemed full and complete compensation for all direct and indirect costs the Work, including, without limitation, all materials, labor, supervision, equipment, transportation, warranties, repairs, replacement, overhead and profit, complete and in place. 2.2 The above stated Contract Price will be paid to the CONTRACTOR in the manner and at such times as set forth in the Contract Documents. 3.0 Contract Time 3.1 It is hereby understood and mutually agreed, by and between the CONTRACTOR and OWNER, that the date of commencement and the time for completion of the Work as specified in the Contract Documents are essential conditions of this Agreement. 3.2 The CONTRACTOR agrees that the Work shall be commenced no later than the date indicated in the Notice to Proceed to be provided by OWNER to CONTRACTOR and that the Work shall be performed regularly, diligently and without interruption at such a rate of progress as will insure "Substantial Completion" of the Project, including completion of performance testing and such remedial work as may be required by the OWNER; by the dates specified in the Contract Documents. 3.3 The CONTRACTOR and OWNER acknowledge and agree that the time allotted by this Agreement for the performance and completion of the Work is reasonable and takes into account any and all risks and adverse conditions which may befall the CONTRACTOR hereunder. A-2 4. Effective Date This Agreement shall be deemed effective as of the date and year on which the last of the parties hereto, or their representative, executes same. 5. Miscellaneous Provisions 5.1 OWNER's Property Any and all documentation (other than original tracings and original calculations) generated by CONTRACTOR pursuant to this Agreement shall be considered OWNER's exclusive property and shall be disclosed only to OWNER and to no other person without OWNER's prior express written consent. CONTRACTOR shall keep confidential all working and deliberative material pursuant to IC 5-14-3-4. 5.2 Termination Except as expressly stated to the contrary herein, this Agreement may be suspended and/or terminated upon such terms as are set forth in Article 14 of' the City of Cannel. Standard General Conditions for Construction Contracts 1997 (the "General Conditions"), as incorporated herein by this reference. In the event any amount allegedly due hereunder is disputed and such dispute is not resolved to OWNER's satisfaction within ten (10) business days after notice of such dispute is given to CONTRACTOR. OWNER shall pay such amount as is in dispute, under protest, into the City Court of Carmel. which Court shall hold such money until notified of a resolution signed by both parties hereto or until a final judgment is entered thereon. 5.3 Binding Effect OWNER and CONTRACTOR and their respective officers, officials: partners, successors, executors, administrators, assigns and legal representatives are bound by this Agreement to the other party hereto and to the officers, officials, partners, successors, executors, administrators, assigns and legal representatives of' such other party in all respects as to all covenants, agreements and obligations contained and/or incorporated herein. 5.4 No Third Partv Beneficiaries Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone other than OWNER or CONTRACTOR. 5.5 Relationship The relationship of the parties hereto shall be as provided for in this Agreement, and CONTRACTOR, as well as its agents, employees, contractors, subcontractors, outside sources and other persons shall in no fashion be deemed to be an employee of OWNER. Furthermore, CONTRACTOR shall be solely responsible for payment to or for its agents, employees, contractors, subcontractors, outside sources and other persons A-3 all statutory, contractual and other compensation, benefits and obligations due thereto, and OWNER shall not be responsible for same. Rather, the Contract Price to be paid hereunder by OWNER to CONTRACTOR shall, subject to the terms and conditions hereof, be the full and maximum compensation and monies required of OWNER to be paid to CONTRACTOR pursuant to this Agreement. 5.6 Insurance CONTRACTOR shall maintain such bonds and insurance as are set forth in Article 5 of the General Conditions. 5.7 Indemnification CONTRACTOR shall indemnify and hold harmless OWNER, its officers, officials, employees, agents and legal representatives, from all losses, liabilities, claims, judgments and liens, including, but not limited to, all costs, expenses and attorney fees, arising out of any intentional or negligent act or omission of CONTRACTOR and/or any of its agents, employees, contractors, subcontractors, outside sources and/or other persons in the performance of this Agreement. The failure to do so shall constitute a material breach of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 5.8 Setoff In addition to any right of setoff provided by law, all amounts due CONTRACTOR shall be considered net of indebtedness of CONTRACTOR to OWNER. and OWNER may deduct any amounts due or to be come due from CONTRACTOR to OWNER from any sums due or to become due from OWNER to CONTRACTOR hereunder. 5.9 Government Compliance CONTRACTOR agrees to comply with all present and future federal, state and local laws; executive orders, rules, regulations, codes and ordinances which may be applicable to CONTRACTOR's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. CONTRACTOR agrees to indemnify and hold harmless OWNER from any loss, damage or liability resulting from any violation of such laws, orders; rules, regulations, codes and/or ordinances. This indemnification obligation shall survive the termination of this Agreement. 5.10 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 which can operate independently of such stricken provision shall continue in full force and effect. A -4 5.11 Notice. Any notice, invoice, order or other correspondence required or permitted to be sent under or pursuant to this Agreement shall be in writing and either hand -delivered or sent by postage prepaid, U.S. Certified mail, return receipt requested, addressed to the parties at the following address: OWNER: City of Carmel Redevelopment Commission 30 West Main Street, Suite 220 Carmel, IN 46032 Attention: Corrie Meyer. Executive Director Carmel Redevelopment Commission (with a copy to City Attorney, Construction Manager, Department of Law, same address) CONTRACTOR: JBM Contractors Corp 5299 W. Old 106th Street Zionsville, IN 46077 Attention: Keith Cochrun Senior Project Manager Notwithstanding the above, a Notice To Cease All Work issued under or pursuit to Paragraph 5.2 hereinabove may be orally given, as long as such notice is thereafter followed by written notice as provided in this Paragraph 5.11 within five (5) business days of the date of such oral notice. 5.12 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana, except for its conflict of laws provisions, as well as with all municipal ordinances and codes of the City of Carmel. The parties further agree that, in the event a lawsuit is filed hereunder, they waive any rights to a jury trial they may have, 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. 5.13 Waiver Any delay or partial inaction on the part of OWNER in exercising or pursuing any right and/or remedy provided hereunder or by law shall not operate to waive any such rights or remedies. 5.14 Exhibits All exhibits and/or appendices referenced herein, whether marked "Exhibit", "Appendix", or by some other title, shall be considered a part of this Agreement. 5.15 Prior Agreements This Agreement contains all of the agreements of the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, representations, and/or contracts, either oral or written, respective thereto. A-5 5.16 Representation and Warranties Each party hereto represents and warrants that it is authorized to enter into this Agreement and that such party, in executing this Agreement, has the authority to bind such party or the party which it represents, as the case may be. 5.17 Headings All headings 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 provisions hereof. 5.18 Advice of Counsel The parties warrant that they have read this Agreement and understand it, are fully aware of their respective rights, have had the opportunity for the advice and assistance of an attorney throughout the negotiation of this Agreement, and enter into this Agreement freely, voluntarily and without any duress, undue influence, coercion or promise of benefit, except as expressly set forth herein. 5.19 Entire Agreement This Agreement, together with any attachments 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 5.10 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail, unless the parties hereto, or their successors in interest, expressly and in writing agree otherwise. 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 set their hand on the dates below written: OWNER: CITY OF CARMEL. INDIANA by and through its Redevelo mens Commissi BY: Date: William H 444 nmer, President A-6 CONTRACTOR: JBM Contractors Corporation Inc BY: Printed Name: Susan J. Ripberger title: President Date: 7/2745 APPENDIX A PROJECT: THE PALLADIUM AT T11E CENTER FOR THE PERFORMING ARTS—LANDSCAPE PACKAGE WORK: As described by the Project plans and Contract Documents including, but not limited to: The general scope of work consists of concrete footings, installation of limestone piers and limestone raised planters (owner provided material), lighting and electrical work, drainage and backfilling, landscaping, and irrigation. DESIGN BY: CSO Architects, Inc. 8831 Keystone Crossing Indianapolis, IN 46240 OWNER'S REPRESENTATIVE: Corrie Meyer, Executive Director Carmel Redevelopment Commission City of Cannel CONSTRUCTION MANAGER: Shiel Sexton Company 902 N. Capitol Ave Indianapolis, IN 46204 A-7 Johnson, Sandy M From: Haney, Douglas C Sent: Thursday, September 24, 2015 10:15 AM To: Johnson, Sandy M; Brainard, James C Cc: Sheeks, Cindy L; Cordray, Diana L Subject: RE: It remains my legal opinion, as Carmel City Attorney, that the claim you reference, and any CRC claim that does not relate to a claim for professional services, does not need Common Council approval before it is processed for payment. Douglas Haney Carmel City Attorney Original Message From: Johnson, Sandy M Sent: Wednesday, September 23, 2015 6:19 PM To: Haney, Douglas C; Brainard, James C Cc: Sheeks, Cindy L; Cordray, Diana L Subject: I was told that you have a problem with me requesting a CRC contract for over $1m to be approved by Council. First I did not refuse to pay a claim, I requested to get approval before the claim is processed. Second, I did not know that "Yes it is" was a legal opinion, which is the only response I received from Doug in an email forwarded from Ms Meyer. If you will provide a written legal opinion to place with the claim and with the contract, then we can process the claim. I am not sure why Ms. Meyers procedure of getting approval changed on bid contracts over $50,000 has changed, but if Doug provides the opinion, we can go forward. Thank you. Sandy Johnson