S & B Construction Co/Street APPROVED, AS 1'O
AGREEMENT FORM I,Y:~
City of Carmel, Indiana
THIS AGREEMENT is made and entered into by and between the City of Carmel, Indiana,
acting by and through its Board of Public Works and Safety ("OWNER") and S&B Construction
Co., LLC ("CONTRACTOR"), concerning thc Carmc! Street D~artment Main Facility project
("Project") described more particularly in Appendix A which is attached hereto and incorporated
herein by reference.
RECITALS:
The OWNER has heretofore caused to be prepared certain plans, specifications and other
documents (collectively, the "Contract Documents") as hereinafter listed pertaining to the
Project, and the CONTRACTOR has filed a bid proposal ("Proposal") to furnish labor,
tools, material, equipment and/or services, and to perform the work ("Work") called for
in the Contract Documents pertaining to the Project, upon the terms and for the price(s)
therein fully stated and set forth; and
The said Contract Documents accurately and fully describe the terms and conditions upon
which the CONTRACTOR is 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.
THE OWNER AND CONTRACTOR AGREE AS FOLLOWS:
1.0
1.1
Contract Documents
This Agreement consists of the following Contract Documents all of which are as fully a
part of this Agreement as if set out verbatim herein or attached hereto and the same do in
all particulars become the Agreement between the parties hereto in all matters and things
set forth herein and described:
a. This Agreement, including any attachments hereto;
b. All Addenda issued prior to receipt of bid proposals, whether or not receipt
thereof has been acknowledged by CONTRACTOR in its Proposal;
c. The Specifications;
d. The Additional Requirements;
e. Notice to Bidders;
f. Instructions to Bidders;
g. Plans and Drawings;
h. Performance, Payment and Maintenance Bonds;
i. CONTRACTOR'S Itemized Proposal and Declarations; and
j. All other documents defined as Contract Documents in any of the above listed
documents.
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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.
2.0 Contract Price
2.1.1 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 $ 5,432,100.00 (Five Million Four
Hundred Thirty-Two Thousand One Hundred Dollars and 00/100) to such additions and
deductions as are provided in the Contract Documents. The Contract Price is based upon
the following alternates are described in the Contract Documents and hereby accepted by
the Owner:
Alternate #1, Site enclosure fence, columns, and masonry wall, cast stone sign and
electrical gate and control.
Alternate #7, 2-ton chain hoist and structure
Alternate #8, 5-ton chain hoist and structure
Alternate #10, 12,000 lb 4 post vehicle lift
Alternate #11, 50,000 lb in-ground vehicle lift
Alternate #14, galvanized steel ships ladder and platform at the Wash Bay
The CONTRACTOR agrees that the Contract Price shall be deemed full and complete
compensation for all direct and indirect costs for the each respective item of Work,
including, without limitation, all materials, labor, supervision, equipment, transportation,
warranties, repairs, replacement, overhead and profit for the item, complete and in place.
2.2 The above stated Contract Price will be paid to the CONTRACTOR in the manner and at
such times as set forth in the Contract Documents.
3.0 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.
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3.2
3.3
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.
The CONTRACTOR and OWNER acknowledge and agree that the time allotted by this
Agreement for the performance and completion of the Work is reasonable and takes into
account any and all risks and adverse conditions which may befall the CONTRACTOR
hereunder.
Liquidated Damages
The CONTRACTOR and Owner recognize and contemplate that unexcused failure by
the Contractor to complete the Work within the Contract Time will cause the OWNER
and the Public to suffer financial losses or inconvenience the full and exact extent and
character of which cannot be measured as a basis for recovery by the Owner of actual
damages, and that liquidated damages as prescribed in the Contract Documents represent
a fair, reasonable and appropriate estimate thereof. Accordingly, the Contractor agrees
that such liquidated damages may be assessed and recovered by the OWNER, as against
Contractor and its Surety, in the event of delayed completion and without the Owner
being required to present any evidence of the amount or character of actual damages
sustained by reason thereof. Such liquidated damages shall be assessed and recovered
at the rate of $500.00 per day for delay in achieving Substantial Completion.
Effective Date
This Agreement shall be deemed effective as of the date and year on which the last of the
parties hereto, or their representative, executes same.
Miscellaneous Provisions
OWNER's Property
Any and all documentation (other than original tracings and original calculations)
generated by CONTRACTOR pursuant to this Agreement shall be considered OWNER's
exclusive property and shall be disclosed only to OWNER and to no other person without
OWNER's prior express written consent. CONTRACTOR shall keep confidential all
working and deliberative material pursuant to IC 5-14-3-4.
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6.2 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.
6.3 Binding Effect
OWNER and CONTRACTOR and their respective officers, officials, partners,
successors, executors, administrators, assigns and legal representatives are bound by
this Agreement to the other party hereto and to the officers, officials, partners,
successors, executors, administrators, assigns and legal representatives of such other
party in all respects as to all covenants, agreements and obligations contained and/or
incorporated herein.
6.4 No Third Party Beneficiaries
Nothing contained herein shall be construed to give any rights or benefits
hereunder to anyone other than OWNER or CONTRACTOR.
6.5 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 soumes 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 hereunder by OWNER to CONTRACTOR shall, subject to the terms and
conditions hereof, be the full and maximum compensation and monies required of
OWNER to be paid to CONTRACTOR pursuant to this Agreement.
6.6 Insurance
CONTRACTOR shall maintain such bonds and insurance as are set forth in
Article 5 of the General Conditions.
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6.7
6.8
6.9
6.10
6.11
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.
Setoff
In addition to any right of setoff provided by law, all amounts due CONTRACTOR
shall be considered net of indebtedness of CONTRACTOR to OWNER, and
OWNER may deduct any amounts due or to be come due from CONTRACTOR to
OWNER from any sums due or to become due from OWNER to CONTRACTOR
hereunder.
Government Compliance
CONTRACTOR agrees to comply with all federal, state and local laws, executive
orders, roles, regulations, codes and ordinances which may be applicable to
CONTRACTOR's performance of its obligations under this Agreement, and all
relevant provisions thereof are incorporated herein by this reference.
CONTRACTOR agrees to indemnify and hold harmless OWNER from any loss,
damage or liability resulting from any violation of such laws, orders, mles,
regulations, codes and/or ordinances. This indemnification obligation shall survive
the termination of this Agreement.
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.
Notice.
Any notice, invoice, order or other correspondence required or permitted to be sent
under or pursuant to this Agreement shall be in writing and either hand-delivered or
sent by postage prepaid, U.S. Certified mail, return receipt requested, addressed to
the parties at the following address:
OWNER: CONTRACTOR:
City of Carmel S&B Construction Co., LLC
Board of Public Works and Safety Steve Morris
One Civic Square 201 North Illinois Street, 22"a Floor
Carmel, IN 46032 Indianapolis, 1N 46204
Ai~ention: M. Kate Boyle-Weese, PE, City Engineer
(with a copy to City Attorney,
Department of Law, same address)
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6.12
6.13
6.14
6.15
6.16
6.17
6.18
Notwithstanding the above, a Notice To Cease All Work issued under or pursuit to
Paragraph 6.2 hereinabove may be orally given, as long as such notice is thereafter
followed by written notice as provided in this Paragraph 6.11 within five (5) business
days of the date of such oral notice.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of Indiana, except for its conflict of laws provisions, as 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.
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.
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.
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.
Representation and Warranties
Each party hereto represents and warrants that it is authorized to enter into this
Agreement and that such party, in executing this Agreement, has the authority to
bind such party or the party which it represents, as the case may be.
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.
Advice of Counsel
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
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.
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6.19
Entire Agreement
This Agreement, together with any attachments hereto or referenced herein, constitutes
the entire agreement between Vendor and City with respect to the subject matter hereof,
and supersedes all prior oral or written representations and agreements regarding same.
Notwithstanding any other term or condition set forth herein, but subject to paragraph
6.10 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
Agreement may only be modified by written amendment executed by both parties
hereto, or their successors in interest.
1N WITNESS WHEREOF, the parties hereto set their hand on the dates below written:
OWNER:
CITY OF CARMEL, iNDIANA
by and through its Board of Public Works and
Safety/
/ James Brainard, Presiding Officer
Date:
Mary Amfi-~urke, Member
CONTRACTOR:
Title: President
Date:
Dian~ Cordr~y, ~C)~rk-Tr~urer
Date:
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APPENDIX A
PROJECT: City of Carmel Street Department Main Facility
WORK: As described by the Project plans and Contract Documents
including, but not limited to:
The Project consists of, but is not necessarily limited to, the following:
General construction, including mechanical and plumbing construction, electrical work and
site construction for six (6) new Street Department Facility Buildings on the site at the
northeast comer of 131st Street and Shelbome Road, which shall include an Administration
Building, Maintenance Building, two (2) Heated Storage Buildings, one (1) Ambient Storage
Building and one Salt Storage Buildings. Construction to include site excavation, grading,
underground utilities, concrete/asphalt paving, concrete block, wood and steel framing,
asphalt shingles, aluminum windows, steel doors and frames, overhead doors, interior
finishes, and mechanical, electrical and plumbing systems, and as indicated on Drawings
prepared by Paul I. Cripe, Inc. for the City of Carmel, dated November 1, 2002.
DESIGN BY: Paul I. Cripe, Inc.
7172 Graham Road
Indianapolis, 1N 46250
OWNER'S REPRESENTATIVE:
M. Kate Boyle-Weese, PE
City Engineer
City of Carmel
One Civic Square
Carmel, IN 46032
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CITY OF CARMEL
STANDARD GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS
2002
ARTICLE 1 - ABBREVIATIONS AND DEFINITIONS
1.1 Abbreviations: The following abbreviations have the following meanings:
AA Aluminum Association
AASHTO- American Association of State Highway & Transportation Officials
ACI American Concrete Institute
AFBMA - Anti Friction Beating Manufacturers Association
AGA American Gas Association
AGMA American Gear Manufacturers Association
AHDGA - American Hot Dip Galvanizer Association
AISC American Institute for Steel Construction
AISI American Iron and Steel Institute
ANSI American National Standards Institute
ARI American Refrigeration Institute
ASCE American Society of Civil Engineers
ASHRAE- American Society of Heating, Refrigeration & Air Conditioning Engineers
ASME American Society of Mechanical Engineers
ASTM American Society of Testing and Materials
AWPI American Wood Preservers Institute
AWS American Welding Society
AWWA American Water Works Association
CBRI Copper and Brass Research Institute
CS Commercial Standard (U.S. Department of Commerce)
FTI Facing Title Institute Fed. Spec.
FS Federal Specification (U.S.)
IEEE Institute of Electrical and Electronic Engineers
IPCEA Insulated Power Cable Engineers Association
MSS Manufacturers Standardization Society of the Valve and Fitting Industry
NCMA National Concrete Masonry Association
NEC National Electric Code (U.S.)
NEMA National Electrical Manufacturers Association
NFPA National Fire Protection Association
NPC National Plumbing Code
PS United States Product Standards
SAE Society of Automotive Engineers
SCPI Structural Clay Products Institute
UL Underwriters Laboratories
1.2 Definitions: Wherever used and not otherwise defined in these General Conditions or in
other Contract Documents, the following terms have the meanings indicated which are applicable
to both the singular and plural thereof:
Addenda/Addendum - Written or graphic instruments issued prior to the opening of Bids which
clarify, correct or change the Bidding documents or the Contract Documents.
Agreement -The written Agreement between OWNER and CONTRACTOR covering the Work
to be performed; other Contract Documents are attached to the Agreement and made a part
thereof as provided therein sometimes referred to as "Contract".
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