Eagle Valley, Inc/Util
..'
AGREEMENT
City of Carmel, Indiana
THTS AGREEMENT is made and entered into by and between the City of Carmel, Indiana,
acting by and through its Board of Public Works and Safety ("OWNER") and Eagle Valley.
Tnc.("CONTRACTOR"), concerning the project ("Crooked Stick Lane/Ditch Road Water Line
Extension") described more particularly in Appendix A which is attached hereto and
incorporated herein by reference.
RECTT ALS:
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 describc 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 DocumeI\ts and inthc 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;
g. Plans and Drawings;
h. Performance, Payment and Maintenance Bonds;
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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, discrepancics 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 ofthe
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 CONTRf\CTOR 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 $629,882.50 Base Bid, subject to any additions or deletions based on actual
approved quantities of the respective unit price items, wliich price. the CONTRACTOR
agrees to accept as full payment for all such Work actually perfonned and accepted as
described in the "Contract Items aild Unit Prices specification" and other Contract
Documcnts (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.
22 The above stated Contract Price will be paid to the CONTRACTOR in the manner and at
such tilT)es as set forth in the Contracl.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 conunencement and the time. for completion of the Work as
specified in the Contract Documents are essential conditions of this Agreement
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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 perfonned regularly, diligently and without interruption at such a
rate of progress as will insure "Slibstantiai 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 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 C01\1TRACTOR
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 (racings 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 upo'n such tem1S 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 refercnce.
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 af1er notice of such
dispute is given to CONTRACTOR, OWNER shall pay such amount as is in dispute,
under protest, into the City Court of Cam1el, which Court shall hold such money until
notified of a resolution signed by both parties hereto or until a final judgment is entered
thereon.
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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 representatives of such other
party in all respects as to all covenants, agreements and obligations contained andior
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, slibeontra9tors, 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 temlS and. conditions
hereof; be the full and maximum compensation and monies reqlliredof OWNER to be
paid to CONTRACTOR pursuanHo 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, ineludi'ng, 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 perfonllance of this Agreement. The failure to clo so shall
constitute a material breach of this Agreement. This indemnification obligation shall
survive the.temlinatioil of this Agreement.
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.
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.
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 perfollnancc of its obligations under this Agrecment,
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 Severabilitv.
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
Board of Public Works and Safety
One Civic Square
Carmel, IN 46032
Attention: John Duffy (with a copy to City Attorney,
Department of Law, same address)
Eagle Valley, Inc.
3401 North Raceway Road
Indianapolis, Indiana 46234
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 noticc i~ 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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5.12 Governiiig Law
This Agreel)1ent ~halJ bed~ov~rhed byand cortstf\!ed ihaccqrdance with the laws of
the: St~te.of indiana, except for its conflict Of laws pro~isions; as welLas'withal!
'mwlicipal ordinances.andcodes'ofthe City ofCmmeI. The parties further"agree that,
in the,ellent a.lawsuit is filedhereuitder, tbeywa'iveahy tights to a](ity trial they may
have, agree to file any osuch laWsuit ;;1 \jn appropriate.,court.in Hamihon County,
IIidiana orily;and agree that such court :is the appropriate. venue for and has
jurisdiction over same: .
5.13 Waiver
Any delay or 'partial inactiOll ()n the part of OWNER in "exerCising.or pllrsuing any
righLand/or remedy provided hereunder or'by law shall. not operate to waive any such
rights or remed'ies.
5.14 Exhibits
All. exhibits apd/orappendiges Tefe~enc.ed l]er~iT;, ~hether marked "E;i;hibit";
"Appelidix", or by sort1e other tiiIe; shilfbeconsidered a part ofthlsAgreement.
5.15 Prior Agreelllents
This Agreement contains: all ,of the' agreementsoftheparties.heretowith.respect.to
the subjeet ,matter hereof, and supersedes all. prior negotiatiCJn.s, rep[e'~eiitati.ons,
and/or contra~ts,,either grill or v;Critten, re1ipective thereto,
5.16 Representatiort and'Warranties
Each party hereto -represents and watTants. that it. is ,authorized to enter in'to. this
Agreemcnt, and .that such party, in executing tliis Agreen!ent, has the: authority to
bind.such,party or the party ",;hich it represents, as'the case inay be.
5.17 Headin'gs
'Alfh~adingsaI1d'sections ofthis Agreement arejnserted 'for- convenience'only and do
not fomla~parFof this'Agrecmcntnor limit, expand or oilieJ;Wjse'alterthe:meanil~g 'of
any provision(h,creoI
5,18 Adviceibf Gduilsel
Thej:Jarties warranVthatthey have read this Agreement and, understand!t; arc fully
aware of 'their respective rights, have had th_e opp01:tunity fCJf tl1e \j~yic_e and
assistance of aJl\lJtQTIWY throughout the neg(jtiation oftllis Agreemeht,)ilnd enterinto
this Agreement freely,voHmtar-ilyand without any duress; unciuc,in'fluence, coercion
or promise of benefit, except' as expressly set forth,herein, -
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5,19 Entire Acieement
ThisAgreement; togsther'wjtl\an~:a,ttachlnc'ntsheretiJ or fef~iellc.ed himSil\,,-constittites
the entire agreement between Verfdor'and~City with respecHo thesubject.rnatter'heteof,
and supersedcs all prior oral ol,;writtenrepresentations and agreements regarding same,
Notwithstanding anyother'.teml or conditiqn set J0I1hhereiil, but subject to paragrilph
5.10 hereof, tothe'e((tent,anyt~ml or c'oildition contaIned iii,anyex,hibltattached tothjs
Agreement conflicts with any term.,or condition contained in this,Agreement, the teim
or condition contained:in this. Agreement shall govern and prevail, unless the 'parties
hereto, or thcir.S\lcc.essors in, iTlteres(, xXRresslyand in writing agrec o,theI:wt~.e. T~is
Agreement may only be ll10difiedl\y wfitten [ltllendinen(. executed by both parties
hereto, or their successorsiin,interest.
IN WITNESS'WHEREOf,the parties. hereto seLtheir,handonthe dates below written:
/
ing;Officer
BY:,'
OWNER:
CITY ,OF CARMEL, INDIANA . ,
by and through its Board of Public Works and
Safety
BY:
Printed Name:
Title:
?11.--t3S.IDe1/T
t/30/0t
Date:1? - 3.0 - CJ7
YLtY/{jJ~
Date:
Lori Watson,:Member
;i;solo
l " r
Date:
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