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Fleetwood Contracting Corp/Util AGREEMENT City of Carmel, indiana THIS AGREEMEN.T is made and entered into by and between, the City of Carmel, Indiana, acting by and thro6gh its Board of Public Works and Safety ("OWNER") and fleetwood c6ntract:±ng corp ("CONTRACTOR"), concerning the 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 p[epared certain plans, specifications and c~ther documents (collectively, the "Contract Documents") as hereinafter listed pertaining to the Project, and the CONTRACTOR has fded 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 conditiong upon which the CONTRACTOR is willing to furnish the laborl 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 Contract Documents 1.1 This Agreemei3t consists of the following Contract DocUments all of which are as full~ a part of this Agreement as if set out verbatim herein or attached hereto and the same do in all particulars become th.e Agreement between the parties hereto in all matters and things set forth hereiri and described: This Agreement, including any attachments hereto; 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. Plm~s and Drawings; h. Performance, Payment and Maintenance Bonds; CONTRACTOR'S Itemized Proposal and Declarations; and A-1 1.2 2.0 2.1 2.2' 3.0 3.2 3.3 Ali other documents :tefined as C~ntract Documents in any of the above listed documents. In resolving conflicts, errors, discrepancies and disputes concerning the nature, charaeter, 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 regm:d 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. Contract Price l'he CONTRACTOR shall, in strict confomaity with the Contract D'ocuments, furnish all necessary labor, tools, materials, equipment, services, assume and fulfill all obligations and perform ali Work required to construct, complete, and make ready for use by the OWNER at the Unit Prices as quoted in the Proposal for a total contract price not to exceed $ 79,2 4 9.3 0 Base Bid, subject to any additions or deletions based on actual approved quantities of the respective 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 Prices specification" and other Contract Documents (the' "Contract Price'S). The 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, ali mgterials, labor, supervision, equipment, transportation, warranties, repairs, replacement, overhead and profit for the item, complete and in place.. ' Thd above stated Contiaet Pric~ wi. Il be paid to the CONTRACTOR ii'the _manner and at such times as set forth in the Contract Documents. Contract Time & Liquidated Damages 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 th!s Agreement. The CONTRACTOR agrees that the'Work shall be commenced 'no later than the date ihdicated in the Notice to Proceed to be provided by OWNER to CONTRACTOR and that the Work shall bi performed regularly, diligently and without interruption at such a rate of progress as will insure 100% Completion of the Project, including all main connections .with performance testing and such remedial work as may be required by the OWNER, by the date specified in the Contract Documents. Liquidated Damages. Owner and Contractor recognize that time is of the essence of the Agreement and that Owner will suffer financial loss if the Work is not completed within the time specified in Paragraph 3.1. They also recognize the delay~, expense and difficulties involved in proving legal or arbitration proceedings the actual loss suffered by Owner if the Work is not 'completed on time. Accordingly, instead of requiring any shdh A-2 3.4 5 5.1 5.2 proof, Owner and Contractor agree that as liquidated damages for the delay (but not a penalty), Contractor shall pay Owner Five Hundred Dollars and No Cents ($500.00) per day for each calendar day until the work is 100% Complete as specified in Paragraph 3.2. -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 ali risks and adverse conditions which may befall the CONTRACTOR hereunder. 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 ali working and deliberative material purstiant to IC 5-14-3-4. 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 2003 (the "Gbneral Conditions"), as incorporated herein by thi~ reference. In 'the event any amount allegedly due hereunder is disputed and such dispute is not resolved to OWNER's satisfaction within ten (i0) business days after notice of sudh dispute is g~ven to CONTRACTOR, OWNER shall pay such amount as is ~n dispute, dnder 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. A-3 5.3 5.4 5.5 5.6 5.7 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, execut0r~, administrators, assigns and legal representatives of such other party in all respects as to all covenants, agreements and obligations contained and/or incorporated he. rein. No Third Party Beneficiaries Nothing contained herein shall be construed to give any rights or 'benefits hereunder to anyone other than OWNER or CONTRACTOR. Relationship The relationship of the parties hereto shall be as provided for in this Agreement, and CONTRACTOR, as well as its agent~, 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, cont4actugl 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. Insurance - CONTRACTOR Shhll maintain such· bonds and insurance as are set forth in Article 5 Of the General Conditions. 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, ali 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 constitu[e a material breach of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 5.8 5.16 5.1i 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. 5.9 Government Compliahce 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 indemnif7 and hold hanxxless 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 4he termination of this Agreement. Severability. If any provision of this Agreement is heid to be invalid, illegal or unenforceable by a court of competent jurisdiction, thht provision shall be stricken, and al! other provisions of this Agreement which can operate independently of such stricken provision shall continue in full force and effect. Notice. Any notice, invoice, c~rder or other correspondence requi~ed o~: ~3ermitted to b6 sent Under or pursuant to this 'Agreement ~hall be in Writing and either hm~d-delivered o? sent by postage prepaid, U.S. Certified mail, return receipt requested, addressed to the parties at the following ad4ress: oWNER: City of Carmel · Board of Public Works and Safety 5535 hickory rd One Civic Square indianapolis in. 46239 Carmel, IN 46032 31 7-862-441 1 Attention: John Dully, Manager . Water and Wastewater Utilities (?vith ~ copy to City Attorney, Department of Law, same address) Notwithstanding the above, a Notice To Cease All Work issued under or p~rsuit to Paragraph 5.2 hereinabove may be orally given, as long as such notice is thereafter followed by written notice as provided in thi~ Paragraph 5.11 :within five (5) business days of the date of such oral notice. ~ONTRACTOR: fleetwood contracting corp A-5 5.12 5.13 5.14 5.15 5.16 5.17 . 5.18 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 furthe[ 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 Hamiltoh County, Indiana 6nly, 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 t? 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'considei'ed a part of this Agreement. Prior Agreements Tliis Agreement contains all oi'.the agreements 6f 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 warrant~ that it is authorized to enter into this Agreemen~ an~t-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. He~,dings All headings and s~ctions of this Agi:eement are inserted for convenience 0nly and do n6t 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, at:e 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 ente? into this Agreement freely, voluntarily and without any dure~s, undue influence, coercion or promise of benefit, except' as expressly set forth herein. A-6 5.19 Entire Agreement This Agreement, together with any attachments hereto or referenced heroin, constitutes the entire agreement between Vendor and .City with respect to the subject matter hereof, and supersedes ail prior oral or written representations 9nd 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 Agreement may only be modified by written amendment executed by both parties hereto, or their successors m interest. IN WITNESS WHEREOF, the parties hereto set their hand on the dates below Written: OWNER: CITY OF CARMEL, INDIANA by and through ~ts Board of Public Works and Safety ~~ James Brainard, Presiding Officer Date: Mar~ A~ln B/k~, Membe~ - Date: Loft W~~ Date: ~{ A~ST:~ rdra Ierk-Treasurer. CONTRACTOR: fleetwood contracting corp 5535 hickory rd. indianapolis in~.46239 -3) kevln fleetwood Printed Name: president Title: Date: 5-9-05 A-7