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HomeMy WebLinkAboutCalumet Civil Contractors, Inc./ENG/$2,827,000.00/22-ENG-09 West Main Street ImprovementsCzTfshfzHsfdivlijobu22;12bn-Nbz25-3136 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 3.3 Final Payment. Final payment, constituting the entire unpaid balance of the Contract Price, including any retainage, shall be paid by City to Contractor within ninety-one (91) days after it has become due and payable. Final payment to Contractor shall not become due and payable until and unless all Goods and Services are delivered, and all Work for the Project is otherwise fully completed and performed in accordance with the Contract Documents and is satisfactory to and approved by City. 3.4 Effect of Final Payment. The making of final payment shall constitute a waiver of Claims by City except those arising from: a. Liens, claims, security interests or encumbrances arising out of the Contract and unsettled; b. Failure of the Work to comply with the requirements of the Contract Documents; c. Terms of special warranties required by the Contract Documents; d. Claims previously made in writing and remaining unsettled as of the date of final payment; e. Claims by City attributable to defective work or prior corrective work, appearing after final inspection; f. Failure of the Work to comply with the requirements of the Contract Documents; g. City claims and other rights arising under the terms of any general or special warranties, guarantees or maintenance bonds specified by the Contract Documents or arising thereunder; and h. City claims and other rights with respect to Contractor’s and Surety’s continuing obligations under the Contract and the Contract Document. 3.5 Acceptance by Contractor of any sum tendered by City as final payment shall constitute a waiver of all claims by Contractor with respect to this Agreement, except those claims authorized by this Agreement, previously made in writing and submitted in a timely manner, and specifically identified and reserved by Contractor as unresolved in the application for final payment. 4. CONTRACT DOCUMENTS: 4.1 Scope of Work. Contractor agrees to provide all labor, goods, material, shipping, receiving, supervision, services, supplies, machinery, equipment, storage and any necessary rigging as required for the Project as set forth in the attached Exhibit “A” and any references, addenda and/or attachments thereto, Project Manual (if applicable), City of Carmel General Conditions, City of Carmel Supplementary Conditions, and all applicable Drawings and Specifications (collectively Contract Documents”), all of such Contract Documents are fully incorporated herein. Contractor acknowledges that all referenced Contract Documents are a part of this Agreement. 4.2 Contractor Site and Document Review. Contractor acknowledges that it has had an adequate opportunity to examine sufficiently to its satisfaction the site of the Work and to review and/or obtain copies of the Contract Documents and to become fully familiar with them, and that it shall not be excused from any conditions existing and detectable at the site or any provisions set forth in the Contract Documents due to any lack of knowledge or understanding of the existence or contents thereof at the time of executing this Agreement. Contractor acknowledges the Contract Documents to be suitable for Contractor’s Work and sufficient for their intended purpose, and agrees to perform the Work and to complete the same for the Contract Price and within the Project timeline, in full and strict accordance with the Contract Documents and to City’s satisfaction, and that it will perform the Work so as not to violate any term, covenant or condition of the Contract Documents or applicable codes and laws. 2 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 4.3 All Drawings, Specifications and other items defined herein as Contract Documents that have been prepared for the Project and furnished to Contractor by or on behalf of City or other third party are without any representation or warranty by the City as to the acceptability, accuracy or suitability thereof for the Work. City makes no representation or warranty to Contractor concerning the acceptability, accuracy or completeness of the Contract Documents or other information and data prepared by persons other than City, and accordingly, City shall have no liability to Contractor with respect to any patent or latent defects, deficiencies, errors and omissions therein. 4.4 Contractor represents that it has reviewed the Contract Documents, visited the site and provided City with written notice of any concerns or necessary clarifications resulting from these reviews and investigations prior to submitting its proposal or bid to City and executing this Agreement. Contractor waives the right to request and increase in the Contract Price or extension of the Project completion deadline as a result of its failure to raise such concerns or clarifications with City. 4.5 Intent of the Contract Documents. The Contract Documents shall be deemed to include and require all items and aspects of labor, material, equipment, services and transportation incidental to or necessary for the proper and efficient execution and completion of the Work as it relates to the Project. The Contract Documents are complementary, and what is required by any one document shall be as binding as if required by all. Work not specifically covered in the Contract Documents or which is subject to question and interpretation because of conflicts, duplications or ambiguities may, at City's option, be required of Contractor if it is consistent therewith and is reasonably inferable therefrom as being necessary to produce the results intended by this Agreement. As such, any part of the Work shown on Drawings but not specifically mentioned in the Specifications or vice versa shall be considered as part of the Work, the same as though included in both. 4.6 Shop Drawings and Submittals. Contractor shall submit shop drawings, product data, samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of other contractors or subcontractors. If Contractor shall make changes in design, including dimensional changes, either through shop drawings or actual field work, it shall accept the responsibility for the structural and functional adequacy of such changes and their acceptance by City or Project’s architect. Any structural or functional inadequacies which may develop because of such changes shall be remedied by Contractor unless such change is specifically included in a change order. 4.7 Taxes. As a public, municipal entity, the City of Carmel, and its various departments, are exempt from sales and compensating use taxes on all tangible personal property (materials, equipment and components) pursuant to the law of the State of Indiana. Contractor shall not include any charges representing such taxes on any invoices hereunder. Contractor shall be responsible for all franchise fees and taxes of any kind whatsoever. 5. WARRANTY: 5.1 In addition to all warranties required by Contract Documents, Contractor expressly warrants that the Goods and Services/the Work covered by this Agreement will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Contractor by City and/or by Contractor to and accepted by City, all of which documents are incorporated herein by reference, and that the Goods and Services/the Work will be delivered and/or performed in a timely, good and workmanlike manner and free from defect. Contractor acknowledges that it knows of City’s intended use and expressly warrants that the Goods and Services provided to City pursuant to this 3 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 Agreement have been selected by Contractor based upon City’s stated use and are fit and sufficient for their particular purpose. 5.2 Further, Contractor warrants to City that materials and equipment furnished under the Contract Documents will be of the best quality and new unless the Contract Documents require or permit otherwise. The performance of the Work shall not limit, void or otherwise compromise or diminish any equipment or manufacturer warranty that is to be issued under the Contract Documents. Goods, Work, materials, or equipment not conforming to these requirements may be considered defective. Contractor’s warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the City, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 5.3 Contractor shall, at its sole expense, promptly and properly repair, replace or otherwise correct any Work that is (i) rejected by City or Architect, or (ii) known, observed or discovered at any time by Contractor, City or Architect to be defective or failing to conform to the Contract Documents and shall pay City for all expenses incurred in any delay caused by remedying defective or otherwise nonconforming Work. 5.4 If within two (2) years after final completion of the Project, or such longer period as established with respect to Contractor’s obligations under the Contract Documents, the Work or any portion thereof is found to be not in accordance with the requirements of the Contract Documents, Contractor shall correct it promptly after receipt of written notice from City to do so. Contractor’s obligations under this Section shall survive completion and acceptance of the Work and Project and termination of the Agreement. 5.5 Any and all warranties which are available on any material or equipment or other service which is part of the Work will be provided to City at no additional cost. Upon completion of the Work, Contractor shall assign to City all warranties obtained or obtainable by Contractor from manufacturers and suppliers of equipment and materials incorporated into the Work by written instrument of assignment in a form acceptable to City. Contractor shall furnish City with copies of all warranties, guarantees, operating manuals relative to equipment installed, and a complete set of reproducible drawings with all field changes noted on them relating to the improvements constructed under the Contract. The assignment of such manufacturer and supplier warranties shall not relieve Contractor of any of its own warranty obligations under this Article, which shall remain in full force and effect. 5.6 Notwithstanding anything to the contrary contained in Contract Documents with respect to warranties, it is understood and agreed that the foregoing warranties and guarantees shall not affect, limit or impair City's right against Contractor with regard to latent defects in the Work which do not appear within the applicable warranty period following acceptance of the Work and which could not, by the exercise of reasonable care and due diligence, be ascertained or discovered by City within such warranty period. Contractor shall be and remain liable and responsible to correct and cure any such latent defects which are reported to Contractor by City in writing within ninety (90) days after such latent defect first appears or could, by the exercise of reasonable care and due diligence, be ascertained or discovered by City. City’s warranty rights and remedies with respect to latent defects shall remain in full force and effect and for the same duration as with any other warranty provided in this Article or otherwise available or prescribed by law. 4 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 6. TIME AND PERFORMANCE: 6.1 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. 6.2 Contractor shall continuously monitor the construction schedule and advise City on a regular basis of the status of Contractor’s progress with respect to such schedule at any time City’s representative requests Contractor to do so, including the furnishing of information on the status of shop drawings, samples, submittals and materials, machinery or equipment which may be in the course of preparation of manufacture. 6.3 If, in the opinion of City, Contractor is behind schedule in the performance of the Work or is failing, without cause, to maintain progress of the Work or to conform to the general progress of all work for the Project, Contractor agrees that it shall, at its own expense, perform such overtime work, use extra labor, and undertake all other means necessary to bring the Work back on schedule. 6.4 If there are any conflicting times or durations for action, submissions, notices or responses thereto by Contractor between or among the Contract Documents, the controlling time or duration for such action, submissions, notices or responses thereto by Contractor shall be the earlier of such times and shorter of such durations, unless City expressly agrees in writing otherwise. 7. MEANS AND METHODS: Contractor is responsible for the means, methods, techniques, sequences or procedures, and safety precautions and programs in connection with provision of Goods and Services and related work under the Contract Documents. At all times during performance of the Work, Contractor shall maintain and designate to City adequate, experienced and cooperative supervisory personnel, including a full-time on-site project manager or superintendent if required by Contract Document or federal, state or local laws, rules and regulations. City shall not have control over or charge of, and shall not be responsible for, means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the performance of the Work by Contractor and shall not be responsible for any omission or failure on the part of the Contractor to properly perform its obligations. Contractor shall be responsible to City for Contractor’s negligent acts or omissions or failure to perform. 8. DISCLOSURE AND WARNINGS: If requested by City, Contractor 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, Contractor 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. 9. PROTECTION OF WORK: Contractor shall at its own expense take all necessary precautions to protect the work of other trades from any damage caused by Contractor’s operations, and watch over, care for and protect from damage or injury by any cause whatsoever, all of Contractor’s Work, complete or otherwise, and all of its materials, supplies, tools, machinery and equipment at or near the Project. 5 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 10. SUBCONTRACTS: By appropriate agreement, written where legally required for validity, Contractor shall require each subcontractor, to the extent of the Work to be performed by the subcontractor, to be bound to Contractor by terms of the Contract Documents, and to assume toward Contractor all the obligations and responsibilities, including the responsibility for safety of Contractor’s Work, which Contractor, by these Contract Documents, assumes toward City. Each subcontract agreement shall preserve and protect the rights of City under the Contract Documents with respect to the Work to be performed by subcontractor so that contracting thereof will not prejudice such rights, and shall allow to subcontractor, unless specifically provided otherwise in the contract agreement, the benefit of all rights, remedies and redress against Contractor that Contractor, by the Contract Documents, has against City. Where appropriate, Contractor shall require each subcontractor to enter into similar agreements with its subcontractors. 11. LIENS: Contractor 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 Contractor 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 Contractor’s sole cost and expense. 12. DEFAULT: In the event Contractor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Contractor’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 Contractor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 13. INSURANCE AND INDEMNIFICATION: 13.1 Contractor 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 Contractor 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 Contractor’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. Contractor 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. Contractor 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 Contractor’s provision of Goods and Services pursuant to or under this Agreement or Contractor’s use of City property. 13.2 Notwithstanding any other provision of this Agreement to the contrary, should any policy required by the Contract Documents be canceled or otherwise terminated before the completion of the Work hereunder, Contractor shall exert all reasonable efforts to procure and maintain in force similar insurance from insurers 6 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 satisfactory to City and provide certificates of such insurance to City upon its written request. Should Contractor fail or neglect to provide the required insurance, or allow any required coverage to lapse, City shall have the right, but not the duty, to provide such insurance and deduct the cost thereof from any money due to Contractor any and all premiums paid by City for and on account of said insurance. The policy or policies, and each certificate of insurance, shall further provide that the insurance will not be cancelled by the Insurer or the limits of liability reduced by endorsement prior to at least thirty (30) days after written notice by certified mail of such cancellation or change has been provided by the respective insurer to City. No less than fourteen (14) days prior to the expiration, cancellation or termination of any such policy, Contractor shall supply City with a new and replacement Certificate of Insurance and Additional Insured endorsement as proof of renewal of the original policy and coverage, with such new or replacement policy and endorsements in the same manner and for the same coverage and amounts in favor of City as set forth in this Paragraph. 13.3 Indemnity. To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend City and all of its officers, directors and employees, from and against all claims, suits, demands, causes of action, damages, losses, costs and expenses, including reasonable attorney's and Contractor’s fees and expenses, but only to the extent caused by Contractor’s negligent performance of the Work under this Agreement, or occasioned by any breach or nonperformance of its terms, provided that any such claim, suit, demand, cause of action, damage, loss, cost, fees or expense: (a) is attributable to bodily injury, sickness, disease or death, or patent infringement, or injury to or destruction of tangible or real property, including the loss of use thereof and consequential damages resulting therefrom, or is attributable to damages from economic harm or loss; and (b) is caused in whole or in part by any negligent act or omission, wrongful act, or other breach of duty of Contractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable, regardless of whether such claim, suit, damage, loss, cost or expense is caused in part by any joint, several or comparative, but not sole, negligent act or omission, of City. 13.4 The foregoing obligations of Contractor shall not be affected or limited in any way by any insurance required of or provided to Contractor under the Agreement. The indemnification and hold harmless obligations as provided herein shall not negate, abridge or otherwise reduce any other right and remedy of City or obligation of indemnity by Contractor which would otherwise exist in favor of City under this Agreement. 14. GOVERNMENT COMPLIANCE: Contractor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes 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 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. 15. NONDISCRIMINATION: Contractor 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. 7 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 16. E-VERIFY: Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the “Indiana E-Verify Law”), Contractor is required to enroll in and verify the work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does not knowingly employ unauthorized aliens. In support of the Affidavit, Contractor shall provide the City with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Contractor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Contractor or any subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E-Verify program cease to exist. 17. OWNERSHIP AND USE OF DOCUMENTS: The Reports, Recommendations, Analyses, Surveys, Data, Calculations, Drawings, Schedules, Specifications and other documents prepared or employed by Contractor during the course of furnishing the Work to City under this Agreement shall be and become the property of the City, whether the Project is completed or not; accordingly, such materials may be used by the City for information and reference and in connection with City’s involvement on the Project. Such items and documents may also be used by City for completion of the Project or work with respect thereto by others if Contractor is in default under this Agreement, in which case Contractor shall provide City with reproducible copies of such reports, recommendations, analyses, surveys, data, calculations, drawings, schedules, specifications and other documents for such use but shall not be obligated to sign, certify or seal such copies. Contractor may utilize the name, images or descriptions of the Project in its promotional and marketing materials, except that it shall not utilize, publish or advertise any unique or distinctive components of the design, drawings or specifications for the Project in such promotional and marketing materials without first obtaining the written consent of City. Contractor will have no liability to City arising from City’s use or alteration of the above-referenced documents on any unrelated project. 18. 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. 19. NON-ASSIGNMENT: Contractor 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. 20. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Contractor 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 Contractor under or pursuant to this Agreement. 21. GOVERNING LAW; CONFLICT RESOLUTION: 21.1 General. City and Contractor are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes 8 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 or disagreements. If disputes or disagreements do arise, City and Contractor each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. City and Contractor shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement within the period specified by applicable law, but if not otherwise specified by applicable law, within not more than ten (10) years after the date of Substantial Completion of the Work. All Contract Documents are to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. 21.2 Litigation. Claims, disputes and other matters in controversy arising out of or related to this Agreement, not otherwise resolved in accordance with the provisions above, 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, and any hearing, trial or conference shall take place in that locale, unless agreed to otherwise in writing by City and Contractor. City and Contractor consent to the choice of law, the choice of dispute resolution designated by them, venue as provided herein, and to personal jurisdiction over each of them as provided herein and waive any right to object to the exercise of personal jurisdiction by the court and to exclusive venue in this locale. Any award, judgment or agreement in settlement of a dispute concerning such matters and resulting from negotiations or litigation in which City and Contractor are parties or participants shall be as binding upon surety as though surety were named and joined in such proceeding, provided that Contractor has been given a reasonable opportunity to join, participate, assist or provide supporting evidence in the presentation of any claim, defense or other issue in controversy that is settled or resolved thereby. 21.3 Continuation of Work. Provided City continues to make payments of amounts not in dispute, no dispute under this Paragraph shall interfere with the progress of the Work, and Contractor shall proceed with furnishing the Work, including disputed performance, despite the existence of, and without awaiting the resolution of, any such dispute. The failure or refusal of Contractor to continue performing under such circumstances shall constitute a default under this Agreement. 21.4 Claims Against Third Parties. In any instance or proceeding whereby any claim, dispute or other matter in controversy between City and Contractor involves, arises from or gives rise to a similar claim, dispute or other matter in controversy as between City and another third-party, Contractor shall furnish and present to City non-privileged evidence, documentation and other information to support its claim, defense or other position with respect thereto. 21.5 Waiver of Consequential Damages. Contractor waives any claims against City for consequential damages arising out of or relating to this Agreement. This waiver includes damages incurred by Contractor for principal office expenses, including the compensation of personnel stationed there and other components of home office overhead, for losses of financing, business and reputation, for loss of management or employee productivity or of the services of such persons and for loss of profit except anticipated profit arising directly from the Work being performed hereunder. This waiver is applicable, without limitation, to all consequential damages due to either party’s termination in 9 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 accordance with this Agreement. 22. 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. 23. 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 AND City of Carmel Engineering Department Office of Corporation Counsel One Civic Square One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 If to Contractor: Calumet Civil Contractors, Inc. 4898 Fieldstone Drive Whitestown, Indiana 46075 Notwithstanding the above, notice of termination under paragraph 19 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. 24. TERMINATION: 24.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Contractor, immediately terminate this Agreement for cause, in the event of a default hereunder by Contractor 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, Contractor 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 Contract Price amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 24.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Contractor. In the event of such termination, Contractor 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 Contract Price amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 25. REPRESENTATIONS AND AUTHORITY TO EXECUTE: 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. 10 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 26. FINAL COMPLETION AND CLOSEOUT: In addition to any requirements for final completion and closeout listed in General and Supplementary Conditions, as a condition of final payment and Contract closeout, Contractor certifies or shall submit to City the following: a. Contractor certifies that payrolls, bills for materials and equipment, and other indebtedness connected with the Work, for which City or City’s property might be responsible or encumbered, less amounts withheld by the City) have been paid or otherwise satisfied; b. Any applicable Contractor guarantees and warranties; c. A certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect; d. Consent of surety, if any, to final payment; e. As-constructed record copy of the Contract Documents marked to indicate field changes and selections made during construction; f. If applicable, all manufacturer’s warranties, product data, testing and/or inspection results or reports, and maintenance and operations manuals; g. If required by City, other data establishing payment or satisfaction of obligations, such as receipts, or releases and waivers of liens, claims, security interests, or encumbrances, arising out of the Contract, to the extent and in such form as may be designated by City; h. Any other submittals required by the Contract Documents; and i. Satisfactory evidence that any claims or liens filed have been discharged or satisfied. If an architect, a consultant, or a subcontractor, or other person or entity providing services or work for the Contractor, refuses to furnish a release or waiver required by City, the Contractor may furnish a bond satisfactory to the City to indemnify City against such liens, claims, security interests, or encumbrances. If such liens, claims, security interests, or encumbrances remains unsatisfied after payments are made, the Contractor shall refund to City all money that City may be compelled to pay in discharging such liens, claims, security interests, or encumbrances, including all costs and reasonable attorney’s fees. 27. TERM: Unless otherwise terminated in accordance with the termination provisions under Contract Documents hereinabove, this Agreement shall be in effect from the Effective Date through satisfactory completion of the Work and delivery of all Goods and Services according to the established schedule. 28. 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. 29. 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. 30. NO THIRD PARTY BENEFICIARIES: This Agreement gives no rights or benefits to anyone other than City and Contractor. 31. DEBARMENT AND SUSPENSION: 31.1 The Contractor certifies by entering into this Agreement that neither it nor its principals nor any of its 11 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the Contractor. 31.2 The Contractor certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The Contractor shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City’s request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 32. PRIOR WORK: In the event that Contractor has delivered any Goods and Services and/or performed any of the Work under this Agreement prior to the date of this Agreement, pursuant to an authorization to proceed or verbal directive issued by City to Contractor or a letter of intent or verbal understanding entered into by and between City and Contractor, this Agreement and all of the terms and conditions thereof, including the payment obligations of City for such prior deliveries and/or performance, shall govern such prior deliveries and/or performance to the same extent as though they were performed or delivered after the date hereof, and any amounts that were earned by Contractor and paid by City to Contractor, or earned by Contractor and still to be paid by City to Contractor, for such other previously delivered Goods and Services or performed Work, shall be applied as a credit against Contractor’s overall compensation under this Agreement. 33. RIGHT TO ATTORNEY FEES: In the event City employs attorneys or incurs other expenses it may deem necessary to protect or enforce its rights under the Agreement where Contractor is in default or breach of the Agreement, or City otherwise is required to undertake performance of Contractor’s obligations hereunder because of Contractor’s failure or refusal to perform, Contractor agrees to pay the attorney fees, costs and expenses so incurred by City. Furthermore, wherever in the Agreement Contractor agrees to pay expenses incurred by City such expenses shall include, but are not limited to, attorney fees incurred by City. 34. DRUG FREE WORK SITE: Contractor and its employees shall comply with all provisions of the Drug Free Workplace Act of 1988 as amended. The unlawful manufacture, distribution, dispensation, possession or use of a controlled substance in the workplace is prohibited. Contractor is responsible for the development implementation, administration and enforcement of a formal substance abuse policy (“Substance Abuse Policy”) which, as, a minimum, meets the standards set forth by the City. 35. COMPLIANCE WITH IND. CODE § 5-16-13: To the extent that this Project and Agreement is subject to the requirements of Indiana Code § 5-16-13 et seq., which are incorporated by reference as if fully restated herein, Contractor shall comply with all applicable requirements set forth therein. 36. ACCESS TO PUBLIC RECORDS ACT: Contractor understands and agrees that any “public record”, as that term is defined in Indiana Code 5-14-3- 2(m), as amended, that is related to the subject matter of the Contract, whether the same is in the 12 Calumet Civil Contractors, Inc. Engineering Department - 2025 Appropriation #2200 0 44-628.71 2022 Bond Fund; P.O. #116721 Contract Not To Exceed $2,827,000.00 possession or control of Contractor or City, shall be subject to release under and pursuant to the provisions of Indiana’s Access to Public Records Act, as codified in Indiana Code 5-14-3-1, et seq., as amended. 37. COMPETING LAWS: As between inconsistent provisions among Federal, State and local laws, Contractor should generally comply with the more stringent requirement, unless a Federal law, rule or regulation requires that the affected Federal provision be observed, notwithstanding the existence of a more stringent applicable State or local requirement. 38. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, the Contractor shall certify that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 39. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 40. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Contractor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. 13 05/21/2025 05/21/2025 05/21/2025 05/21/2025 Laura Campbell (May 21, 2025 13:37 EDT) la) */a.)$& (May 21, 2025 1у:20 EDT) Alan Potasnik ame. arl*2 (May 22, 2025 0ш:31 EDT) 0aPHs (aUloZ EXHIBIT B Invoice Date: Name of Company: Address & Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Goods/Services Date Goods/ Service Provided Goods/Services Provided Describe each good/service separately and in detail) Cost Per Item Hourly Rate/ Hours Worked Total GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker’s Compensation & Disability Statutory Limits Employer’s Liability: Bodily Injury by Accident/Disease: $1,000,000 each employee Bodily Injury by Accident/Disease: $1,000,000 each accident Bodily Injury by Accident/Disease: $1,000,000 policy limit Commercial General Liability: General Aggregate Limit (other than Products/Completed Operations): $6,000,000 Products/Completed Operations: $5,000,000 Personal & Advertising Injury Each Occurrence Limit: $5,000,000 Comprehensive Auto Liability (owned, hired and non-owned) Bodily Injury and Property Damage: $5,000,000 each occurrence Umbrella Excess Liability If a commercial umbrella liability policy is used to satisfy the minimum limits of liability requirements, the combined limits must equal these minimum limits of liability.