Calumet Asphalt/Engr o(1 12. Dec. 00
Engineering Department/CalumetAsphalt APPROVED, A TO
1363h Street&Oak Ridge Road Roundabout Project FORM By:
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed S776,956.00
GOODS AND SERVICES AGREEMENT
THIS AGREEMENT is made and entered into by and between the City of Cannel, Indiana, acting
by and through its Board of Public Works and Safety ("OWNER") and Calumet Asphalt Paving Co. Inc.
("CONTRACTOR"), concerning the 136th Street & Oak Ridge Road Roundabout Project ("Project")
described more particularly in Appendix A which is attached hereto and incorporated herein by reference.
RECITALS:
A. 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
B. 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 Contract Documents
1.1 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;
1
IC:1Documents and SmtingsystoblmLLuol Sctmlg,\Temporary Interact FIIeBOLKDB1Commt Contract-136t Oak Ridge RAB(2).doc 373/2006 3:37 PM]
•
Engineering Department/Calumet Asphalt
136th Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed$776,956.00
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.
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 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 at the
Unit Prices as quoted in the Proposal for a total contract price not to exceed Seven Hundred
Seventy-Six Thousand Nine Hundred Fifty-Six ($776,956.00) 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"). 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, 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.
2
�C:laownms and Saung4tolllaU.ml Setui p\Tmipmery Intent Fdw1OLKDBCCJma Cat=•136th Oak Ridge RAB(2)doc:3/3/2006 3:37 PM)
Engineering Department/Calumet Asphalt
136t Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed S776,956.00 .r
3.2 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.
3.3 The CON TRACTOR 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 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 IC 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 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.
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,
3
lc Mounts and S amg4staMadaol Scmaga\Tevmanry IReme Fib OLKOB\Calwid Contract-136M Oak Ridge RAB RI dm3/3rz006 3 37 PMU
•
4
Engineering Department/Calumet Asphalt
136th Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed S776,956.00
assigns and legal representatives 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, 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 maintain 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, 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.
5.8 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.
4
lc likcueem and SatinpyaoIdcr L cel Sdtinga\Tmmaery Internet FIIeWMLKOBTahma Comma-136th Oak Ridge RAB(2)doe 3/3/31106 3.37 PM]
Engineering Department/Calumet Asphalt
136'h Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed$776,956.00
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 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, codes and/or ordinances. This
indemnification obligation shall survive the termination of this Agreement.
5.10 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.
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, U.S. Certified mail, return receipt requested, addressed to the parties at the following
address:
OWNER: CONTRACTOR:
City of Carmel Calumet Asphalt Paving Co. Inc.
Board of Public Works and Safety 5265 East 96th Street
One Civic Square Indianapolis, Indiana 46240
Carmel, Indiana 46032 ATTENTION: Steve Milboume
ATTENTION: Mike McBride, PE, City Engineer
(with a copy to City Attorney,
Department of Law, same address)
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.
5
IC\Daauneea and SCalnpYaahleA3aal Scninp\Tmpo vy Internet Fika\OLKDBICalwrcl Contract-136411 ON Ri*RAB(1).Crc:3/3/2006 3 31 PMI
Engineering Department/Calumet Asphalt
136th Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed$776,956.00
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
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 herein, whether marked "Exhibit", "Appendix", or
by some other title, shall be considered a part of this Agreement.
5.15 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.
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 hereof.
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 influence, coercion or promise of benefit, except as
expressly set forth herein.
6
(C:\mcumm"and Smmpyux.a,oca1 Se¢ins\impmery humid Fib1OLKD9ICdum6 Cmnct•136th Oak Ridge RAB Max 3/32006 3 37 PM]
• 1
•
Engineering Department/Calumet Asphalt
136th Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed$776,956.00
5.19 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 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 in interest.
IN WITNESS WHEREOF, the parties hereto set their hand on the dates below written:
OWNER: CONTRACTOR:
CITY OF CARMEL, INDIANA CALUMET ASPHALT PAVING CO. INC.
By and through its Board of Public Works and Safety
BY: BY:
James Brainard, Presiding Officer Authorized Signature
Date:
Steven P. Milbourne
Printed Name
Mary Burke, Memb
Date: Vice—President
Title
Lori S. n, Mpmbpr FID/TIN: 35-1151771
Date: }/(d � SSN if Sole Proprietor:
Date:
ATTEST:
3 dra M.Jo>ason,
iana Cordray, C, Clerk-TreasureYCfut Y Clerk for
Date: V// 3-�0li
7
[C 1pocummu and Saiinga'mcaieLocal Salinga\Taryaary(mare Fila\OLKB3'.Calumet Cataract-136th Oak Ridge RAD(2)doc3/3/2006 3:37 PM)
.
Engineering Department/Calumet Asphalt
136ih Street&Oak Ridge Road Roundabout Project
Appropriation: 2004 Road Bond-P.O. 15056
Not To Exceed$776,956.00
APPENDIX A
PROJECT: 136th Street& Oak Ridge Road Roundabout
WORK: As described by the Project plans and Contract Documents
including, but not limited to:
The construction of a roundabout at the intersection of 136th
Street and Oak Ridge Road, including new pavement
construction to the east, west, north, and south of the
roundabout. Included with the roundabout construction are a
precast concrete box culvert carrying Little Cool Creek; a
multi-use path; driveway reconstruction; and installation of
curb and gutter, storm sewers, and street lamps/lighting.
DESIGN BY: The Schneider Corporation
8901 Otis Avenue
Indianapolis, IN 46216
OWNER'S REPRESENTATIVE: Mike McBride, PE •
City Engineer
City of Carmel
One Civic Square
Cannel, IN 46032
•
IC.maunmo and Soningsynoliterloral Seninp\Tmponry Interne FRn1ULIWRICdimn Conrad•136N OW Ridge RAD(3)doc:3/3I30063.37 MI
J