or legal remedies provided therein, shall not be construed as
a general waiver of its right thereafter to require such
compliance or to exercise such option or remedy.
18.2 The Subcontract, including all Contract Documents as provided
in section one, comprises the entire agreement between the
parties relating to the Subcontract Work and no other
agreements, representations, terms, provisions or
understanding concerning the Subcontract Work has been made,
All modifications or amendments to the Subcontract must be in
writing.
18.3 To the best knowledge and belief of the parties, the
Subcontract contains no provision that is contrary to federal
or state law, ruling or regulation. However, if any provision
of this Subcontract shall conflict with any such law, ruling
or regulation, then such provision shall continue in effect to
the extent permissible. The illegality of any provisions, or
parts thereof, shall not affect the enforceability of any
other provisions of this Subcontract.
18.4 The Subcontract shall be construed and interpreted according
to the laws of the State in which the work is being conducted.
18.5 In the event either party employs an attorney to institute a
lawsuit or to demand arbitration for any cause arising out of
the Subcontract Work or the Subcontract, or any of the
Contract Documents, the prevailing party shall be entitled to
all costs, attorney's fees and any other reasonable expenses
incurred therein.
18.6 All sections and headings are descriptive only and are not
controlling.
18.7 Contractor's rights and remedies under the Subcontract are not
exclusive and Contractor shall have all other remedies
available at law or in equity to enforce the Subcontract.
IN WITNESS WHEREOF: The parties hereto have executed this Agreement for
themselves, their heirs, executors, successors, administrators, and
assignees on the day and year first above written.
Meadow Valley Contractors, Inc. Wiser Construction, L.L.C.
Date: SEPT 30 03 Date: 9-30-2003
By [ILLEGIBLE] By [ILLEGIBLE]
--------------- ----------------------------------
Name Name
Manager Managing Member
--------------- ----------------------------------
Title Title
17
EXHIBIT 10.254
CONTRACT AGREEMENT
THIS AGREEMENT, made and entered into this 30th day of January, 2004 by and
between the STATE OF ARIZONA, acting by and through its State Engineer duly
authorized by the Director, Arizona Department of Transportation to enter into
such agreement, party of the first part, and MEADOW VALLEY CONTRACTORS, INC.
hereinafter called the Contractor, party of the second part.
WITNESSETH: That the said Contractor, for in consideration of the sum to be paid
him by said State Arizona in the manner and at the time hereinafter provided,
and of the other covenants and agreements herein contained, hereby agrees, for
himself, heirs, administrators, successors and assigns as follows:
ARTICLE I - SCOPE OF WORK: The Contractor shall perform in a
workmanlike and substantial manner and to the satisfaction of the State
Engineer, all the work specified under TRACS/Project No.
191 CH 087 H503703C STP-191-B(003)B
BOWIE JUNCTION - SAFFORD HIGHWAY (US 191)
(US 191 -Segment 1)
and furnish at his own cost and expense all necessary machinery, tools,
apparatus, materials and labor to complete the work in the most substantial and
workmanlike manner according to the Plans and Specifications therefor on file
with the State Engineer and such modifications of the same and other directions
that may be made by the State Engineer as provided herein.
ARTICLE II - CONTRACT DOCUMENTS: It is further agreed that the
Proposal, Plans, Standard Specifications, Special Provisions, Contract Bond(s)
and any and all Supplementary Agreements, and any and all requirements necessary
to complete the work in a substantial and acceptable manner, and any and all
equipment and progress statements required, are hereby referred to and made a
part of this contract, and shall have the same force and effect as though all of
the same were fully inserted herein.
ARTICLE III - WARRANTY: The Contractor expressly warrants that he is
free from obligation of any other person or persons for services rendered, or
supposed to have rendered, in the procurement of this contract. He further
agrees that any breach of the Warranty shall constitute adequate cause for the
annulment of the Contract by the State of Arizona and that the State of Arizona
may retain to its own use from any sums of money due or become due thereunder,
an amount thereof equal to any brokerage, commission, or percentage so paid, or
agreed to be paid.
ARTICLE IV - TIME OF COMPLETION: The Contractor further covenants and
agrees that all of the said materials shall be furnished and delivered and all
of the said labor shall be done and performed in every respect to the
satisfaction and approval of the State Engineer and that the said work shall be
turned over to the State Engineer, complete and ready for use, on or before the
specified time herein. The work shall be free and discharged of all claims and
demands whatsoever for, or on account of any and all labor and materials used or
furnished to be used in said work.
It is expressly understood and agreed that in case of failure on the
part of the Contractor, for any reason, except with the written consent of the
State Engineer, to complete the entire work to the satisfaction of the State
Engineer, and within the aforesaid time limit, the party of the first part shall
deduct from any money due, or which may become due the Contractor, as liquidated
damages, an amount in accordance with Subsection 108.09 of the Contract
Specifications.
If no money shall be due the Contractor, the State shall have a cause
of action to recover against the Contractor in a court of competent
jurisdiction, liquidated damages, in accordance with Subsection 108.09 of the
Contract Specifications, said deduction to be made, or said sum to be recovered,
not as a penalty, but as liquidated damages; provided, however, that upon
receipt of written notice from the Contractor, of the existence of causes, as
herein provided, over which said Contractor has no control and which must delay
the completion of said work or any delay occasioned by the Arizona Department of
Transportation, the State Engineer may extend the period hereinbefore specified
for the completion of said work in accordance with the Specifications and in
such case, the Contractor shall become liable for said liquidated damages for
delays commencing from date said extension period shall expire.
After the date as set up in Contract plus any extension granted, no
further payments shall be made the Contractor until all work is completed and
accepted by the State engineer. It is also agreed that the date of completion
shall be that upon which the work is accepted by the State Engineer.
ARTICLE V - CLAIMS FOR EXTRA WORK: It is distinctly understood and
agreed that no claim for extra work or materials, not specifically herein
provided, done or furnished by the Contractor, will be allowed by the State
Engineer, nor shall the Contractor do any work or furnish any materials not
covered by these Specifications and Contract, unless such work is ordered in
writing by the State Engineer. In no event shall the Contractor incur any
liability by reason of any oral direction or instruction that he may be given by
the State Engineer, or his authorized representatives. It is the intent and
meaning of this Article that all orders, directions, instructions, not contained
in the Plans, Specifications, and Special Provisions, pertaining to the work
shall be in writing, and the Contractor hereby waives any claims for
compensation for work done, or materials furnished in violation thereof.
ARTICLE VI - MISUNDERSTANDING OR DECEPTION: The party of the second
part agrees that he has investigated the site of the work and all parts and
appurtenances thereto and hereby waives any right to plead misunderstanding or
deception as to location, character of work or materials, estimates of
quantities or other conditions surrounding or being a part of the work and
understands that the quantities given in the Bidding Schedule are approximate
only, and hereby agrees to accept the quantities as actually placed and finally
determined upon the completion of the work, in accordance with the Contract
Documents.
ARTICLE VII - PAYMENTS: For and in consideration of the faithful
performance of the work herein embraced, as set forth in the Contract Agreement,
Specifications, Special Provisions, Bidding Schedule and all general and
detailed Specifications and Plans, which are a part hereof, and in accordance
with the directions of the State Engineer and to his satisfaction or his
authorized agents, the said State of Arizona agrees to pay to said Contractor
the amount earned, computed from the actual quantities of work performed, as
shown by the estimates of the State Engineer, and the unit prices named in the
attached Bidding Schedule and Supplementary Agreements made a part hereof, and
to make such payments in the manner and at time provided in the specifications
hereto appended.
Sheet 1 of 2
ARTICLE VIII - IT IS EXPRESSLY UNDERSTOOD AND AGREED that no work shall
be done nor any obligations incurred under this contract during any fiscal year
which are in excess of the funds programmed and budgeted for this project for
that fiscal year.
ARTICLE IX - THE CONTRACTOR SHALL INDEMNIFY AND SAVE HARMLESS THE
STATE, its officers and employees, from all suits, actions or claims of any
character brought because of any injuries or damage received or sustained by any
person, persons or property on account of the operations of the said contractor
or an account of or in consequence of any neglect in safeguarding the work; or
through use of unacceptable materials in constructing the work; or because of
any act or omission, neglect or misconduct of said contractor; or because of any
claims or amounts recovered from any infringements of patent, trademark or
copyright; or from any claims or amounts arising or recovered under the
Workmen's Compensation Act or any other law, ordinance, order or decree, except
the contractor is not required to indemnify or save harmless the State from
liability arising from the negligence of the State.
The contractor shall indemnify and save harmless any county or
incorporated city, its officers and employees, within the limits of which county
or incorporated city work is being performed, all in the same manner and to the
same extent as provided in the above paragraph.
IT IS FURTHER UNDERSTOOD AND AGREED that all work required to be done
under this contract in excess of the funds now appropriated and budgeted for
this project shall not be done nor any obligation incurred therefor until such
time as the Legislature appropriates the additional funds and the same are
budgeted for this project by the Arizona Department of Transportation and in
that event the parties hereto are bound to continue performance of this contract
to the extent permitted by the funds so appropriated and budgeted.
In the event that no funds are appropriated or budgeted for this
project for the succeeding fiscal year, then this contract shall be null and
void, except as to that portion for which funds have now been appropriated and
budgeted, therefore, and no right of action or damages shall accrue to the
benefit of the parties hereto as to that portion of the contract that may so
become null and void.
All parties are hereby put on notice that this contract (agreement) is
subject to cancellation by the Governor pursuant to Arizona Revised Statutes
Section 38-511.
IT IS ALSO UNDERSTOOD AND AGREED that this contract is subject to
A.R.S. 28-1824. 28-1825. 28-1826, together with all other limitations pursuant
to the applicable laws of the State of Arizona relating to public contracts and
expenditures.
191 CH 087 H503703C STP-191-B(003)B
BOWIE JUNCTION - SAFFORD HIGHWAY (US 191)
(US 191-Segment 1)
Witness our hands and seals this _________ day of ________________ 20 ___
STATE OF ARIZONA
By: Barry Crockett
----------------------------------
Department of Transportation
EVIDENCE OF AUTHORITY TO SIGN
THE CONTRACT MUST BE ON FILE
WITH THE DEPARTMENT, OTHERWISE
IT MUST BE FURNISHED WITH THE
PROPOSAL.
PARTY OF THE FIRST PART
Meadow Valley Contractors, Inc.
By: /s/ ROBERT W. BOTTCHER
---------------------------------
Contractor ROBERT W. BOTTCHER
VICE PRESIDENT
Attest: Mark Krumm PARTY OF THE SECOND PART
-------------------
Signature
Article IX
Revised 8/30/00
Contract Agreement
Sheet 2 of 2