TSW Utility SOlutions/Util/306,358/96th Towne Water Main AGREEMENT
THIS AGREEMENT is dated this 6`' day of March, 2013, by and between the Board of Public
Works and Safety, City of Carmel, Indiana ("Owner") and TSW Utility Solutions, Inc.
("Contractor").
Owner and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as
follows:
ARTICLE 1 —WORK
1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents.
The Work is generally described as follows:
96`' Street and Towne Road Water Main Extension, Contract D, Carmel, Indiana
ARTICLE 2— ENGINEER
2.01 The Project has been designed by Wessler Engineering, Inc. (Engineer), which is to act
as Owner's representative, assume all duties and responsibilities, and have the rights
and authority assigned to Engineer in the Contract Documents in connection with the
completion of the Work in accordance with the Contract Documents.
ARTICLE 3 —CONTRACT TIMES
3.01 All time limits for Milestones, if any, Substantial Completion, and completion and readiness
for final payment as stated in the Contract Documents are of the essence of the Contract.
3.02 The Work will be substantially completed within 60 days after the date when the Contract
Times commence to run as provided in Paragraph 2.03 of the General Conditions, and
completed and ready for final payment in accordance with Paragraph 14.07 of the General
Conditions within 75 days after the date when the Contract Times commence to run.
3.03 Liquidated Damages
A. Contractor and Owner recognize that time is of the essence of this Agreement and that
Owner will suffer financial loss if the Work is not completed within the times specified in
Paragraph 3.02 above, plus any extensions thereof allowed in accordance with Article
12 of the General Conditions. The parties also recognize the delays, expense, and
difficulties involved in proving in a legal or arbitration proceeding 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
delay (but not as a penalty), the Owner, in the form of a Change Order, shall deduct
from the monies due the Contractor $1,200.00 For each calendar day that expires
after the time specified in Paragraph 3.02 for Substantial Completion until the Work is
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substantially complete. After Substantial Completion, if Contractor shall neglect,
refuse, or fail to complete the remaining Work within the Contract Time or any proper
extension thereof granted by Owner, the Owner, in the form of a Change Order, shall
deduct from the monies due the Contractor $1,200.00 for each day that expires after
the time specified in Paragraph 3.02 for completion and readiness for final payment
until the Work is completed and ready for final payment.
ARTICLE 4—CONTRACT PRICE
4.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract
Documents an amount in current funds as follows:
Three hundred six thousand, three hundred and fifty-eight Dollars ($306,358.00)
(words) (figure)
For all Work, at the prices stated in Contractor's Bid.
The Bid prices for Unit Price Work set forth as of the Effective Date of the Agreement are
based on estimated quantities. As provided in Paragraph 11.03 of the General Conditions,
estimated quantities are not guaranteed, and determinations of actual quantities and
classifications are to be made by Engineer as provided in Paragraph 9.07 of the General
Conditions.
ARTICLE 5— PAYMENT PROCEDURES
5.01 Submittal and Processing of Payments
A. Contractor shall submit Applications for Payment in accordance with Article 14 of the
General Conditions. Applications for Payment will be processed by Owner as provided
in the General Conditions.
5.02 Progress Payments; Retainage
A. Owner shall make progress payments on account of the Contract Price on the basis of
Contractor's Applications for Payment on a monthly basis during performance of the
Work as provided in Paragraph 5.02.A.1 below. All such payments will be measured
by the schedule of values established as provided in Paragraph 2.07.A of the General
Conditions (and in the case of Unit Price Work based on the number of units
completed) or, in the event there is no schedule of values, as provided in the General
Requirements.
1. Prior to Substantial Completion, progress payments will be made in an amount
equal to the percentage indicated below but, in each case, less the aggregate of
payments previously made and less such amounts as Engineer may determine or
Owner may withhold, including but not limited to liquidated damages, in
accordance with Paragraph 14.02 of the General Conditions.
2. The Owner shall retain ten percent (10%) of the amount of each payment until final
completion and acceptance of all work covered by the Contract Documents. The
Owner at any time, however, after fifty percent (50%) of the Work has been
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completed, if he finds that satisfactory progress is being made, shall reduce
retainage to five percent (5%) on the current and remaining estimates. When the
Work is substantially complete (operational or beneficial occupancy), the retained
amount may be further reduced below five percent (5%) to only that amount
necessary to assure completion. On completion and acceptance on a part of the
Work on which the price is stated separately in the Contract Documents, payment
may be made in full, including retained percentages, less authorized deductions.
B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total
payments to Contractor to 100 percent of the Work completed, less such amounts as
Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General
Conditions, less 200 percent of Engineer's estimate of the value of Work to be
completed or corrected as shown on the tentative list of items to be completed or
corrected attached to the certificate of Substantial Completion, and less any applicable
liquidated damages.
5.03 Final Payment
A. Upon final completion and acceptance of the Work in accordance with Paragraph
14.07 of the General Conditions, Owner shall pay the remainder of the Contract Price
as provided in Paragraphs 14.07 and 14.08 of the General Conditions, less any
applicable liquidated damages.
ARTICLE 6—CONTRACTOR'S REPRESENTATIONS
6.01 In order to induce Owner to enter into this Agreement, Contractor makes the following
representations:
A. Contractor has examined and carefully studied the Contract Documents and the other
related data identified in the Bidding Documents.
B. Contractor has visited the Site and become familiar with and is satisfied as to the
general, local, and Site conditions that may affect cost, progress, and performance of
the Work.
C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and
Regulations that may affect cost, progress, and performance of the Work.
D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface
conditions at or contiguous to the Site and all drawings of physical conditions relating
to existing surface or subsurface structures at the Site (except Underground Facilities),
if any, that have been identified in Paragraph SC-4.02 of the Supplementary
Conditions as containing reliable "technical data," and (2) reports and drawings of
Hazardous Environmental Conditions, if any, at the Site that have been identified in
Paragraph SC-4.06 of the Supplementary Conditions as containing reliable "technical
data."
E. Contractor has considered the information known to Contractor; information commonly
known to contractors doing business in the locality of the Site; information and
observations obtained from visits to the Site; the Contract Documents; and the Site-
96TH ST&TOWNE RD WATER MAIN EXTENSION AGREEMENT
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related reports and drawings identified in the Contract Documents, with respect to the
effect of such information, observations, and documents on (1) the cost, progress, and
performance of the Work; (2) the means, methods, techniques, sequences, and
procedures of construction to be employed by Contractor, including any specific
means, methods, techniques, sequences, and procedures of construction expressly
required by the Contract Documents; and (3) Contractor's safety precautions and
programs.
F. Contractor does not consider that further examinations, investigations, explorations,
tests, studies, or data are necessary for the performance of the Work at the Contract
Price, within the Contract Times, and in accordance with the other terms and
conditions of the Contract Documents.
G. Contractor is aware of the general nature of work to be performed by Owner and
others at the Site that relates to the Work as indicated in the Contract Documents.
H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or
discrepancies that Contractor has discovered in the Contract Documents, and the
written resolution thereof by Engineer is acceptable to Contractor.
I. The Contract Documents are generally sufficient to indicate and convey understanding
of all terms and conditions for performance and furnishing of the Work.
ARTICLE 7—CONTRACT DOCUMENTS
7.01 Contents
A. The Contract Documents consist of the following:
1. Advertisement for Bidders
2. Instructions to Bidders
3. Contractor's Bid
4. Bid Bond
5. Agreement with E-Verify Affidavit
6. Performance Bond
7. Payment Bond
8. General Conditions
9. Supplementary Conditions
10. Specifications as contained in Project Manual dated February 2013.
11. Drawings consisting of 6 sheets dated February 2013.
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12. Addenda No. 1 dated February 7, 2013.
13. The following which may be delivered or issued on or after the Effective Date of the
Agreement and are not attached hereto:
a. Notice to Proceed
b. Change Order(s).
c. Certificate of Substantial Completion
B. There are no Contract Documents other than those listed above in this Article 7.
C. The Contract Documents may only be amended, modified, or supplemented as
provided in Paragraph 3.04 of the General Conditions.
ARTICLE 8— MISCELLANEOUS
8.01 Terms
A. Terms used in this Agreement will have the meanings stated in the General Conditions
and the Supplementary Conditions.
8.02 Assignment of Contract
A. No assignment by a party hereto of any rights under or interests in the Contract will be
binding on another party hereto without the written consent of the party sought to be
bound; and, specifically but without limitation, moneys that may become due and
moneys that are due may not be assigned without such consent (except to the extent
that the effect of this restriction may be limited by law), and unless specifically stated to
the contrary in any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under the Contract Documents.
8.03 Successors and Assigns
A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal
representatives in respect to all covenants, agreements, and obligations contained in
the Contract Documents.
8.04 Severability
A. Any provision or part of the Contract Documents held to be void or unenforceable
under any Law or Regulation shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon Owner and Contractor, who agree that the
Contract Documents shall be reformed to replace such stricken provision or part
thereof with a valid and enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.
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IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement in triplicate (3
copies). Counterparts have been delivered to Owner and Contractor. All portions of the Contract
Documents have been signed or have been identified by Owner and Contractor or on their behalf.
This Agreement wiii be effective on March 6, 2013 (which is the Effective Date of the Agreement).
OWNER: CONTRACTOR:
Carmel Utilities TSW Utility Solution , In a.
By: By: /��sd/f'I l u�
Title: Director of Utilities Title: President WI
[CORPORATE SEAL] [CORPORATE SEAL]
Attest: Attest:
Title: Title:
Address for giving notices: Address for giving notices:
Mr. John Duffy Mr. Richard Waggoner
760 3rd Avenue SW, Suite 110 1970 Midwest Blvd.
Carmel, IN 46032 Indianapolis, IN 46214
License No.:
(Where applicable)
(If Contractor is a corporation or a
partnership or a joint venture, attach
evidence of authority to sign.)
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WESSLER PROJECT NO. 141811.04.01D
CITY OF CARMEL, INDIANA
BY ITS BOARD OF PUBLIC WORKS
AND SAFETY
James ainard, Presiding Officer
Date:
• _�
Mary Ann 4urke,Member
Date: 9 3 -ice
Lori Watson /ember
Date: if/ 3lf 3
AITLST: 1
D'. a L. Cordray, IAM Clerk-Treasurer