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HomeMy Public PortalAbout054-2006 Aviation & Milestone ContractorsCONSTRUCTION CONTRACT This Construction Contract ("Contract") is made this Td day of August, 2006, by and between Mileston Contractors, L.P. ("Contractor") and City of Richmond Board of Aviation Commissioners "Owner"habilitatio WHEREAS, the Owner has solicited itemized proposals for the Runway 6-24 Re o n-Phase 2 ("Project"), in accordance with the provisions of Indiana law; and, WHEREAS, Contractor has submitted a bid proposal in response to the Owner's solicit proposal substantially complies with the conditions and requirements established by Owner; an anon, which bid WHEREAS, Owner has determined that Contractor was the lowest responsible and r d for the Project, and this Contract shall evidence the award by Owner of the construction Contractor. responsive bidder of the Project to NOW, THEREFORE, Owner and Contractor, in consideration of the mutual coven herein, agree as follows: ants, as set forth ARTICLE DEFINITION OF TERMS Unless otherwise defined herein, the definition of terms contained herein are set forth in the General Provisions, Section 10, which definitions shall control the interpretation of these terms . ARTICLE II WORK Contractor shall complete all work in the construction of the Project in accordance with the Plans and Specifications and such other terms and conditions as set forth in this Contract. R AT--- ICE III ENGINEER The Project has been designed by Butler, Fairman and Seufert, Inc., 8450 Westfield duties and responsibilities and have the rights and authority assigned to Engineer in t Boulevard, Suite he Contract Documents ), who is to act as the Owner's representative, assume all in connection with completion of the Work in accordance with the Contract Document 300, Indianapolis, Indiana 46240-8302 ("Engineer" s. ARTICLE_ IV CONTRACT TIME 4.1 The Work will be substantially completed in accordance with the Contract Documents 08 of the General Provisions) from the date the Contract Time commences to run Notice to Proceed (Paragraph 80-02 of the General Provisions) is given. The Contract (Paragraph 80- computed in accordance with Paragraph 80-07 of the General Provisions. ° as provided in the Time shall be 4.2 Owner and Contractor recognize that time is of the essence of this Contract an financial loss if the Work is not substantially completed within the time specified above, plus any extensions thereof allowed in accordance with Paragraph d that Owner will suffer Provisions. Them Paragraph 4.1l y also recognize the delays, expense, and difficulties and uncertainties involved in proving in a legal or arbitration proceeding the actual loss suffered by 80 07 of the General completed on time. Accordingly, instead of requiring such proof, Owner and Contractor liquidated damages for delay (but not as a penalty) Contractor shall a Owner if the Work is not agree that as pay Owner the sum Stipulated in C-1 Contract 54-2006 Paragraph 80-08 of the General Provisions for each calendar day that expires after the time specified in Paragraph 4.1 above for Substantial Completion of the Work, until the Work is substantially completed. The term "Substantial Completion" shall refer to the date when construction of the Project is sufficiently completed, in accordance with Plans and Specifications, as modified by any complete change orders agreed to by the parties, so that it can be utilized for the use for which it was intended, which determination shall be made by Engineer. ARTICLE V CONTRACT PRICE Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds as follows: Payment to Contractor shall be based upon the Contractor's Itemized Proposal, attached hereto as exhibit A and computed in accordance with the provisions of Section 90 of the General Provisions for a total original Contract amount of One Million Four Hundred Sixt Thousand Six Hundred Fift Dollars 1 460 650.00 . ARTICLE VI PAYMENT PROCEDURES Contractor shall submit application for payment in accordance with Section 90 of the General Provisions. Applications for payment will be processed by Engineer as provided in the General Provisions. 6.1 Partial Payments. Owner shall make partial payments on account of the Contract Price on the basis of Contractor's applications for payment as recommended by Engineer, on or about the th month during construction as provided below. All partial a thbasis of the 1_4day pof ro each gress of the Work measured by estimates prepared by Engineer of hel value of work performed and materials complete in place in accordance with the Contract, Plans and Specifications. 6.1.1 From the amount determined to be payable to the Contractor as a partial payment, the Owner shall deduct five percent (5%) of the approved partial payment, and shall deposit it in an escrow account with a bank, savings and loan institution, or the State. The Escrow Agent shall be selected by mutual agreement of Owner and Contractor. The escrow agreement shall be evidenced by written agreement between the Escrow Agent, Owner and Contractor, and shall contain, at a minimum, the following provisions: (a) Escrow Agent shall invest all escrowed principal in obligations selected by it; (b) The Escrow Agent shall hold the escrowed principal and income until receipt of notice from Owner and Contractor, specifying the part of the escrowed principal to be released from the escrow and the person to whom that portion is to be released. After receipt of the notice, the Escrow Agent shall remit the designated part of escrowed principal and the same proportion of then escrowed income to the person specified in the notice. (a) The Escrow Agent shall be compensated for his services. The parties may agree on a reasonable fee comparable with fees being charged for the handling of escrow accounts of similar size and duration. the fee shall be paid from the escrowed income. The escrow agreement may include other terms and conditions as are permitted by Indiana law. 6.1.2. The Airport will include in each application for payment of the prime contract, which performs a DOT -assisted project, the following clause: C-2 'The undersigned CONTRACTOR certifies that (1) all previous progress payments received from OWNER on account of Work done under the Contract referred to above have been applied to discharge in full all obligations of CONTRACTOR incurred in connection with Work covered by all prior Applications for Payments inclusive; (2) title to all materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all liens, claims, security interests and encumbrances (except such as covered by Bond acceptable to OWNER); (3) any delay or postponement of payment among the parties, except for normal retainage amounts withheld by the OWNER, may take place only for good cause, with OWNER prior written approval; (4) appropriate alternative dispute resolution mechanisms, such as non -binding mediation, Indiana Rules of Alternative Dispute Resolution and Arbitration Rules of the American Arbitration Association, is implemented to resolve payment disputes; and (5) appropriate provisions are inserted in all subcontracts binding Subcontractors to the terms and conditions of the Contract Documents. The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 30 days from the receipt of each payment the prime contractor receives from the Owner. The prime contractor agrees further to return retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Owner. {This clause applies to both DBE and non -DBE subcontractors. Prompt Payment (49 CFR 26 §26.29)}" 6.2 Final Payment. Contractor shall be paid, in full, the Contract Price, including all escrowed principal and escrowed income, by the Owner and Escrow Agent, within Sixty-one (61) days after the date of Substantial Completion, in accordance with Paragraph 90-09 of the General Provisions. 6.2.1 Notwithstanding the foregoing, Owner shall be entitled to retain an amount equal to two hundred percent (200%) of the value, as determined by Engineer, of remaining uncompleted items, which amount shall be withheld until the respective items are completed. 6.2.2 Prior to the final payment, as provided in paragraph 6.2 above, Contractor shall submit an affidavit to Engineer, identifying all subcontractors, material suppliers, laborers, or those furnishing services on or to the Project, and stating that all such individuals or entities have been paid. In addition to the affidavit, Contractor shall provide the Engineer final lien waivers, in such form as is approved by Engineer, appropriately executed. The Owner may make a final and complete settlement with the Contractor after thirty (30) days after the date of Completion and acceptance of the Project if such evidence of payment as described above, has been provided. 6.2.3 In the event that all subcontractors, material suppliers, laborers, or those furnishing services have not been paid, the Owner shall withhold money from the Contract Price in an amount sufficient to pay all such outstanding claims. Any such claims paid by the Owner shall reduce the Contract Price. The Owner shall comply with the payment procedures set out in Indiana Code 36-1-12-12 and Indiana Code 36-1-12-13. ARTICLE VII CONTRACTOR'S REPRESENTATIONS In order to induce Owner to enter into this Contract, Contractor makes the following representations: 7.1 Contractor has familiarized itself with the nature and extent of the Contract Documents, Work, site locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. C-3 7.2 Contractor has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports, and studies, which pertain to the subsurface or physical conditions at or contiguous to the site or otherwise may affect the cost, progress, performance or furnishing of the Work as Contractor considers necessary for the performance of furnishing of the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 20-06 of the General Provisions, and no additional examinations, investigations, explorations, tests, reports, studies, or similar information or data are or will be required by Contractor for such purpose. 7.3 Contractor has reviewed and checked all information and data shown or indicated on the Contract Documents with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are or will be required by Contractor in order to perform and furnish the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 20-06 of the General Provisions. 7•4 Contractor has correlated the results of all such observations, examinations, investigations, explorations, tests, reports, and studies with the terms and conditions of the Contract Documents. 7.5 Contractor has given Engineer written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by Engineer is acceptable to Contractor. 7.6 Contractor has taken all requisite action necessary to enter into this Contract and the individuals executing this Contract on behalf of Contractor are authorized to bind Contractor. ARTI--CLE VIII WARRANTY AND GUARANTY 8.1 Contractor warrants and guarantees to Owner and Engineer that all Work will be in accordance with the Contract Documents and will not be unacceptable. Prompt notice of all defects shall be given to Contractor. All unacceptable work, whether or not in place, may be rejected, corrected, or accepted as provided in this Article, or in the General Provisions. 8.2 If within one year after the date of Substantial Completion, or such longer period of time as may be Prescribed by Laws or Regulations of the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any work found to be unacceptable, Contractor shall promptly, without cost to Owner and in accordance with Owner's written instructions, either correct such unacceptable Work, or if it has been rejected by Owner, remove if from the site and replace it with acceptable Work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the unacceptable Work corrected or the rejected Work removed and replaced, and all direct, indirect, and consequential costs of such removal and replacement (including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals) will be paid by Contractor. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications or by Written Amendment. 8.3 If, instead of requiring correction or removal and replacement of unacceptable Work, Owner (and prior to Engineer's recommendation of final payment, also Engineer) prefers to accept it, Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to Owner's evaluation of and determination to accept such unacceptable work (such costs to be approved by Engineer as to reasonableness and to include, but not be limited to, fees and charges of engineers, architects, attorneys and other professionals). If any such acceptance occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract C-4 Documents with respect to the Work, the Owner shall be entitled to an appropriate decrease in the Contract Price, and, if the parties are unable to agree as to the amount thereof, Owner may take a claim therefore, as provided in Section 90 of the General Provisions. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. ARTICLE IX CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between Owner and Contractor concerning the Work consist of the following: 9.1 The Contract (pages C-1 to C-6, inclusive). 9.2 Performance and Payment Bonds. 9.3 Specifications bearing the title Runway 6-24 Rehabilitation Phase 2, AIP Project No. 3-18-0071- 08 incorporated herein by reference. 9.4 Drawings, consisting of sheets numbered 1 through 34, inclusive with each sheet bearing the following general title: Runway 6-24 Overlay Richmond Municipal Airport incorporated herein by reference. 9.5 Addenda numbers 1 to 2, inclusive. 9.6 Contractor's Itemized Proposal (pages IP-1 to IP-5 and NOA-1, inclusive) marked exhibit A. 9.7 The documents listed in paragraphs 9.2 et seq., above are attached to this Agreement (except as expressly noted otherwise above). There are no Contract Documents other than those listed above in this Article 9. The Contract Documents may only be amended, modified, or supplemented as provided in this Contract. ARTICLE X MISCELLANEOUS 10.1 No assignment by a party hereto of any rights under or interests in the Contract Documents 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. 10.2 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 of all covenants, agreements, and obligations contained in the Contract Documents. 10.3 IT IS FURTHER AGREED AND UNDERSTOOD BY AND BETWEEN THE PARTIES HERETO, that the work to be performed under this contract are for the occupancy and use of Owner and the Contractor hereunder expressly agrees that all the Contractor's obligations, including guarantees, bonds and performance standards shall inure directly in favor of the Owner its own name and right without the necessity of joining any other party of this Contract. C-5 IN WITNESS WHEREOF, we, the foregoing named parties, hereunto set our hands and seals this ------ day of 2006. OWNER: Richmond Board Of Aviation Commissioners Approved as to Form and Legality Owner's A— ttorney IN WITNESS WHEREOF, we, the foregoing named parties, hereunto set our hands and seals this th da of August 2 , CONTRACTOR - Milestone Con for , LLP tractors United, Inc. - Gene 1 D�v d Mears Title: Manager of Estimating Richmond Attest: { / �11i' rQ:�r Malinda S. Glover END OF CONSTRUCTION CONTRACT C-6