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HomeMy WebLinkAboutE & B Paving/Engr. Dept. Engineering Department Project #04-12 Project Name: Illinois Street and 116th Street Improvements $2,723,000.00 - C[arian Bond · ~ /~-~'-~ City' of Carmel, Indiana THIS AGREEMENT is made and entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ("OWNER") and E & B Paving, Inc. ("CONTRACTOR"), concerning the Illinois Street and 116th Street Project ("Project") described more particularly in Appendix A which is attached hereto and incorporated herein by reference. 1.0 1.1 RECITALS: 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 terms and for the price(s) therein fully stated and set forth; and The said Contract Documents accurately and fully describe the terms and conditions upon which the CONTRACTOR is ~villing 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: 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 and Maintenance Bonds; i. CONTRACTOR'S Itemized Proposal and Declarations; and j. All other documents defined as Contract Documents in any of the above listed documents. A- I z:',sharcd~mmcbrideXcity projects\illinois street\illinois-116thfront end specs.doc Engineering Department Project #04-12 Project Name: Illinois Street and 116th Street Improvements $2,723,000.00 - Clarian Bond 1.2 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 OSVNER 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 para~aph 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 at the Unit Prices as quoted in the Proposal for a total contract price not to exceed $ 2,723~000.00 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 Items and Unit Prices specification" and other Contract Documents (the "Contract Price"). The CONTRACTOR agrees that each unit price shall be deemed full and complete compensation for all direct and indirect costs for the each respective item of Work, including, without limitation, all materials, labor, supervision, equipment, transportation, warranties, repairs, replacement, overhead and profit for the item, 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 ?ontract 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 xvill 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 OSVNER 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 xvhich may befall the CONTRACTOR hereunder. A -2 z:Xshared',mmcbfide~city projecks\illinois street',illinois-116th front end specs doc Engineering Department Project #04-12 ProjectName: Illinois Street and 116' Street Improvements $2,723,000.00 - Clarian Bond 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 Carmel, 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 Party 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 ~vell 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 z:Xshared~mmcbride\city projects\illinois streetXillinois-I 16thfront end specs doc Engineering Department Project #04-12 Project Name: Illinois Street and 116th Street Improvements $2,723,000.00 Clarian Bond 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, roles, 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 Severabilit¥. 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-4zSshared~nmcbfide\city projects\illinois street~illinois-I 16th front end specs doc Engineering Department Project #04-12 Project Name: Illinois Street and ll6th Street Improvements $2,723,000.00 - Clarian Bond 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: CONTRACTOR: City of Carmel Board of Public Works and Safety One Civic Square Carmel, IN 46032 Attention: Michael T. McBride, PE, City Engineer (with a copy to City Attorney, Department of La,v, same address) E & B Paving, Inc 12600 S.R. 38 East Noblesville, IN 46060 Phone: 317-773-4132 Fax:317-773-4137 Arm: Larry Canterbury 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 ~vell as xvith 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 la~v shall not operate to waive any such fights 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 z:Xaharedhnmcbride\city projects\illinois street\illinois-116thfront end specs doc Engineering Department Project #04-12 Project Name: Illinois Street and 116th Street Improvements $2,723,000.00 - Clarian Bond 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 xvhich 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 fights, 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 ~vithout 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 ~vith 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. A- 6z:Xshared\mmcbrideXcity projccts\illinois street\illinois-I 16thfront end specs.doc Engineering Department Project #04-12 Illinois Street and 116 Street Improvements Project Name: ~ $2,723,000.00 - Clarian Bond IN WITNESS WHEREOF, the parties hereto set their hand on the dates below written: OWNER: CITY OF CARMEL, iNDIANA by and throu.~gh its Board of Public Works and Safety ,/~./.. ,~ , / yJJames Brainard, Presiding Officer Date0/: Mary A~a/Burke, Member Date: /~) --(2~)-- ~9 ~/ CONTRACTOR: Title: ~ Date: Date' [.O/¢.~%D/G~/ ~ Sandra M. Johnson, · · , ,//~ / / Deput~ Clerk for ATTEST: / l/ / , / , X,_~,'~2~. /~~~" Date: .~l~ana eordray, ~e}k-Treas~ / ' A- 7z:Xshare&mmcbride\city projects\illinois street\illinois-I l 6thfront end specs doc Engineering Department Project #04-12 Project Name: Illinois Street and 116th Street Improvements $2,723,000.00 - Clarian Bond PROJECT: WORK: DESIGN BY: APPENDIX A Illinois Street and 116th Street Improvements As described by the Project plans and Contract Documents including, but not limited to: New construction of Illinois Street Beginning at a point approximately 1, O00 feet South of l16th Street and continuing North a distance of 3, 060feet. Reconstruction of 116th Street from a point approximately 250feet West of Springmill Road and continuing East a distance of l,98O feet to the intersection with US 31, in Sections 2, 3, 34, 35, Townships 17 and 18 North, Range 3 East, Clay Township, Hamilton County. American Consulting, Inc. 7260 Shacleland Station Indianapolis, IN 46256-3957 (317) 547-5580 Fax: (317) 543-0270 Copyright c 1966-2004 by American Consulting, Inc. OWNER'S REPRESENTATIVE: Michael T. McBride, PE City Engineer City of Carmel One Civic Square Carmel, IN 46032 A-8 zSshared~mmcbride~city projectsXillinois street\illinois-116thfrom end specs.doc