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Lenox Steel/CRC/82,000/PAC Steel retro fit CONSTRUCTION AGREEMENT APR 30 2013 Palladium Steel Retrofit Bid Package #2013-01 - Steel Work v "_---- THIS CONSTRUCTION AGREEMENT (the `"Agreement") is made and enteral into by and between The City of Carmel Redevelopment Commission (the "OWNER") and Lenex Steel Co. (the "CONTRACTOR"), concerning the Palladium Steel Retrofit Steel Work, described more particularly in Appendix A. attached hereto and incorporated herein by reference (the "Project"). RECITALS: A. The CONTRACTOR delivered to the OWNER a bid proposal (the "Proposal") for the furnishing of labor, tools, material, equipment, and/or sen'ice for, and to complete, the Project , all as directed by the OWNER (collectively, the "Work"), in which the CONTRACTOR agreed to perform the Work upon the terms and for the price(s) therein fully stated and set forth; B. Based upon the terms and the price(s) described in the Proposal, the OWNER desires to contract with the CONTRACTOR to perform the Work; and C. The Contract Documents (as hereinafter defined) accurately and fully describe the terms and conditions upon which the CONTRACTOR shall perform the Work. THE OWNER AND THE CONTRACTOR AGREE AS FOLLOWS: 1.0 Contract Documents 1.1 This Agreement consists of the following documents (the "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 the Proposal; c. The General Conditions (as hereinafter defined); d. The Specifications; e. The Additional Requirements; f. Plans and Drawings; g. Performance Bond; h. Payment Bond; i. The Proposal; 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 the CONTRACTOR. -1- 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 the OWNER, shall govern, without regard to the party who drafted such provision; otherwise, the Contract Documents shall be given precedence in the order as listed in Paragraph 1.1. 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 for a total contract price of Eighty Two Thousand Dollars ($82,000.00 ), 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 Documents (the "Contract Price"). The CONTRACTOR agrees that the Contract Price shall be deemed full and complete compensation for all direct and indirect costs the Work, including, without limitation, all materials, labor, supervision, equipment, transportation, warranties, repairs, replacement, overhead and profit, 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. 2.3 All amounts due under this Agreement by the OWNER shall be subject and subordinate to the OWNER's obligations pursuant to all: (a) bonds; and (b) installment contracts assigned to lenders to secure financing; whether first arising before or after the date of this Agreement. 3.0 Contract Time 3.1 It is hereby understood and mutually agreed, by and between the CONTRACTOR and the 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 performed only during the dates and during the times set forth in Appendix B 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 CONTRACTOR and the OWNER acknowledge and agree that time is of the essence of this Agreement and 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. -2- 5. Miscellaneous Provisions 5.1 OWNER's Property Any and all documentation (other than original tracings and original calculations) generated by the CONTRACTOR pursuant to this Agreement shall be considered the OWNER's exclusive property and shall be disclosed only to the OWNER and to no other person without the OWNER's prior express written consent. The 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 Cannel, Standard General Conditions for Construction Contracts 1997 (the "General Conditions"). In the event any amount allegedly due hereunder is disputed and such dispute is not resolved to the OWNER's satisfaction within ten (10) business days after notice of such dispute is given to the CONTRACTOR, the OWNER shall pay such amount in dispute, under protest, into the City Court of Cannel, 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 The OWNER and the 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 the OWNER or the CONTRACTOR. 5.5 Relationship The relationship of the parties hereto shall be as provided for in this Agreement, and the 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 the OWNER. Furthermore, the 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 the OWNER shall not be responsible for same. Rather, the Contract Price to be paid hereunder by the OWNER to the CONTRACTOR shall, subject to the terms and conditions hereof, be the full and maximum compensation and monies required of the OWNER to be paid to the CONTRACTOR pursuant to this Agreement. 5.6 Indemnification and Insurance The CONTRACTOR shall indemnify and hold harmless the 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 the CONTRACTOR and/or -3- 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. At all times during the term of this Agreement, the CONTRACTOR shall maintain the policies of insurance described on Appendix C, which policies shall: (a) name the OWNER, the City of Carmel, Indiana and Shiel Sexton Co. as additional insureds; (b) provide that the policy may not be cancelled without thirty (30) days' advance written notice to the OWNER; and (c) provide standard waiver of subrogation provisions, such that there shall be no recovery against the OWNER or the City of Carmel, Indiana to the extent that the loss or damage is or would be covered by any insurance required to be maintained under this Agreement (or that otherwise is maintained). 5.7 Setoff In addition to any right of setoff provided by law, all amounts due the CONTRACTOR shall be considered net of indebtedness of the CONTRACTOR to the OWNER, and the OWNER may deduct any amounts due or to be come due from the CONTRACTOR to OWNER from any sums due or to become due from the OWNER to the CONTRACTOR hereunder. 5.8 Government Compliance The 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 the CONTRACTOR's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. The CONTRACTOR agrees to indemnify and hold harmless the 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. 5.9 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. 5.10 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: -4- OWNER: CONTRACTOR: City of Carmel Redevelopment Commission Lenex Steel Co. 30 West Main Street, Suite 220 250 E. 96th St., Suite 150 Cannel, Indiana 46032 Indianapolis, IN 46240 Attention: Les Olds Attn: Michael Berghoff With copy to: City of Carmel, Indiana 1 Civic Square, City Hall Carmel, IN 46032 ATTN: Douglas C. Haney, Esq. and Wallack Somers & Haas, P.C. One Indiana Square, Suite 2300 Indianapolis, Indiana 46204 Attn: Karl P. Haas Notwithstanding the above, a Notice To Cease All Work issued under or pursuant to Paragraph 5.2 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 after the date of such oral notice. 5.11 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, Indiana. 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. 5.12 Waiver Any delay or partial inaction on the part of the 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. 5.13 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. 5.14 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- • 5.15 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. 5.16 Headings All headings and paragraphs 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. 5.17 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. 5.18 Discrimination Prohibited The CONTRACTOR represents and warrants that it and all of its officers, employees, agents, and subcontractors shall comply with all laws of the United States, the State of Indiana, and the City of Cannel, Indiana prohibiting discrimination against any employee, applicant for employment, or other person in the provision of all goods and services under or pursuant to this Agreement with respect to their hire, tenure, terms, conditions, and privileges of employment and any other matter related to his or her employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status, and/or Vietnam era veteran status. 5.19 E-Verify Pursuant to I.C. § 22-5-1.7 et seq.. the CONTRACTOR shall enroll in and verify the work eligibility status of all of its newly-hired employees using the E-Verify program, if it has not already done so as of the date of this Agreement. The CONTRACTOR is further required to execute an affidavit affirming that it is enrolled and is participating in the E-verify program, and does not knowingly employ any unauthorized aliens. In support of such affidavit, the CONTRACTOR shall provide the OWNER with documentation that it has enrolled and is participating in the E-Verify program. This Agreement shall not take effect until such affidavit is signed by the CONTRACTOR and delivered to the OWNER's authorized representative. Should the CONTRACTOR subcontract for the performance of any work under this Agreement, it shall require all such subcontractor(s) to certify by affidavit that they do not knowingly employ or contract with any unauthorized aliens and have enrolled and are participating in the E- verify program. The CONTRACTOR shall maintain a copy of such certification for the duration of the term of any subcontract and shall deliver a copy of such certification to the OWNER within seven (7) days of the effective date of the subcontract. If the CONTRACTOR, or any subcontractor of the CONTRACTOR, knowingly employs or contracts with any unauthorized aliens, or retains an employee or contract with a person that the CONTRACTOR or subcontractor subsequently learns is an unauthorized alien, the CONTRACTOR shall terminate the employment of or contract with the unauthorized alien within thirty (30) days ("Cure Period"). Should the CONTRACTOR or any subcontractor of the CONTRACTOR fail to cure within the Cure Period, the OWNER has the right to terminate this Agreement without consequence. The E-Verify -6- requirements of this Agreement will not apply should the E-Verify program cease to exist. 5.20 Iran Certification Pursuant to I.C. § 5-22-16.5, the CONTRACTOR certifies that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 5.21 Entire Agreement This Agreement, together with any attachments hereto or referenced herein, constitutes the entire agreement between the OWNER and the CONTRACTOR 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 5.9, 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 be modified only 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: THE CITY OF CARMEL LENEX STEEL CO. REDEVELOPMENT I MISSION BY 0/ i�u apa//I/III J BY ft _� �� William Ha - , President Printed Name: /t/«9,6L R. ReaNarp Title: fas/bn Date: 12,1291.5__ Date: -E•2b • /3 -7- APPENDIX A THE PROJECT Palladium Steel Retrofit 2013 Walter P. Moore Drawings: SK-0 SK-1 SK-T2.1 SK-T2.2 SK-T3A SK-T3B APPENDIX B CONSTRUCTION SCHEDULE As mutually agreed with the Construction Manager APPENDIX C INSURANCE REQUIREMENTS Per attached Certificate of Insurance (provided by Contractor) e?' . _ z J ;?