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Home My WebLink AboutDedicated Improvements Agreement - Guarantees the City a Performance Bond - Rieth Riley Construction Co., Inc.1316 COUNTY -CITY BUILDING 227 W.JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS June 9, 2020 Mr. Joshua McCormick Rieth-Riley Construction Co., Inc. 25200 State Road 23 South Bend, IN 46614 ,j!I ccornFjck'.. rl ,t�z rlj, ; RE: Dedicated Improvements Agreement Dear Mr. McCormick: PHONE 574/235-9251 FAx 574/ 235-9171 The Board of Public Works, at its meeting held on June 9, 2020, approved the above referenced agreement that guarantees the city a performance bond in case of damage to Ameritech Dr. due to Rieth-Riley's use of a temporary concrete plant. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, s/Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR DEDICATED IMPROVEMENTS AGREEMENT This Dedicated improvements Agreen-ient (the "Agreement") is made on this K—A day of J� _ 20 SO , by and between the City of South Bend, Indiana, an Indiana municipal corporation (the "City"), acting by and through its Board Of Public Works (the "Board"), and Rieth Riley Construction Company, an incorporated entity with an address of 3626 Elkhart Rostd., Goshen, Indiana (tile "Owner"), in order for the Owner to temporarily occupy and construct or re- construct dedicated improvements in the public right-of-way (the "R.O.W.") along Ameritech Drive and Business Center Drive within the City's municipal boundaries (the "Project Area"), WHEREAS, the City holds title to the Project Area, including the R.O.W,; and WHEREAS, Owner's project site is located at the property with legal description of Lot 2A Park One Northwest Minor #1 First Replat within the City; and WHEREAS, Owner is able to furnish proof of permission to use said parcel; and WHEREAS, pursuant to the City's Municipal code, the City's Engineering Department has granted Owner a permit for the temporary use of the Business Center Drive R.O.W. and use of the Ameritech Drive R.O.W. for construction traffic in order to facilitate construction Of Owner's project for the US-31 ByPass reconstruction and Brick Road pavement replacement; and WHEREAS, upon completion of the work within the Project Area, Owner intends to remove all temporary structures, regrade, and reseed the Project Area ("Dedicated Improvements") as more particularly set forth on Exhibit A, which is attached hereto and incorporated herein by reference, upon the completion of its temporary Occupancy or use of or in the relevant R.0,W.; NOW, THEREFORE, in consideration of the obligations, terms and conditions contained herein, and the above recitals which are incorporated into this Agreement, the adequacy of which consideration the parties expressly acknowledge, Owner and the City agree as follows: 1. Recitals The parties hereto acknowledge and agree that the foregoing recitals are incorporated herein as a part of this Agreement. 2. Construction Inspection The Owner has provided the City with Exhibit A, which depicts drawings of the Dedicated Improvements, which the City acknowledges conforms to the City's standards, The Owner shall allow the City to inspect the Dedicated Improvements during construction to ensure conformance to the agreed standards set forth in Exhibit A, in particular with regard to area planning, adequacy of design, and quality of construction. The Owner shall contact the City's Engineering Department at least two (2) business days in advance to arrange for the attendance of a City inspector at key milestones throughout Nvork within the R.O.W. Key milestones shall include but not limited to: hot mix asphalt placement, placement of any drainage apparatus, utility tapping, concrete placement, light installation, tree installation or removal, placing of any type of fill, and grading, The Dedicated Improvements will conform to the City Of South Bend Construction Standards and Exhibit A, The Owner agrees to perform any necessary adjustments as reasonably required by the City, in the sole discretion of the City Engineer or her designee, as a result Of Such inspections, where the Dedicated Inirpovements do not meet the City of South Bend ConstrUC11011 Standards. The failure of Owner to comply with this Section 2 shall be a material breach of this Agreement. 3. Permits It shall be Owner's sole responsibility and expense to obtain all permits associated with the construction and installation of the Dedicated Improvements in the R.O.W. and to comply with all applicable laws. Owner's failure to comply with this Section 3 shall be a material breach of this Agreement. 4. Performance Bond Concurrently upon the exeCLItiOn Of this Agreement or Nvithin seven (7) days thereof, Owner shall provide the City with a performance bond for an amount equal to $45,000 to cover any potential damage to the R.O.W. Owner's failure to provide the performance bond as prescribed herein shall cause this Agreement to be immediately terminated and of no effect, without the requirement of notice. A --fff—d .9 ursuant te tlq- I- - -M- 6. Term Except as otherwise provided herein, this Agreement shall continue for a period of eight (8) months From the Effective Date of this Agreement, Or upon final acceptance of the US-3 I ByPass reconstruction and Brick Road pavement replacement, whichever occurs last. 7. Dedication Upon completion of the construction of the Dedicated Improvements, substantially as depicted in Exhibit A, the Owner shall use its best efforts to work with the City to ensure that the Dedicated Improvements are dedicated to the City in a timely manner. It is understood by Owner that no dedication shall be accepted by the City until all required easements have been conveyed, accepted, and recorded by the City. Additionally, prior to dedication, the following must be satisfied: a. All pails and labor Must rneet the requirements stated in the design specifications as presented to and approved by the City Engineering Department. b, Owner must provide copies of test reports or cut sheets on all materials Supplied. C. 0WlICr Must provide As -Built drawings in accordance with the City of South Bend Construction Standards and Specifications, which may be found at 1"71 1 Owner's failure to comply with this Section 7 shall be a material breach of this Agreement, 8. Indemnification Owner shall indemnify, defend, and hold the City, and its respective agents, employees, Successors, and assigns, harmless from any liability, loss, costs, damages or expenses, including reasonable attorneys' fees, which the City may suffer or incur as a result of any claims or actions which may be brought by any person or entity arising out of this Agreement. If any action is brought against the City or its respective ftget*t, employees, successors, or assigns, in connection with this Agreement, Owner agrees to defend Such action or proceedings at its own expense, using counsel acceptable to the City, and to pay promptly any jUdgi-rient rendered therein. 9. Insurance Owner, at Owners sole expense, shall maintain during the term of this Agreement, commercial general liability insurance covering the company and activity in the amount not less than Five Million Dollars ($5,000,000) per occurrence. Owner agrees to include the City as an additional insured on any such policy and produce to the City a certificate of insurance evidencing the same within tell (10) days of the execution hereof. To the extent that the City is harmed as a result of the Construction of the Dedicated Improvements, Owner hereby grants the City first priority oil any proceeds received from the Owner's insurance. Notwithstanding anything in the Agreement to the contrary, the City does not waive any governmental immunity or liability limitations available to it under Indiana law, 10. Assignment This Agreement may not be assigned by Owner, including through a Change in Control event, without the express written consent of the City which Such consent may be withheld for any reason. A Change in Control event shall mean either (a) the merger of Owner into or with all unrelated third party entity, (b) a transaction or series of related transactions in which a third party becomes the beneficial owner of fifty percent (50%) or more of the membership units of Owner, or (c) the sale of all or Substantially all of the assets of Owner. A violation of this Section 10 shall be a material breach of this Agreement. 11. Material Breach The parties agree that a material breach of this Agreement by Owner Would have a material adverse effect upon the City. In the event of a breach by Owner of any of its obligations hereunder, the Owner shall cure such breach, if curable, within seven (7) days after written notice thereof from the City. Upon the failure by the Owner to Cure any Such breach, or if the breach is material and incurable, the City may immediately terminate this Agreement and call on the performance bond. 12. Governing Law and Jurisdiction This Agreement shall be construed and interpreted according to the laws of the State of Indiana and shall be enforced in any court of con-ipetent jurisdiction in St. Joseph County, Indiana. 13. Severability Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent Of such prohibition or invalidity, without invalidating the reunainder of such provision or the remaining provisions of this Agreement. 14. Waiver No provision of this Agreement will be deemed waived unless such waiver will be in writing and signed by the party against which the waiver is sought to be enforced. The waiver will not be construed to be a waiver of any succeeding breach of ally such provision, a waiver of the provision itself, or a waiver- of any other provisions of this Agreement. No delay or ornission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have under this .Agreement will operate as a waiver of any breach or default 15. Time Time is ofthe essence of this Agreement, 16. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Owner and the City as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understanding of any and every nature between them. 17. Corporate Authority The person signing on behalf of the Owner represents that he/she has beeii duly authorized to exeCLItC this Agreement on behalf of said Owner. (Renwineler• ol'Page intentionally lefi blank) IN WITNESS WHEREOF, the Owner and the City, through their- duly authorized representatives, have caused this Agreement to be executed as of the Effective Date. The parties have rear[ and understand the, foregoing terms of this Agreement and do, by their respective signatures hereby agree to its terms, BOARD OF PUBLIC WORKS Rieth Riley Construction Company Gary A. Gilot, President ✓ Elizabeth A. Maradik, Member Therese J. Dorau, Member Jordan V. Gathers, Member Joseph R. Molnar, Member ATTEST: �Ti1�2Ca �lCa1T7iP Linda M. 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R. f Ch ... .... ...... !is t is I cl K 49 z g Wi 'T n t F Tf YE u 4N z i tit eud0 p or-r ITA, IQ I' M 'ON39 HMOS 3AM HOUHM ' AINNOU AHOM Z)NOZ) AW31 A31WHil3m NVld NOIINgAM Nounlio 3H:)N'VWNOU)V 831VM WHOIS NY ar MMMEMEM IRRNTH• �6� Over 100 Years KNOW ALL MEN BY THESE PRESENTS, that the undersigned President of Rieth-Riley Construction Co., Inc., a corporation duly organized and existing under the laws of the State of Indiana, hereby represents and confirms that J. Eric Engleking, Regional VP Northern IN, has full power and authority to make, execute, seal, if required by law, and deliver for and an its behalf, and as its act and deed any and all bids, proposals or contracts, said bids, proposals or contracts not to exceed $10,000,000.00which bids, proposals or contracts call for work, services, or materials to be furnished by Rieth-Riley Construction Co., Inc., whether such bids, proposals or contracts are being submitted to an individual or entity, public or private, and to bind Rieth-Riley Construction Co., Inc. thereby as fully and to the same extent as if such bids, proposals or contracts were signed by an Executive Officer of Rieth-Riley Construction Co., Inc., and sealed, if required by law, and attested by one of such officers, and hereby ratifies and confirms all that the above named designee may do in pursuance hereof. The authority granted to the above named designee is pursuant to Section 6.03 of the Restated By -Laws of Rieth-Riley Construction Co., Inc,, as amended, which Restated By -Laws were effective February 9, 2010, and which Restated By -Laws, as amended, and the authority granted to the above named designee continue in full force and effect, This Certificate of Authority is issued, signed and sealed, if required by law, by facsimile under and by authority of the following standing resolutions adopted by the Board of Directors of Rieth-Riley Construction Co., Inc., at a meeting held on the 16th day of February, 1996, at which a quorum was present, and which resolutions have not been amended or repealed and continue in full force and effect: "Resolved that for purposes of'clarification and in furtherance of the intent of Section 6.03 of the By -Laws of the Company the authority granted in Section 6.03 shall extend to the making, execution, seating, if required by law, and delivery an behalf of the Company of all documents required as part of any bid, proposal or contract, which is for work, services or materials to be furnished by Company and which is being submitted to an individual or entity, public orprivate. " "Resolved that in carrying out the provisions of Section 6.03 of the By -Laws of the Company the signatures of such directors and officers and, if required by law, the seat of the Company may be affixed to any such Certificate of Authority or any Certificate relating thereto by facsimile, and any such Certificate of Authority or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company and any such Certificate of Authority so executed and certified by facsimile signature and facsimile seal shall be valid and binding upon the Company, with respect to any bid, proposal or contract to which it is attached.'„ IN WITNESS WHEREOF, Rieth-Riley Construction Co., Inc., has caused these presents to be signed by its President and its corporate seal to be hereto affixed. this 8th day of June, 2018. RIETH-RILEY CONSTRUCTION CO., INC. ,SEAL A. Keith Rose, President STATE OF INDIANA )SS: COUNTY OF ELKHART On this 8th day of June, 2018, before me personally came A. Keith Rose, to me known, who, being by me sworn, did depose and say: that he is President of Rieth-Riley Construction Co., Inc., the corporation described in and which executed the above instrument; that he knows the seal of said corporation: that the seal affixed to the said instrument is such corporate seal; and that he executed the said instrument on behalf of the corporation by authority of his office pursuant to corporation's Restated By -Laws and standing: resolutions. My Commission Expires: March 16, 2024 YP Js Ronya Phillips, Notary Public Residing in Elkhart County, Indiana 1, Robert L. Konopinski, do hereby certify that I am the duly appointed and acting Secretary of Rieth-Riley Construction Co., Inc., a corporation duly organized, validly existing and in good standings under the laws of the State of Indiana; that the foregoing Certificate of Authority has neither been amended or rescinded and remains in full force and effect; and furthermore, that the Restated By -Laws and standing resolutions of the corporation, as referred to and set forth in this Certificate of Authority, continue in full force and effect. Signed and Sealed at the Corporate Office of Rieth-Riley Construction Co,, Inc., in the City of Goshen, State of Indiana. Dated this day of , 20_. Robert L. Konopinski, Secretary P,O. Box 477. 3626 Elkhart Rd. • Goshen, IN 46527 Phone: (574) 875-5183 www.rieth-riley.com BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 06/03/2020 Name Zach Hurst Department DPW BPW Date 06/09/2020 Phone Extension 3057 Required Prior to Submittal to Board BPW Attorney ® Attorney Name Clara McDaniels Dept. Attorney ❑ Attorney Name Purchasing ❑ Check the Appropriate Item Type — Required. for All Submissions ❑ Professional Services Agreement ❑ Contract ❑ Proposal ❑ Open Market Contract ❑ Amendment/Addendum ❑ Special Purchase, QPA ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Reject Bids/Quotes ❑ Proposal Opening ❑ C/O & PCA No. ❑ PCA ❑ Chg. Order, No. ❑ Traffic Control ❑ Resolution ® Other: Dedicated ❑ Ease./Encroach Company or Vendor Name New Vendor MBE/WBE Contractor Project Name Proj ect Number Funding Source Account No. Amount Terms of Contract Rieth R ❑ Yes Information i Construction Com If Yes, Approved by Purchasing ❑ No El ❑ MBBE ❑ Completed E-Verify Form Attached ❑ Yes No Cleveland Rd./Brick Rd. Pavement Improvements 119-045 Purpose/Description This DI agreement memorializes Rieth Riley's use of a temporary concrete plant on Ameritech Drive, and guarantees the City a performance bond in case of any damage to Ameritech Drive during use. For Change Orders Only Amount of ❑ Increase $ ❑ Decrease ($ ) Previous Amount Increase Current Percent of Change: Decrease New Amount $ Increase Total Percent of Change: Decrease Time Extension Amount: New Combletion Date: