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Atlas Excavating, Inc/Utilities 0/7f 0W,05,03. 07-- AGREEMENT THIS AGREEMENT is dated as of the 5/4 day of la in the year 2003 by and between City of Carmel,Indiana,by and through its Board of Public Works and Safety, (hereinafter called OWNER) and Atlas Excavating, Inc. (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: 116th Street Water and Sanitary Sewer Main Extension Project Article 2. ENGINEER. The Project has been designed by HNTB CORPORATION (HNTB), who is hereinafter called ENGINEER and who is to act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract Documents. Article 3. CONTRACT TIME. 3.1. The Work will be substantially completed within 90 days from the date when the Contract Time commences to run as provided in paragraph 2.03 of the General Conditions 1910-8, 1996 Edition, and completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions within 90 days from the date when the Contract Time commences to run. 3.2. 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 not completed within the times specified in paragraph 3.1 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense, and difficulties involved in 1 of 5 proving in a legal or arbitration proceeding the actual loss suffered by OWNER 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 (not as a penalty) CONTRACTOR shall pay OWNER Seven Hundred Dollars ($700.00) for each day that expires after the time specified in paragraph 3.1 for Substantial completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER Five Hundred Dollars ($500.00) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. 4.1. OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents in current funds as follows: Four Hundred Nine Thousand Nine Hundred Four dollars ($409,904.00). Article 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment in accordance with Article 14.2 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in Article 14.4 of the Supplementary Conditions. 5.1. Progress Payments. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by ENGINEER, on or about the 30`s day of each month during construction as provided below. All progress payments will be on the basis of the progress of the Work measured by the schedule of values established in paragraph 2.07 of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements. 5.2. Final Payment. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07. Article 6. INTEREST. All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the maximum rate allowed by law at the place of the Project. 2 of 5 • Article 7. CONTRACTORS REPRESENTATIONS. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations: 7.1. CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents,Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress,performance, or furnishing of the Work. 7.2. CONTRACTOR has studied carefully all reports of explorations and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions as provided in paragraph 4.2 of the General Conditions, and accepts the determination set forth in paragraphs 4.02.A and 4.02.B of the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which CONTRACTOR is entitled to reply. 7.3. CONTRACTOR has obtained and carefully studied (or assumes res- ponsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports, and studies (in addition to or to supplement those referred to in paragraph 7.2 above)which pertain to the subsurface or physical conditions at or contiguous to the site or otherwise may affect the cost,progress, performance, or furnishing of the Work as CONTRACTOR considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract time and in accordance with the other terms and conditions of the Contract Documents, including specifically the pro- visions of paragraph 4.02 of the General Conditions; and no additional examina- tions, investigations, explorations,tests, reports, studies, or similar information or data are or will be required by CONTRACTOR for such purposes. 7.4. CONTRACTOR has reviewed and checked all information and data shown or indicated on the Contract Documents with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests,reports, studies, or similar information or data in respect of said Underground Facilities are or will be required by CONTRACTOR in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of paragraph 4.03 of the General Conditions. 7.5. CONTRACTOR has correlated the results of all such observations, examinations, investigations, explorations, tests, reports, and studies with the terms and conditions of the Contract Documents. 3 of 5 7.6. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. Article 8. CONTRACT DOCUMENTS. The Contract Documents, which comprise the entire Agreement between OWNER and CONTRACTOR concerning the Work, consist of the following: 8.1. This Agreement, including required Addenda and Bonds. 8.2. CONTRACTOR's Bid or Proposal. 8.3. Advertisement for Bids. 8.4. Instructions to Bidders. 8.5. Supplementary Conditions. 8.6. General Conditions. 8.7. Detailed Specifications. 8.8. Detailed Drawings. 8.9. Governing Order of Contract Documents - In the event that any provision in any of the above component parts of this Agreement conflicts with any provision in any other of the component parts,the provision in the component part first enumerated above shall govern over any other component part which follows it numerically, except as may be otherwise specifically stated. 8.10. 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 3.03 and 3.04 of the General Conditions. 8.11. There are no Contract Documents other than those listed above in this Article 8. The Contract Documents may only be amended, modified, or supplemented as provided in paragraphs 3.03 and 3.04 of the General Conditions. Article 9. MISCELLANEOUS. 9.1. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 4 of 5 9.2. 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 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. 9.3. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect of all covenants, agreements, and obligations contained in the Contract Documents. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in three (3) original counterparts the day and year first above written. c (SEAL) L.-.-211" /fn CONTRACTOR—Atlas Excavating, Inc. CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety OWNER / /� A st: r, HhCler for By itt /�7i7Uiw+�..J� Diana Cordr , IAMC, Clerk-Treasurer es Brainard, Presiding Officer Date: a7/03---- Date: - 5-'o3 aiAduL Mary A Burke, Member ber Lori is n, Member 5 of 5