HomeMy Public PortalAbout013-2013 - Sanitary - Milestone Contractors - PotholingAGREEMENT
THIS AGREEMENT made and entered into this /day of 2013, by and
between the City of Richmond, Indiana, a municipal corporation ting by arfff through its Storm
Water Management Board (hereinafter referred to as the "City") and Milestone Contractors, Inc.,
824 Dillon Drive, Richmond, Indiana 47374 (hereinafter referred to as the "Contractor").
SECTION 1. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor for the performance of sawing and removing twenty-three (23)
patch holes ("potholing"), with asphalt patching by others, for its Storm Water Management
Board.
Contractor's Proposal is dated January 14, 2013 and is attached hereto as Exhibit "A," consisting
of three (3) pages, which Exhibit is hereby incorporated by reference and trade a part of this
Agreement. Contractor shall provide all indicated services listed on Exhibit "A."
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance and/or
warranties;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2);and
3. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of
the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work.
SECTION III. COMPENSATION
City shall pay Contractor a total sum not to exceed Five Thousand Nine Hundred Fifty Dollars
and Zero Cents ($5,950.00) for complete and satisfactory performance of the work required
hereunder.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed and shall continue in effect until the
completion of the project, which shall be no later than two weeks after Contractor receives notice
to proceed.
Contract No.13-2013
Page 1 of 6
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in
part, for cause, at any time by giving at least five (5) working days written notice specifying the
effective date and the reasons for termination which shall include but not be limited to the
following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work
performed prior to the date this Agreement is terminated, but shall be relieved of any other
responsibility herein.
This Agreement may also be terminated by either the City or the Contractor, in whole or in part,
by mutual Agreement setting forth the reasons for such termination, the effective date, and in the
case of partial termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to
person or property or any other claims which may arise from the Contractor's conduct or
performance of this Agreement, either intentionally or negligently; provided, however, that
nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts
of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this
Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set
forth below which may arise out of or result from the Contractor's operations under this
Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may
be held responsible.
A.
C.
IC
Coverage
Worker's Compensation &
Disability Requirements
Employer's Liability
Comprehensive General Liability
Section 1. Bodily Injury
Section 2. Property Damage
Comprehensive Auto Liability
Limits
Statutory
$100,000
$1,000,000 each occurrence
$2,000,000 aggregate
$1,000,000 each occurrence
Page 2 of 6
Section 1. Bodily Injury
Section 2. Property Damage
$1,000,000 each person
$1,000,000 each occurrence
$1,000,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$1,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall,
before commencing work under this Agreement, provide the City a certificate of insurance, or a
certificate from the industrial board showing that the Contractor has complied with Indiana Code
Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore
subject to another state's worker's compensation law, Contractor may choose to comply with all
provisions of its home state's worker's compensation law and provide the City proof of such
compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM
REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work
eligibility status of all newly hired employees of the contractor through the Indiana E-Verify
program. Contractor is not required to verify the work eligibility status of all newly hired
employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify
program no longer exists. Prior to the performance of this Agreement, Contractor shall
provide to the City its signed Affidavit affirming that Contractor does not knowingly employ
an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor
violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than
thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to
remedy the violation within the thirty (30) day period provided above, the City shall consider
the Contractor to be in breach of this Agreement and this Agreement will be terminated. If
the City determines that terminating this Agreement would be detrimental to the public
interest or public property, the City may allow this Agreement to remain in effect until the
City procures a new contractor. If this Agreement is terminated under this section, then
pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual
damages.
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SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged
in investment activities in Iran. In the event City determines during the course of this
Agreement that this certification is no longer valid, City shall notify Contractor in writing of
said determination and shall give contractor ninety (90) days within which to respond to the
written notice. In the event Contractor fails to demonstrate to the City that the Contractor has
ceased investment activities in Iran within ninety (90) days after the written notice is given to
the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-
16.5. In the event the City determines during the course of this Agreement that this
certification is no longer valid and said determination is not refuted by Contractor in the
manner set forth in IC 5-22-16.5, the City reserves the right to consider the Contractor to be
in breach of this Agreement and terminate the agreement upon the expiration of the ninety
(90) day period set forth above.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting
on behalf of Contractor or any sub -contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with
respect to hire, tenure, terms, conditions or privileges of employment or any matter
directly or indirectly related to employment, because of race, religion, color, sex,
disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
I. That in the hiring of employees for the performance of work under this
Agreement of any subcontract hereunder, Contractor, any subcontractor, or any
person acting on behalf of Contractor or any sub -contractor, shall not
discriminate by reason of race, religion, color, sex, national origin or ancestry
against any citizen of the State of Indiana who is qualified and available to
perform the work to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor
or any sub -contractor shall in no manner discriminate against or intimidate any
employee hired for the performance of work under this Agreement on account of
race, religion, color, sex, national origin or ancestry;
That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars ($5.00) for each person for each
calendar day during which such person was discriminated against or intimidated
in violation of the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money
due or to become due hereunder may be forfeited, for a second or any subsequent
violation of the terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
Page 4 of 6
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or
agents of the same from all liability which may arise in the course of Contractor's performance of
its obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and
void. This Agreement shall be controlled by and interpreted according to Indiana law and shall
be binding upon the parties, their successors and assigns. This document constitutes the entire
Agreement between the parties, although it may be altered or amended in whole or in part at any
time by filing with the Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document supersedes any
previous discussion, negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no
arbitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other
action in any alternative forum, venue, or in front of any other tribunal, court, or administrative
body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right
Contractor may have to bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has
been duly authorized by his or her principal to execute this Contract.
In the event of any breach of this Agreement by Contractor, and in addition to any other damages
or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this
Agreement, including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of
the day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Storm Water Management Board
P
By:i— A_A &942f�t
Stepilanie Hays -Mu oni, President
Sue Miller, Vice President
Gilbert Klose, Member
Date: / / �:--,2—/ /c3
APPROVED.
Sarah L. Hutton, Mayor
Date: / I�
"CONTRACTOR"
MILESTONE CONTRACTORS, L.P.
By:
Printed:
Title:;, c��
Date: I 1 Z Z 1 i -z' -
Page 6 of 6
JAN/140013/MON 03:17 PM Milestone Contractor FAX No.765-935-0168 P.002
Page 1 of 3
Milestone Contractors, L.P.
P.0, Box 7061
Riohrtond, TN 47375
Phonc; (765) 9354231
Fax (765)935-0168
To: Greg Stiens
City of Richmond
50 N. 5`h Streat
Richmond, IN 47374
PROPOSAL
(Contract When Accepted)
Date: January 14, 2013
Project: City of Richmond Potholing
We propose to fianish only the matmial(s), labor, equipment ad/or services (collectively "Worle) fnr the above project at the Price(a) aid in aceoidance with terns
stated below. We may, without notice, deem this Proposal to have been withdrawn if act accepted within 14 days following the dato hereof. Upon timaiy acceptance,
this proposal aball become a binding contract Our obfigLtions ronceming the work willin all easel be subject to our initial sad onoina credit 8 royals.
A. Mobilizaton
1) Mobilization , d a=obilizatio-n
Theprice for Mobihzaion is.......................................................................................................................... $530.00
B. Potholing with asphalt patching
Over an area of 23 holes cored to pothole, we will:
1) Saw and remove 23 patch holes
2) resurface 23 holes with sand and cold patch
The price for Potholing is................................................................................................................$398,26 per hole
The total price for potholing with asphalt patching is ............... ........................................... ....... -.............. $9,690.00
C. Potholing with asphalt patching done by others
Over an area bf 23 holes cored to pothole, We Will:
1) Saw and remove 23 patch hales
The price for Potholing with asphalt patching by others is ...................
The total price far potholing with asphalt patching by others is...........
....$235.65 per hole
................................................... $5,9 . 0
Terms and conditions include those on reverse side and/or confinuadon sheet(sj
SUBMr I) as of the Date stated above on behalf of Weston Contractors, L.P.
By: -
Shawn Walker
Title: Estimator
CUSTOMER ACCEPTANCE: This Proposal including description(s) of Work and all other terms and conditions hereiu
stated, are hereby accepted and authorization is hereby given to commence the Work accordingly.
Signature 'Title
Date
Milestone Contractors L.P. — proposal / Contract - Ttevised 06/02/09 EXHIBIT ,�, PAGE _ j__0F 3
JAN/i4/2013/MON 03:17 PM Milestone Contractor PAX No,765-935-0168 P,003
Page 2 of
Conditions and Clarifications / Syedai Provlisions
1. Our price does not include Indiana State Sales Tax.
2. Proposed pricing is based upon material costs thaor.gkr rune 28, 2013. Any costs increases incurred by us thereafter shalt, at our option, be grounds fora
corresponding increase in pricing payable by oustomer for the work, with a reasonable allowance for overhead and profit.
3. Nr price does not include:
a) permits, tenting or inspection fees;
b) Bonds; such as performance bonds, maintenance bonds, warranty bonds, etc.
c) Fees or assessment of any typei
d) Construction engineering or layout;
e) Traffic control or traffic control devices.
4. Our price inc4ides one mobilization. Please add an additional S3,500.001each additional mobilization.
S. Uprojeet is delayed for the owner's convenience, Milestone will be due all retainage withheld for work that is completed.
& Tf Milestone is directed to install any item of work not within specifications, a standard waiver of wananty will need to be signed.
7. We shall be provided with suitable access to our worse area. It our work is dependent upon or must be under taken in oonjunction with the work of others, such
Other work shall be so perfonned and completed as to permit its to perform our work hereunder in a rortnal uninterrupted singleshift operation on a Monday there
Friday_ (Holidays excluded)
8_ If additional materials, including bituminous material is required due to faulty/unsuitable aubgrade or subbase, billing will be based on actual material used.
9. We cannot guarantee proper pavement drainage on slopes I= than one percent,
General Terms and Conditions
These terms shall supersede any different turns stated in any other documents that havo boon or may hmaftcr be issued or exccuted for the above project or Wwit,
customer's acccptancc of this Proposal may occur by signature below, or by any act or expression manifesting CuetOMCes intention to proceed hereunder, including
but not limited to Customer's approval, directive or authorizstian for w to commerce Work. We shall not be bound by any additional or different tonne stated by
Customer in any prior or future. expression concerning the Project, or by any modifications or additions to terms stated beT63)6 unless separately agreed to by us in
writing.
1. Customer shall (a) not cause, create or allow others to cause or create any conflict, delay or hindrance in our performance Of Work; (b) provide and expedite
responses to submittals and inquiries, and provide sufficicrit and thnely infornratian, permits and approvals; (o) assure Roo= to and make all provisions for our
early upon lands, including easements and righta of way; (d) assure and guarantee that products of our Work remain freo of damage, deterioration or other adverse
or detrimental conditions due to deficiencies or inadequacies in design, inspections or other work undertaken by or for Customer or others; (e) take such other
action and manage the Project in other respects to enable us to perform Work in an uninterrupted, expedited and single -shift Operation; and (f) indemnify its and
hold us harmlcss as to any losses, costs and damages arising from third parry claims and caused in whole or part by the Customer or others fox whose aots
Customer is responsible.
Z We shallnotbe hold responsible for or otherwise become obligated with respect to any ofthe following:
a) Conforming to any original or updated scheduling that is has not boon expressly approved by us beforehand in writing;
b) Delays, hindranoes or other adverse and unavoidable conditions and (including adverse weather) not exclusively caused by us and within our
control, or which render our performance impossible, impracticable or unduly burdensome or costly;
c) Darrragea to or conflicts with utilities or other physical structures or conditions (or the removal or relocation thereof), the existence m location ofwhich were
omitted or misstated by plans, surveys, reports, markings or other itifonymioa relied upon byes in the course of plari"+ ,g or w ecuting Work;
d) Providing any servicea, labor, materials or equipment that is not specifically included in the description of Work contained in this Proposal or duly signed
change order or other written modification of these terms; provided, we may elect to perfoan additional or extra work or services pursuant to any request or
directive from Customer without mutual written ag3 cement speoifylrrg the basis forpaymom for same, and in such case we will be commpensated based on our
standard rates and charges in effect when such work or services are rendered, and we shall also be entitled to an appropriate scheduliug extension if and as
needed.
e) Emors, inconsistencies or deviations drown by or inherent in plans, drawings, surveys or other information f trnished to us by Customer or others and relied
upon by us in performance of the'(iV'ork;
f) Utilizing means, methods, techniques or procedures which would result in added costs, delays, ineMaiencies or other unplanned adverse impacts upon our
work;
g) Feifbiudsig any Work ir, an area affected by asbestos, polychlorinated bipheny] (PCB) or other hazardous material or toxic condition or substance (as those
terms are defined by law or common trade practices) which has not been rendered harmless;
h) Damage to or deterioration or diminished performance tharactrristica of our Work or other property resulting from any cause or condition beyond our
exclusive and direct control, including, but not limited to thoso caused by (i) failures, discrepancies, deficiencies or other inadcquaoics in construction
performed or undertaken by Customer or others, whether or not the existence of aueh failtat or inadequacy was known or discoverable by us at or prior to
the tiinc our Work was undertaken by us, and (ii) deferral or postponement of any part of the Work due to weather or seasonal conditions, or for Custonmces
convenience.
i) Any special, incidental, consequential or liquidated damages.
3. If we eneouater any condition or eirownstanco in performing Work that diffes materially from that describcd herein or indicated in applicable plans or
specifications or other Project information that has been provided to us as of this date, or is not of the type generally eacountemd in perfoming the type and nature
of Work described herein, then wo shalt be entitled to an equitable ac#ustment in price and/or allotted time for performance of the Work. 1f Work is delayed or
aeeeferated for any reason beyond our control, compensation shall be equitably adjusted and tirr+e for performance shall be extended to account for such delay or
accelerrtion.
4. Subject to conditions and limitations stated elsewhere in this Proposal, our Work will be of good quality in accordance with generally accepted trade standards and
&co from. material defects not inherent in the quality specified or permitted to be performed or installed. Such warranty excludes any remedy for damage or dofect
caused by or resulting from abuse, modifications not executed by Subcontractor, rrmrs or deficiencies inherent in the selection of products, methods or procedures
specified or pennitted by the S uboontract Documents, improper or insufficient maintenance, improper operations, or normal wear and tear under normal usage, or
Milestone Contractors L.P. -- Proposal / Contract - Revised 06/02109
EXHIBIT PAGE -.d ,OF 3
JAN/14/201.3/MON 03:17 PM Milestone Contractor FAX No,765-935-0188 P.004
Page 3 of 3
inadequacies caused or aggravated by deficient work or inspections perr=nel by others. Tbis warranty shall be in foicc for a lirnitcd period of one (1) year
following the last day when significant construction activities for the affected Work were last performed by us, or one (1) year after Substantial completion of the
entire Work, whichever occurs first, 'C'Iris warranty shall bo in lieu of any other express or implied warranty in respect of the Worlc. No claim arising from any
actual or alleged defects or deficiencies in our Work shall be valid unless (i) we substantially neglect or refuse to address the cireamstance(s) giving rise thereto
within fourteen (14) days after receipt of written notice flum Customer describing the defect or deficiency and requesting correction of same, and (H) Qxpiration of
seven days (7) following our receipt of an addidooal written notice flout Customer stating the claim or other action intended to be taken by Customer. Failure of
Contractor or any other party to give such notices to us shall conclusively be deemed a release and waivek of any claim in respect of any actud or alleged defect,
deficiency or other inadequacy in our WorIr
S. Except as othmwvise specifically provided herein, Customer shall make payments for Work based upon monthly invoices for Work rendered and withia thirty (30)
days £allowing receipt of invoice, Failurc to provide written notice objecting to any invoiced charges within ten (10) days following receipt of invoice 4all bo
deemed an acceptance and approval of same. No retainage shall be withheld from any inwim or final payment past due payments eball bear interest at the rate of
two percent (2%) perrrtotath, Customer's obligation to make payment shall not be conditioned upon Customer's receipt of payment from any thiud party,
6. We may cease performing work end terminate further contractual obligations concerning our Work upon (1) any substantial failure of the Customer to perform in
accordance with the terms hereof, or (ii) nonpayment of amotmts remaining unpaid for 10 days or longer after such amounts fht become due. la such case, we
shall be entitled to payment far all Work executed and for all loss and damages pertaining to 'Work remaining to be performed, including reasonable allowances
for ovM11cad and profit.
7, Any controversy or claim arising out of or related to this Proposal or rendering of Work shall, at our sole discretion, be scctlui by arbitration conducted in
accordance with the Construction industry Arbitration Rules of the American Arbitration Association currently in effect. Such arbiUltion, if implemented, shall
not impair any meolianics' lien or bond claim rights or similar rcmeiios. We shall not bo bound by any award, judgment or other fordo of decision or adjudication
in connection with any claim or dispute in gay proceeding in which we are not lawfully joined as a party.
$. In zany action, claim or defense amerttd by us to cnforce any obligation of Customer hereunder, including but not limited to payment obligation(s), we sbail be
entitled to recover attorney fees and other expooses of arbitmation or litigation.
Milestone Contractors L.P. —Proposal / Contract - Revised 06/02/09 EXHIBIT PAGE LS —OF 3