Eden Enterprises Agreement - $1,284,800 - $1,929,700 Redevelopment Commission
Carmel Reflecting Pond/Streetscape
AGREEMENT
City of Carmel, Indiana
THIS AGREEMENT is made and entered into by and between the City of Carmel, Indiana,
acting by and through its Redevelopment Commission ("OWNER") and Eden Enterprises
("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;
h. Performance, Payment and Maintenance Bonds;
i. CONTRACTOR'S Proposal and Declarations; and
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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 for a total contract price not to exceed $ *See Below 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.
*Base Bid $ 1,284,800.00
Alternate #1 172,800.00
Alternate #2 378,400.00
Alternate #4 56,000.00
Alternate #5 27,600.00
Alternate #6 10,100.00
Total $ 1,929,700.00
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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 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 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 1997 (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.
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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.
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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 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 Eden Enterprises
Redevelopment Commission 445 Gradle Drive
One Civic Square Carmel, IN 46032
Carmel, IN 46032
Attention: Steve Engleking, Executive Director
Carmel Redevelopment Commission
(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.
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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.
5.19 Entire Agreement
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
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
by and through its Redevelopment
Commission •
BY:
rmr`
BYE
Steve Engleking, Executive Director 4
Date: Wye)z- Printed Name:
( Zfr) Title: \.-P'
Richard A Roesch, President
Date: I
Date: //�2
Edmund Burke, Member
Date:
ATT '.T:
j ,1,4 �_.
t ' / Date: (/d//C)'
Diana Cordray, Clerk-Treasurer
l
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Redevelopment Commission
Carmel Reflecting Pond/Streetscape
APPENDIX A
PROJECT: Carmel City Center: Carmel Reflecting Pond/Streetscape
WORK: As described by the Project plans and Contract Documents
including, but not limited to:
Four separate bid packages will be identified for
Project, the overall general scope of which includes
Reflecting pond, fountains, walkways, trellises, lighting,
and other incidental work as described more fully by
these construction documents for the project site located
southwest of the intersection of 3rd Avenue and City
Center Drive.
DESIGN BY: CSO Architecture Engineering Interiors
280 East 96th Street, Suite 200
Indianapolis, IN 46240
OWNER'S REPRESENTATIVE: Mr. Steve Engleking, Executive Director
Carmel Redevelopment Commission
City of Carmel
One Civic Square
Carmel, IN 46032
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AIA .Document A312 - Electronic Format
Performance on
THIS DOCI;MENT HAS IMPORTAN T LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS
COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICAILY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AlA
Doc UM }T 0401.
Any Singular reference to Cortimei,Sandy.Owner or Other Party Shall be con:-id ned plural where applicable.
CONTRACTOR Name and Address): SURETY (Name and Principal Place of Business)
EDEN ENTERPRISES, INC.,
445 Cradle Drive The Hanover Insurance Company
Carmel, IN 46032
OWNER(Name and Address) • 100 North Parkway
CITY OF CARMEL REDEVELOPMENT COMMISSION
Worcester, MA 01605
Carmel, IN
CONSTRUCTION CONTRACT
Date: January 21, 2002
Amount: one Million Nine Hundred Twenty-Nine Thousand Seven Hundred ($1,929,700.00)
Description(Name and Location): Carmel Reflecting Pond/Streets cape
BOND
Date(Not earlier than Construction Contract Date): January 22, 2002
Amount: One Million Nine Hundred Twenty-Nine Thousand Seven Hundred ($1,929,700.00)
Modifications to this Bond: g None n See Page
CONTRACTOR AS PRINCIPAL SURETY The Hanover Insurance Company
Company: (Corporate Seal) Company: (Corporate Seal)
EDEN ENTERPRISES, INS_ t
Signature: Scott Schutz, President Signature: ee(7,Spi• , Attorney-in-Fact
Name and Title: Name and Title:
(Any additional signatures appear on the last page)
(FOR INFORMATION ONLY-Name,Address and Telephone)
AGENT or BROKER: AMERICAN BONDING SERVICES, INC OWNER'S REPRESENTATIVE(Architect,Engineer or other party):
4901 60TH STREET
KENOSHA,Wisconsin 53144
262-654-5883
1 The Contractor and the Surety,jointly and severally, bind 3 If there is no Owner Default,the Surety's obligation under
themselves, their heirs, executors, administrators, successors this Bond shall arise after:
and assigns to the Owner for the performance of the
Construction Contract, which is incorporated herein by 3.1 The Owner has notified the Contractor and the Surety
reference. at its address described in Paragraph 10 below that the
Owner is considering declaring a Contractor Default and
2 If the Contractor performs the Construction Contract, the has requested and attempted to arrange a conference with
Surety and the Contractor shall have no obligation under this the Contractor and the Surety to be held not later than
Bond, except to participate in conferences as provided in fifteen days after receipt of such notice to discuss methods
Subparagraph 3.1. of performing the Construction Contract. If the Owner,
the Contractor and the Surety agree, the Contractor shall
be allowed a reasonable time to perform the Construction
AlA DOCUMENT A312• PERFORMANCE BOND BOND • DEC 9 _ • :s
dL' FLdL'} PAYMENT tv� • DECEMBER'PRPL_. 1 8_ ED. __-- s THE AMERICAN Ifd9'__'""'_'°' .'
ARCHITECTS, 1735 NEW YORK i'VENIIE, N.H., WASHINGTON, D.C., 20006-5292 • THIRD PRINTING • MARC): 1.907. WARNING;
r.hr:tecol;ying ,_-later 0.5. ..op,yrighr. laws and is subject to legal t:-rosecun_on.
this document has been reproduced electronically with the permission of The American lnsiiitite of Architects under License 412104 to The FLuimord Fidelity and
Bonding Company.iny. 3c'pio h fiction of this document without •Diet;t :}ecific information ,. not permitted. Contact Ai. it
{• h� �{ The ric•an Institute of-�rchi'ec,s to verify the
:current version of this docrarr..et:.t and license status.
ectronic. Format A312-1904
1
1705126
Contract, but such an agreement shall not waive the 5 If the Surety does not proceed as provided in Paragraph 4
Owner's right,if any, subsequently to declare a Contractor with reasonable promptness,the Surety shall be deemed to be
Default;and in default on this Bond fifteen days after receipt of an
additional written notice from the Owner to the Surety
3.2 The Owner has declared a Contractor Default and demanding that the Surety perform its obligations under this
formally terminated the Contractor's right to complete the Bond, and the Owner shall be entitled to enforce any remedy
contract. Such Contractor Default shall not be declared available to the Owmer. If the Surety proceeds as provided in
earlier than twenty days after the Contractor and the Subparagraph 4.4, and the Owner refuses the payment
Surety have received notice as provided in Sub-paragraph tendered or the Surety has denied liability, in whole or in part,
3.1;and J- - without further notice the Owner shall be entitled to enforce
any remedy available to the Owner.
3.3 The Owner has agreed to pay the Balance of the
Contract Price to the Surety in accordance with the terms 6 After the Owner has terminated the Contractor's right to
of the Construction Contract or to a contractor selected to complete the Construction Contract, and if the Surety elects to
perform the Construction Contract in accordance with the act under Subparagraph 4.1, 4.2, or 4.3 above, then the
terms of the contract with the Owner. responsibilities of the Surety to the Owner shall not be greater
than those of the Contractor under the Construction Contract,
4 When the Owner has satisfied the conditions of Paragraph and the responsibilities of the Owner to the Surety shall not be
3, the Surety shall promptly and at the Surety's expense take greater than those of the Owner under the Construction
one of the following actions: Contract. To the limit of the amount of this Bond,but subject
to commitment by the Owner of the Balance of the Contract
4.1 Arrange for the Contractor, with consent of the Price to mitigation of costs and damages on the Construction
Owner, to perform and complete the Construction Contract,the Surety is obligated without duplication for:
Contract;or
6.1 The responsibilities of the Contractor for correction
4.2 Undertake to perform and complete the Construction of defective work and completion of the Construction
Contract itself,through its agents or through independent Contract;
contractors:or
6.2 Additional legal, design professional and delay costs
4.3 Obtain bids or negotiated proposals from qualified resulting from the Contractor's Default,and resulting from
contractors acceptable to the Owner for a contract for the actions or failure to act of the Surety under Paragraph
performance and completion of the Construction Contract, 4; and
arrange for a contract to be prepared for execution by the
Owner and the contractor selected with the Owner's 6.3 Liquidated damages, or if no liquidated damages are
concurrence,to be secured with performance and payment specified in the Construction Contract, actual damages
bonds executed by a qualified surety equivalent to the caused by delayed performance or non-performance of the
bonds issued on the Construction Contract, and pay to the Contractor.
Owner the amount of damages as described in Paragraph
6 in excess of the Balance of the Contract Price incurred 7 The Surety shall not be liable to the Owner or others for
by the Owner resulting from the Contractor's default;or obligations of the Contractor that are unrelated to the
Construction Contract, and the Balance of the Contract Price
4.4 Waive its right to perform and complete, arrange for shall not be reduced or set off on account of any such
completion, or obtain a new contractor and with unrelated obligations. No right of action shall accrue on this
reasonable promptness under the circumstances: Bond to any person or entity other than the Owner or its heirs,
executors,administrators or successors.
.1 After investigation, determine the amount for
which it may he liable to the Owner and,as soon 8 The Surety hereby waives notice of any change, including
as practicable after the amount is determined, changes of time, to the Construction Contract or to related
tender payment therefor to the Owner;or subcontracts,purchase orders and other obligations.
.2 Deny liability in whole or in part and notify the 9 Any proceeding, legal or equitable, under this Bond may
Owner .citing reasons therefor. be instituted in any court of competent jurisdiction in the
location in which the work or part of the work is located and
AlA DCCL.NmT A312• PERFORMANCE NC•Ne AND PAYMENT_ BPub • DE!:[_ 19 84 ED. s 7_n •« THE AMERICAN itE__'i_
E OF
ARCHITECTS, 17:5 NEW YORK AVENUE, N.N. WASHINGTON, 20008-5292 •
THIRD PRINTING • MARCH 1987. WARNING,
Unlicensed ph•otocoriny `ic.1E1t'' 1.1 q c;o ricla: laws and is subject i:a legal ;rosec:rl_cn.
'Ibis document has here reproduced electronically with the peruission of The American institute of Architects under License 42104 to The Hartford Fidelity and
tcadim;Company. Reproduction of this document without ,aj;ct.specific•information ii not permitted.Contact The American Institute of Architects t
.. €� r� , C verify the
current ver,iou aft;,.is document and license st0tus.
E ctroni•_: Fermat A312-1984
2
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shall be instituted within two years after Contractor Default or been made, including allowance to the Contractor of any
within two years after the Contractor ceased working or within amounts received or to be received by the Owner in
two years after the Surety refuses or fails to perform its settlement of insurance or other claims for damages to
obligations under this Bond, whichever occurs first. If the which the Contractor is entitled, reduced by all valid and
provisions of this Paragraph are void or prohibited by law,the proper payments made to or on behalf of the Contractor
minimum period of limitation available to sureties as a defense under the Construction Contract.
in the jurisdiction of the suit shall be applicable.
12.2 Construction Contract: The agreement
10 Notice to the Surety,the Owner or the Contractor shall be between the Owner and the Contractor identified on the
mailed or delivered to the address shown on the signature signature page, including all Contract Documents and
page. changes thereto.
11 When this Bond has been furnished to comply with a 12.3 Contractor Default: Failure of the
statutory or other legal requirement in the location where the Contractor, which has neither been remedied nor waived,
construction was to be performed, any provision in this Bond to perform or otherwise to comply with the terms of the
conflicting with said statutory or legal requirement shall be Construction Contract.
deemed deleted here from and provisions conforming to such
statutory or other legal requirement shall be deemed 12.4 Owner Default: Failure of the Owner, which
incorporated herein. The intent is that this Bond shall be has neither been remedied nor waived, to pay the
construed as a statutory bond and not as a common law bond. Contractor as required by the Construction Contract or to
perform and complete or comply with the other terms
12 DEFINITIONS thereof.
12.1 Balance of the Contract Price: The total
amount payable by the Owner to the Contractor under the
Construction Contract after all proper adjustments have
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
(Space is provided below for additional signatures of added parties,other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
Signature: Signature:
Name and Title: Name and Title: -
Address: Address:
.CIA DOCUMENT 312• PERFORMANCE OND AND PAYMENT BOND • DECEMBER _ • vva rSTITU 'H
_ .., _ _._.._ .. i .,_ ED. ii_A THE �[�iLR_�_<'�< Itv.� _ _� _
ARCHITECTS, ^!o NEW YORK. AVENGE;E; N.a., NAS.. NGTCi_N, D.C., 20006-S292 • THIRD PRINTING • aiocca. 1937. WARNING;
.1n_1c__.nsed :Ahotecoy-.na .__._atea .,.0. coyyrigh;: _axis and .s ..ub''.act to legal e reeeo:..n '_on
1"ais document h.is been reproduced electronically with the permission.of The American institute of Architects under License ;12104 to"l'hc Hartford Fidelity and
Bonding Co Company. Reproduction of this document without project-specific it;(?tn.ation is not permitted. Cartlact.The American L•istiiut,of Architect.u: . ri'y the
autmat version of ties document and license status.
Electronic: Format A312-1934
3
C
•
AlA Document A..3.12 -Electronic Foa`/n w 1705126
Payment Bond
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES:CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS
COMPLI.3TION M1DTI IC'A ION. Al'TIll??', IC<VIION OF THIS LEC''PD'1 ALLi DRAFTED ,aI?s DOCUMENT MAY BE MADE BY US:NG All
DOCUMENT D30I.
Any singular reference to C<ntrac,t.Surety,Owner Other Party Shall be considered plural where appticnhle.
CONTRACTOR(Name and Address): SURETY (Name and_Principal Place of Business)
EDEN ENTERPRISES, INC. -
445 Gradle Drive The Hanover Insurance Company
Carmel, IN 46032 100 North Parkway
OWNER(Name and Address)
CITY OF CARMEL REDEVELOPMENT COMMISSION Worcester, MA 01605
Carmel, IN
CONSTRUCTION CONTRACT
Date: January 21, 2002
Amount:one Million Nine Hundred Twenty-Nine Thousand Seven Hundred ($1,929,700.00)
Description(Name and Location): Cannel Reflecting Pond/Streetscape
BOND
Date(Not earlier than Construction Contract Date): January 22, 2002
Amount:one Million Nine Hundred Twenty-Nine Thousand Seven Hundred ($1,929,700.00)
Modifications to this Bond: X None See Page
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
EDEN ENTERPRISES, INC. The Hanover In a. -. Company
Signature: Signature:
Name and Title: Scott Schutz, President Name and Title: Lee pino, Attorney-in-Fact
(Any additional signatures appear on the last page)
(FOR INFORMATION ONLY-Name,Address and Telephone)
AGENT or BROKER: AMERICAN BONDING SERVICES, INC OWNER'S REPRESENTATIVE(Architect,Engineer or other party):
4901 60TH STREET
KENOSHA,Wisconsin 53144
262-654-5993
1 The Contractor and the Surety, jointly and severally bind themselves,their heirs,executors,administrators, successors and assigns
to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is
incorporated herein by reference.
2 With respect to the Owner,this obligation shall be null and void if the Contractor:
2.1 Promptly makes payment,directly or indirectly,for all sums due Claimants,and
2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose
claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the
Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in
Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the
Contractor and the Surety,and provided there is no Owner Default.
AIR DOCUMENT A312• PEPFORMRNCE BOND ":D PAYMENT BOND • DE!EIDOEP 198 4. ED. • AlA THE AMERICAN INSTITUTE OF
ARCHITECTS,. i 735 2ti h YORK AVENUE, t . WASHINGTON, D.0., 20006_0292 • THIRD PRINTING
"v;_L 133;
OnIiceised photocopying violates U.S. cop rght laws and is subject to legal pC SeCUC_On.
This undo:-
document has been repr�uduced electronically with the permission of'Ihe American Institute of`?:rchttects Ltce;:s. e2104 to The 1larteord Fidelity and.
Bonding Company. Reproduction of this document without project-specific in ormatton is not permitted.Contact The American institute of Architects to verify the
current version of this document and license status.
Ele.-c_Icin cltuat: A:312-108,i
1
•
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3 With respect to Claimants,this obligation shall be null and void if the Contractor promptly makes payment,directly or indirectly,
for all sums due.
4 The Surety shall have no obligation to Claimants under this Bond until:
4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address
described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond
and,with substantial accuracy,the amount of the claim.
- 4.2 Claimants who do not have a direct contract with the Contractor:
.1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after
having last performed labor or last furnished materials or equipment included in the claim stating, with substantial
accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for
whom the labor was done or performed;and
.2 Have either received a rejection in whole or in part from the Contractor,or not received within 30 days of furnishing the
above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid
directly or indirectly;and
.3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in
Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and
enclosing a copy of the previous written notice furnished to the Contractor.
5 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety,that is sufficient compliance.
6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the
following actions:
6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that
are undisputed and the basis for challenging any amounts that are disputed.
6.2 Pay or arrange for payment of any undisputed amounts.
7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any
payments made in good faith by the Surety.
8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the
Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the
Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are
dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for
the completion of the work.
9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the
Construction Contract.The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond,and shall
have under this Bond no obligations to make payments to,give notices on behalf of,or otherwise have obligations to Claimants under
this Bond.
10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related
subcontracts,purchase orders and other obligations.
11 No suit or action shall be commenced by a Claimant wider this Bond other than in a court of competent j urisdiction in the location
in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the
notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last
A"A DOCUMENT N312• PERFORMANCE
PER FO
RMANCE EOND AND PAYMEIT_ GONG e DECEMBER 1984 ED. " * THE AMERICAN iv5TT TUIE OF
ARCHITECTS, 1735 �F4 YORK
AVENUE, ?i.'?., WASHINGTON, D.C., 200::6-:'29 e THIRD PRINTING a MARCH I987. W;ir3>?1'dG;
Unlicensed photocopying violates copyri•rht laws and is subject to legal prosecut_on.
This document has been reproduced eie;tronicaliy with the permission of The American institute of Architects under License :2104 to The Hartford Fidelity and
13ondinfv Company. Reproduction of this doctimeni without projec.specific information is not permitted.Contact The American tnsttiuie of'1 c._itects to verify the
current version of this document'aid l::i,':S:status. _
E..e..trcmi_. Format: A312-1984
2
1705126
•
materials or equipment were furnished by anyone under the Construction Contract, whichever of (I) or (2) first occurs. If the
provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the
jurisdiction of the suit shall be applicable.
12 Notice to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual
receipt of notice by Surety,the Owner or the Contractor,however accomplished,shall be sufficient compliance as of the date received
at the address shown on the signature page.
13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction
was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom
and provisions conforming to such statutory or other legal requirement shall he deemed incorporated herein. The intent is that this
Bond shall be construed as a statutory bond and not as a common law bond.
14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor shall promptly furnish a
copy of this Bond or shall permit a copy to be made.
15 DEFINITIONS
15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the
Contractor to furnish labor,materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to
include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline,
telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for
performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien
may be asserted in the jurisdiction where the labor,materials or equipment were furnished.
15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page,
including all Contract Documents and changes thereto.
15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as
required by the Construction Contract or to perform and complete or comply with the other terms thereof.
ALA. DOCUMENT --312 PERFORMANCE _ A_n_ ,�_ S___t.B
., • .�:.,....��?�;,._'.J`.. ?C•:HL` .'z;C% FAYDSL`"t• r.:rJN;:: • ,r. :p*qtr. 1 a •e C�� NS TT
ARCHITECTS _,35 NEW .zWEN U . ,
L .C 200:e-5292 a rt_F. 6i h"-r: • MARCH 1 . wti?:1
g:;
Unlicensed photocopying violates copyrfimiht
laws and rs suhriect to egal nros,,rut'i
This document has been reproduced electronically with the permission of The American Institute of Architects ur_der t_ce<:s:»2104 to The Hartford Fidelity and
Bonding Company.Reproduction of this document without project specific information is not permitted.Contact The American Institute of Arc itects to verify the
arrant version of this document and license status.
..Leo ft-cm..,. Fax-ii t. 7.31i.-1186
3
1705126
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
(Space is provided below for additional signatures of added parties,other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: _ (Corporate Seal) Company: (Corporate Seal)
Signature: Signature:
Name and Title: Name and Title:
Address: Address:
AIA occumENT A312* PERFORMANCE 20ND AND PAYMENT BOND . DECEMBER 1984 ED. * AIA • THE AMEK7CAN INSTITUrE CD
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006-5292 • THIRD PRINTING • MARCH 1987. WARNING:
Dnlicensed photocopying violates U.S. copyright laws and is subject to legal
This document has been reproduced electronically with the permission of The American Institute of Architects under License :r2104 to The Hartford Fidelity and
Bonding Company. Reproduction of this document without project-specific mformation is not permitted.Contact The American institute of Architects to verify the
current version of this document and license status.
E I.e c x.on Format: 1,312 1 984
4
This Power of Attorney may not be used to execute any bond with an inception date after 1/1/2004
THE HANOVER INSURANCE COMPANY
MASSACHUSETTS BAY INSURANCE COMPANY
POWERS OF ATTORNEY
CERTIFIED COPY
KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE
COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint
Lee Spino and/or Sandra R.Popp
of Kenosha,WI and each is a true and lawful Attorney(s)-in-fact to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as its
act and deed, at any place within the United States, or, if the following line be filled in, only within the area therein
designated
any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows:
-Any such obligations in the United States,
in any amount -
And said companies hereby ratify and confirm all and whatsoever said Attorney(s)-in-fact may lawfully do in the premises by virtue of these pesents.
These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which
resolutions are still in effect:
"RESOLVED,That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby
authorized and empowered to appoint Attorneys-in-fact of the Company, in its name and as its acts,to execute and acknowledge for
and on its behalf as Surety any and all bonds,recognizances,contracts of indemnity,waivers ofcitation and all other writings obligatory
in the nature thereof,with power to attach thereto the seal of the Company. Any such writings so executed by such Attorneys-in-fact
shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the
Company in their own proper persons." (Adopted October 7, 1981 -The Hanover Insurance Company; Adopted April 14, 1982-
Massachusetts Bay Insurance Company)
IN WIT\NEp§ HEREO E HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY have caused
these\Ftttelts-to Ip 1p��d with heir respective corpor.,t- seals,duly attested by a Vice President and an Assistant Vice President, this 20th day
of D, g�1b,r.,'2 44, ii ' . r
v1�1)0R91•:0 Ct. " -v& ' THE HANOVER INSURANCE COMPANY
G
p.�� (SsAl}�= .'�a.. * eal) G • • SACHUSETTS BAY INSURANCE COMPANY
=z i 1972 - c p_ �- ,,,,c sZ �Y>•
=:"--V-*,..o it/:t...7.....- i 1-1 994 tn t ----'‘uktkzazt \ . NO-a, „
• a.: U S -a',\> ..• HAP • - 4 ;. i'F•ki..._
." Assistan Vice President
THE COMMONWEALTH OF MASSACHUSETTS -
COUNTY OF WORCESTER ) ss.
On this 20th d tphDeccpwber, 2000, before me came the above named Vice President and Assistant Vice President of The Hanover Insurance
Company awl4c,lapseNay Insurance Company, to me personally known to be the individuals and officers described herein, and
acknowledt the•seals to the preceding instrument are the corporate seals of The Hanover Insurance Company and Massachusetts
Bay Ins n G ompany, retg •' , and that the said corporate seals and their si atures as officers were duly affixed and subscribed to said
instruxhrp�ty ana,d r� 'on of said Corporations.
�y " r2 J, ii i
L(ihli C : Notary Public
'•ue;• c My Commission Expires November 26,2004
I,the unders resident of The Hanover Insurance Company and Massachusetts Bay Insurance Company, hereby certify that
the above and fofltiingit#�ti ull,true and correct copy of the Original Power of Attorney issued by said Companies,and do hereby further certify
that the said Powers of Attorney are still in force and effect.
This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance
Company and Massachusetts Bay Insurance Company.
"RESOLVED,That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto,
granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company,shall
be binding on the Company to the same extent as if all signatures therein were manually affixed,even though one or more of any such
signatures thereon may be facsimile." (Adopted October 7, 1981 -The Hanover Insurance Company; Adopted April 14, 1982-
Massachusetts Bay Insurance Company)
GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this22nd day of January ,2002
THE HANOVER INSURANCE COMPANY
MASSACHUSETTS BAY INSU NCE COMPANY
,,
Assistant Vice President