Culy Excavating, Inc/UtilitiesAGREEMENT
City of Carmel, Indiana
' THIS 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 cuiy Construction
Excavatin Inc ("CONTRACTOR"), concerning the 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;
g. Plans and Drawings;
It. Performance; Payment and Maintenance Bonds;
CONTRACTORS Itemized Proposal and Declarations; and
A_t
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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 $ 195,680.00 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 & 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
specified in the Contract Documents are essential conditions of this Agreement.
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 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.
3.3 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 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
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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.
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 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 Pronertv
Any and all documentation (other than original tracings and original calculations)
j 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 544-34.
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, 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.
In addition to any right of setoff provided by law, all amounts due CONTRACTOR
shall be considered net of indebtedness of CONTRACTOR to OIA NER, 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 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 of 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, Manager
Water and Wastewater Utilities
(with a copy to City Attorney,
Department of Law, same address)
Culy Construction & Excavating, Inc.
610 N 100 E
Winchester IN 473949
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.
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.
I. _
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.
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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.
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519 Entire Agreement
This,Agreemeni, 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, butsubject.tc 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 goyefn and prevail, unless-the parties
hereto; ortheir 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 is interest.
IN WITNESS WHEREOF; the parties hereta,settheir hand on the dates'below written
OWNER: CONTRACTOR:
CITY OF CARMEL, INDIANA Culy Construction & Excavating, inc:.
by and through its Board of Public Works and 610 N 100 E'
Safety ,r Winchester IN 473394
BY: t 1 D k ?Aa? , BY: G
James Brainard, Presiding Officer f/
Date:
4'urke, Member
Date: _ '3 -s-- "F)
Kevin Cook
Vice-President
Title;
Date: 2/26/2008
Lori at (ember
]date: 3 5 p
ATTES
'Date:
a Cordray,,Cle k-Tre surer
PART'2 .
`BID PROPOSAL
2.1 Base Bid,
The 'undersigned Bidder. proposes to furnish all necessary labor, machinery; tools;
apparatus, Imateriais; equipments s v, ce and otl d..
fulfill all obligations Iicidentthereto in,strici accordance,with raid within the time(s)
provided by the terms and".conditions of-the "Contract Documents for the above described
Work and Project, "including any and all addenda thereto,=for the Unit Prices applicable to
the Contract Items as stated in Part 3) hereof, which Unit.Prices, when.multiplied by
estimated unit quantities for such Contract Iteins,.total one Hundred Ninety-Five
Thousand Six Hundred Eighty and "Oa loo-----__________________
Dollars (S 195,680:.00 . The Bidder acknowledges that. evaluation of the lowest
Bid shall be based on •such.price and further acknowledges that the unit, quantities listed
in Part ") of this Proposal are estimates solely for, the purpose of Bid evaluation and
Contract award, and are not to be construed as exact or bindinL7.. The Bidder further
understands thai.all Work which may result on the Contract .shalI be compensated for on a
Unit Price basis and that the Ol\TIER and ENGINEER cannot and.do not, guarantee the
amount or quantity of,any item of-Work to be performed, or: furnished under the Contract,
1.16thStreet Clay Center Road Water Main Extension
PART 3
CONTRACT ITGAIS AND UNIT PRICES
ITEA1 N0. DESCRIPTION UNIT QUANTITY 'UN IT`PRICE TOTAL
I ,,b4obiEizatfon&'F.eiiiol?ilizatio?i LS t f $$,.378.00 $8,,378.00
2 14"D'.1.P.WkWeTMain LFS I'.290 125-00 $.150,000.00
3 14", Butterfly Valve EA z 5,454.00 10,908.00
4 New Hydhin Assembly (Complete) -EA 4 3,232.00 12., 929.00
5' 17" Tap Valve EA_ !. 4,178.00 4,178.00
6 16" D_l.P. N'ace?-Wain LS 34 17=2.00 9„ 288.00
I TOTAL BASL'I ljWl OIINT $,195;, 680.00
PART 4
CONTRACT DOCUME\TS.AND ADDENDA,
4.1 The Bidderamees;to;;be bound by the terms and.provisions of all. Contract.Documents as
defined in the staddard General Conditions-and, incorporates such Contract, Documents
herein;by reference.
4.2 The Bidder acl now[edges=receipt of the'following addenda;
ADDENOUM M JMBER iDATS
't 2/4/2008