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HomeMy WebLinkAboutChange Order & PCA - Newman Center Site Development Division A & Alternate No A1 Project No 117-060R - The Robert Henry Corporation1316, COUN'rY-CITY BUILDING 227 W. JEFFERSON BOULEVARD Soum Bi-,ND. INDIANA 46601-1830 CITY OF SOUTH BEND PE'FEBuT-nc)1EG, MAYOR BOARD OF PUBLIC WORKS February 27, 2018 Ron Perry The Robert Henry Corporation 404 S. Frances South Bend, IN 46617 PHONE 574/235-9251 FAX 574/ 235-9171 RE: Change Order No, 2 (Final}/Project Completion Affidavit — Newman Center Site Development, Division A and Alternate No. Al — Project No. I I 7-06OR Dear Mr. Perry: The Board of Public Works, at its meeting held on February 27, 2018, approved the Final Change Order for this project, for an increase of $3,275.25. The new Contract sum is $339,829.57. In addition, the Project Completion Affidavit for this project was approved in the amount of $339,829.57. Copies of the Change Order and Project Completion Affidavit are enclosed for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Cicrlc Enclosures c: Toy Villa, Engineering GARY A. GILOT SUZANNA M. FRITZBERG EuZABETH A. MARADIK JAMEs A. MUELLER THERESF I DORAU CITY OF SOUTH BEND, INDIANA DEPARTMENT OF PUBLICWORKS PROJECT CHANGE ORDER DATE: 2/6/2018 PROJECT NO: 117-060R PROJECT NAME: Newman Center Site Development, Division A and Alternate Al CONTRACT DATE: 8/17/2017 CHANGE ORDER NO: 2 (Final) SUBJECT OF CHANGE ORDER: PCR #/2-Final Quantities All items completed substantially as Manned. See attached Comparison of Estimate for overruns and underruns. The original contract sum $ 371,240,20 Net change by previously authorized change orders $-34,685.88 The contract sum prior to this change order $ 336„554.32 By this Change Order, the project amount is [X-1 Increased R Decreased $ 3,275.25 The new contract sum including this change order $ 339,829.57 This Change Order represents a total change of 0.97 % Total change for entire project -8A6 % Original contracted completion date/time 11/14/2017 Extension of date/time by previous change orders 0 days Date/time extension by this change order 0 days New completion date/time 11/14/2017 r"QONTRACTOR RECOMMENDED FOR APPROVAL Contractor Sigrna re CONSTRU ION MANAGER CITY OF SOUTH BEND Printed Namie and Title BOARD OF PUBLIC WORKS Approved (Date: The Robert'Henry Corporation ) r Company Name p �. Gary A. Gi t,"P dent 404 S. Frances, Address Suzan Fri zberg, ber South Bend, IN, 46617 -; City, State, Zip ``' Elizabeth A. Maradik, Member Therese J. Dorau, Member James A. Mueller, Member PROJECT NAME PROJECT NO CONTRACT SIGNED PROJECT DESCRIPTION WITNESSETH: CITY OF SOUTH BEND, INDIANA BOARD OF PUBLIC WORKS PROJECT COMPLETION AFFIDAVIT -Newman Center Site Development, Division A and Alternate Al 117-06OR FINAL COST $339,829.57 8/17/2017 MAINTENANCE AGREEMENT ENDS Site Work and Patio Canopy Construction The work under the above contract between the City of South Bend and the undersigned contractor having been completed, the City of South Bend, its officials and agents are hereby released from all claims and demands whatsoever arising under or by such contract, and that the contractor performed the work within the scope of the Specifications and Standards of the City of South Bend which were a part of the above Contract. 19 Execu this 1 day of 'Fagqk.r 201 V The Robert Henry Corporation Company Name Siggpri 404 S. Frances Company Address Printed Name South Bend, IN, 46617 City, State, Zip WITNESSESS: Before ne, the undersigned Notary Public in and for said country and state, personally appeared' and acknowledged his/her signature to the above Project Completion Affidavit on the` h day of P 2016 Notary Signature My Commission Expires Printed Name County of Residence If the Cont s a corporation, the following certificate will be executed, = w , certify that I am Secretary of the Corporation executing this release; that ROA MmAy who signed this release on behalf of the contractor was then RMAdatrr A4AA)"gK of said Corporation; that said release was duly signed for and on behalf of said Corporat,iori'oy Aptbo(1tyPfl%myruing body, and is within the scope of corporate powers: WN 0 =0 6111196M DEPARTMENT OF PUBLIC WORKS APPROVAL Corporate Seal This project is acceptable for approval and we recommend to the Board of Public Works that it be ordained so. N11ZM Date: I ° 14 - I. — Construction On "ger BOARD OPUBLIG WORK Z7VAL Date: A I Gary A. Gilot, President -:�Oz`anila kil"rifterg, WerKer ElizaliZe-th A. Maradik, Member * M'Ala I In Therese J. Dorau, Member James A. Mueller, Member Nda M. Martin,` Clerk Bond No: 9261087 Maintenance and KNOW ALL MEN BY THESE PRESENTS, that we The Robert Henry Corporation, PO Box 1407, South: Bend, INI 46624-1407 hereinafter called principal, as Principal, and Fidelity and Deposit Company of Maryland — I a corporation of the State of Maryland _ , Chicago — I—Iflino-lis— I hereinafter called Surety, as Surety, are held and firmly bound unto of South Bend, Indiana, 227 W Jefferson St., Ste 1200 N, South Bend, IN 46601-1830 hereinafter called Obligcc in the sum of Thirty-three Thousand Nine Hundred Eighty-two And 96/100 ($33,982.96) DOLLARS, lawful' money of the United States of America, to be paid to the said Obligee, or its successors or assigns, to the payment of which sum well and truly to be made, we do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. SIGNED, sealed and dated this 15th day of February P 2018 WHEREAS, the Principal entered into a contract with the said Obligee, dated August 17, 2017 for Newman Center Site Development, Division A and Alternate Al and, WHEREAS, the Obligee requires that these presents be executed on or before the final completion and acceptance of said contract and WHEREAS, said contract was completed and accepted on the 12th-- day of January 2018 NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal shall remedy, without cost to the Obligee, any defects which may develop during a period of Three (3), fi-om the date of completion and acceptance of the work performed under the contract, caused by defective or inferior materials or workmanship, then this obligation shall be void: otherwise it shall be and remain in full force and effect, ATTEST: The Robe-riAryv,.Chrporation L-A Fidelity and D osit Com�any of Maryland �d By: —AA1 "''i� m Tiffany I William Attorney -in -Pact EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attorneys -in -fact with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By -Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney ... Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the loth day of May, 1990. RESOLVED; "That the facsimile or mechanically reproduced seat of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 15th day of February 12018 . *�o�oo��rpsr elm A! Thomas O. McClellan, Vice President ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the Slate of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by Michael P. Bond, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Vickie L. WOLCOTT, Stella M. MILLI, David A. LINTHICUM, Carolyn J. WAGGONER, Tiffany T. WILLIAMS and Michael K. CORCORAN, all of Indianapolis, IN, EACH its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL A-MERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 12th day of January, A.D. 2016. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND By: /Michael P. Bond Vice President By: Eric D. Bat -ties Secretary State of Maryland County of Baltimore On this 12tb day of January, A.D. 2016, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, Michael P. Bond, Vice President and Eric D. Barnes, Secretary of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and sailh, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above Svritten, Constance A, Dunn, Notary Public My Commission Expires: July 9, 2019 tj5.11�}r ��irrr,. .ljl:1� :ti'ti r�`r�eris+�f sl Job No. 1018003 Task Code: 09-2000 Contact Name: Barry Stewart THE ROBERT HENRY CORPORATION P.O. Box 1407 404 South Frances Street South Bend, Indiana 46624 SUBCONTRACT THIS AGREEMENT entered into this 10 day of November by and between The Robert Henry Corporation, an Indiana corporation, hereinafter called "Contractor", and C&S Drywall Inc 50783 Cobus Ride Lane Gran er Indiana 46507, incorporated in the State of Indiana, hereinafter called "Subcontractor". WHEREAS, the Contractor has heretofore entered into a contract with Ivy Tech Community Coke a of Indiana South Bend Campus, 220 Dean Johnson Blvd., South Bend Indiana. (the "Owner"), to furnish certain labor and materials and perform the following described work: General Construction, for the following described project: Roof Repair at the Stairs hereinafter called "Project", in strict accordance with the plans, specifications and contract documents, which plans and specifications for said Project were prepared by the Project Architect, N/A; and the Supplemental General Conditions revised August 2004, which are attached hereto, and made a part hereof. WHEREAS, Contractor and Subcontractor desire to contract with reference to a part of said work. WITNESSETH, in consideration of the mutual undertakings and other terms, covenants, conditions and agreements hereinafter contained, Contractor and Subcontractor agree as follows: 1. provisions of General Contract Referenced. Hereby made a part of this Subcontract Agreement by reference thereto are the plans, specifications and Contract Documents, including general conditions, special conditions, supplementary conditions, amendments to conditions, schedules and drawings, and the agreements between Owner and Contractor for base building and tenant finish, and all provisions of said agreements between the Contractor and Owner, together with all regulations, rulings, specifications now in effect or which may be adopted applicable or pertaining to said work required in said agreements between Contractor and Owner, all of which are hereinafter referred to collectively as the "General Contract", and Subcontractor shall be bound thereby in the performance of this Subcontract and agrees to comply therewith and perform said work in accordance therewith. 2. Assurnotion of Duties. Subcontractor, without limiting other obligations contained herein, assumes toward Contractor all of the obligations, duties and responsibilities that Contractor assumes in the General Contract. Subcontractor shall be bound to the same extent that Contractor is bound by each and every covenant, obligation and provision of the General Contract insofar as the same are applicable to the work of the Subcontractor hereunder, and Contractor shall have the rights and privileges as against Subcontractor as may exist against Contractor in the General Contract, unless specifically provided otherwise by this Subcontract. 3. Site and Contract Examination. Subcontractor represents that he has examined sufficiently to his satisfaction the site of the work and is fully familiar with the aforesaid General Contract between Owner and Contractor, and Subcontractor agrees to perform his work in accordance with the terms and conditions set forth thereini and Subcontractor assumes full responsibility for all conditions of work known and unknown. 4. Scone of Work. Subcontractor shall furnish all labor, materials, equipment and supervision, and perform all work necessary to complete the following part or parts of the work of the General Contract in all respects as is therein required of the Contractor, and all work incidental thereto, in strict accordance with plans, specifications and the contract documents, namely: furnish and install complete the GYPSUM BOARD TAPING, FINISHING AND PAINTING work as required at the bulkhead above the stairs in the west stair tower. The scope of work includes but is not limited to: all applicable permits, licenses and fees for this work only; Drywall bulkhead as designated BY THRC. The scope of work includes but is not limited to: all applicable permits, licenses and fees for this work only; supervision; coordination with other trades; temporary protection of existing finishes as needed for the Gypsum Board Taping and Finishing work; Not included are general demolition; dumpsters. C&S. Drywall will clean up on a daily basis any trash and debris which is generated as a result of their work and place it in dumpsters provided by The Robert Henry Corporation. Task Code: 09-1000; Project Completion Date: February 23, 2018. Revised February 2013 Subcontractor agrees that it will so perform this Agreement so as not to violate any term, covenant or condition of Contractor's General Contract. 5. Commencement and Prompt Execution of the Work. Time is of the essence of this Subcontract. Subcontractor shall commence the work immediately after notification by Contractor and shall complete the same not later than and shall maintain such rate of progress in performance of said work as to not impede Contractor or any other Subcontractor in the performance of its work and so as to satisfy Owner or its authorized representative of the rate of progress of such work. Upon request by Contractor, certain parts of the work covered by this Subcontract Agreement shall be prosecuted in preference to others. Subcontractor shall fully coordinate his work with that of the Contractor and other Subcontractors so as to promote progress of the entire construction and so as to not delay, disrupt or interfere with the work of the Contractor or others. 6. Contract Price. Contractor agrees to pay Subcontractor for the performance of the work, subject to other provisions hereof, including additions and deletions as herein provided, the total sum of Eight Hundred Fifty Dollars ($85o.00) 7. Payment. Payment of the Contract Price by Contractor to Subcontractor shall only be for actual work performed to the satisfaction of Contractor and/or Owner less a retainage of ten percent 10%1, or such higher percent retainage as Owner may withhold from Contractor under the General Contract, which Contractor may withhold from payments due Subcontractor. Additional terms and conditions concerning payment to Subcontractor are as follows: (a) On or before the 25th day of each month, Subcontractor shall submit to Contractor, in a form required by Contractor, a written application for payment showing the proportionate value of the work installed to that date, from which shall be deducted the contract rate of retainage, all previous payments, and all charges for services, materials, equipment and other items furnished by Contractor to or chargeable to the Subcontractor; and the balance of the amount of such applications, as approved by Contractor and the Owner or architect and for which payment has been received by Contractor from Owner, shall be due and paid to Subcontractor on or before the 30th day of the succeeding month. The Subcontractor shall submit to the Contractor before its first requisition for payment, a detailed schedule showing the breakdown of the contract price into its various parts for use only as a basis of checking the Subcontractor's monthly applications. The Subcontractor will also submit before its first requisition for payment, a list of its sub -subcontractors and major material suppliers. Contractor reserves the right to advance the date of any payment, including final payment, if in its sole judgment it becomes desirable to do so. (b ) Subcontractor shall submit its monthly payment applications on such forms and on such dates as directed by Contractor and which will enable Contractor to apply for payment from the Owner. if more restrictive payment terms and conditions are set forth in the General Contract, Contractor shall have the option of having those terms and conditions control all progress payments from Contractor to Subcontractor. (c ) Contractor shall be under no obligation to pay Subcontractor for any work done on this Project, until Contractor has been paid therefor by Owner, and the provisions hereof, stating the time of progress and final payments and the amount thereof, are subject to the condition that Contractor shall receive from Owner progress and/or final payments in at least the amounts payable to Subcontractor on account of work done by Subcontractor on this Project; otherwise, the time when such payments shall be due Subcontractor shall be postponed until Contractor has received same from Owner. Subcontractor expressly contemplates that payments to him are contingent upon the Contractor receiving payment from the Owner, and the Subcontractor expressly agrees to accept the risk that he will not be paid for work performed by him in the event that the Contractor, for whatever reason, is not paid by the Owner for such work. The Subcontractor relies primarily for payment for work performed on the credit and ability to pay of the Owner, and not of the Contractor, and Subcontractor agrees that payment by the Owner to the Contractor for work performed by the Subcontractor shall be a condition precedent to any payment obligation of the Contractor to the Subcontractor. (d) No progress payment shall be regarded as any evidence whatsoever of Subcontractor's satisfactory compliance with the terms of this Contract or of Contractor's acceptance of work or materials as satisfactory. (e ) Before Subcontractor is entitled to any payment, whether it be a final payment or an interim progress payment, the Subcontractor shall produce receipts for payments for material delivered to the job, and/or evidence that labor on the job has been paid; such receipts and/or such evidence shall be a condition precedent to any right or claim the Subcontractor may have for payment for any work done under this Contract. if at any time Contractor, in its sole discretion, determines that Subcontractor's financial condition has become, in Contractor's opinion, unsatisfactory, Subcontractor shall furnish adequate financial security or other equivalent proof of ability to perform, satisfactory to Contractor, within 5 days after receipt of written notice. Failure to provide the security or proof requested hereunder may Revised February 2013 2 be treated by Contractor as a breach or default under this Agreement. (f ) Subcontractor shall not be entitled to receive final payment until the entire amount of work to be done hereunder has been accepted by Owner and a complete release of any and all claims against Contractor has been delivered by Subcontractor to Contractor. The acceptance of such release shall not relieve Subcontractor of liability for defects in said work. (g) Not withstanding any other provision or interest in the General Contract or contract documents, Contractor shall not pay any interest, finance charges or carrying charges unless or until payment is due and unpaid in accordance with the terms hereof, in which event, provided Subcontractor is not otherwise in breach or default of the terms of this Agreement, payments shall bear interest, finance charges or carrying charges at the rate of eight percent (8%) per annum from the date payment is otherwise due and owing. (h) Subcontractor agrees that monies received for the performance of the work hereunder shall be held intrust for payment for labor and material utilized in performing the Subcontractor's work, and said monies received in payment by Contractor to Subcontractor shall not be diverted to satisfy any other obligations of Subcontractor on work other than this Project and under this Contract. (i) The final invoice must be submitted to the Contractor's South Bend office with the necessary final and unconditional waiver of lien no later than the 25th of the month following the completion of the subcontractor's work. 8. Changes. The Subcontractor hereby agrees to promptly make any and all changes and furnish the materials and perform the work that the Contractor may require, without nullifying this agreement, at a reasonable addition to, or deduction from, the contract price, hereinafter named, and pro-rata to the same, i.e., figured on original unit price where applicable, No alterations or changes shall be made, however, except upon the written order of the Contractor prior to commencing any altered or changed work. The amount to be paid by the Contractor or allowed by the Subcontractor by virtue of such alterations shall be stated in such order. The Contractor shall not be liable to the Subcontractor to pay for changes in the scope of work completed by the Subcontractor without authorization of a written Change Order. 9. Extras. In no event shall the Contractor be liable to Subcontractor for payment of any extra work Subcontractor performs in addition to that required under Section 4, "Scope of Work", unless prior to performing any such work Subcontractor has obtained the written directive of the Contractor. No employee or agent of Contractor is authorized to direct any extra work by oral order. On any extra work directed by Contractor in accordance herewith Contractor reserves the right to review and adjust, at its sole discretion, any price or charges therefore submitted by Subcontractor. Payment for extra work hereunder shall be governed by the terms of Section 7, "Payment". 10. Delays - Extensions of Time - DamaLyes (a) Subcontractor shall only be entitled to an extension of time for performing and completing the work covered by this Agreement upon the same terms and conditions an extension of time is allowed and only to the extent actually allowed to Contractor by Owner, or its representative, under the terms of the General Contract. (b) Any damages to Contractor for delay caused by Subcontractor shall be deducted by Contractor from the agreed price for said work as liquidated damages and not as a penalty, and without limiting the option of Contractor to terminate said Subcontract for default as herein elsewhere provided, but in addition thereto. (c ) Contractor shall not be liable to the Subcontractor for delay to Subcontractor's work by the act, neglect or default of the Owner, Contractor, Architect, or the Engineer, or by reason of fire or other casualty, or on account of riots, or of strikes, or other combined action of workmen or others, or on account of any acts of God, or any other cause beyond Contractor's control, or an account of any circumstances caused or contributed to by the Subcontractor; provided, however, notwithstanding anything else contained herein, the Contractor will be liable to the Subcontractor for damages it incurs as a result of any acts, or failures to act, by the Owner which delays or suspends the Subcontractor's work only to the extent the Owner is liable for such damages and actually pays the Contractor for such damages; it being expressly understood that the only obligation the Contractor has to Subcontractor under this provision is to pass on to the Owner any claim Subcontractor has for damages for delays caused by Owner and to pay to Subcontractor any amounts which the Owner pays to the Contractor as a result of such claim for Owner -caused delays. (d) Should Subcontractor be delayed in his work by Contractor or any of its subcontractors or suppliers, then Contractor shall owe Subcontractor therefore only an extension of time for completion equal to the delay caused and then only if a written claim for delay is made to Contractor within 48 hours from the time of the beginning of the delay; and under no circumstances shall Contractor be liable to pay to Subcontractor any compensation for such Contractor -caused Revised February 2013 3 delays. (e) Subcontractor shall work overtime as directed by Contractor. If such overtime is due to the failure of the Subcontractor, in the opinion of the Contractor, to keep up with the general progress of the work for the Project, the entire cost and expense of overtime shall be paid by Subcontractor. If such overtime is not due to the failure of the Subcontractor to keep up with the general progress of the work for the Project, Subcontractor shall work on such overtime basis as directed by Contractor and Contractor shall pay the premium wage portion of such overtime and the Subcontractor agrees to accept the payment of such premium wage portion of overtime for and in complete settlement of any and all claims for damages, loss, cost or expense caused by or in any way related to overtime schedules or conditions. 11. Disputes (a) In case of any dispute between the Subcontractor and Contractor, Subcontractor agrees to be bound to Contractor to the same extent that Contractor is bound to Owner by the terms of the General Contract and by any and all decisions or determinations made thereunder by the party or board so authorized in the General Contract. Subcontractor also agrees to be bound to Contractor to the same extent that Contractor is bound to Owner by the final decision of a court of competent jurisdiction, whether or not Subcontractor is a party to such proceeding. If such dispute is prosecuted or defended by Contractor against Owner under the terms of the General Contract or in court action, Subcontractor agrees to furnish all evidence and other information required by Contractor for such purpose and to pay or reimburse Contractor for all expenses and costs, if any, incurred in connection therewith. It is expressly understood that as to any and all work done and agreed to be done by the Subcontractor and as to any and all materials or services furnished or agreed to be furnished by Subcontractor, and as to any and all damages, if any, incurred by Subcontractor, in connection with this construction Project, Contractor shall never be liable to Subcontractor to any greater extent than Owner is liable to Contractor. No dispute shall interfere with the progress of construction and Subcontractor shall proceed with its work as directed. (b) If, at anytime, any controversy shall arise between the Contractor and Subcontractor with respect to any matter or thing involved in this Subcontract or construction Project, which controversy is not controlled or provided to be determined by Section 11 (a) above, the decision of the Contractor shall be final and the Subcontractor shall proceed accordingly. 12. Subcontractor Default (a) Should Subcontractor at any time breach this Agreement or fail to prosecute said work with promptness, diligence and efficiency, or fail to perform any of the requirements hereof, or the Subcontractor shall become insolvent, or make an assignment for the benefit of creditors, or commit an act of bankruptcy or have a petition in bankruptcy filed by or against Subcontractor, Contractor may without notice (or, if notice be required by law, then after 48 hours written notice by registered mail addressed to Subcontractor), proceed as follows: (i) Provide such materials, supplies, equipment and labor as maybe necessary to complete said work, or any portion thereof, on a regular or overtime basis, pay for same and deduct the amount so paid from any money then or thereafter due Subcontractor, or (ii) 'Terminate the employment of Subcontractor, enter upon the premises and take possession, for use in completing the work of all the materials supplies, tools equipment and appliances of the Subcontractor thereon free of all claims for the value of said materials and for the rental or use of said equipment and complete the work, or have same completed by others, and be liable to Subcontractor for no further payment under the Agreement until final payment is due and then only if and to the extent that the unpaid balance of the amount to be paid under this Subcontract exceeds the expense of the Contractor in finishing the work, or (iii) By notice addressed to surety, require the surety to enter upon the premises and take possession, for use in completing the work of all the materials supplies, tools, equipment and appliances of the Subcontractor thereon, and to complete the worn, or to have the same completed by others, all in accordance with the plans and specifications, and be liable to the Subcontractor for no further payment under this Agreement until final payment is due and then only if and to the extent that the unpaid balance of the amount to be paid under this Subcontract Agreement exceeds any damages for delay, or other set-off, counterclaim or recoupment, in favor of the Contractor against the Subcontractor. In such event, the balance under this Agreement shall be paid at the direction of the surety upon completion. (b) If the amount expended by the Contractor under (i) above or the cost of completing the work under (ii) or (iii) above exceeds the unpaid balance of the Subcontract price herein stated, Subcontractor or his sureties shall pay Contractor such excess within a 30 day period after submission to Subcontractor of invoice. (c ) Should Subcontractor at any time fail to pay for all labor, materials or supplies used by Subcontractor in said work when due, Contractor may pay for same and charge same to Subcontractor, without Subcontractor's consent. Revised February 2013 4 Contractor has the further right to pay any claims for labor, materials and supplies used in the work when these claims are not due, providing the Subcontractor gives his consent. (d) Should Subcontractor default in any of the provisions of this Subcontract Agreement and should Contractor employ an attorney to enforce any provision hereof or to collect damages for breach of this Agreement or to recover on the bond, Subcontractor and/or his surety agree to pay Contractor such reasonable attorney's fees as he may expend therein. As against the obligations herein contained Subcontractor and his surety waive all rights of exemption. Attorney's fees and cost of collection shall be in addition to the amount of the bond should Contractor sue for collection more than 120 days after presentation of claim against the bond. (e) Determination of default made by the Contractor in good faith under the belief that a default exists under the terms hereof shall be conclusive on the fact of such default and on the Contractor's right to proceed as herein provided. The liability of Subcontractor and its surety hereunder shall extend to and include the full amount of any and all sums paid and obligations assumed by Contractor in good faith under the belief that such payments or assumptions were necessary or required to complete the work or settle, compromise and discharge any claims pertaining to or arising from the Subcontractor's work. 13. Arbitration Option. In the event that any claim, dispute or matter in question shall arise out of or relate to this Subcontract, or the breach thereof, Contractor shall have the option to have such matter decided and resolved by arbitration by written notice thereof furnished to Subcontractor. Arbitration shall be conducted in the same manner provided in the General Contract, except that a decision by the Architect shall not be a condition precedent to arbitration. In the absence of any provision for arbitration in the General Contract, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The exercise of the right to arbitration under this paragraph shall not be deemed a limitation of any right or remedy which Contractor may have against Subcontractor under this Agreement or under applicable bond or statute. Notwithstanding any provision in the General Contract to the contrary which may give Subcontractor a right to arbitrate disputes with Contractor, such arbitration is not compulsory or mandatory upon Contractor, and Subcontractor initiated arbitration can only proceed if agreed to by Contractor. 14. Payment and Performance Bonds. If required by Contractor, Subcontractor shall furnish within 10 days of this Subcontract a performance bond in an amount equal to the full Subcontract price and, in addition, a payment bond in an amount equal to the full Subcontract price, on Contractor's forms or forms satisfactory to Contractor, with surety on the list of federally acceptable sureties, for the faithful performance of this Subcontract, and payment of any and all claims arising by reason of the performance, or non-performance, of this Subcontract. The entire cost of said surety bonds if required, shall be paid by Contractor. If additional bond requirements are set forth and contained in the Contractor's General Contract, the bonds furnished hereunder by Subcontractor shall be in strict accordance with and subject to the bond requirements set forth and contained in said General Contract. Contractor shall be named as an obligee on bonds required herein. 15. Insurance. No work shall commence and Contractor has no obligation to Subcontractor or any of its employees or agents under this Subcontract until a Certificate of Insurance is on file at the Contractor's main office. The Contractor and Owner shall be named as an additional insured under each policy of liability and property damage insurance. The coverage afforded Contractor shall be primary and shall not be contributory with any other insurance available to the Contractor. Any coverage provided by The Robert Henry Corporation shall be excess coverage. The Subcontractor shall purchase and maintain comprehensive general liability insurance and other insurance as required to protect himself and the Contractor from claims which may arise out of or result from operations and the work of the Subcontractor or any subcontractor hired by the Subcontractor under the Subcontract, whether such claims arise during performance of the Subcontract or subsequent to completion of the operations under the Subcontract, and whether such operation be by the Subcontractor or by any subcontractor hired by the Subcontractor or by any one directly or indirectly employed by any of them or by any one for whose acts any of them may be liable. The Subcontractor is required to carry coverages of the following types (or as indicated in The Robert Henry Corporation Supplemental General Conditions which are attached): a. Workers' Compensation, applicable in Indiana and in all other states in which the subcontractor's work is being performed, disability benefit, and other similar employee acts including employers liability. The Subcontractor shall carry employer's liability limits of no less than $500,000. b. Comprehensive General Liability insurance which includes premises liability, products/completed operations, blanket contractual, broad form property damage, personal injury and death, blanket explosion, collapse and underground damage by independent contractors. Revised February 2013 5 c, Comprehensive general liability limits of no less than $1,000,000 occurrence/$2,000,000 aggregate. In addition the Per Project Aggregate must be noted on Certificate. d, The Comprehensive General Liability Insurance will include as Additional Insureds The Robert Henry Corporation and each of its officers, agents and employees, and the Owner and each of its officers, agents and employees. Coverage must be written on an occurrence basis and shall be maintained without interruption from the date of commencement of the subcontract work until date of final payment and/or termination of any coverage required to be maintained after final payment. In addition, the Additional Insured endorsement must be (CG2010 11-85) or (G2037 10-01) or their equivalents. e. Automobile liability coverage of no less than a $1,000,000 limit. This liability insurance shall include owned, hired and non -owned vehicles. f, $1,000,000 umbrella policy. g. Any policy of insurance covering the Subcontractor's tools, equipment or facilities against loss by physical damage is at the Subcontractor's expense and Contractor is not responsible for any loss to the tools and/or equipment for any reason. h. The General Liability and Workers' Compensation policies are to be endorsed with a waiver of subrogation in favor of Contractor. Insurance companies shall be subject to the approval of the Contractor, have at least an A- or better rating by Best, and shall contain provisions of 30 days prior notice of any important change in or cancellation of the insurance. Subcontractor's insurance certificate shall indicate that coverage is afforded for the Indemnification Clause in this Subcontract (Section 16) and as required in the General Contract. The Subcontractor agrees to furnish the Contractor with the same evidence of insurance as described above for each subcontractor employed by the principal Subcontractor. Should the Subcontractor fail to submit certificates required, the Contractor may take such steps as deemed necessary to provide proper protection and charge all costs incurred to the Subcontractor. The Subcontractor must comply with all Federal, State and Municipal laws, including Workmen's Compensation, Occupational Diseases Insurance, Unemployment and Social Security Laws and tax on transportation of property. The price of this Subcontract includes the cost of such insurance, taxes, permits, etc. The Contractor may deduct from the Subcontractor's account any expense the Contractor has incurred because of the Subcontractor's failure to comply with such laws, The Subcontractor agrees to comply with the safety requirements of Local, State and Federal authorities and all applicable requirements for safety, cleaning up, etc., as required under the General Contract. The Subcontractor will furnish to the Owner and the Contractor copies of payrolls, if required in the General Contract. 16. Indemnification. (a) Subcontractor agrees to indemnify Contractor, its officers, employees, agents and servants, the owner, and the architect or engineer against, defend and hold Contractor, its officers, employees, agents and servants, the owner, and the architect or engineer harmless from any and all claims, demands, liabilities, losses, expenses, suits and actions (including litigation expenses and attorney's fees) for or on account of any bodily injury, sickness, disease or death, or injury to any person or any death at any time resulting from such injury or any damage to or destruction of any property including the loss of use therefrom, which may arise (or which may be alleged to have risen) out of or resulting or in connection with the performance of the work, even though such injury, death or damage may be (or maybe alleged to be) attributable in part to negligence or other fault on the part of Contractor or its officers, employees, agents and employees. It is the intent of the parties that Subcontractor shall knowingly and willingly indemnify the Contractor, its officers, employees, agents and servants, the owner and the architect or engineer to the fullest extent permitted by law0 with the exception that Subcontractor shall not be obligated to indemnify Contractor (i) if judicial proceedings determine that the injury, death or damage complained of was attributable solely to the fault or negligence of Contractor and (ii) where indemnification of Contractor under such circumstances is contrary to law. Subcontractor agrees to defend all claims, suits and actions against Contractor, its officers, employees, agents and servants, the owner, and the architect or engineer (in which connection Subcontractor shall employ attorneys acceptable to Contractor) on account of any injury, death or damage to person or property and shall reimburse Contractor, its officers, employees, agents and servants, the owner, the architect or engineer for all expenses, including reasonable attorney's fees, including litigation expenses incurred by reason of such claim, suit or action or incurred in seeking indemnity or other recovery from Subcontractor hereunder. In the event Subcontractor uses any of Contractor's tools, equipment, scaffolds, ladders or temporary facilities, Subcontractor shall hold Contractor harmless from all claims, including negligence claims, which may arise out of or in connection with the use thereof. Revised February 2013 (b) Subcontractor agrees to indemnify, defend and hold Contractor harmless from any and all claims or suits for infringement of patents, or violation of patent rights, arising out of or relating to the work required of Subcontractor. Subcontractor further agrees to pay all losses and expenses incurred by Contractor by reason of such claims or suits, including attorney's fees. (c) Subcontractor shall, at the time and in the manner provided and without additional expense to Contractor, abide by and conduct the work hereunder in full compliance with any and all applicable federal, state, local and municipal laws, ordinances and orders, and any and all rules and regulations of government boards and bureaus, and shall indemnify and hold Contractor harmless from any and all liability with respect thereto. As to any materials furnished by Subcontractor or under Subcontractor's authority in completing the work, Subcontractor must submit material safety data sheets (MSDS) to Contractor and also with all deliveries to the job site in accordance with applicable federal regulations. 17. Patent infringement or Violation. The Subcontractor shall indemnify and hold the Contractor and Owner, and all their officers, agents, employees and servants harmless from claims, suits, damage, loss or liability of any nature, including costs, royalties, license fees, expenses and legal fees for or on account of use on any patented or unpatented invention article, material or appliance used or furnished under this Contract, including use by or for the Owner or agents after installation and for any alleged or actual infringement or violation of any patent or patent right, arising in connection with this Subcontract. is. Work by Other Subcontractors. (a) Contractor shall not be liable to this Subcontractor, its materialmen, laborers, or subcontractors for .any damages, loss or expenses sustained by any of them resulting from acts or omissions (whether or not negligent), failure to perform, delays in performance or defaults of another Subcontractor, materialman or supplier of.services in connection with the performance of any of the work covered by the General Contract. (b ) The Subcontractor agrees to pay (and to protect and indemnify the Contractor against any liability for) any damages, sustained by another Subcontractor, materiaiman or other party supplying labor, materials and/or services in the performance of the work covered by the General Contract resulting from this Subcontractor's acts or omissions (whether or not negligent), failure to perform, delays in performance or default in the performance of the work to be done under this Subcontract. (c ) In carrying out its work Subcontractor shall take all necessary precautions to protect properly the work of others trades from damage caused by Subcontractor's operations. Subcontractor shall cooperate with Contractor and other Subcontractors whose work might interfere with the Subcontractor's work, and shall participate in the preparation of coordinated drawings in areas of congestion as required the General Contract, and is obligated to specifically note and advise Contractor of any such interference. 19. Adequate Labor and Materials Required. Subcontractor shall at all times supply adequate tools, appliances and equipment, a sufficient number of properly skilled workmen and a sufficient amount of materials and supplies of proper quality to efficiently and promptly prosecute said work and shall promptly pay for all material purchased, required fringe benefits and shall pay all workmen each week, and if required, obtain and furnish Contractor weekly with signed receipts from all workmen showing the date of payment, amount paid, number of hours paid for, the days on which said work was performed, the classification of the labor so paid and the rate of wage per hour paid, if requested; and shall also supply Contractor weekly with two copies of payroll verified by affidavit if requested. 20. Safe Premises. Subcontractor shall provide safe and sufficient facilities at all times for inspection of the work by Contractor, Owner, Architect, Engineer, or their authorized representatives and shall within 24 hours after receiving written notice from Contractor proceed promptly to take down all portions of the work and remove from the grounds and buildings all material, whether worked or unworked, which Architect, Engineer, or Owner shall condemn or fail to approve, and shall promptly make good all such work, and all other work damaged or destroyed in removing or making good said condemned or unapproved work, all without additional cost or charge to Contractor. 21. Construction Safety and Health Regulations. The subcontractor warrants that: • The duty to provide a safe place for the performance of the Subcontractor's work under this Subcontract for the Subcontractor's employees, the employees of any other entity, or any other person on or about the Project Site rests solely with the Subcontractor, even if the General contractor, Contractor, or Construction Manager or other prime contractors are providing safety services on the site. The subcontractor warrants that: The duty to provide general or safety supervision and safety inspections of the work, equipment, and procedures of the Subcontractor, of the Subcontractor's Sub -subcontractors, and of others as it might affect the safety of Revised February 2013 7 property or persons related to the performance of the subcontractor's work under this Subcontract rests solely with the Subcontractor. The subcontractor warrants that: • The subcontractor shall designate a person in its employ, stationed full time at the jobsite during the progress of the Work, and such person shall be authorized to take prompt action in matters relating to safety on behalf of Subcontractor. Such person shall be knowledgeable in matters relating to safety through either training or experience or both. Such person shall attend all safety meetings or safety inspections held at the jobsite and take appropriate action to correct unsafe work practices which come to his attention or Subcontractor's attention. The subcontract warrants that: • The duty to take reasonable safety precautions with respect to the handling of hazardous substances, Project site cleanliness, and emergency procedures and to comply with necessary safety measures and with applicable laws, ordinances, rules, regulations, and orders of public authorities for the safety of persons and property, including but not limited to applicable OSHA standards, related to the performance of the Subcontractor's work under this Subcontract rests solely with the Subcontractor. All Material Safety Data Sheets (MSDS) for hazardous materials must be on the jobsite before material can be used and readily accessible upon request. The Subcontractor shall strictly comply with all applicable statutes, regulations, orders, rules, requirements, and standards of all governmental authorities having jurisdiction with respect to the Project, including without limitation, Federal, state and local OSHA regulations, Right to Know requirements, and Federal, state and local OSHA, Toxic and Hazardous Substances, Hazard Communication Program. The Subcontractor shall indemnify, defend and save Contractor harmless from any liability, loss, cost penalty, damage or expense, including attorneys' fees, damage, injury, course of action, which Contractor may incur as a result of any claim, damage, injury, course of action, proceeding, citation, or work stoppage arising out of or in any way connected with any alleged violation by Subcontractor of any such statute, regulation, order, rule, requirement or standard and such sums shall be deducted from amounts due under this Agreement. 22. Protection of Work. Subcontractor is not relieved of any liability or responsibility by reason of Contractor's failure to provide a watchman, even if a watchman is required by the Contractor's General Contract. The Contractor shall not be responsible for the safety of Subcontractor's materials or tools, 23. Scaffolding and Equipment. Subcontractor shall be responsible for and provide all hauling, scaffolding, tools, lifting and hoisting equipment, freight, shop drawings and equipment to perform the work provided by this Subcontract. 24. Clean-uQ. Subcontractor shall at his own expense promptly clean up and remove all rubbish, debris, water, etc., resulting from his work from the job -site and clean all equipment and materials installed by him. Should he fail to do so, the Contractor may do so and charge the Subcontractor with the cost of the work. 25. Field Dimensions and Surveys, Cutting and Patching. Subcontractor shall take his own dimensions and surveys at the site and be responsible for the accuracy of all field measurements and shall not rely on any data furnished by or prepared by the Contractor. Subcontractor shall be responsible for all cutting, fitting or patching that may be required to complete his work or to make his parts fit together properly. 26. Responsibility for Work Completed. Subcontractor agrees to be responsible for the protection of his work until final completion and acceptance thereof by the Owner and agrees to replace or repair any damage to his work occurring prior to final acceptance at no expense to the Contractor or Owner. Subcontractor shall be responsible for causing damage to other work. 27. Labor Conditions. (a) All labor used throughout the work shall be acceptable to the Owner and Contractor and of a standing or affiliation that will permit the work to be carried on harmoniously and without delay, and that will in no case or under any circumstances cause any disturbance, interference or delay to the progress of the building, structures or facilities, or any other work being carried on by the Owner or Contractor in any other town, city or location in the United States. (b ) In the prosecution of all work covered by this Subcontract, or on this construction Project, Subcontractor agrees to recognize and comply with all agreements of the Contractor with local building trade councils and/or separate unions concerning labor and working conditions and which are otherwise applicable to this work, insofar as of these agreements do not conflict with or violate any Local, State or Federal Laws or properly construed orders or regulations. Subcontractor agrees to pay the prevailing rate of wages and to proceed with his work without interruption, regardless of any trade or craft affiliations or the lack thereof on the part of any other workmen on the building Project. (c) Subcontractor agrees that where its work or the Contractor's work is stopped or delayed or interfered with by Revised Febniary 2013 8 strikes, slow -downs or work interruptions resulting from the acts or failures to act of the employees of the Subcontractor in con,cert, or by any breach of provision (a) and (b) above, then the Contractor, at its option, may terminate this Subcontract and proceed in accordance with Section 12 above. 28. Anti -Discrimination. (a ) Subcontractor, in performing the work required by this Agreement, shall not discriminate against any employees or applicants for employment because of race, creed, color, sex, or national origin. Subcontractor is required to actively pursue a policy of non-discrimination in accordance with directives of Owner or Contractor, and a failure to do so may be treated by Contractor as a breach of or default in this Agreement. (b ) Subcontractor agrees that the provisions of paragraph (a) above and any other provisions required by the General Contract regarding employment practices and anti -discrimination shall be included and inserted in all of its subcontracts or material supply agreements, and agrees in all other respects to comply with all terms and conditions contained in the Contractor's General Contract relating to employment practices. 29. Independent Contractor Status. The Subcontractor specifically agrees that he is, or prior to the start of work hereunder will become, an independent contractor and an employing unit subject as an employer to all applicable unemployment compensation statutes so as to relieve the Contractor of any responsibility or liability for treating Subcontractor's employees as employees of the Contractor for the purpose of keeping records, making reports and payment of unemployment compensation taxes or contributions; and the Subcontractor agrees to indemnify and hold the Contractor harmless and reimburse it for any expense or liability incurred under said statutes in connection with employees of the Subcontractor, including a sum equal to benefits paid to those who were Subcontractor's employees, where such benefit payments are charged to the Contractor under any merit plan or to the individual reserve account pursuant to any state unemployment compensation statue. 30. Shop Drawings and Submittals. Subcontractor shall submit to Contractor on or before (N/A) detailed drawings of material to be supplied and work to be performed in quadruplicate for approval; and after acceptance of said drawings by the Architect or Engineer, or by Contractor, Subcontractor shall promptly furnish six copies to Contractor, or more if required. The Subcontractor shall, where advisable or required, submit samples of materials to be incorporated in the work for inspection and testing, such samples to remain the property of the Contractor without additional cost. If Subcontractor shall make changes in design, including dimensional changes, either through shop drawings or actual field work, he shall accept all responsibility for structural and functional adequacy and acceptance of such changes by Owner, Architect or Engineer. Any structural or functional inadequacies which may develop because of such changes shall be remedied by the Subcontractor in spite of any approvals given by Owner, Architect or Engineer unless such change is specifically included in a change order provided for in Section 8. In addition, the costs of additional work, redoing or repairing work incurred by other trades or by Contractor resulting from such changes shall be borne by the Subcontractor. If Subcontractor is responsible for design drawings, he shall accept all responsibility for structural, functional and design adequacy of such drawings and acceptance by Owner, Architect and/or Engineer of such drawings. Any structural or functional failure or inadequacy which may result from such design drawings shall be remedied by the Subcontractor. If Subcontract is based on preliminary, outline or otherwise unfinished plans and specifications, the Subcontractor accepts responsibility for cooperating and coordinating with Architect and/or Engineer and other trades in developing final plans and specifications so as not to impose additional work or cost on other trades or Contractor or to cause an increase in the Subcontract price. If the final plans and specifications change the scope of work of this Subcontract then the Subcontract price will be equitably adjusted to the extent such adjustment is provided for in the prime contract. 31. Discrepancies. The Subcontractor shall promptly call to the attention of the Contractor any discrepancy in figures, drawings or specifications that affect his work. Any part of the work shown on drawings but not specifically mentioned in the specifications or vice versa shall be considered as part of the work the same as though included in both. 32. Licenses and Compliance With Laws. It will be the responsibility of the Subcontractor to obtain and pay for necessary licenses, fees and permits as required for his work. Should pre -registration be required, the Subcontractor warrants that it has complied with such pre -requisites. Subcontractor shall comply in every respect with all State, Federal and Municipal laws, codes, ordinances, rules, regulations and orders of any public authority relating thereto, including Revised February 2013 E without limitation, Fair Labor Standards, Equal Employment Opportunity and Wage and Price Controls. Subcontractor hereby agrees to hold Contractor harmless from any loss or expense arising out of any violation of any such law, code, rule, order or regulation. 33. Sales and Related Taxes. The Subcontractor shall be liable for any and all applicable Federal, State or Local taxes which may be assessed against materials, equipment or labor used in this part of the work. 34. Job -Site Supervision. Subcontractor shall provide a full-time, on -site job superintendent for the Project which shall be duly authorized to act for and on behalf of Subcontractor in all matters pertaining to the Project and said superintendent shall attend all job -site meetings regarding the Project when requested by the Contractor. 35. Guarantee. The Subcontractor guarantees his work for a period of one year from the date of acceptance of his work by the Owner, unless a longer period is set forth in the General Contract which then shall apply to this Contractor, and during said guarantee period, the Subcontractor will repair or replace any faulty or defective work that appears at no expense to the Contractor or Owner. 36. Time for Presenting Claim. The Subcontractor agrees to make any claims for extensions of time or for damages for delays or claims for alleged extra work or additional compensation, or otherwise, to the Contractor in the same manner as provided in the General Contract for like claims of the Contractor upon the Owner, and in such time as will enable the Contractor to present such claims to the Owner for payment or recognition, unless a shorter time for making such claims has otherwise be provided for in this Subcontract, in which event such shorter time will be required; and the Contractor will not be liable to the Subcontractor on any claim not timely or properly presented and until allowed by the Owner. 37. Lien Waiver. Subcontractor for itself and all others directly or indirectly acting for, through or under Subcontractor, in consideration of the Contractor making this Subcontract Agreement, agrees that no stop work notices, mechanic's liens or claims will be filed against the Project or premises or any interests therein, or against any fund or money due or to become due from Owner to Contractor for or on account of any work, materials, or other items performed or furnished in connection with the work, and Subcontractor hereby expressly waives, and releases all such rights to file such notices, liens and claims, and agrees that this waiver and release shall be an independent covenant and shall apply as well to work performed and materials furnished under a change order or supplemental agreement for extra work. 38. AttorneV sFees. In the event Contractor employs attorneys or incurs other expenses it may deem necessary to protect or enforce its rights under this Subcontract (or in connection with any work done or agreed to be done by Subcontractor on this construction Project), Subcontractor and the surety, if any, on its bond, jointly and severally agree to pay the attorney's fees and expenses so incurred by the Contractor. Also, wherever in this Subcontract Subcontractor agrees to pay expenses incurred by Contractor such expenses shall include, but are not limited to, attorney's fees incurred by Contractor. 39. Possession Prior to Completion. Whenever it may be useful or necessary for the Contractor to do so, the Contractor shall be permitted to occupy or use any portion of the work which has been either partially or fully completed by the Subcontractor before final inspection and acceptance thereof by the Owner, but such use or occupation shall not relieve the Subcontractor of his guarantee of said work and materials nor of his obligation to make good at his own expense any defect in materials or workmanship which may occur or develop prior to Contractor's release from responsibility to the Owner. Provided, however, the Subcontractor shall not be responsible for the maintenance of such portion of the work as may be used or occupied by the Contractor, nor for any damage thereto that is due to or caused by the negligence of the Contractor during such period of use or occupancy. 40. Non -Assignment. Subcontractor may not assignor sublet all or any portion of this Subcontractor the right to receive any payment hereunder without first obtaining written consent of Contractor. In no case shall the letting of any subcontract by Subcontractor relieve the Subcontractor of his liability and obligations under this Contract. If Contractor pays for, or guarantees payment for, materials or equipment to be used by Subcontractor in performance of this Contract, the gross billed cost of same shall be deducted from the sum due Subcontractor hereunder. 41. Applicable Law. This Subcontract shall be governed according to the laws of the State of Indiana. 42. Notices. Any notice given under the provisions of this Agreement shall be in writing and delivered personally or sent by certified mail as follows: (a) to Contractor - The Robert Henry Corporation P.O. Box 1407 Revised February 2013 10 404 South Frances Street South Bend, Indiana 46624 (b) to Subcontractor - C&S Drywall Inc. 50783 Cobus Ridge Lane Granger, Indiana 46530 Notice by certified mail shall be deemed given at the expiration of the time normally required to make delivery. 43. Nan -Waiver. (a) The Contractor's right to require strict performance of this Agreement shall not be affected by any previous waiver or course of dealings. Permitting Subcontractor to continue after the date of scheduled completion shall not be construed as a waiver of any such claim or damages or increased costs due to delays. (b) Every provision of this Agreement is intended to be everable such that, if any term or provision hereof is illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 44. Time is of the Essence. All dates expressed in this Agreement or set forth in any notice given by Contractor under the terms of this Agreement are of the essence of this Agreement. 45. Entire Agreement. This writing, together with documents referred to herein, represents the entire Agreement and Contract between the parties. There are no agreements, understandings, inducements or representations, oral or otherwise, leading up to or inducing the execution of this Agreement, which are not contained herein. This Agreement may not be modified except by a writing signed by both the parties hereto. IN WITNESS WHEREOF, the parties hereto have hereunto executed this Subcontract Agreement on the day and vear first above written. Revised February 2013 11 SUBCONTRACTOR By. Title; Final Waiver of Lien State of Indiana, County of S V/OSE z� SS, rS toe 2!�-— being duly sworn that he/she is the {Name of O r) (Title) 1 36MIi,, mF Of TN6'R48 1CT !{�f cb�oni _ having contracted with 'Ve 4 saw> Lac W CKS (Contractor) (Owner) to lft mash certain materials andlor labor as follows; S 1TG e1r wwr e Con1s � 0 a (Description) for a project known as located at and owned by FA t- (Name (Owner) and does hereby Anther state on the behalfofthe aforementioned subcontractor/supplier: (PARTIAL WAIVER) that there is due from the Contractor the sum of ❑ receipt of which is hereby acttmowlodged; or 14 Dollars ❑ the payment of which has hoop promised as the sole consideration for this Affidavit and Final Waiver ofLfenwhich is given sololy with respect to said amount, and which waiver shall be 80e31vo only upon receipt of payment thereof by the undersigned; (FINAL WAIVER) that the final balance due &oam the contractor is the sum of ❑ receipt of which is hereby acknowledged; or ❑ the payment of which has been promised as the sole consideration for this Aftldavlt and Final Waiver of Lien which shell become effective only upon recolpt of such payment. THBREFORE, the undersigned waives and releases unto the Owner of said premises, any and all liens or claims whatsoever on the above-deserlbed property and improvements thereon as account of labor or material or both, furnished b the undersigned thereto, subject to ihmitations or conditions expressed herein, if any; and further certified thatno other party has any claim or right to a Zion on account of any work perfomed or material furnished to the undersign or said -ect, and within the scope oftbis Affidavit and Waiver of Lien. Ro&e*-T By t� u) m (Authoriz presentative) STATE O INDIANA ) SS; ST. JOSEPH COUNTY ) Before nee, the undersigned, a Notary Public, In and for said County and State, personally appeared and acknowledged the oxecuflon of the foregoing Affidavit and Waiver of Lien. _ IN WITNESS WHMOF, Ihave hereunto subscribed my name and affixed my official seal on the day of 200 Notary Public Signature My Commission Expires; Residing in County, -- - Notary Publio Name ri Al BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 02/20/2018 Department Public Works Name Toy Villa Division/Bureau Engineering BPW Date 02/27/20118 Phone Extension 5920 Legal ❑ Attorney Name: Controller ❑ Controller review is required for all Contracts $5,000.00 or more and greater than one year in length per the City Purchasing Policy Purchasing El LJ Agreement El Professional Services F-1 Bid Opening F-1 Quote, Opening F-1 Change Order No. 0 Ease/Encroach. F1 Other: ■Contract ❑Resolution F] Bid Award ■Quote Award C/O & PCA No. 2 Final F-1 Traffic Control: Company or Vendor Name New Vendor MBE/WBE Contractor MBEANBE Contractor Requested Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description ME=$ FWAX 111% we n Req, to Advertise E] Title Sheet The Robert Henry Corporation (Division A & Alternate Al) El Yes E No If Yes, Approved by. Purchasing ❑ MBE [:1 WBE [TN_ oE:1 Yes Name of Company Newman Center Site Development 117-06OR REDA TIF 429-1050-460-42.02 (Division A & Alternate Al) Proiect Closeout [:] Required Contractor's Certification Forms Attached (Non - Collusion, Non-Discrim !nation . Non -Debarment, E-Verifv. Iran. etc. Amount of M Increase $3,275.25 Decrease $ Previous Amount $ 336,554.32 Current Percent of Change: 0.97% New Amount $ 339,829.57 Total Percent of Change: -8.46% Dispersal After Approval Copy Original F-1 F1 1:1 1:1 El 1:1