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HomeMy WebLinkAboutAgreement - Calumet Asphalt Paving c7 =r; AGREEMENT City of Carmel, Indiana "I THIS AGREEMENT is made and entered into by and between the City of Carmel, Indiana, acting by and through its Redevelopment Commission ("OWNER") and Calumet Asphalt Paving Co. , Inc. : ("CONTRACTOR"), concerning the project ("WORK") 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 terms and for the price(s) ,_ 3 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. —...:i THE OWNER AND CONTRACTOR AGREE AS FOLLOWS: _.i,1 1.0 Contract Documents , 1.1 This Agreement consists of the_following Contract Documents all of which are as fully a tx...E/se 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_ a. This Agreement, including any attachments hereto; _f, 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; i ,4 g. Plans and Drawings; h. Performance, Payment and Maintenance Bonds; i. CONTRACTOR'S Proposal and Declarations; and z A-1 p:\25050\specs\arch\003 front end wo ntb.doc r j. All other documents defined as Contract Documents in any of the above listed 6::" _ documents. 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 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. r IM 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 not to exceed $ 1,373,977.00 Base Bid, subject to any additions or deletions based on actual approved quantities of the respective -T; J Y PP q sP 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 x Prices specification" and other Contract Documents (the "Contract Price"). The "' p � ) 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, _ii, 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 __ i such times as set forth in the Contract Documents. L 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. 1 _.. 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 g Y 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. 4. Effective Date A-2 p:\25050\specs\arch1003 front end wo ntb.doc `9 1 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. rrf 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 r711 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 -EI:- 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 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 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 A-3 025050\specs\arch\003 front end wo ntb.doc 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 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 bylaw, 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. 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 A-4 p:\25050\specs\arch\003 front end wo ntb.doc sent by postage prepaid, U.S. Certified mail, return receipt requested, addressed to the parties at the following address: OWNER: CONTRACTOR: City of Carmel Calumet Asphalt Paving Co. , Inc. Redevelopment Commission 5265 East 96th Street One Civic Square Indianapolis, IN 46240 Carmel, IN 46032 Attention: Les Olds, AIA, Director of Redevelopment Carmel Redevelopment Commission (with a copy to City Attorney, Department of Law, same address) 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 ---r This Agreement shall be governed by and construed in accordance with the Iaws 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. a 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. 5.16 Representation and Warranties A-5 p:\25050\specs\arch\003 front end wo ntb doe 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. _ ,:- is 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. yr:, 5.18 Advice of Counsel ` r, 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 w ; 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 .Y.., i .; 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 R, 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: CONTRACTOR: -- CITY OF CARMEL,INDIANA by and through its Redevelopment Commission s`_ I s or.BY: BY: -C. _ t, Gay: Les 01. , • I• , Dire to of Redevelopment °.I Date: Le 72./ er Printed Name: Robert W. Everman, Jr. . � tr �� /� Title: President , ._, Ronald�Carter,President / Date: 6 a o S Date: c0, 7-:„:„.}s -- A-6 p:\25050\specs\arch\003 front end wo ntb.doc 6'::-. I 4 Rick Sharp, Secretary !....i.,-i, Date: ATTEST: Date: --7,-,"-- Diana Cordray, Clerk-Treasurer ,,,,,. ia 1 ,..,...1:7 .,.t: 77- --1,A -,k yt I ,..7, . . L 1 :,.. ,., .,.., Ile .,..v a , 43 * lia 1 )11-' ,ilt,27 i lia '-,,-04 • izt ,r. A-7 -:-.W - p:\25050\specs\arch\003 front end wo ntb doc ffatiL: , _ a 4 o Y, APPENDIX A PROJECT: Carmel City Center- Parcel #35 Storm Water Detention WORK: As described by the Project plans and Contract Documents = Y J P `< including,but not limited to g The work consists of installing new underground , - r, detention piping and associated BMP's on Parcel # 35 with subsequent installation of a new parking lot. ,- DESIGN BY: CSO Schenkel Shultz 280 East 96th Street, Suite 200 Indianapolis, IN 46240 '`_ ;L OWNER'S REPRESENTATIVE: Mr. Les Olds, AIA,Director of Redevelopment Carmel Redevelopment Commission .` City of Carmel '.- One Civic Square Carmel, IN 46032 te. ,,,,.. „,: _, ;;yam;;: ,t tell Iixy - 1 ,,,,I, L., -,.,. ,..4 _:„, ,,,-,,4,, 1 :fin `,k ,:;., -,,,,,,„„, .,,,,1 . ,,,,a, ,,-.,„,,,,,, . ,,,,,, ,!,:„.:„-A9 * A-8 p..\25050\specs\arch\003 front end wo ntb doc ' ."z� tint cu-UU MU 1.10.JU TM rill IYU, . i7JR'Da CERTIFICATE OF LIABILITY INSURANCE OP ID TW DATE(MM/DD/YYYY) CALUM-4 _05/26/05 _c _ THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION PROA!1CCR ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Tobias Insurance Group, Inc. HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 9247 N. Meridian St. Ste. 300 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Indianapolis IN 46260 Phone: 317-844-7759 Pax:317-944-9910 INSURERS AFFORDING COVERAGE N_AIC# IN5U1lCD INSURER A: acuity A Ttutufa Snt'Nranco co. ^ INSURER B; —T Calumet Asphalt Paving Co, Inc INSURER C: M 5265 East ?6th Street LNSURERD: Indianapolis IN 46240-1452 --- - _ _ INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY RR,OUIREMENT,TERM OR CONDITION OP ANY CONTRACT OR OTHER DOCUMENT WITI I RESPEC f TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,TI IC INSUPANCEAFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES,AGGDI GATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSFCA73yr' "' ""' "' -POLICYEFFECTIVE-POCUCYEXPIRATION"' I LTR NSRC TYPE Of INSURANCE POLICY NUMBER DATE(MM DDIYY) DATE(MMIDDIYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 Z7AA1AGt I U HEWETT' A X COMMERCIAI.GENERAL LIABILRY K42466(05) 04/01/05 04/01/06 PREMISES(Eaoccurence) s100,000 CLAIMS MADE I°i OCCUR „MED EXP(My one p a..on) $5,000 PERSONAL 8 ADV INJurtY $1,000,000 _ ,__ _ GENERAL AGGREGATE $2,000,000 GE .A�,GI ELATE LIMIT APPLIES PER; PRODUCTS•COMP/OP AGG $ 2,000,000 CDC. --1 POLICY IX 1 18, I LOC ...._� AUIOMOiULE LIABII ITT COMBINED SINGLE LIMIT $1,000,000 A X ANY AUro K42466(05) 04/01/05 04/01/06 (Es accident) AIL OWNED AUTOS BODILY INJURY $ SCHFOULCU AUTUS (Per person) X HIRED AUTOS BODILY INJURY $ X NON OWNED AUTOS (Per(,ccideM) PROPERTY DAMAGE $ (Per occident) CARACU LIABILITY AUTO ONLY-EA ACCIDENT $ ANYAwO EA ACC $ OTHER THAN J�^• •• AUTO ONLY: AGG $ "y- EXCESS/UMBRELLA LIADILITY EACH OCCURRENCE $5,0 0 0,0 0 0 A X occuR I 1 CLANSMAN (OS) 04/01/05 04/01/06 AGGREGATE ^ J $5,000,000 DEDUCTIBLE X RGTEN7ION $0 WORKt RS COMPENSATION AND X I OR LIN D? I ER TORY IIMI'1 S I ER EMPLOYERS'LIABILITY / / $500000 A IC42466(05) 04/01/05 04 02 06 E.L.ELEACFrACC1DENr ANY PROfNIEIU(`JPARTNEWEXFCIITNE OrFICFR/MEMEEILEXCLUDED? IIyyc;,dcst:rbeurd, EL.DISEASE-EA EMPLOYEES 500000 SFL'CIALPROVISIONSbelow E.L.DISEASE-POLICY LIMIT $ 500000 01 HER DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS RE: CARMBL CITY CENTER-PARCEL #35 STORM WATER DETENTION CERTIFICATE HOLDER CANCELLATION CARME-2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,TIME ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN CITY OF CARMEL NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL BOARD OF PUBLIC WORKS & SAFETY ONE CIVIC SQUARE IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR CARMEL IN 46032 REPRESENTATIVES, AUTH 0'ZED REPRESENTATIVE AGORA 25(2001/08)- ,, i v y - • roman,• 0 CORD CORPORATION 9988 I PERFORMANCE BOND BOND NO. 7571494 • City of Carmel Instructions: Successful Bidder must use this form or other form containing the same material conditions and provisions as approved in advance by OWNER. Date of Bond must not be prior to date of Contract. If CONTRACTOR is a Partnership, all partners should execute bond. Surety company executing this bond shall appear on the most current list of"Surety Companies • Acceptable on Federal Bonds," as specified in the U.S. Treasury Department Circular 570, as amended, and be authorized to transact business in the State of Indiana. KNOW ALL MEN BY THESE PRESENTS: that "CONTRACTOR": CALUMET ASPHALT PAVING CO., INC. and "Surety": [Name] FIDELITY AND DEPOSIT COMPANY OF MARYLAND [Address] P.O. BOX 1227 BALTIMORE, MD 21203-1227 • a corporation chartered and existing under the laws of the State of MARYLAND , and authorized to do business in the State of Indiana, are held and firmly bound unto the City of Cannel, Indiana hereinafter called OWNER, in the penal sum of ** Dollars, ($ 1,373,977.00 ) in lawful money of the United States, for the payment of which sum well and truly to be made, together with interest at the maximum legal rate from date of demand and any attorney fees and court costs incurred by Obligee to enforce this instrument, we bind ourselves, successors, and assigns,jointly and severally,firmly by these presents. ** ONE MILLION THREE HUNDRED SEVENTY THREE THOUSAND NINE HUNDRED SEVENTY SEVEN AND NO/100 WHEREAS, the,CONTRACTOR has entered into a certain Agreement with the OWNER,dated as of the ,Z 61- day of , 20 OS—, by which CONTRACTOR has agreed to perform and furnish certain for or in furtherance of construction of public improvements described generally as. Carmel City Center-Parcel#35,Storm Water Detention The work consists of installing new underground detention piping and associated BMP's on Parcel#35 with subsequent installation of a new parking lot.. PFB-1. pf25050tspecs\arch\003 front end wo nib.doc which Agreement, and the "Contract Documents" as referred to therein, are hereby incorporated herein by reference; NOW, THEREFORE, the conditions of this obligation are such that if the CONTRACTOR shall well,truly and faithfully perform his duties, all the undertakings,covenants,terms and conditions of said Agreement whether during the original term thereof, and any extensions thereof which may be granted by the OWNER, with or without notice to the Surety and during any period of guaranty or warranty provided therein or arising thereunder, and if CONTRACTOR shall satisfy all claims and demands incurred under such Contract, and shall fully indemnify and save harmless the OWNER from all costs and damages which he may suffer by reason of failure to do so, and shall reimburse and repay the OWNER all outlay and expense which the OWNER may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED,FURTHER,that the said Surety,for value received,hereby stipulates and agrees: 1. that no defect or irregularity in the Contract or in the proceedings preliminary to the letting of the Contract will operate to release or discharge Surety; 2. that no change, omission, extension of time, alteration or addition to the terms of the Agreement,Contract Documents or to any Work to be furnished thereunder, and no delay. by the OWNER in enforcement of the Agreement or this bond shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement, Contract Documents or to the Work; 3. that no final settlement between the OWNER and the CONTRACTOR shall abridge any right of the OWNER hereunder as to any claim that may remain unsatisfied; and 4. that this Performance Bond and Surety shall not be released until one (1) year after the OWNER's final settlement with the CONTRACTOR. IN WITNESS WHEREOF, this instrument is executed in 1 (number) counterparts, each one of which shall be deemed an original,this the 7 day of J ,20 o CONTRACTOR: [name] CALUMET ASPHALT PAVING CO., INC. By. •`�'l� Robert W. Everman, Jr. , President [signature] [printed name] AITbST: Secretary [signa S '1 `� [name] FIDELITY AND DEPOSIT COMPANY OF MARYLAND 1IL Attorney-in-fact [siyo e] TI 'OTHY J. TA LOR P.O. BOX 1227 [printed name] [address] BALTIMORE, MD 21203-1227 PFB-2 p:'25050\spxs\arch\003 front end wo ntb.da ZURICH THIS IMPORTANT DISCLOSURE NOTICE IS PART OF YOUR BOND Fidelity and Deposit Company of Maryland, Colonial American Casualty and Surety Company, Zurich American Insurance Company, and American Guarantee and Liability Insurance Company are making the following informational disclosures to compliance with The Terrorism Risk Insurance Act of 2002.No action is required on your part. Disclosure of Terrorism Premium The premium charge for risk of loss resulting from acts of terrorism(as defined in the Act)under this bond is $_waived_. This amount is reflected in the total premium for this bond. Disclosure of Availability of Coverage for Terrorism Losses As required by the Terrorism Risk Insurance Act of 2002, we have made available to you coverage for losses resulting from acts of terrorism (as defined in the Act)with terms, amounts and limitations that did not differ materially as those for losses arising from events other than acts of terrorism. Disclosure of Federal Share of Insurance Company's Terrorism Losses The Terrorism Risk Insurance Act of 2002 establishes a mechanism by which the United States government will share in insurance company losses resulting from acts of terrorism (as defined in the Act) after a insurance company has paid losses in excess of an annual aggregate deductible. For 2002, the insurance company deductible is 1%of direct earned premium in for the prior year; for 2003, 7%of direct earned premium in the prior year; for 2004, 10% of direct earned premium in the prior year; and for 2005, 15% of direct earned premium in the prior year. The federal share of an insurance company's losses above its deductible is 90%. In the event the United States government participates in losses,the United States government may direct insurance companies to collect a terrorism surcharge from policyholders. The Act does not currently provide for insurance industry or United States government participation in terrorism losses that exceed $100 billion in any one calendar year. Definition of Act of Terrorism The Terrorism Risk Insurance Act defines "act of terrorism"as any act that is certified by the Secretary of the Treasury, in concurrence with the Secretary of State and the Attorney General of the United States. 1. to be an act of terrorism; 2. to be a violent act or an act that is dangerous to human life, property or infrastructure; 3. to have resulted in damage within the United States, or outside of the United States in the case of an air carrier (as defined in section 40102 of title 49, United 17 States Code) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), or a United States mission; and 4. to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct to.the United States Government by coercion. But, no act shall be certified by the Secretary as an act of terrorism if the act is committed as part of the course of a war declared by Congress (except for workers' compensation) or property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000. These disclosures are informational only and do not modify your bond or affect your rights under the bond. Copyright Zurich American Insurance Company 2003 -0050749.doc Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS:That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. a corporation of the State of Maryland, by WILLIAM J. MILLS,Vice President, and ERIC D. BARNES, Assistant Secretary. in pursuance of authority granted by Article VI,Section 2,of the By-Laws of said Company,,�??� are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hwe ;, ds �by nominate,constitute and appoint Nick J.RUTIGLIANO,Timothy J.TAYLOR and Robert 11` elt/ � ,flndianapolis,Indiana, EACH its true and lawful agent and Attorney-in-Fact, to make. x t el s A ria eliueriffr Oti`it� behalf as surety, and as its act and deed: any and all bonds and underta.ki r td 'Le ecur_+t- c`�i `d§01 undertakings in pursuance of these presents, shall be as binding upon tsai g9rr� ful�garrttil ,' 0 nlents and purposes,as if they had been duly executed and acknowledke,,}s t kyet r`ly electet r 4 Company at its office in Baltimore,Md., in their own proper persons `, er tt6rni4 r3��r -uec7 on behalf of Nick J. Rutigliano,Timothy J.Taylor, Robert M. Rutigliano,dated j 2,..2_ '-s+ The said Assistant .y et s s 4ereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2,of the By-L&'s . said Company,and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 27th day of March, A.D. 2003. ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND .�p DEPps� • It9Q . By: Eric D. Barnes Assistant Secretary William J. Mills Vice President State of Maryland ss: City of Baltimore On this 27th day of March, A.D. 2003, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to he the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn,severally and each for himself deposeth and saith,that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. ,,,N11IIlI , Il ltlltl�`i Constance A. Dunn Notary Public My Commission Expires: July 14,2007 POA-F 044-0465 • EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senior Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations. policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages,...and to affix the seal of the Company thereto." CERTIFICATE I,the undersigned,Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND,do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that the Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF,I have hereunto subscribed my name and affixed the corporate seal of the said Company, this day of , . ,!..,--,ex.{e Assistant Secretary • • PAYMENT BOND BOND NO. 7571494 City of Cannel Instructions: Successful Bidder must use this form or other form containing the same material conditions and provisions as approved in advance by OWNER. Date of Bond must not be prior to date of Contract. If CONTRACTOR is a Partnership, all partners should execute bond. Surety company executing this bond shall appear on the most current list of"Surety Companies Acceptable on Federal Bonds," as specified in the U.S. Treasury Department Circular 570, as amended, and be authorized to transact business in the State of Indiana. KNOW ALL MEN BY THESE PRESENTS: that • "CONTRACTOR": CALUMET ASPHALT PAVING CO., INC. and "Surety": [Name] FIDELITY AND DEPOSIT COMPANY OF MARYLAND [Address] P.O. BOX 1227 BALTIMORE, MD 21203-1227 a corporation chartered and existing under the laws of the State of MARYLAND , and authorized to do business in the State of Indiana, are held and firmly bound unto the City of Cannel, Indiana hereinafter called OWNER, in the penal sum of '` Dollars, ($ 1,373,977.00 ) in lawful money of the United States,for the payment of which sum well and truly to be made,plus interest at the maximum legal rate from date of demand and any attorney fees and court costs incurred by Obligee to enforce this instrument, we bind ourselves, successors, and assigns, jointly and severally, firmly by these presents. ** ONE MILLION THREE HUNDRED SEVENTY THREE THOUSAND NINE HUNDRED SEVENTY SEVEN AND NO/100 WHEREAS,the CONTRACTOR has entered into a certain Agreement with the OWNER,dated as of the 2.2 day of , 20 OS , by which CONTRACTOR has agreed to perform and furnish certain.Work for or in furtherance of construction of public improvements described generally as Carmel City Center-Parcel#35,Storm Water Detention The work consists of installing new underground detention piping and associated BMP's on Parcel#35 with subsequent installation of a new parking lot. PMB-1 p:\25050specslarch■003 front and wo ntb.doc which Agreement, and the "Contract Documents" as referred to therein, are hereby incorporated herein by reference; NOW, THEREFORE, the conditions of this obligation are such that if the CONTRACTOR shall promptly make payments of all amounts due to all Claimants, then this obligation shall be void; otherwise to remain in full force and effect. "Claimant" shall mean any Subcontractor, material supplier or other person,firm, or corporation furnishing materials or equipment for or performing labor or services in the prosecution of the Work provided for in such Agreement, including lubricants, oil, gasoline, coal and coke, repairs on machinery, and tools, whether consumed or used in connection with the construction of such work, and all insurance premiums on said work, and for all labor,performed in such work. PROVIDED,FURTHER,that the said Surety, for value received,hereby stipulates and agrees: 1. that no defect or irregularity in'the contract or in the proceedings preliminary to the letting of the Agreement will operate to release or discharge Surety, 2. that no change, omission, extension of time, alteration or addition to the terms of the Agreement,Contract Documents or to any Work to be furnished thereunder, and no delay by the OWNER in enforcement of the Agreement or this bond shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement, Contract Documents or to the Work; 3. that no fmal settlement between the OWNER and the CONTRACTOR shall abridge any right of the OWNER hereunder as to any claim that may remain unsatisfied; and 4. that this Payment Bond and Surety shall not be released until one (1) year after the OWNER's final settlement with the CONTRACTOR. IN WITNESS WHEREOF, this instrument is executed in 1 (number) counterparts, each one of which shall be deemed an original,this the day of _ , 20 CONTRACTOR: [name} CALUMET ASPHALT PAVING CO., INC. By: &t _ Robert W. Everman, Jr. , President [signature] [printed name] ATTEST: Secretary [signature] SURE '�, I [name] FIDELITY AND DEPOSIT COMPANY OF MARYLAND l 11111111111;4;,; Attorney-in-fact [signa e] TIMOT Y J. TAYLOR P.O. BOX 1227 [printed name] [address] BALTIMORE, MD 21203-1227 PMB-2 0250501specs\arcb\003 front end wo ntb.do� ZURICH THIS IMPORTANT DISCLOSURE NOTICE IS PART OF YOUR BOND Fidelity and Deposit Company of Maryland, Colonial American Casualty and Surety Company,Zurich American Insurance Company, and American Guarantee and Liability Insurance Company are making the following informational disclosures to compliance with The Terrorism Risk Insurance Act of 2002. No action is required on your part. Disclosure of Terrorism Premium The premium charge for risk of loss resulting from acts of terrorism (as defined in the Act) under this bond is $_waived_. This amount is reflected in the total premium for this bond. Disclosure of Availability of Coverage for Terrorism Losses As required by the Terrorism Risk Insurance Act of 2002, we have made available to you coverage for losses resulting from acts of terrorism (as defined in the Act) with terms, amounts and limitations that did not differ materially as those for losses arising from events other than acts of terrorism. • Disclosure of Federal Share of Insurance Company's Terrorism Losses The Terrorism Risk Insurance Act of 2002 establishes a mechanism by which the United States government will share in insurance company losses resulting from acts of terrorism (as defined in the Act) after a insurance company has paid losses in excess of an annual aggregate deductible. For 2002, the insurance company deductible is 1%of direct earned premium in for the prior year; for 2003, 7%of direct earned premium in the prior year; for 2004, 10%of direct earned premium in the prior year; and for 2005, 15% of direct earned premium in the prior year. The federal share of an insurance company's losses above its deductible is 90%. In the event the United States government participates in losses,the United States government may direct insurance companies to collect a terrorism surcharge from policyholders. The Act does not currently provide for insurance industry or United States government participation in terrorism losses that exceed $100 billion in any one calendar year. Definition of Act of Terrorism The Terrorism Risk Insurance Act defines"act of terrorism" as any act that is certified by the Secretary of the Treasury, in concurrence with the Secretary of State and the Attorney General of the United States. 1. to be an act of terrorism; 2. to be a violent act or an act that is dangerous to human life, property or infrastructure; 3. to have resulted in damage within the United States, or outside of the United States in the case of an air carrier (as defined in section 40102 of title 49, United 17 States Code) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), or a United States mission; and 4. to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct to the United States Government by coercion. But, no act shall be certified by the Secretary as an act of terrorism if the act is committed as part of the course of a war declared by Congress (except for workers' compensation) or property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000. These disclosures are informational only and do not modify your bond or affect your rights under the bond. Copyright Zurich American Insurance Company 2003 -0050749.doc Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS:That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND,a corporation of the State of Maryland, by WILLIAM J.MILLS,Vice President,and ERIC D. BARNES, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By-Laws of said Company,/ware set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date here 6A�&./s by nominate,constitute and appoint Nick J. RUTIGLIANO,Timothy J.TAYLOR and Rober " 14 -NO A ,,.a1j t ndianapolis,Indiana, EACH its true and lawful agent and Attorney-in-Fact,to mal< .k. o o e ll �v `f're u Saf rt behalf as surety, and as its act and deed: any and all bonds and undert si nc i ecu . c` AW dertakings in pursuance of these presents,shall be as binding upon ts -g9niel `as`-ful� d a�-intents and purposes,as if they had been duly executed and acknowledQ b ^ � ele f f'�Com an at its office in Baltimore,Md. in their �,�, Y � P Y own proper persons e-r 1 tt rn 5,4 �,Y.3 �nea on behalf of Nick J. Rutigliano, Timothy J. Taylor,Robert M.Rutigliano,date 22, `Y�. The said Assistant Ls by certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2,of the By-Lkis sand Company,and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 27th day of March, A.D. 2003. A'F1'EST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND e OLPOs,i O p W * ON IS C4, 4G-,, /e-).1 7 XA'"4--- '/.'i•'' '‘• By: Eric D. Barnes Assistant Secretary William J. Mills Vice President State of Maryland ss: City of Baltimore f On this 27th day of March, A.D. 2003, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. `0„,11,,,,,,,,, ,••'I,,,,,;no,'``, Constance A. Dunn Notary Public My Commission Expires: July 14,2007 POA-F 044-0465 EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senior Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages,...and to affix the seal of the Company thereto." CERTIFICATE I,the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that • • the Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF,I have hereunto subscribed my name and affixed the corporate seal of the said Company, this a\ day of / c-' e , S Assistant Secretary • • • w;�wymt x:;?�-_f�ussr v..=.-*t•.,.mk,�,F•+a�;: CALUMET s' ASPHALT 'ry PAVING LETTER OF TRANSMITTAL o �F: A/ F =2� CALUMET ASPHALT PAVING CO., INC n 5265 EAST 96TH STREET INDIANAPOLIS, IN 46240 • To: Shiel Sexton � Attention: Dan Newberry 902 North Capitol '�, " Project: Carmel City Center-Underground Indianapolis, IN 46204 Retention WE ARE SENDING YOU VIA: X ATTACHED ❑ UNDER SEPARATE COVER VIA THE FOLLOWING ITEMS: SHOP DRAWINGS X SUBMITTALS SAMPLES PLANS COPY OF LETTER CHANGE ORDER OTHER COPIES DATE DESCRIPTION 1 5/31/05 Agreement 1 5/31/05 Certificate of Insurance 1 5/31/05 Payment and Performance Bonds IF ITEMS ARE NOT AS LISTED ABOVE,PLEASE NOTIFY US THESE ARE TRANSMITTED AS CHECKED BELOW: ❑ FOR APPROVAL ❑APPROVED AS SUBMITTED ❑ FOR REVIEW&COMMENT ❑APPROVED AS NOTED ❑ FOR YOUR USE ❑OTHER—SEE BELOW X AS REQUESTED ANY QUESTIONS, PLEASE CALL CC: ❑ JOB FILE ❑ Megan Se•er Administrative Assistant