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County Form 59 - NON EMEGENCY REPAIRS $5,000 BUT LESS THAN $50,000
NON EMEGENCY REPAIRS $5,000 BUT LESS THAN $50,000
PROJECT NAME: _____________________
This CONTRACT is made and entered into by and between ____________________________, a Corporation hereinafter referred to as the “Contractor” and the Lake County Board of Commissioners, hereinafter referred to as the “Board”.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Board and the Contractor do hereby mutually agree as follows:
I. PUBLIC WORK PURCHASING METHOD
A. This is a public work project governed by IC 36-2-12-1 through IC 36-1-12-24.
B. The purchasing authority is identified by an “x” below:
II. TOTAL CONTRACT PRICE
A. For the delivery of the services rendered by the Contractor, the Board shall pay to the Contractor the sum of ________________________________________DOLLARS AND ___/100THS ($____________).
B. The source of funds for payment under this Contract is_________________________
III. CONTACT PERSONS FOR THIS PROJECT
IV. EXECUTION AND START DATES
A. Execution Date: This contract is executed this _____ day of ______________, 20____.
B. Start Date:The date that the Contractor can commence the work under this contract is the date that all the following items indicated by an “x” are on file with the Lake Board Auditor who will then inform the Contractor and the Board of compliance. After being notified, the written notice to proceed required by statute shall be issued by the Board’s representative.
1. Payment Bond:
▢ No payment bond is required since the total contract price is two hundred thousand dollars ($200,000) or less and the Board elected not to require a payment bond.
2. Performance Bond
a. ▢ The Contractor shall furnish the Board with a performance bond which shall be in the amount equal to the total contract price. The performance bond must specify that none of the following will discharge the surety:
1. A modification, omission, or addition to the terms and conditions of the public work contract, plans, specifications, drawings, or profile.
2. A defect in the public work contract; or
3. A defect in the proceedings preliminary to the letting and awarding of the public work contract and.
4. Actions against a surety on a performance bond must be brought within one (1) year after the date of the Board's final settlement with the Contractor as the surety on the performance bond will be released one (1) year after the date of the Board’s final settlement with the Contractor.
b. ▢ No performance bond is required since the total contract price is Two Hundred thousand dollars ($200,000) or less and the Board elected not to require a performance bond.
3. Worker’s Compensation Insurance.
a. ▢ The Contractor shall carry Worker’s Compensation Insurance on its employees and require that there be carried Worker’s Compensation Insurance for all the employees and its subcontractors consistent with IC 22- 3 and/or any subsequently enacted applicable statute.
b. ▢ The Worker’s Compensation Insurance shall be effective for acts occurring during the entire life of this contract.
4. Public Liability and Property Damage Insurance.
a. The Contractor shall carry public liability and property damage insurance in amounts as outlined below by the “x”:
▢ Seven hundred thousand dollars ($700,000) for the death or injury to one (1) person in anyone (1) occurrence and five million dollars ($5,000,000) for injury to or death of all persons in the occurrence as required by IC 34-13-3-4
▢ provide public liability and property damage insurance in the amount of One Million Dollars ($1,000,000) for each occurrence and Two Million Dollars ($2,000,000) in the general aggregate.
b. The Board, Lake Board offices and their elected officials, Lake Board Departments, and Lake Board employees shall be named as an additional insured and be fully protected.
V. SEVEN DOCUMENTS THAT ARE INCORPORATED AS PART OF THIS CONTRACT BY REFERENCE
A. The plans and specifications prepared for this project and approved by the Lake County Board of Commissioners at a public meeting.
1. If the cost of the project is more than one hundred thousand dollars ($100,000), the plans and specifications must be approved by an architect or engineer licensed under IC 25-4 or IC 25-31.
2. All plans and specifications for public buildings must be approved by the state department of health, the division of fire and building safety, and any other state agencies designated by any statute.
B. The provisions enumerated in Board Form 16, the Board of Commissioners, Board of Lake Specifications for the Return of Bids for Public Construction.
C. The bid, quote, or proposal submitted by the Contractor.
D. The letter of recommendation submitted by the Board’s representative identified in Paragraph III(A) above.
E. All the applicable provisions of IC 36-1-12-1 to 24.
F. All provisions of State Law applicable to the Board and/or governmental entity or entities which is/are a party to this Contract are incorporated by reference as a part of this contract.
G. The provisions enumerated in Board Form 1, General Instructions to Bidder.
VI. SCOPE OF WORK
A. The Contractor shall provide the project services in accordance with the following:
1. The approved plans and specifications, and any modifications or addenda thereof.
2. The terms that are contained in any permits obtained.
3. The contents of the Contractor’s bid/response and any supplemental responses, and subsequent negotiations arising therefrom which are all incorporated herein by reference.
4. The provisions of all State of Indiana Business and Construction codes contained in statues and/or regulations issued by the appropriate State of Indiana Department.
B. Where there is an inconsistency between any term in the above, the term that is most beneficial to the Board shall control.
C. The Contractor shall comply with all plans, specifications, terms and conditions of this Contract. Deviation from the plans, specifications, terms or conditions shall be a basis for the immediate cease and desist notice of the unauthorized activity issued by the Board or the Board’s representative. Work shall stop until the matter is resolved.
D. The Contractor shall identify and comply with all health, safety, environmental, zoning and other laws relevant to the performance of the work to be performed.
VII. PROGRESS REPORTING
A. The Contractor shall submit to the Board’s representative a construction progress report every other week or as agreed upon.
B. The Board’s representative shall review the report, discuss with the Contractor’s representative any problem areas, and keep the Board informed of the status through submission of the Board’s representative’s own periodic written progress reports to the Board.
C. Information and documents that are the property of the Board shall be made available in accordance with Indiana Open Records Law.
D. The Board recognizes and acknowledges that in the course of performing the services provided by the Contractor the Board may have access to certain confidential or proprietary information of the Contractor about the Contractor’s business. The Board agrees that at no time during or after performance of this contract shall the Board disclose any confidential or proprietary information to any person unless required by law or upon obtaining the prior written consent of the Contractor.
VIII. PAYMENT FOR WORK PERFORMED
A. Billing for the services rendered under this contract shall be in the form and manner prescribed by the State of Indiana and the Board.
B. No payment shall be made to the Contractor until:
1. The Contractor has filed with the Board a waiver of lien and verified statement that all expenses incurred for subcontractors, material suppliers, laborers, and those furnishing services have been paid in full for the work covered by the payment request.
2. The Contractor shall use the claim form required by the State Board of Accounts but is encouraged to use in its application and certificate for payment a format that provides information on the following:
a. The original contract sum.
b. The net change to date through change orders.
c. The total contract sum with change orders.
d. The total completed to date.
e. The retainage to date on completed work and stored materials.
f. The total earned to date less retainage.
g. The total less previous certificates for payment.
h. The current payment due.
i. The balance to finish plus retainage.
j. A change order summary indicating additions and deductions approved in previous submissions by the owner.
k. A Contractor’s affidavit which specifically lists the Contractor’s names and those of subcontractors and the nature of their subcontract work illustrating the contract price, the amount already paid, the amount covered by their waiver and the balance yet due.
3. The Board’s representative who is directly responsible for the project and who can verify the accuracy of the payment request has filed with the Board a written report certifying that the work performed by the Contractor required under this contract and covered by the payment request has been completed and payment is due.
C. Any change order up to 10% of the amount of the original contract can be approved by the licensed architect or engineer assigned to the public work project or if there is none then by the Lake Board Building Superintendent.
D. Should there be a dispute regarding any invoice or payment, the party raising the dispute shall notify the other party upon discovery of the reason. Payment of any invoice shall not be a waiver of any right associated with a dispute and with the invoice or payment, and any future payment may be modified accordingly to rectify any discovered discrepancy.
E. Approval of and payment of claims is governed by Lake Board Council ordinance which permits the claim payment by the Auditor before Board allowance at a public meeting
F. By execution of this Contract the Lake County Board of Commissioners or Lake Board is not agreeing to use funds other than the funds in the budget designated for this project. The sources are restricted to those funds which have been appropriated for this purpose by the Lake Board Council as applicable and approved by the Department of Local Government Finance, the State Board of Accounts and/or the Department of Local Government Finance, as applicable. In this regard this Contract may be terminated, in whole or in part, when the Lake Board Auditor makes a written determination that the funds are not appropriated or otherwise available to support continuation of performance. Such determination shall be final and conclusive. Notice shall be given to the Contractor as soon as the Board is aware of such a situation. However, the Board will make good faith efforts to provide funding for this Contract, and if such funding is available and appropriated, the Board shall fulfill its financial obligation, subject to all this contract’s terms and condition
Although the contract is for two hundred thousand dollars ($200,000) or less, the retainage required for this contract is that identified by an “x” as follows:
▢ Withhold _______% of all work satisfactorily completed until the public work is fifty percent (50%) completed (This can be no more than ten percent (10%) nor less than six percent (6%); or
▢ Withhold _________% of all work satisfactorily completed until the public work is substantially completed (This can be no more than five percent (5%) nor less than three percent 3%).
▢ If upon substantial completion of the public work minor items remain uncompleted, an amount equal to two hundred percent (200%) of the value of each item as determined by the architect- engineer shall be withheld until the item is completed. Required warranties begin not later than the date of substantial completion.
▢ No retainage required.
X. CHANGE ORDERS
A. If it becomes necessary to change or alter the original specifications, a change order may be issued to add, delete, or change an item or items in the original contract. The change order becomes an addendum to the contract and must be approved and signed by the Board and the Contractor.
B. If a licensed architect or engineer is assigned to the public work project but not as the Board’s representative, the change order must be prepared and recommended by that person. If there’s no such person, then the change order responsibility is assigned to the Board’s representative.
C. A change order may not be issued before commencement of the actual construction, reconstruction, or repair except in the case of an emergency. Should this occur, the Board must make a declaration and must show the nature of the emergency in the Board’s minutes.
D. The total of all change orders issued that increase the scope of the project may not exceed twenty percent (20%) of the amount of the original contract. A change order issued because of circumstances that could not have been reasonably foreseen does not increase the scope of the project.
E. All change orders must be directly related to the original public work project.
XI. DISPUTE RESOLUTION
A. The intent of the parties is to settle all disputes if they arise through the dispute resolution procedure outlined in this section.
B. However, one party feels that there is a default in any of the contract’s terms and conditions and does not feel that the procedure in this section meets its action requirements, then the party complaining of a default shall notify the other party in writing of the complaint, and the other party shall have ten (10) days from the date of receipt of the written notification in which to cure the purported default.
C. Only after the expiration of the ten (10) day period described herein may the parties resort to legal proceedings to enforce any of the terms and conditions of this Contract or to collect damages in a court of competent jurisdiction.
D. The preferred procedure for the settlement of disputes is as follows:
Step One: The parties shall first attempt to resolve any dispute under this contract through a joint meeting of the Board’s representative and the Contractor’s representative. Any contract reached by these two parties if then approved by the Board and the Contractor is the final resolution of the dispute.
Step Two: If there is no resolution under Step One, the Board and Contractor shall then attempt to resolve the dispute. If successful, this is the final resolution of the dispute.
Step Three: If there is no resolution under Step Two, the parties shall then initiate pre-suit mediation. Rule 8- Optional Early Mediation in the Rules for Alternative Dispute Resolution of Indiana Rules of Court shall apply. Any contract between the Board and the Contractor during pre-suit mediation is the final resolution at the dispute.
Step Four: Litigation in a court of competent jurisdiction in Lake Board, Indiana.
XII. ASSIGNMENT OF THE CONTRACT
The Contract shall not be assigned, except with the prior written consent of the Board. The Board’s consent shall not be construed to relieve the Contractor of any responsibility for the fulfillment of the Contract.
XIII. PENALTIES FOR FAILURE TO COMPLETE THE WORK AS SCHEDULED
A. The project shall be completed by______________________.
B. If additional time is required, the Contractor shall submit a written request and the Board shall grant an extension taking into account the need for the project and the reason for the delay.
XIV. CHOICE OF LAW
This Contract shall be construed in accordance with and governed by the laws of the State of Indiana and suit must be brought in Lake Board, State of Indiana.
A. The Contractor shall maintain during the term of the Contract the forms of payment bond, performance bond, irrevocable letter of credit, workers compensation insurance and public liability insurance identified in Section IV on Pages 2-4 of this contract.
B. The Contractor agrees to indemnify and hold harmless Lake Board, Lake County Board of Commissioners, Lake Board’s elected offices, Lake Board’s elected officials, Lake Board’s governmental departments, and all Lake Board employees against all actions, claims or demands for damages of any kind whatsoever, known or unknown, which may in any way be caused by the negligent acts of the Contractor, its employees, its agents or any of its subcontractors, material suppliers and anyone including but not limited to the negligent digging up of streets, alleys or public providing a service to the Contractor and by improper care of trees and shrubbery, or which may result from the default, carelessness or negligence of the Contractor, its agents, employees or workers under its control or direction in the performance of the work described herein, and shall refund and reimburse to the Lake County Board of Commissioners all sums which it may be obligated or adjudged to pay on any such claims or demands immediately upon such determination including any attorney fees incurred by the Board’s representative or any of those to be indemnified listed above.
XVI. FINAL PAYMENT REQUIREMENTS
A. The Board shall withhold final payment to the Contractor until the Contractor has paid the subcontractors, material suppliers, laborers, and those furnishing services or until a waiver or release of liens for all these have been filed with the Board. However, if there is not a sufficient sum owed to the Contractor to pay those bills, the sum owed to the Contractor shall be prorated in payment of the bills among the claimants entitled to payment.
B. To receive payment a subcontractor, material supplier, laborer, or person furnishing services must file a claim with the Board not later than sixty (60) days after that party performed its last labor, furnished its last material, or performed its last service. . If there is no dispute among the claimants, the Board pay the claim from the money due the Contractor and deduct the amount of the claims from the contract price. The Board shall take a receipt for each payment made on a claim.
C. If there is a dispute among the claimants, the Board shall retain sufficient money to pay the claims until the dispute is settled and the correct amount is determined. However, the Board may make a final and complete settlement with the Contractor after thirty (30) days after the date of the completion and acceptance of the public work if the Contractor has materially fulfilled all its obligations under the public works contract and no claims are pending.
D. The Board or escrow agent shall pay the Contractor within sixty-one (61) days after the date of substantial completion, subject to the protections for subcontractors, laborers, or suppliers and other providing services to the Contractor. Payment by the escrow agent shall include all escrowed principal and escrowed income. If within sixty- one (61) days after the date of substantial completion there remain uncompleted minor items, an amount equal to two hundred percent (200%) of the value of each item as determined by the Board’s representative shall be withheld until the item is completed. Required warranties begin not later than the date of substantial completion.
XVII. EQUAL OPPORTUNITY
The Contractor agrees by the execution of this contract that regarding its operations:
A. Pursuant to Indiana Statute and Board policy, Contractor and any of its subcontractors, if any, shall not discriminate against any employee or applicant for employment, to be employed in the performance of this contract, with respect to his/her hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of the employee’s race, religion, color, sex, gender, sexual orientation, gender identification, genetic identification (including family medical history), age, marital status, national origin, disability, political affiliation, veteran status, or any other trait or characteristic protected by law. Breach of this covenant may be regarded as a material breach of contract.
B. This contract by the Board for public work must conform to IC 5-16-13 and the antidiscrimination provisions of IC 5-16-6. The Board may consider a violation of IC 5-16-6 a material breach of the contract, as provided in IC 22-9-1-10.
C. The provisions of all Federal Civil Rights laws and the Indiana Civil rights laws as applicable are incorporated by reference as part of this Contract.
D. Breach of any of the equal opportunity and/or the nondiscrimination provisions of the Contract may be regarded as a material breach of the Contract.
E. Where applicable, nondiscriminatory clauses and equal opportunity clauses shall be made a part of any contract, contract or lease between Contractor and any organization, corporation, subcontractor or other legal entity that benefits from the funds paid to Contractor by the Board under this contrac
XVIII. BOARD’S WOMEN’S BUSINESS ENTERPRISE AND MINORITY BUSINESS ENTERPRISE GOALS
A. Employment – The Contractor shall have a goal of 34% for minority work force participation (as a percentage of the total number of employees or the total number of hours worked on the project, whichever is greater) and 6.9% for work force participation by women (as a percentage of the total number of employees or the total number of hours worked on the project, whichever is greater), if available.
B. Subcontractors and Suppliers – A goal of thirteen percent (13%) for MBE participation and two percent (2%) for WBE participation (as percentage of the total contract amount) is hereby set for the project.
C. Indiana Plan – the Contract shall integrate into its hiring to the extent permissible by its size and workload a number of new hires that are enrolled in the Indiana Plan.
XIX. LIMITATION OF AUTHORITY
The Contractor has no authority to obligate the Board on any contract or contract of any kind, character or nature, nor for any expense, except as otherwise delineated in this Contract.
XX. PERSONNEL/INDEPENDENT CONTRACTOR
The Contractor relationship shall be that of an independent Contractor. The BOARD shall not withhold any payroll taxes; federal, state or local taxes; or Social Security payments from any sum paid to the Contractor hereunder. The Board shall not be responsible for payment of any health, life, or any other insurance or benefit for or on behalf of the Contractor under this contract, and the Board shall not obtain worker’s compensation insurance on behalf of the Contractor or the employees of the Contractor. The Contractor shall exercise control over the means and manner by which any work requested under this contract is performed and shall provide its own equipment and tools and, in all respects, the Contractor’s relationship to the Board shall be that of an independent Contractor and not an employee. Liability for injuries sustained by persons using the services of the Contractor in the performance of its duties under this contract shall be the sole responsibility of the Contractor.
XXI. SUBSTANTIAL COMPLETION
A. This Contract shall be deemed to be substantially completed when fully performed enough for the owner’s use according to its terms and conditions and any modification thereof.
B. The Board or escrow agent shall pay the Contractor within sixty-one (61) days after the date of substantial completion, subject to the retention of funds to pay claims filed by laborers, subcontractors
XXII. WAIVER OF RIGHTS
No right conferred on either party under this Contract shall be deemed waived and no breach of this Contract excused, unless such waiver or breach shall be waived in writing and signed by the party claimed to have waived the right or excused the breach.
A. The Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the Contractor through the E-Verify program if the program is in operation; and
B. The Contractor hereby affirms under the penalties of perjury that the Contractor does not knowingly employ an unauthorized alien.
XXIV. MISCELLANEOUS PROVISIONS
A. This Contract represents the entire understanding between the parties, and modifications of this Contract shall not be effective unless reduced to writing and signed by both parties.
B. In the event any portion or portions of this Contract are found to be void or voidable portions, these portions shall be stricken, and the remaining portions enforced.
C. If the cost of this public works contract is at least one hundred fifty thousand dollars ($150,000.00) then the provisions of IC 4-13-18, regarding drug testing of the Contractor’s and any subcontractor’s employees applies.
D. If this project is for One Hundred Thousand Dollars ($100,000) or more, the Board must, within sixty (60) days after the completion of the public work project, file in the division of fire and building safety a complete set of final record drawings for the public work project. The Contractor will provide to the Board any documents in Contractor’s possession that are necessary for the Board to comply.
E. The Contractor warrants and certifies that the Contractor is not disqualified because it is a Contractor dealing with the Government of Iran as that phrase is defined in Federal Statute.
F. During the time that the work is in progress the Contractor shall make every effort to maintain the site in a neat and orderly condition. All refuse, broken pipe, excess fill material, cribbing, and other debris shall be removed as soon as practicable. Should the work not be maintained in a satisfactory condition, the Board or the Board’s representative may cause the work to stop until the "clean-up" portion of the work has been done to the Board’s satisfaction. The work will not be considered complete and the final payment certificate issued until all rubbish, unused material or equipment due to or connected with the project is removed and ths left in a condition satisfactory to the Board or the Board’s representative.
XXV. REQUIRED PREQUALIFICATION STATUS
A. Only Contractors who have been prequalified are eligible for public work construction projects more than $150,000.00.
B. The Contractor warrants and guarantees that if the amount of this contract is $150,000.00 or more the Contractor will maintain in force and effect all the conditions necessary for prequalification until this project is completed.
XXVI. WAGE SCALE OR WAGE SCHEDULE
A. Unless Federal or State Law provides otherwise a public agency in accordance with IC 5-16-7.2-5 may not: (1) establish; (2) mandate; or (3) otherwise require a wage scale or wage schedule for a public works contract awarded by the public agency.
B. A contractor and subcontractor of any tier must be in compliance with the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201-209) and Ind. Code §22-2- 2-1 through Ind. Code §22-2-2-8 (Indiana Minimum Wage Requirements).
XXVII. UNEMPLOYMENT COMPENSATION COMPLIANCE
A contractor and subcontractor of any tier must be in compliance with Ind. Code 22-4-1 through Ind. Code 22-4-39.5 (Unemployment Compensation Requirements).
XXVIII. TRAINING PROGRAMS
In accordance with IC 5-16-13-12(a), (b) and (c), a contractor that employs ten (10) or more employees must provide access to a training program applicable to the tasks to be performed in the normal course of the employee’s employment with the contractor through:
a. An apprenticeship program.
b. A program offered by Ivy Tech Community College or Vincennes University.
c. A program established by or for the contractor’
d. A program offered by an entity sponsored by the United States Department of Labor, Bureau of Apprenticeship and Training.
e. A program that results in the award of an industry recognized portable certification’
f. A program approved by the United States Department of Transportation; or
g. A program approved by the Indiana Department of Transportation.
XXIX. APPRENTICESHIP PROGRAMS
In accordance with IC 5-16-13-12(d), each prime contractor or subcontractor of any tier that employs fifty (50) or more journeymen shall participate in an apprenticeship or training program that meets the standards established by or has been approved by any of the following:
a. United States Department of Labor.
b. Bureau of Apprenticeship and Training.
c. The Indiana Department of Labor.
d. The United States Department of Transportation Federal Highway Administration; or
e. The Indiana Department of Transportation.
XXX. STATE QUALIFICATION REQUIREMENTS
In accordance with IC 5-16-13-10(c), a contractor and subcontractor of any tier must be qualified under either of the following: Ind. Code 4-13.6-4 or Ind. Code 8-23-10 (State Public Works Projects Qualification).
XXXI. PAYROLL RECORDS RETAINED
All contractors and subcontractors of any tier must preserve payroll and related records for a period of three (3) years after completion of the project work and leave such records open to inspection by the Department of Workforce Development. IC 5-16-13-13
In the event this contract is not fully executed and approved prior to the date of commencement it shall be deemed retroactive in force and effect to the date of commencement upon and after the full execution, approvals, required filing of documents with the Auditor, and any recordation required.
IN WITNESS WHEREOF, the parties hereto have caused this Contract consisting of fifteen (15) pages to be executed by their duly authorized officers on the day and date indicated in paragraph IVA on page 2 first above written.
COMPANY REPRESENTATIVE SIGNATURE & TITLE
COMPANY STREET ADDRESS
COMPANY CITY, STATE, ZIPCODE
COMPANY EMAIL & PHONE
BOARD OF COMMISSIONERS OF THE COUNTY OF LAKE
LAKE COUNTY AUDITOR: ______________________________________________