HomeMy WebLinkAboutEagle Valley Chesterton/Mutual Reservation of RightsJAMES BRAINARD, MAYOR
July 23, 2012
Board of Public Works and Safety
One Civic Square
Carmel, Indiana 46032
RE: EAGLE VALLEY CHESTERTON PROJECT — MUTUAL RESERVATION OF RIGHTS — PARTIAL PAYMENT
Dear Board Members:
A "Mutual Reservation of Rights" (Reservation) to make a payment of $89,047.89 to Eagle Valley's
counsel is attached for Board of Public Works approval and signatures. This payment is being made as
compensation for work performed by Eagle Valley on the Chesterton Drainage Project. Although the
dispute over the final payment amount due to Eagle Valley continues, $89,047.89 is the minimum
amount that both sides agree remains due as final payment.
In order to allow this payment amount while maintaining the City's future legal rights, I am
recommending that the Board of Public Works and Safety Presiding Officer and Members sign and
execute this Reservation prior to presentation to the Eagle Valley Counsel.
The attached Reservation and Exhibit "A" is presented to the Board for approval and signature.
Sincerely,
r;idC■Z
ichael T. McBride, P.E.
City Engineer
Attachment: Reservation of Rights document and Exhibit "A"
S: \BPW12 \EAGLEVALLEYCHESTERTON.DOC
DEPARTMENT OF ENGINEERING
ONE CIVIC SQUARE, CARMEL, IN 46032 OFFICE 317.571.2441 FAX 317.571.2439
EMAIL engineering@carrnel.in.gov
MUTUAL RESERVATION OF RIGHTS
THIS MUTUAL RESERVATION OF RIGHTS ( "Mutual Reservation ") is entered into
this 15th day of June , 2012, by and between the City of Carmel, by and
through its Board of Public Works and Safety, One Civic Square, Carmel, Indiana 46032
( "City ") and Eagle Valley, Inc., 3401 North Raceway Road, Indianapolis, Indiana 46234
( "Eagle Valley "); both are referred to herein collectively as (the "Parties "), upon the
following terms and conditions:
I. Recitals
1.1 Prior to August 18, 2010, the City advertised its Notice to Bidders for the
Chesterton Subdivision Drainage Improvements, City of Carmel Project 10 -12 (the
Project ").
1.2 On August 18, 2010, Eagle Valley, in response to the City's advertised Notice
to Bidders submitted its Bidder's Itemized Proposal and Declarations for the Project ( "Bid
Proposal ").
1.3 Thereafter, on or about August 24, 2010, Eagle Valley and the City executed
the Agreement for Purchase of Goods and Services for the Project (the "Agreement ").
1.4 On or about November 1, 2010, the City and Eagle Valley entered into
Change Order No. 1.
1.5 On or about July 20, 2011, the City issued Change Order No. 2.
1.6 To date, the City and Eagle Valley agree that the City has made payments to
Eagle Valley totaling ($926,069.57).
1.7 On August 19, 2011, the City provided Progress Estimate No. 3 (the "City's
Progess Estimate No.3 ") which includes:
Earned to Date: $1,015,117.46
Previous Payments: $947,584.34
Earnings this Estimate: $67,533.12
Retainage: ($21,514.77)
Amount Due Contractor: $89,047.89
1.9 On August 31, 2011, Eagle Valley provided its version of the final invoice
titled Progress Estimate No. 3 (the "Eagle Valley's Progress Estimate No. 3 "). That version
of the Progress Estimate No. 3 included:
Original Contract Amount: $860,590.75
Change Order No. 1: $362,998.50
Change Order No. 2: $43,230.18
2097621/8824 -149
Current Contract Amount: $1,266,819.43
Earned to Date:
Previous Payments:
Earnings This Estimate:
Amount Due Contractor:
$1,266,819.43
($926,069.57)
$340,749.88
$340,749.88
1.10 The City rejected Eagle Valley's Progress Estimate No.3.
1.11 The City has approved the Earned to Date amount of $1,015,117.46. Based
on the City's Progress Estimate No. 3, the City has made Previous Payments to Eagle
Valley of $926,067.57, resulting in the Amount Due Contractor of $89,047.89.
1.12 The City has communicated its willingness to make payment of the amount of
$89,047.89 to Eagle Valley under this Mutual Reservation for the benefit of both parties
and in exchange for a Partial Waiver of Liens and Claims attached as Exhibit A.
1.13 The Parties disagree as to the total outstanding balance, if any, due and
owing from City to Eagle Valley for the Project (the "Dispute "). In order allow payment of
$89,047.89 to Eagle Valley, the Parties agree to the terms of this Mutual Reservation as
set forth below.
11. Terms
NOW, THEREFORE, in consideration of the payment, release and other terms,
covenants and conditions hereinafter set forth, The City and Eagle Valley agree as follows:
2.1 Payment by The City to Eagle: The City agrees to pay and Eagle agrees to
accept the sum of $89,047.89 (the "Payment ") pursuant to this Mutual Reservation.
2.2 No Admission of Liability / Mutual Reservation: It is expressly understood
and agreed that the payment and acceptance of the above- stated Payment is not an
admission of liability by any Party hereto, related to the Dispute. The Parties reserve any
and all rights, remedies and defenses (whether in contract or in tort or by statute or equity)
that they may have against each other in relation to the Project and the Dispute, and. Eagle
Valley specifically reserves the right to seek compensation above the Payment relating to
the Project up to the full amount of the Dispute through litigation and the acceptance of the
Payment by Eagle Valley is not an admission that Eagle Valley is not entitled to the full
amount under the Dispute or that the City acknowledges of admits that Eagle Valley is
entitled to additional funds above the Payment.
2.3 Authority: The undersigned representatives of the Parties hereto state that
they are the duly authorized representatives of their respective parties, and as such, have
authority to make the statements herein and to execute this Mutual Reservation for and on
behalf of the Parties. The Parties further represent that each of them has conducted all
investigations they deem appropriate to determine whether to enter into this Mutual
209762118824 -149 2
Reservation, and that each party has relied upon no representations of fact or law by any
other party hereto or any other entity in deciding to enter into this Mutual Reservation.
2.4 Applicable Law: This Mutual Reservation shall be governed by and
interpreted in accordance with the laws of the State of Indiana.
2.5 Differing Dates of Execution: Notwithstanding differing dates of execution
hereof, this Mutual Reservation shall be deemed to have been made and entered into on
the date specified hereinabove, and except as otherwise provided for herein with respect to
effective dates for specific obligations, if any, shall become binding and effective upon that
date.
2.6 Affidavit of Final Payment, Waiver of Lien and General Release of Claim:
After the Mutual Reservation is fully executed by the Parties, and prior to release of the
Payment by the City, in order to induce the Payment, Eagle provides the attached Partial
Waiver of Liens and Claims Affidavit to discharge a portion of the claim maintained by
Eagle Valley against the City. As documented in Exhibit A.
2.7 Email or Telefax Execution: The Parties agree that the Mutual Reservation
may be executed in parts, each of which shall be deemed an original, but all of which
together shall represent one Mutual Reservation. The execution of an emailed, telecopied
or facsimiled form of this Mutual Reservation and /or transmission of an executed Mutual
Reservation by the above- referenced method of transmission shall be sufficient and
constitute a binding Mutual Reservation between the Parties.
CITY OF CARMEL, BY AND THROUGH ITS BOARD EAGLE VALLEY, INC.
OF PUBLIC WORKS AND SAFETY
1
By: By:
Printed: Printed: Charles H. Norman
Title: Title: President
2097621/8824 -149 3
AFFIDAVIT AND. WAIVER .OF LIEN
Final X Partial
State Of Intliana, COUrity of Marion,
.
CharlesH. Norman. beinOulyswornstateSthat.heishe is the; :President, of
Eaole 'Valley Inc: having 'contracted with City of Carmel; Indiana to furnish
. .... _ .... . :.:.- - -
Certain, materials and/Or labor as follows: labor and material *Pik fot, a project known as
CheSterton,SubdiVi•SiOli Drainage Improvements located in Hathiltdri-Couhty, Indiana and
.
.,
owned by Citv,Of CatMel, Indiana and does'-hereby'fUrther state on behalf of the
,
aforementioned C-PntraCtbr:.
lhe
Wahierl thalthe balanteAU-elrbni the OltV,,of ar
Cniel,.Indiana;
it_
Sum of :Eidhlv Nine Thousand Faetv.SeVen ($, 89,047.89 )
Receipt of which is hereby acknowledged, or
(X), The payment has beenpromised:as the sPle-pontiOaration.forthis,
Affidavitand .
P!art.Pl.WP!VProf Lien which la given to and for said amount,
effective upon receipt: of such pay,ffianti.
(Final Waiver) 'that the4inal:balanceOuelrom is the
:Surrf•Of EdIIars ($
(_) Receipt of .whiCh, is rherabyacknowledged; or
,(_) The payment of Which has 12:00-p(PiniSe4 aS-Aho7sple COn:SitOtatiOh'foilhiS
Affidgit and Finai Waiveroftien which is given td. and for
effective : upon 'receipt' Of such paymeni.
THEREFQIRE, the undersigned waives and releases unto the Owner of Said pretriiSeS, eh),
and aII lien or claim whatsoever on the :above-described property and improvements'
theta& briabcbiArit of labOr or Material Or both, furnished : by the undersigned thereto, and
further certifies that no other party has any claim or right to a, lier on account of any 'work
performed or material furnished to the undersigned for said project and, within the scope of
this affidavit; and waife( However, the undersigned .doeS:not-WaiiieF its claims to the balance
of the contract -Sqtri,and nothing irrt is :doalment shall be interpreted: as ,a waiver of those
aaajoyailoyint Rs■,;,
Title; . President
VVIT'N'E.8$,A4Y-• HAND:AND', NOTAF0t...$..FAc this 26th. day �f January; , 2Q1.2
.11/1y ',51312017:
.Re.Siditigin,HendribkS,CO..un.tY., Indiana
\AVY04-`
Notary Public;
Notaik
PrUtedName
EXHIBIT A
IN THE MATTER OF EAGLE VALLEY CHESTERTON DRAINAGE PROJECT:
BOARD OF PUBLIC WORKS AND SAFETY - CITY OF CARMEL
Pi //
May r James Brainard — Presiding Officer Date
a--""
Mary Aryfi Burke, Member Date
rlor `Prezin 1L-
Lori Watson, Member Date
ATTEST:
rk Treasurer Date