E & B Paving/Gradex/Engr. Engineering Department
Spring Mill Road From 136th Street to 146~h Street- West Clay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
Not To Exceed: $2,464,519.07
AGREEMENT
CiD' of Carmel, lndiana
oake o2 -os, o
APPROVED AS TO FORM BY ~ '
THIS 'AGREEMENT is made and entered into by and betCveen the City of Carmel, Indiana,
acting by and through its Board of Public Works and Safety ("OWNER") an(~E_& B P~hving, Inc.
,-& Gradex, lffcT(Joint Venture) (aCONTRACTOR"), concerning the Spring Mill Road from 136th
Stredt to 146th Street project ("Project") described more particularly in Appendix A which is
attached hereto and incorporated herein by reference.
1.0
1.1
RECITALS:
The OWNER has heretofore caused to be prepai-ed 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 ("Propogal") to furnish labor,
tools, material, equipment and/or services, and to perform the work ("Work") called for
in lhe Contract Documents pertaining to the Project, upon the tdrms and for the price(s)
therein fully stated and set forth; and
The said Contract Documents accurately and fully describe the tenns and conditions upon
which the CONTRACTOR is willing to fitrnish 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:
Contract Docunlents
This Agreement consists of the following Contract Documents all of xvhich 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. Tbis 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 RequireLnents;
e. Notice to Bidders;
f. Instructions to Bidders;
g. Plans and Drawings;
Performance, Payment and Maintenance Bonds;
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Engineering Department
Spring Mill Road From 136th Street to 146*h Street - West Clay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
NotTo Ekceed: $2,464,519.07
i. CONTRACTOR'S Itemized Proposal and Declarations; and
All other documents defined as Contract Documents in any of the above listed
documents.
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 CONTILSCTOR
hereunder, or other rights and obligations of the OWNER and/or CONTRACTOR, the
provision of a Cohtract Document expressing the greater quantity, quality or scope of the
Work, or imposing a greater obligation up6n the CONTRACTOR, or affording a greater
fight 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
The CONTRACTOR shall, in strict conformity with the Contract Documents, fumish 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 at the Unit Prices as quoted in the Proposal for a total contract pr!ce not to
exceed $ 2~464~519.07 Base Bid, snbject 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"). 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, wilhout 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 & Liquidated Damages
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
speci fled in the Contract Documents are essential conditions of this Agreement.
3.2
The successful Bidder of the work shall be prepared to complete the fu~ishing and
constrnction of this project and be Substantially Complete and ready for public use on or
before August 15, 2005. Substantial Completion shall consist of at a minimum, all
concrete and asphalt paving (less final surface), roadway signs and temporary pavement
markings being 100% complete and in place. Contractor shall be required to be 100%
complete with all work including finish grading, landscaping, lighting, final asphalt
surface, pern~anent pavement markings, etc. and all facilities available for unrestricted
public use no later than 16 days after Substantial Completion.
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. Engineering Department
Spring Mill Road From 136~h Street to 146th Street - West Clay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
.NotTo Exceed: $2,464,519.07
3.3 Liquidated Damages. Owner and Contractor recognize that time is of tho essence of the
Agreement and that Owner will suffer financial loss if the Work is not completed withip
the time specified in Paragraph 3.1. They also recognize the delays, 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 such
proof, Owner and Contractor agree that as liquidated damages for the delay (but not a
penalty) Contractor sball pay Oxvner Two Thousand Dollars and No Cents ($2,000.00)
per day for each calendar day until the work in satisfactorily completed, for. eacb phase of
substantial and final completion as specified in Paragraph 3.2.
3.4
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 tbe CONTRACTOR
hereunder.
4. 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.
5. Miscellaneous Provisions
5.1 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 lC 5-14-3-4.
5.2 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 2003 (the "General
Conditions"), as incorporated herein by this reference.
In the event any amount allegedly due hereunder is disputed and sucb dispute is not
resolved to OWNER's satisfaction witbin ten' (10) business days after notice of such
dispute is given to CONTRACTOR, OWNER shall pay such an~ount as is in dispute,
under protest, into tbe City Court of Carmel, which Court shall bold such money until
notified of a resolution signed by both parties hereto or until a final judgment is entered
thereon.'
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· Ehgiaeering Depanmeiit
Sprin~ Mill Road FrOm 136th Street to ]46th Street - West C!ay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
Not. To Exceed: $2,464,519.07
5.3 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 represeiqtatives of such other
party in all respects as to all covenants, agreements and obligations contained and/or
incorporated herein.
5.4 No Third Party Beneficiaries
Nothing contained herein shall be constrUed to give any rights or benefits
hereunder to anyone Other than OWNER or CONTRACTOR.
5.5 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 sources and other persons
all statutory, contractual and other compensation, benefits and obligations due thereto,
find 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 r~quired of OWNER to be
paid to CONTRACTOR pursuant to this Agreement.
5.6 insurance
CONTRACTOR shall maintain such bonds and insurance as are set forth in
Article 5 of the General Conditions.
5.7 Indemnification
CONTRACTOR shall indemnify arid hold harmless OWNER, its officers, officials,
employees, agems 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.
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Engineering D~partment
Spring Mill Road From 136th Street to 146th Street - '~[rest Clay Projcct# 04-03
Appropriation: 2004 Road Bond; P.O. 13780
NotTo Exceed: $2,464,519.07
5.8 Setoff
In addition to any right of setoffprovided 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.
5.11
Governmefit Compliance
CONTRACTOR agrees to comply with all present and'future federal, ~tate 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 indemnify and hold harmless OWNER from any loss,
damage or liability resulting from any violation of such laws, orders, rules,.
regulations, code§ and/or ordinances. This indemnification obligation shall survive
the termination of this Agreement.
Severabilit¥.
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
pi'ovisions of this Agreement which can operate independently of such stricken
provigion shall continue in full force and effect.
Notice.
Any notice, invoice, order or other correspondence required or permitted to be sent .
under or pu3suant 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:
City of Carmel
Board of Public Works and Safety
One Civic Square
Carmel, 1N 46032
Attn: Michael McBride, PE, City Engineer
(with a copy to City AiXorney,
~epartment of Law, same address)
CONTRACTOR:
E&B Paving, Inc. & Gradex, Inc. (Joint Venture)
17042 Middletova~ Ave. 3685 Priority Wa,/S. Dr.
Suite 140
Noblesville~ 1N 46060 Indianapolis, IN 46240
Phone: (317)773-4132 . Phone: (317)573-39'/0
Fax: (317)773-4137 Fax: (317)573-3979
Notwithstanding the above, a Notice To Cease All Work issued under or pursuit 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 within five (5) business
days of the date of such oral notice.
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Engineering Depa~ment
Spring Mill Road From 136th Slrcet lo 146~h Street - Wes! Clay Project # 04-03
Approprifition: 2004 Road Bond; P.O. 13780
Not To Exceed: $2,464,519.07
5.12 Governing Law
This Agreement shall be governed by and construed in accordance xvith 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 Cannel. The parties further agree that,
in the event a lawsuit is filed hereunder, they waive any rights to ajury 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
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.
5.14 Exhibits
All exhibits and/or appendices referenced hereith, whether marked "Exhibit",
"Appendix", or by some other title, shall be considered a part of this Agreement.
5.15 Prior Agreements
This Agreemefit 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 xvritten, respective thereto.
5.16 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.
5.17 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 hereofi
5.18 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 in fluence, coercion
or promise of benefit, except as expressly set forth herein.
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I~figineering Department
Spring Mill Road From 136~h Street tb 146th S~reet - West Clay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
NotTo Exceed: $2,4i54,~19.07 :
'5.19 Entire ~A~i'eement
This Agreement, together with any attachments hereto or referenced herein, constitutes
the entire agreement betweeh Vendor and City with respect to the subject matter hereof,
and sitpdrsedes all prior oral or written represegtations and agreements regarding same.
Notwithstanding any other term or condition Set forth herein, but subject to paragraph
5.10 hereof, to the exten~ any term or condition contained in any exhibit attached to this
Agreement conflicts with any term or condition contained in this Agreement, the term
or condition contained in this Agreement shall govern and prevail, unless the parties
hereto, or their successors in interest, expressly and in writing agree otherwise. This
Agreement may only be modified by written amendment executed by both parties
hereto, or their successOrs in interest.
1N WITNESS WHEREOF, the parties hereto set their hand on the dates below written:
OWNER:
CITY OF CARMEL, INDIANA
by and through its Board of Public Works and
Safety · /// ~ a
,/~mes Brainard, presiding Dfficer
Date:;
CONTRACTOR:
E&B Paving, Inc. (Joint Venture)
Title: ~",J x o~- ~>Ze.q,o t.....W
Date: ~ - c~-I - 05
CONTRACTOR
GradeX, Inc, (Joint Venture):,
Printed Name: ~5~e._ ~T'T ~'odgc='/oe-~ ~t
Title: ~t~ e- ~t'o${ocx~-U' ~
Date: ~t-~ "0 ~"
Date:
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Engineering Department
Spring Mill Road Fr6m 136th Street to [46th Street West Clay Project # 04-03
Appr6priation: 2004 Road Bond; P.O. 13780
Not To Exceed: $2,464,519.07
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Engineering Department
'Spring Mill Road From 136th Street to 146th Street - West Clay Project # 04-03
Appropriation: 2004 Road Bond; P.O. 13780
NotTo Exceed: $2,464,519.07
PROJECT:
APPENDIX A
Spring Mill Road: 136th Street to 146th Street
West Clay Project # 04:03
WORK:
DESIGN By:
As described by the Project plans and Contract Documents
including, but not limited to:
The reconstmcti0n of Spring Mill Road between, but not
including, 136th and 146th Streets. The project will require
the replacement of the pavement with a wide two-lane,
divided roadway including median and curb and gutter. A
new roundabout is to be constructed at 141gt Street. New
stoun sewers are an integral part of the work.
The structure at Williams Creek is to be replaced with a
large precast arch structure. Some channel lowering and
reshaping is included. Roadway will be closed to through-
traffic during construction. Incidental work including two
multiuse paths, lighting, grading, pavement markings and
signage is included
Donohue & ASsociates, Inc.
OWNER'S REPRESENTATIVE:
Mr. Michael McBride, PE
City Engineer
City of Cannel
One Civic Square
Carmel~ 1N 46032
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