Yardberry Landscaping/Engr En~inee?int~ D~partment
Miscellaneous I)ehmlition Prqjecl
App?~iwiafion: CCD 4462830 $ 30,574.34; 2004 Road Bond $ 37,232.46
Not 'Fo Exceed: $67,806.80
23- 795-'
AGREEMENT
Ci~ of Carmel, Indiana
THIS AGREEMENT is made and entered into by and between the City of Carmel, lndiana~
acting by and.through it's Board of Public Works and Safety ("OWNER") and Yardberry
Landscaping & Excavating ("CONTRACTOR"), concerning the project.
("Miscellaneous Demolition") described more particularly in Appendix A which is attaclied
hereto and incori~orated herein by reference.
APPROVED AS TO FORM
RECITAl,S:
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 ("ProposaF') 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 tbe CONTRACTOR is willing to furnish the labor, tools, material,
equipment, servicds, and perform the Work called for by the Contrac[ Documents and in
the manner and time and for the price(s) set forth therein.
· THE OWNER AND CONTRACTOR AGREE AS FOLLOWS:
Contract Documents
This Agreeinent consists of the following Contract Documents all of which are as full~ a
part of this Agreement as if set eot verbatim herein or attached hereto and the same do in
all particulars become the Agreement between the parties hereto in ail matters and things
set forth'herein and described:
a. This Agreement, including any attachments bereto;
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 Specificatio~4s;
d. The Additional Requirements;
e. Notice to Bidders;
f. Instructions to Bidders; ~
g. Plans and Drawings;
h. Performance, Payment and Maintenance Bonds;
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IN2004.0220.iN010.I~[D 0001FE R0.1)OC
Engineering Dcpt/rtmenl
MisCellaneous Demolition Project
Appropriation: CCD 4462830 $ 30,574.34; 2004 Road Bond $ 37,232.46
Not To Excccd: $67,806.80
~i. CONTRACTOR'S Itemized Proposal and Declarations; and
j. All 6thor documents defified as Contract Documents in any of the aba)ye listed
documents. ·.
· ' · ' 1.2 In resolving confliCfs, errors, discrepancies'and disputes coffceming the nature, character,
scope and/or extent of Work to be performed or furnished by the CONTRACTOR
r 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
W6rk, 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: 'Contract Price
2.1
2.2
The CONTRACTOR shall, in strict conformity with the Contract Documents, furnish all
necessaFy 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 at the Unit PiSces as quoted in the Proposal for a total contract price not to
exceed $ 67,806.80 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 perfo?med and ac~:epted as
describe~l in the "Contract Items and Unit Prices specification"' and other Contract
Documents (tile "Contract Price"). The CONTRACTOR agrees that each unit price shall
be deemed furl 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.
The above stated Contract Price will be paid to the CONTRACTOR in the manner and at
sucli tithes as set forth m the Contract Documents.
3. Contract Time
3.1
.3.2
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.
The CONrfRACTOR 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 thc
OWNER, by the dates specified in the Contract Documents.
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1N2004 0220.1N010.RD.0001 FE.R0 DOC
' ~Efigine~:ring Departmfint
Miscellaneous l)emolition i;roject
Appropriation: CCD 4462830 S 30,574.34:2004 Road Bond $ 37.232.46
· Not To Exceed: $67,806.80
3.3 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.
4. "'Effective Dhte
. This Agreement shall be deemed effective as of the date and 3,ear On which the last of the
parties hereto, or their representative, executes same.
Miscellaneous Provisions
OWNER's Property,
A'ny and all d0ctimentation (other than original tracings and original calculhtions)
generated by CONTRACTOR pursuant to this Agreement shall be considered oWNER's
exclusive property and shall be disclosed only ti> OWNER and to no other perso'n without
OWNER's prior express written consent. CON;FRACTOR shall keep confidential all
Working and deliberative material pursuant to lC 5-14-3-4.
5.2 Termination
Except as expressly stated to the contrary herein, this Agri~ement ~ay 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 rdference.
In the event any amount allegedly due hereunder is disputed and such dispute is not
resolved to OWNER's satislhction within ten (I0) 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 ora resolution signed by both partie~ hereto or until a final judgment is eritCred
thereon·
'5.3 Binding Effect
OWNER and CONTRACTOR and their respective officers, officials, partners,
successors, executors, administrators, assigns, and legal represeistatives are bound by
this Agreement to the other party hereto and to the officers, officials, panners,
successors, executors, administrators, assigns and legal representatives of such other
.... ' · ". · party in all respects as to ail covenants, agreements and obligations contained and/or
incorp6rated herein.
5.4 No Third Part,/Beneficiaries
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IN2004.022¢.IN010.RD.0001FE.R0.DOC
[';ngiPccring Department
Miscellaneous Demolition Project
Appropliation: CCD 4462830 $ 30,574.34; 2004 Road Bond $ 37,232.46
Nol To Exceed: $67,806.80
. . Nothing contained herein shall be construed to give any rights or ben~fits
hereunder to anyone other than OWNER or CONTIL~CTOR.
.5.5 P, elhti0fiship :
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
>ersons all statutory, i:ontractaal 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.
5.6 insurance
CONTRACTOR shall main{ain 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, inclnding, 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 tile performance of this Agreement. The failure to do so shall
constitute a material breach of this Agreement. This ind6mnification obligation shall
survive tile termination of this Agreement.
Setoff
In addition to any right of setolT 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 sttms 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
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IN2004.0220.1N010.RD.0001FE. R0.DOC
Engineering Department
Mig~ellaneous D~rnolition Project
Appropriation: CCI) 4462830 $ 30,574.34; 2004 Road Bo]id $ 37,232.46
Nol To Exceed: $67,806.80
reference. CONTRACTOR agrees to indemnify and hold harmless OWNER from
any loss, damage or liability resulting from any violation of such laws, orders, rules,
re~gulations, codes and/or ordinances. This indemnification obligation shall survive
the termination of this Agreement.
5.10' Severabilitv. ~
If any provision of this Agreement is held to be invalid, illegal, or unenforceable by
a coort of competent jurisdiction, that p?ovision shall be stricken and ail other
provisions of this Agreement that 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'
sent by postage prepaid, US Certified mail, return receipt requested, addressed to the
parties at the following address:
OWNER:
CONTRACTOR:
City of Carmel
Board of Public Works and Safety
One Civic Square
Carmel IN 46032
Attenliofl: Micha~['McBride, PE, City Engineer
'with a copy to City Attorney,
Department of Law, same address)
Yardberr~ Landscaping & Excavating
9940 South 1000 West
Anderson, IN 46017
N6twithstanding the above, a Notice To Cease All Work issued under or pursmt 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 xvithin five (5)
business days of the date of such oral notice.
5.12 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.
'5.13 Waiver
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IN2004 0220.1N010 RD 0001 FE R0.DOC
Engineering Department
lVliscellaneous Demolition Prqject .
Appropriation: CCD 4462830 $ 30,574.34; 2004 Road Bond $ 37.232.46
Not To Exceed: $67 806.80
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
· stic~ riglits 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 Agrei:ment.
5.15 P?ior Agreements
This Agreement contains all of the agreements of the parties hereto with respect to
the subject matter hereo'F, and supersedes all prior negotiations, representations,
· and/or contracts, either oral or written, respective thereto.
Representation and Wari'anties
Each party hereto represents and warrants that it is'authorized to enter int6 this
Agreemeht and that such party, in executing this Agreement, has the authority to
bind such party or the party that it represents, as the case may be.
..5.17 Headings
Afl imadings and sections of this Agreement are inserted for convenience only and
do not form a part ot' this Agreement nor limit, expand or othi:rwise alter the
Ifieaning of any provisions hereof.
5.18 Advice of Counsel
.5:19
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 fi'eely, voluntarily and without any duress, undue influence,
coercion or promise of benefit, except as expressly set forth herein.
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
r'egarding 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
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]N2004,0220.1N010. RD0001 FF..R0 DOC
Engiheering Department
Miscellaneous Demolition Project
A'ppr6prialion: CCI) 4,162830 $ 30.574.34; 2004 Road Bond $ 37,232.46
Not To [:;xceed: $67,806.80
agree otherwise. This Agreement may only be modified by written amendmer/t
executed by both parties hereto, or their successors in interest.
A-7
IN2004.0220.IN010.RD.O001FE.RO.DOC
765378 0376 .... Pag¢:'~/10 Date: 4/13/9005 8:47':54 ~,M -4- ; .... =~ '~=~
~nEin~edn~
Misc~lla~u_,4 Dcm0fitlon
Approwiafion: 0CD 446283(I $ 30. 574,34; 2004 Rc~xi Bo~d
Not To Exceed: S57,806.80
IN WITNESS WHEREOF, the parties hereto set their hand on the dates bdow written:
OWNER:
CITY OF CARMEL, INDIANA
~' ~md throush its Bo&rd of Public Works and
Safety
CONTRACTOR:
~///' Jam~s Brainard, Presiding Officer
Date: Printed Name:
Title: ~) t..~ ~ ~ F
. q //
Date:
M~/~ / ~ke, Member
Date:
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