HomeMy WebLinkAboutAtlas Excavating/UTIL/1,022,860/Pennsylvania Parkway Water Transmission Main AGREEMENT BETWEEN OWNER AND CONTRACTOR I!
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This Agreement is made this I o day of (7eccM-Lt r , 2013, by and
between City of Carmel, Indiana, Board of Public Works and Safety, One Civic
Square, Carmel, Indiana 46032 ("Owner") and Atlas Excavating, Inc., ("Contractor"),
for the project known as Pennsylvania Parkway Water Transmission Main, Contract
66F to be constructed on the site located at Pennsylvania Parkway Water
Transmission Main, Contract 66F, Carmel, Indiana (the "Project").
Owner: City of Carmel,
Indiana Board of Public Works and Safety
One Civic Square •
Carmel, IN 46032
Contractor: Atlas Excavating, Inc.
4770 Swisher Road, Building A
West Lafayette, IN 47906
Project: Pennsylvania Parkway Water Transmission Main, Contract 66F
Engineer: Jones & Henry Engineers, Ltd.
2420 Coliseum Blvd. N., Suite 214
Fort Wayne, Indiana 46805
The Owner and Contractor agree as follows:
Article 1. Contract Documents. The Contract Documents consist of this
Agreement, the Drawings and the Specifications identified herein, and written
modifications issued after execution of this Agreement. The Contract Documents
form the Contract for Construction and represent the entire and integrated agreement
between the parties hereto and supersede any and all prior negotiations,
representations or agreements, either written or oral. The Contract Documents shall
not be construed to create a contractual relationship of any kind (1) between Owner
and any subcontractor or (2) between any persons or entities other than Owner and
Contractor.
A. Conflicts/Order of Precedent. Contractor shall promptly call to the
attention of Owner any discrepancy or conflict in the Drawings or Specifications that
affect its Work. In the event of conflict or discrepancies between and among the
Contract Documents, figure dimensions shall take precedence over scale
measurements, large scale detail's shall take precedence over small scale plans or
drawings, and plans or drawings of a later date shall take precedence over those of
Pennsylvania Pkwy Water Transmission Main/451-6051 A-1 City of Carmel,Indiana
Agreement Between Owner and Contractor
ran earlier date and Part 4 of the technical specifications title "Special Provisions"
shall take precedence over Parts 1 , 2 or 3. Any part of the Work shown on the
I Drawings but not specifically mentioned in the Specifications, or vice versa, shall be
considered as part of the Work as though included in both. In the event of an
inconsistency or conflict between the Drawings and Specifications, or. within either
I. document not clarified by addendum, the better quality or greater quantity of Work
shall be provided. Likewise, the Work to be undertaken by Contractor shall include
Fall incidental work necessary as customarily done for the completion of the Project
Iteven though it may not be specifically described in the Specifications or Drawings.
B. Contractor's Review of Contract Documents. Contractor has carefully
studied and compared the Contract Documents with each other and with information
!I furnished by Owner and has reported to Owner all errors, inconsistencies or
f omissions. Contractor shall have no rights against Owner for errors, inconsistencies
or omissions in the Contract Documents unless Contractor recognized such error,
inconsistency or omission and reported it prior to the date of this Agreement.
IContractor shall perform no construction activity knowing it involves a recognized
error, inconsistency or omission in the Contract Documents. Contractor warrants and
I. represents to Owner that the Drawings and Specifications for the Work are suitable
1-- and adapted for said Work and guarantees the sufficiency of said Drawings and
ISpecifications for their intended purpose and agrees that it will perform the Work and
r complete the same to the satisfaction of Owner.
F C. Enumeration of Contract Documents. An enumeration of the Contract
Documents, other than Modifications, is:
1.1 This Agreement (pages A-1 to A-16, inclusive).
'i 1.2 - Contractor's Bid (pages B-1 to B-7, inclusive) - Exhibit A.
I 1.3 Performance Bond - Exhibit B.
II 1.4 Payment Bond - Exhibit C.
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1.5 Contractor's Final Affidavit and Waiver— Exhibit D
11 1 .6 Contractor's Progress Affidavit and Waiver— Exhibit E
1.7 Change Order - Exhibit F •
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1.8 Confined Space Acknowledgement — Exhibit G.
1.9 General Conditions (pages GC-1 to GC-47, inclusive).
1.10 Special Conditions, if any (page SC-1 to SC-2 inclusive.
1.11 Specifications, consisting of all sections listed in Table of Contents
thereof with the general title:
Pennsylvania Parkway Water Transmission Main, Contract 66F
(The Specification are Not attached to this Agreement due to volume.)
1.12 Drawings, consisting of a cover sheet and sheets numbered 1 through
9, inclusive with each sheet bearing the following general title:
Pennsylvania Parkv✓ay Water Transmission Main, Contract 66F
(The Drawings are Not attached to this Agreement.)
Pennsylvania Pkwy Water Transmission Main/451-6051 A-2 City of Carmel, Indiana
Agreement Between Owner and Contractor
II1.13 Addenda numbers 1 to 1 inclusive.
- 1.14 The following which may be delivered or issued after the Effective Date
of the Agreement and are not attached hereto: All Written Amendments
and other documents amending, modifying, or supplementing the
Contract Documents pursuant to paragraphs 3.4 of the General
Conditions.
There are no Contract Documents other than those listed above in this Article 1. The
Contract Documents may only be amended, modified or supplemented as provided in
paragraphs 3.4 of the General Conditions.
LArticle 2. The Work. The intent of the Agreement is to provide for the construction
IIl9 and conipletion in every detail of the work described. Contractor shall provide all
materials, labor, tools, equipment, supplies, safety equipment, transportation and
supervision necessary to perform, and shall perform, the work in a good and
workmanlike manner and in accordance with the Contract Documents (as hereinafter
i defined) or reasonably inferable by Contractor as necessary to produce the results
intended by the Contract Documents and generally described as Pennsylvania
Parkway Water Transmission Main, Contract 66F (all hereinafter called the "Work"):
i A. Supervision and Construction Procedures. Contractor shall
supervise and direct the Work using Contractor's best skill and attention. Contractor
shall be solely responsible for and have control over construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work.
I Contractor shall be responsible to Owner for the acts and omissions of Contractor's
employees, subcontractors, material suppliers, laborers, equipment lessors and all
other persons performing portions of the Work. Contractor shall be responsible for
I the inspection of Work performed under the Contract Documents to determine that
the Work is in proper condition to receive subsequent Work.
B. Subcontractors. Before construction commences, Contractor shalt
furnish in writing to Owner the names of all persons or entities proposed for each
principal portion of the Work and their respective contract sums. Contractor shall not
contract with a proposed person or entity to whom Owner has made a reasonable
objection. Contractor shall not change a subcontractor, person or entity previously
selected if Owner makes reasonable objection to such change.
1. By appropriate agreement, Contractor shall require each subcontractor,
to the extent of the Work to be performed by the subcontractor, to be bound to
Contractor by the terms of the Contract Documents, and to assume toward
Contractor all the obligations and responsibilities which Contractor, by the Contract
Documents, assumes toward Owner. Each subcontract shall preserve and protect
the rights of Owner under the Contract Documents with respect to the Work to be
performed by the subcontractor so that subcontracting thereof will not prejudice such
tights. Contractor shall make available to each proposed subcontractor, prior to the
execution of the subcontract, copies of the Contract Documents to which the
subcontractor will be bound. Each subcontract for a portion of the Work is contingently assigned by Contractor todOwner, however, such assignment is effective I
only after termination of this Agreement by Owner for cause pursuant to Article 15 of the General Conditions and only for those subcontracts which Owner accepts by notifying the subcontractor in writing'.
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2. Contractor along with its Subcontractors shall assure harmonious labor
relations at and adjacent to the Project and site so as to prevent any delays,
disruptions or interference to the Work. Contractor shall prevent strikes, sympathy
strikes, slowdowns, work interruptions, jurisdictional disputes or other labor disputes
resulting for any reason whatsoever from the acts or failure to act of the employees of
Contractor or any of its subcontractors, material suppliers, or other such persons or
entities. Contractor agrees that it will bind and require all of its subcontractors,
material suppliers and other such persons or entities to agree to all of the provisions
of this paragraph. If Contractor or any of its subcontractors, material suppliers or
other such persons or entities fail to fulfill any of the covenants set forth in this
paragraph, Contractor will be deemed to be in default and substantial violation of the
Contract Documents.
C. Contractor's Representations. Contractor represents and warrants
the following to Owner as a material inducement to Owner to execute this
Agreement, which representations and warranties shall survive the execution and
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delivery of this Agreement, any termination of this Agreement, and the final l
completion of the Work:
1 . Contractor is able to furnish the tools, materials, supplies, equipment
and labor required to complete the Work and perform its obligations hereunder and
has sufficient experience and competence to do so;
2. Contractor has examined and carefully studied the Contract Documents
(including the Addenda enumerated herein) and the other related data identified in
the Bidding Documents including "technical data."
3. Contractor has visited the site of the Project and is familiar with the
local conditions under which the Work is to be performed and has correlated
observations with the requirements of the Contract Documents; and
4. Contractor is familiar with and is satisfied as to all federal, state and
local Laws and Regulations that may affect cost, progress, performance and
furnishing of the Work.
5. Contractor possesses a high level of experience and expertise in the
business administration, construction and superintendence of projects of the size,
complexity and nature of the Project involving, among other things, the Work to be
performed hereunder, and will perform the Work with the care, skill and diligence of
such a contractor.
6. Contractor represents and warrants and the Owner awards this
Agreement upon the express warranty of the Contractor that he has not, nor has any
, other member, representative, agent, or officer of the firm, company, corporation or
partnership represented by the Contractor:
j a. employed or retained, any company or person, to solicit or secure this
Agreement;
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City of Carmel,Indiana
Pennsylvania Pkwy Water Transmission Main/451-6051 A-4 Agreement Between Owner and Contractor
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b. entered into or offered to enter into any combination, collusion, or
agreement to receive or pay and that the Contractor has not received or
paid, any fee, commission, percentage, or any other consideration,
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contingent upon or resulting from the award of and the execution of this
Agreement, excepting such consideration and subject to the terms and
conditions expressed upon the face of the within Agreement.
7. Contractor has carefully studied all reports of explorations and tests of
subsurface conditions at or contiguous to the site and all drawings of physical
conditions in or relating to existing surface or subsurface structures at or contiguous
to the site (except Underground Facilities) which have been identified in the Special
AConditions as provided in paragraph 4.2.1 of the General Conditions. Contractor
accepts the determination set forth in paragraph 4.2 of the General Conditions of the
r. extent of the "technical data" contained in such reports and drawings upon which
iContractor is entitled to rely as provided in paragraph 4.2 of the General Conditions.
r Contractor acknowledges that such reports and drawings are not Contract
Documents and may not be complete for Contractor's purposes. Contractor
acknowledges that Owner and Engineer do not assume responsibility for the
accuracy or completeness of information and data shown or indicated in the Contract
Documents with respect to Underground Facilities at or contiguous to the site.
Contractor has obtained and carefully studied (or assumes responsibility for having
P. done so) all such additional supplementary examinations, investigations,
explorations, tests, studies and data concerning conditions (surface, subsurface and
Underground Facilities) at or contiguous to the site or otherwise which may affect
cost, progress, performance or furnishing of the Work or which relate to any aspect of
the means, methods, techniques, sequences and procedures of construction to be
employed by Contractor and safety precautions and programs incident thereto.
Contractor does not consider .that any additional examinations, investigations,
explorations, tests, studies or data are necessary for the performance and furnishing
of the Work at the Contract Price, within the Contract Times and in accordance with
the other terms and conditions of the Contract Documents.
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For a breach or violation of this representation, the Owner shall have the right to
cancel this Agreement without liability and to recover, at the election of the Owner,
any and all monies or other consideration paid hereunder.
8. Contractor has correlated the information known to Contractor,
information and observations obtained from visits to the site, reports and drawings
identified in the Contract Documents and all additional examinations, investigations,
explorations, tests, studies and data with the Contract Documents.
9. Contractor has given Engineer written notice of all conflicts, errors,
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ambiguities or discrepancies that Contractor has discovered in the Contract
II Documents and the written resolution thereof by Engineer is acceptable to
Contractor, and the Contract Documents are generally sufficient to indicate and
I convey understanding of all terms and conditions for performing and furnishing of the
Work.
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( Article 3. Engineer. The Project has been designed by Jones & Henry Engineers,
Ltd., who is hereinafter referred to as Engineer and who is to act as the Owner's
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Pennsylvania Pkwy Water Transmission Main/451-6051 A-5 City of Carmel, Indiana
Agreement Between Owner and Contractor
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lrepresentative, assume all duties and responsibilities, and have the rights and
efi authority assigned to Engineer in the Contract Documents in connection with
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completion of the Work all in accordance with the Contract Documents.
Article 4. Date of Commencement and Completion. Contractor shall commence
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its Work promptly upon receipt of written notice from Owner to proceed with the
Work, and Contractor shall achieve Substantial Completion within NINETY (90) days
4;, after the Contract Time commences to run as provided in paragraph 2.3 of the
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i% ,; General Conditions, subject to adjustments authorized by Owner ("Contract Time").
The Work shall be completed and ready for final payment in accordance with
paragraph 14.7.2 of the General Conditions within ONE HUNDRED TEN (110) days
after the date when the Contract Time commences to run. The term "day" as used in
the Contract Documents shall mean calendar day unless otherwise specifically
w , defined. Time limits stated in the Contract Documents are of the essence of this
,i, Agreement. By executing this Agreement, Contractor confirms that the Contract
Time is a reasonable period for performing the Work. Contractor shall not knowingly,
-. ••except by agreement or instruction of Owner in writing, prematurely commence
' operations on the site or elsewhere prior to the effective date of insurance required
by Article 5 of the General Conditions.
A. Commencement. It is not incumbent upon Owner to notify Contractor
when to begin (other than the notice to proceed), cease or resume Work, to give
early notice of the rejection of faulty Work, nor in any way to superintend so as to
¢r . relieve Contractor of responsibility or of any consequence of neglect or carelessness
r*� by Contractor or its subordinates. All materials and labor shall be furnished at such
{{{ time as shall be for the best interest of all trades concerned, to the end that the
combined Work of all may be properly and fully completed in accordance with the
progress schedule.
li B. Overtime. Owner, if it deems it reasonably
necessary, may direct
Contractor to work overtime, in addition to any overtime required to meet the
., progress schedule and, if so directed, Contractor shall Work said overtime. Provided
that Contractor is not in default under any of the terms or provisions of the Contract
Documents, Contractor will be reimbursed for such actual additional wages paid, if
I any, at rates which have been approved by Owner plus taxes imposed by law on
i'a such additional wages, worker's compensation insurance and levies on such
1 ; additional wages if required to be paid by Contractor. If, however, the progress of the
Work or of the Project be delayed by any fault or neglect or act or failure to act of
Contractor or any of its officers, agents, servants or employees, then Contractor
lshall, in addition to all of the other obligations imposed by this Agreement upon
: s,,, Contractor in such cases, and at its own cost and expense, work such overtime as
may be necessary to make up for all time lost and to avoid delay in the completion of
the Work and of the Project. If, after written notice is given, Contractor refuses to
work overtime required to make up lost time or to avoid delay in the completion of the
Work and of the Project, Owner may hire others to perform the Work and deduct the
cost from Contractor's Contract Sum.
: C. Delay. Should the progress of the Work or of the Project be delayed by
any fault or neglect or act or failure to act of Contractor or any of its officers, agents,
, , servants or employees so as to cause any additional cost, expense, liability or
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- damage to Owner, or any damages or additional costs or expenses for which Owner
may or shall become liable, Contractor shall and does hereby agree to compensate
+ Pennsylvania Pkwy Water Transmission Main/451-6051 A-6 City of Carmel, Indiana
Agreement Between Owner and Contractor
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(t� Owner for and indemnify them against all such costs, expenses, damages and
liability.
LI D. Excusable Delay. If Contractor is delayed, suspended, accelerated,
I interfered with, or otherwise hindered (collectively referred to as "hindrance" or
i1. "hindrances") at any time in the progress, performance or completion of any portion
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or portions of the whole of the Work contemplated by the Contract Documents as a
result of flood, cyclone, hurricane, tornado, earthquake or other similar catastrophe,
LI or as the result of acts of God, the public enemy, acts of the Government, or fires,
epidemics, quarantine restrictions, strikes or labor disputes, freight embargoes or
unusual delay in transportation, unavoidable casualties, or abnormal weather or on
account of any acts or omissions of Owner or others engaged by it (except as herein
provided), or by their employees, agents or representatives, or by changes ordered in
the Work by Owner which are not required to correct problems or discrepancies in
Contractor's Work, or by any other causes which Contractor could not reasonably
ri , control or circumvent, and which are not due to any fault, neglect, act or omission on
j*'1 Contractor's part; and the risks of which are not otherwise assumed by Contractor
pursuant to the provisions of the Contract Documents, then the Contract Time for
completion of the portion or portions of the Work directly affected by such hindrance
shall, upon timely written request of Contractor, be extended by a period equivalent
to the time lost by reason of the aforesaid causes by Change Order approved and
signed by Owner.
frH, All claims for an extension of the Contract Time shall be based on written
i notice delivered to Owner and Engineer within twenty-one (21) days of the
commencement of the event or occurrence giving rise to the claim. Such
notice must set forth (a) the cause of the hindrance, (b) a description of the
portion or portions of the Work affected thereby, and (c) all details pertinent
thereto, including supporting data and the specific number of days requested.
(' It is a condition precedent to the consideration or validity of all claims for an
extension of the Contract Time that such claims be made in writing and
tf, delivered in strict accordance with all applicable time limits provided above.
L Owne Otherwiser. , such claims shall be waived, invalid and unenforceable as against
fE. No Damages for Delay. Contractor agrees that, whether or not any •
I hindrances shall be the basis for an extension of the Contract Time, it shall have no
R claim against Owner for an increase in the Contract Sum, nor a claim against Owner
L_ for a payment or allowance of any kind for damage, loss or expense resulting from
hindrances, except for acts constituting intentional and unjustified or unreasonable
interference, disruption or delay by Owner with Contractor's performance of its Work
when such acts continue after Contractor's written notice to Owner of such
interference, disruption or delay. Owner's exercise of its rights under the Contract
(, ',' Documents, including but not limited to, its rights regarding changes in the Work,
regardless of the extent or number of such changes, performance of separate work
IL or carrying out Contractor's Work by Owner, directing overtime or changes in the
sequence of the Work, withholding payment or otherwise exercising its rights under
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the provisions of this Agreement shall not be construed as intentional or unjustified
interference with Contractor's performance of the Work.
F. Liquidated Damages. Owner and Contractor recognize that time is of
the essence of this Agreement and that Owner will suffer financial loss if the Work is
Pennsylvania Pkwy Water Transmission Main/451-6051 A-7 City of Carmel, Indiana
Agreement Between Owner and Contractor
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not completed within the times specified in Article 4, plus any extensions allowed in
accordance with Article 12 of the General Conditions. They also recognize the
p delays, expense and difficulties involved in proving the actual loss suffered by Owner
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if the Work is not completed on time. Accordingly, instead of requiring any such
proof, Owner and Contractor agree that as liquidated damages for delay (but not as a
) penalty) Contractor shall pay Owner ONE THOUSAND DOLLARS •($1,000.00) for
each day that expires after the time specified in Article 4 for Substantial
t al Completion
� until the Work is otherwise substantially complete. After Substantial Completion, if
• ilk.°' Contractor shall neglect, refuse or fail to complete the remaining Work within the time
specified in Article 4 for completion and readiness for final payment or any proper
lvj• extension thereof granted by Owner, Contractor shall pay Owner ONE THOUSAND
DOLLARS ($1,000.00) for each day that expires after the time specified in Article 4
—I'dfor completion and readiness for final payment.
'. Article 5. Contract Sum. Owner agrees to pay Contractor for the timely and proper
( performance of the Work, subject to additions and deductions provided therein and in
.: 11!'e accordance with the Contract Documents in current funds based on the bid prices as
t' set forth in the conformed cop
y of the Contractor's Bid attached hereto as Exhibit A, •
', the sum of One Million, twenty two thousand, eight hundred sixty Dollars
J. ($1,022,860.00) (Contract Sum). ,
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; The Contract Sum, including authorized adjustments, is the total amount
Ij • payable by Owner to Contractor for performance of the Work under the Contract
• 1, Documents. In determining the Contract Sum, Contractor has taken into account the
o level of completeness of the Contract Documents and has exercised its best skill and
efforts to make (1) appropriate judgments and inferences in connection with the I
ti requirements of the Contract Documents, and (2) all inquiries to clarify the Contract
k Documents as necessary to calculate and establish the Contract Sum. The Contract
"t Sum may be changed only by Change Order.
Article 6. Contract Payments. All payments provided herein are subject to funds
s: as provided by Owner and the laws of the State of Indiana. Contractor shall submit
v Applications for Payment in accordance with Article 14 of the General Conditions.
Based on Applications for Payment properly submitted to Engineer by Contractor, the
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Applications for Payment will be processed by Engineer as provided in the General
c. Conditions. .
i : . A. Progress Payments; Retainaqe: Owner shall make monthly progress
payments on account of the Contract Price on the basis of Contractor's Applications
.' for Payment as recommended by Engineer, no more often than monthly during
k=` construction as provided below. Each Application for Payment shall be based on the
schedule of values established in paragraph 2.7 of the General Conditions (and in
S' the case of Unit Price Work based on the number of units properly completed) or, in
i" • the event there is no schedule of values, as provided in the General Requirements.
i ., Such Application for Payment shall be supported by such data substantiating
):' Contractor's right to payment as Owner may require, such as copies of requisitions
yy from subcontractors and material suppliers.
y, 1. Owner reserves the right to inspect the Project and approve the
progress of Work completed to the date of the Application for Payment. If requested
I; by Owner prior to making said payment, Contractor shall submit to Owner an Affidavit
and partial Waiver of Lien, and/or partial waivers from subcontractors and material
1 suppliers, in form and content satisfactory to Owner, stipulating that all costs for labor
' - Pennsylvania Pkwy Water Transmission Main/451-6051
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Agreement Between Owner and Contractor
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material suppliers, laborers and equipment lessors. An Application for Payment shall
not include requests for payment of amounts Contractor does not intend to pay to a
subcontractor or material supplier.
a. Prior to Substantial Completion, progress payments will be made in an
�iJ amount equal to the percentage indicated below, but, in each case, less
IL the aggregate of payments previously made and less such amounts as
r Engineer shall determine, or OWNER may withhold, in accordance with
paragraph 14.2.2.5 of the General Conditions.
b. Progress payment will be made for ninety percent (90%) of Work
completed (with the balance being held as retainage). If Work is fifty
percent (50%) complete as determined by Engineer, and if the
[I character and progress of the Work has been satisfactory to Owner and
Engineer, Owner, at its sole discretion and without obligation, on
recommendation of Engineer, may determine that as long as the
Icharacter and progress of the Work remain satisfactory, there will be no
additional retainage on account of Work completed in which case the
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remaining progress payments prior to Substantial Completion will be in
01 an amount equal to one hundred percent (100%) of the Work properly
completed.
U c. Progress payment will be made for ninety percent (90%) of invoice
price for materials and equipment not incorporated in the Work (but
delivered, suitably stored and accompanied by documentation
satisfactory to Owner as provided in paragraph 14.4 of the General
Conditions).
B. Payment of Subcontractors. The Contractor agrees to assume and
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does assume full and exclusive responsibility for the payment of subcontractors in
compliance with Ind. Code § 36-1-12-13. The Agreement is expressly made an
obligation covered by•-the Contractor's -Payment Bond_ and Performance Bond
obligation. The obligation of the surety shall not in any way be affected by the •
Ibankruptcy, insolvency, or breach of contract of the Contractor.
1. The making of an incorrect certification by the Contractor shall be
considered a substantial breach of contract on the part of the Contractor. Based on a •
1�11 breach of contract, the Owner may, in addition to all other remedies, withhold all
r payments not yet made and recover all payments previously made less that amount
which has actually been paid to subcontractors by the Contractor. The obligation is
hereby created on the part of the Contractor to return all such payments previously
made in such case.
2. Upon receipt of a progress payment, Contractor shall pay promptly all
11 valid bills and charges for materials„equipment, labor and other costs in connection
with or arising out of the Work and will hold Owner free and harmless from and
against all liens and claims of liens for such materials, equipment, labor and other
Costs; or any of them, filed against the Project- or the site, or any part thereof, and
from and against all expenses and liability in connection therewith including, but not
Pennsylvania Pkwy Water Transmission Main/451-6051 A-9 City of Carmel, Indiana
Agreement Between Owner and Contractor
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limited to, court costs and attorneys' fees. Should any lien or claim of lien be filed of
record against the Project or the site, or should Owner receive notice of any claim or
of any unpaid bill in connection with the Work, Contractor shall forthwith either pay or
discharge the same and cause the same to be released of record or shall furnish
Owner with appropriate indemnity in form and amount satisfactory to Owner.
ri C. Withholding of Payment. If any claim or lien is made or filed with or
against Owner, the Project, the real estate, or contract proceeds by any person
Iclaiming that Contractor or any subcontractor or any person for whom Contractor is
liable has failed to make payment for labor, services, materials, equipment, taxes or
other items or obligations furnished or incurred for or in connection with the Work, or
1 if at any time there shall be evidence of such non-payment or of any claim or lien
which is chargeable to Contractor, or if Contractor or any subcontractor or other
person for whom Contractor is liable causes damages to the Work, or if Contractor
llfails to perform or is otherwise in default under any of the terms or provisions of the
Contract Documents, Owner shall have the right to retain from any payment then due
or thereafter to become due an amount which it deems sufficient to (1) satisfy,
pdischarge and/or defend against such claim or lien or any action which may be
r brought or judgment which may be recovered thereon, (2) make good any such non-
payment, damage, failure or default, and (3) compensate Owner for and indemnify
11 him against any and all losses, liability, damages, costs, and expenses, including
attorneys' fees and disbursements which may be sustained or incurred in connection
therewith. Owner shall have the right to apply and charge against Contractor so
much of the amount retained as may be required for the foregoing purposes. If the
amount retained is insufficient therefore, Contractor shall be liable for the difference.
I1. If Owner withholds any payment, partial or final, from Contractor, Owner
r may, but shall not be obligated or required to, make direct or joint payment on behalf
I: of Contractor for any part or all of such sums due and owing to said subcontractors,
material suppliers, equipment lessors and/or laborers for their labor, materials or
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equipment furnished to the Project, not to exceed the Contract Sum remaining due
and owing to Contractor, and charge all such direct payments against the Contract
Sum; provided, however, that nothing contained in this paragraph shall create any
personal liability on the part of Owner to any subcontractor, material supplier,
equipment lessor or laborer, or any direct contractual relationship between Owner •
and them.
D. Substantial Completion. Upon Substantial Completion of the Work in
accordance with Article 14 of the General Conditions, the Owner shall pay the
Contractor an amount sufficient to increase total payments to Contractor to ninety-
eight percent (98%) of the Contract Sum (with the balance being retainage), less
Qsuch amounts as Engineer shall determine, or Owner may withhold, in accordance
with paragraph 14.4 of the General Conditions.
1 E. Final Payment. Upon final completion and acceptance of the Work in
accordance with paragraph 14.7.2 of the General Conditions, Owner shall pay the
remainder of the Contract Sum as recommendedfi by Engineer as provided in said
paragraph 14.7.2.
• 1.. When the Contractor completes the work in accordance with the
Contract Documents and in an acceptable matter as determined by the Engineer, the
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Agreement Between Owner and Contractor
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Contractor will prepare a final estimate for the work performed and will furnish the
Engineer with a copy of the final estimate. Final payment shall not become due until
Contractor submits (a) an affidavit that payrolls, bills for materials and equipment,
and other indebtedness connected with the Work for which Owner or Owner's
property might be responsible or encumbered (less amounts withheld by Owner)
have been paid or otherwise satisfied, (2) a certificate evidencing that insurance
required by the Contract Documents will remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least 30 days'
prior written notice has been given to Owner, (3) a written statement that Contractor
knows of no substantial reason that the insurance will not be renewable to cover the
period required by the Contract Documents, (4) consent of surety, if any, to final
payment, and (5) if required by Owner, other data establishing payment or
satisfaction of obligations, such as receipts, releases and waivers of liens, claims,
security interests or encumbrances.
2. The Engineer, acting on behalf of the Owner, will then certify to the
Owner's duly appointed representative the balance due the Contractor and the
certificate will be deemed evidence of final acceptance of the completed Agreement
by the Owner. Owner shall make final payment to the Contractor within one hundred
twenty (120) days after final acceptance and completion of the Agreement. However,
final payment may not be made on any amount that is in dispute, but final payment
may be made on the part of the Contract Sum or those amounts not in dispute. For
each day after one hundred twenty (120) days, the Owner will pay to the Contractor
interest for late payment of money due to the Contractor. However, interest will not
be paid for those days that the delay in payment is not directly attributable to the
•
Owner. The annual percentage rate of interest that the Owner shall pay on the
unpaid balance is eight percent (8%).
3. Acceptance of final payment by Contractor shall constitute a waiver of
claims by Contractor except those previously made in writing and identified by
Contractor as unsettled at the time of final payment.
Article 7. Termination and Suspension. The Agreement may be terminated by the
Owner or the Contractor as provided in Article 15 of the General Conditions. The
Work may be suspended by the Owner as provided in Article 15 of the General
Conditions.
Article 8. Interest. Unless otherwise expressly provided in the Contract
Documents, payments due to Contractor under the terms of the Contract Documents
and unpaid shall bear no interest and Contractor shall be entitled to no interest,
statutory or otherwise. If the right to interest is expressly provided in the Contract
Documents, then such interest shall apply only with respect to liquidated and
non-disputed payments, and shall accrue from and after the thirtieth (30th) day
following Owner's receipt of a statement of account by Contractor demanding such
payment and containing an express statement by Contractor of its intention to assess
such interest. In the event Owner is entitled to withhold payment under the Contract
Documents, or in the event of a good faith dispute between Owner and Contractor,
no interest shall accrue.
•
Pennsylvania Pkwy Water Transmission Main/451-6051 A-11 City of Carmel, Indiana
Agreement Between Owner and Contractor
Article 9. Owner's, Contractor's and Engineer's Representations.
9.1 The Owner's Representative is:
1 Mr. John Duffy, Utility Director
760 3rd Avenue S.W., Suite 110
t Carmel, Indiana 46032
9.2 The Contractor's Representative is:
P!Ilcfl Pi'j?d' Aie ogc'i,
't7Lft 61ri et' goat(
1105- Lti q&& i►v tut I'
Article 10. Miscellaneous.
A. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Indiana.
B. Terms used in this Agreement which are defined in Article 1 of the
General Conditions will have the meanings indicated in the General Conditions.
C. No assignment by a party hereto of any rights under or interests in the
Contract Documents will be binding on another party hereto without the prior written
consent of the party sought to be bound; and, specifically but without limitation,
moneys that may become due and moneys that are due may not be assigned without
such consent (except to the extent that the effect of this restriction may be limited by
law), and unless specifically stated to the contrary in any written consent to an
.-• assignment no assignment will release or discharge the assignor from any duty or
responsibility under the Contract Documents.
D. SUCCESSORS AND ASSIGNS. Owner and Contractor respectively
bind themselves, their successors, assigns and legal representatives to the other
party hereto in respect to covenants, agreements and obligations contained in the
Contract Documents. Neither party to this Agreement shall assign this Agreement
without the written consent of the other. If either party attempts to make such an
assignment without such consent, that 9 party shall nevertheless remain legally
responsible for all obligations under this Agreement.
E. Any provision or part of the Contract Documents held to be void or
unenforceable under any Law or Regulation shall be deemed stricken, and all
remaining provisions shall continue to be valid and binding upon Owner and
Contractor, who agree that the Contract Documents shall be reformed to replace
such stricken provision or part thereof with a valid and enforceable provision that
comes as close as possible to expressing the intention of the stricken provision.
F. WRITTEN NOTICE. Written notice shall be deemed to have been duly
served if delivered in person to the individual or to an officer of the corporation for
which it was intended, or if delivered at or sent by registered or certified mail to the
last business address known to the party giving notice.
T '
a Pennsylvania Pkwy Water Transmission Main/451-6051 A-12 City of Carmel,Indiana
Agreement Between Owner and Contractor
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G. RIGHTS AND REMEDIES. Duties and obligations imposed by the
Contract Documents and rights and remedies available thereunder shall be in
addition to and not a limitation of duties, obligations, rights and remedies otherwise
imposed or available by law. No act or failure to act by Owner or Contractor shall ,
of a right or duty afforded them under this
reement, nor
such
I, constituteaction or failure to act
constitute approval of or acquiescen egin a thereunder.shall
Article 11. Dispute Resolution.
4 A. Mediation. The parties shall endeavor to resolve their claims by
!'i. mediation which, if the parties mutually agree, shall be administered by the American
;r Arbitration Association in accordance with its Construction Industry Mediation
;r Procedures in effect on the date of the Agreement. The parties shall share the
r mediator's fee and any filing fees equally. The mediation shall be held in the place
:,. where the Project is located, unless another location is mutually agreed upon.
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:,, Agreements reached in mediation shall be enforceable as settlement agreements in
:4; any court having jurisdiction thereof.
" B. Litiaation. In the event of any litigation between the Owner and
�f Contractor that arises out of or relates to this Agreement or the Project, the I
"prevailing party" in such litigation shall be entitled to recover its attorneys' fees 1
L incurred in the litigation. For the purposes of this paragraph, the term "prevailing
r.;
r,> party" shall mean the party that recovers all or substantially of the relief requested in
its pleadings, and includes attorneys' fees incurred in the collection or enforcement of
any judgment. The parties agree that the exclusive and sole venue for any claim
arising out of or relating to the Contract shall be any court of competent jurisdiction I
is located in Hamilton County, Indiana.
IN WITNESS WHEREOF, Owner and Contractor have signed five (5) copies of this
1 Agreement. One counterpart each has been delivered to Owner, Contractor and
is Engineer. All portions of the Contract Documents have been signed or identified by 1
j Owner and Contractor or identified by Engineer on their behalf.
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City of Carmel, Indiana
, Pennsylvania Pkwy Water Transmission Main/451-6051 A-13 Agreement Between Owner and Contractor
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This Agreement will be effective on pccen.ha, la , 2013 (which is the Effective
Date of this Agreement as defined in the General Conditions).
City of Carmel, Indiana C-t ibs EscLoith1 rG(, ifk. ,
Owner Contractor U
By Board of Works & Public Safety By ta-
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1(1)/i Vt(UQt Fr I in t
tIV [CORPORATE SEAL]
Mayor and Member
(((���, 1)271, --; Member
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L.,7 Member
Atte A Attest:a/ rj /;, M It -
1 l�r $aGfCitiw��f� ; I'1 ki
�r11h�ll�I ��c�t'r
Diana L. Co ray, Clerk Treasurer
Address for giving notices Address for giving notices
One Civic Square Lj7L/o` ,Stitiiijeir ',lei
l Carmel, IN 46032 (.l7,9- (late- �, LI V t 76Ili41
License No.124 /0-tit '6'i712.6N
Agent for service of process:
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' A-14 City of Carmel, Indiana
if, Pennsylvania Pkwy Water Transmission Mainl451-6051
Agreement Between Owner and Contractor