EXHIBIT 10.215
AGREEMENT
This agreement is made by and between Fisher Sand & Gravel Co. ("Fisher")
and Meadow Valley Contractors, Inc. ("MVCI").
RECITALS:
WHEREAS, MVCI was determined to be the lowest responsible bidder by the
Arizona Department of Transportation on Project No. AC-063-1(018)N, otherwise
known as the San Louis-Quartzite Highway (US 95) (the "Project");
WHEREAS, ADOT has confirmed its intention to award the prime contract for
the Project to MVCI;
WHEREAS, prior to the submission of bids, Fisher agreed to sign act as a
co-indemnitor in favor of MVCI's surety, Liberty Mutual Insurance Company (the
"Surety"), in order to assist MVCI in securing the payment and performance
bonds for the Project;
WHEREAS, as consideration for Fisher's indemnity commitment, MVCI agreed to
award Fisher a material supply agreement for the aggregates and certain other
materials required on the Project if MVCI was awarded the prime contract. The
parties are in the process of negotiating the terms of that supply contract,
which will be a separate and independent agreement;
WHEREAS, given ADOT's expressed intention to award the prime contract to
Meadow Valley, the parties desire to enter into this agreement to confirm their
indemnity obligations concerning the bonding that ultimately will be provided
by the Surety.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, it is agreed:
1. Fisher agrees to sign an indemnity agreement in a form acceptable to the
Surety indemnifying the Surety from costs incurred or damages sustained by
the Surety on the Project. MVCI has or will execute a similar indemnity.
2. MVCI shall pay all premiums required for the payment and performance bonds
for the Project out of the proceeds for the Project.
3. MVCI will enter into a written agreement with Fisher regarding the sale and
provision of aggregate materials in accordance with the terms of the prime
contract and Fisher's prebid price quotation to MVCI. That material supply
agreement shall be a precondition to Fisher's indemnity obligations to the
Surety. Payment under the material supply agreement shall be Fisher's sole
source of compensation regarding the Project.
4. MVCI shall defend and indemnify Fisher and the Surety from any and all
claims asserted against the Surety and/or damages sustained by Fisher as a
result of having indemnified the Surety for the Project. MVCI's defense and
indemnity obligation shall not include any claims or damages related to the
materials supplied by or the acts or omissions of Fisher concerning the
Project.
5. The parties agree that it is not their intention to be joint venture
partners at any time or for any purpose with regard to the Project. Fisher
shall not share any of its profits or losses on the supply of aggregate
materials with MVCI and MVCI shall not share any losses or profits on the
balance of the work required for the Project. Other than the indemnity
obligations identified herein and to be reflected in a separate indemnity
agreement with the Surety, the parties' sole relationship with regard to
the Project shall be as material supplier and prime contractor.
6. In order to facilitate administration of the Project and to ensure payment
of all subcontractors and suppliers, MVCI shall establish a separate bank
account (the "Account") in its name and containing the name of the Project.
The Account shall be used exclusively for the Project until final
completion at which time Fisher and MVCI shall agree on the date on which
the final amounts shall be distributed to MVCI.
(a) MVCI agrees that it will not open or maintain any other bank accounts
relating to the Project without the prior written consent of Fisher.
(b) MVCI shall deposit all payments from ADOT in the Account.
(c) MVCI shall provide a copy of all State Pay Estimates and checks to
Fisher.
(d) MVCI will provide Fisher monthly pay estimates that must be signed off
by Fisher before any checks are printed by MVCI.
(e) All withdrawals relating to subcontractors or suppliers shall be based
on monthly "Subcontractor Payment Estimate" forms to be prepared by
MVCI, or such other form as is mutually agreed upon by Fisher and
MVCI. Fisher agrees not to unreasonably withhold its consent to
disbursements requested by MVCI to pay for completed work.
(f) The parties agree that payment from the Account shall be based upon
the quantities and unit prices reflected in the prime contract, the
prices reflected in the various subcontracts and related billings, the
Fisher supply agreement, and the payments made by ADOT to MVCI.
(g) All checks written out of the Account must have signatures from both a
MVCI representative and a Fisher representative.
(h) All payments made to subcontractors or entities who have filed a
preliminary notice on the project must include a Lien Waiver that must
be signed and returned before any further payments can be made to that
company.
(i) Fisher shall be provided copies of bank statements and shall be
provided an accounting, which will show the deposits, checks, amounts,
dates of payments and payees, upon reasonable request by Fisher.
(j) Payment to MVCI shall be based upon completed quantities for a
particular pay period and the unit prices reflected in the prime
contract, after paying applicable subcontractor and material invoices
for that particular period.
7. Should any dispute arise between the parties regarding this agreement or
the related indemnity obligations, the parties agree that such dispute shall be
resolved through binding arbitration before the American Arbitration
Association under the Construction Industry Rules. No such action shall be
instituted until any underlying litigation involving the bonds issued by the
Surety is resolved through either settlement or the entry of judgment. The
locale for any such arbitration shall be Phoenix, Arizona. The parties agree
that they shall be allowed to conduct discovery and that the arbitrator(s)
shall have full authority to award the prevailing party attorneys' fees and
costs.
8. Other than the separate supply agreement that the parties will enter into,
this agreement reflects the entire agreement amongst the parties regarding the
Project.
DATED this 23rd day of December, 2002.
MEADOW VALLEY CONTRACTORS, INC. FISHER SAND & GRAVEL CO.
By: /s/ Kenneth D. Nelson By: /s/ Amiel Schaff
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Its: Vice President Its: Treasurer
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