Loading...
HomeMy WebLinkAboutConcrete Repair Agreement - Ziolkowski Construction1 CONCRETE REPLACEMENT AGREEMENT This Concrete Replacement Agreement (the “Agreement”) is made this 10th day of June 2025, between the City of South Bend, Indiana, acting through its Board of Public Works (the “City”) and Ziolkowski Construction, Inc. (“Contractor”). The City and Contractor are sometimes referred to herein individually as a “Party” and collectively, as the “Parties.” RECITALS A. On or about December 17, 2020, the City contracted with Contractor (the "Contract") to perform renovation work at Seitz Park (the "Project"). B. The City, by its consultant, American StructurePoint, by written report dated October 29, 2024, identified cracks in certain areas within the boundaries of the Project where concrete was poured, which the City alleges are the result of Contractor’s workmanship (“Alleged Defects”). Contractor does not agree that the cracks are the result of Contractor’s workmanship. C. The Parties hereto have each reviewed the American StructurePoint October 29, 2024 report and the Alleged Defects and hired structural engineering experts to review the cause of the Alleged Defects. Therefore, in exchange for the mutual consideration described below, the Parties agree as follows: TERMS 1. Contractor, at its sole cost and expense, shall repair the Alleged Defects in those areas identified in the StructurePoint October 29, 2024 report in a manner that conforms to the concrete specifications as defined in the December 17, 2020 contract. Contractor shall coordinate 2 any required mobilization with the adjacent property owners. Notwithstanding any breach of Contractor’s duty to perform the repair to the Alleged Defects in a manner that conforms to the concrete specifications, Contractor shall only have the obligation to repair the Alleged Defects one time. All future maintenance, and repair and warranty work to the concrete in the areas identified in the American StructurePoint October 29, 2024 Report and the Alleged Defects after this one-time corrective action shall be a City expense. 2. Contractor agrees to perform the work necessary to repair the Alleged Defects in the areas identified in the American StrucurePoint October 29, 2024 Report in Areas C, D and E in a timely manner no later than June 30, 2025, and in Areas A and B promptly after completion of Areas C, D and E. Contractor will be fully demobilized from Areas C, D and E by June 30, 2025. 3. The Parties agree that all other warranties and performance bonds associated with the Project will remain in place, consistent with applicable State law. 4. The City agrees that the Project has been substantially completed by Contractor and the City shall ensure that all remaining pay applications, if submitted, and retainage have been properly processed and released for the benefit of Contractor. 5. The City, or a designee of the City’s choosing, reserves the right to inspect the repair work at any time. The City, or its designee, shall conduct inspections promptly upon notification from Contractor that each Phase of the repair work to the Alleged Defects has been completed. The City Engineer, or a designee shall provide Contractor with a letter stating whether the repairs have been completed to the satisfaction of the City promptly upon completion of each Phase. If any deficiencies are noted, the City Engineer, or a designee, will provide written notice to Contractor detailing the deficiencies and the parties will jointly reconvene to determine a mutually agreeable solution.. 6. To the extent necessary, Contractor, at its sole cost and expense, shall obtain all required licenses and permits. 3 7. The Parties have entered into this Agreement freely and voluntarily and with the advice of legal counsel. No Party shall be deemed to be the drafter of this Agreement. 8. The Parties each represent and warrant that the individual signing the Agreement on behalf of such Party is duly authorized to enter into this Agreement and to execute and legally bind such Party to it. The Parties further represent and warrant that they have taken all necessary corporate and legal actions to duly approve the making and performance of this Agreement and that no further corporate or other approval is necessary; and that the making and performance of this Agreement will not violate any provision of law or of their respective articles of incorporation or by-laws. 9. The Agreement has been entered into without any concession of liability or non- liability whatsoever . 10. All rights of both Parties under this Agreement are specifically reserved. Any payment, act or omission by a party shall not impair or prejudice that Party’s remedies or rights under this Agreement. Any right or remedy stated in this Agreement shall not preclude exercising any other right or remedy, whether under this Agreement, the law, or at equity; and neither shall any action taken in exercising any right or remedy be deemed a waiver of any other rights or remedies. 11. This Agreement does not, and is not intended to, create any rights in, or waive any rights with respect to, any third Parties or any other properties than those at issue in the dispute. No one other than the Parties shall have any legally enforceable rights or benefits under this Agreement. 12. No Party shall assign any rights or obligations conferred by this Agreement, whether actual or potential, except by merger, without first obtaining the express written consent 4 of the other Party, but the Parties agree that one or more of Contractor’ subcontractors will be performing the Repair Work referenced in this Agreement. 13. The Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective executors, administrators, predecessors, successors and subsidiaries. 14. If any part, term or provision of this Agreement shall be deemed to be prohibited, invalid, or unenforceable by any applicable law, such a provision shall be replaced by a provision which comes as close as possible to the intended result of the invalid provision, and the economic purpose thereof, and which is valid and enforceable. The invalidity of any part, term or provision of this Agreement shall not invalidate or affect the remaining parts, terms or provisions hereof and all such remaining parts, terms and provisions shall remain in full force and effect. 15. Any communications or notice to be provided pursuant to the Agreement shall be sent by certified mail, return receipt requested, to the attention of the persons indicated below, until such time as notice of any change of person to be notified or change of address is forwarded, in writing to the following: (a) South Bend: City of South Bend, Indiana Department of Law 227 West Jefferson Blvd. Suite 1200 South Bend, IN 46601 Attn. Corporation Counsel (b) Ziolkowski Construction, Inc.: c/o Robert Bash Address: 450 Ralph Jones Drive South Bend, IN 46628 5 16. This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. The Agreement is effective upon execution by all Parties. 17. This Agreement shall be construed and enforced in accordance with the laws of the State of Indiana. Either Party may seek to enforce this Agreement in the Courts of St. Joseph County, Indiana. 18. This Agreement represents the entire understanding of the Parties. Any previous agreements, communications, correspondence, or drafts shall not be employed to construe this Agreement and are not evidence of the Parties’ intent in entering this Agreement. Any agreed modification to this Agreement shall be made in a writing executed by the Parties. [Signatures on following page] 6 Ziolkowski Construction, Inc. City of South Bend, Indiana Board of Public Works By:___________________________ By:_____________________ Printed: _______________________ It’s: __________________________ ________________________ ________________________ ________________________ ________________________ Clerk of the Board of Public Works: ___________________________ June 10, 2025 7