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HomeMy WebLinkAboutD-2164-14 INDOT Interlocal/Bike, Pedestrian paths along 106th Street SPONSOR(S): Councilor Seidensticker ORDINANCE D-2164-14 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA. APPROVING AND ADOPTING AN INTERLOCAL AGREEMENT WHEREAS, Indiana Code Chapter 36-1-7 authorizes cooperative endeavors between governmental entities so as to better and more economically and efficiently serve the public safety and welfare; and WHEREAS, Indiana Code Section 36-1-7-2 authorizes the Common Council of the City of Carmel, Indiana (the "Common Council") to approve such interlocal agreements entered into by the City of Carmel, Indiana(the"City"); and WHEREAS, the interlocal agreement entered into by and between the City and the Indiana Department of Transportation ("INDOT") pertaining to a project for bike/pedestrian facilities 0.1 mile west of US 31 to 1.4 miles west of US 31 along 106th Street, in the City of Carmel, Hamilton County, Indiana, a copy of which agreement is attached hereto and incorporated herein as Exhibit A (the "Interlocal Agreement"), is in the best interests of the City and its residents. NOW, THEREFORE, BE IT ORDAINED, by the Common Council of the City of Carmel, Indiana, as follows: Section 1. The foregoing Recitals are incorporated herein by this reference. Section 2. The Interlocal Agreement should be and is hereby approved and adopted by the Common Council. Section 3. The Clerk-Treasurer is hereby directed to file a copy of the Interlocal Agreement with the Hamilton County Recorder and State Board of Accounts within the time periods established by Indiana Code 36-1-7-6. Section 4. This Ordinance shall be in full force and effect from and after its passage and signing by the Mayor and such publication as is required by law. PASSED by the Common Council of the City of Carmel, Indiana, this o.I day of , 2014, by a vote of 7 ayes and C nays. Page One of Two Pages This Ordinance was prepared by Douglas Haney, Carmel City Attorney, on 2/24/14 at 4:30 p.m. No subsequent revision to this Ordinance has been reviewed by Mr. Haney for legal sufficiency or otherwise. 111ssvrappslluser data-admin\LAw1E Bass1My Documents\ORDINANCESIINTERLOCAL AGREEMENT ORDS120141D-2164-14-Bike-Pedestrian facilities along 106th Street.rtf2/P712014 11:14 AM 1 SPONSOR(S): Councilor Seidensticker COMMON COUNCIL FOR THE CITY OF CARMEL de a T-- 1. �o / ► Presiding Offi er evin D. Rider/) / s & - Q_QM W. Eric Seide ticker, Preside 'ro Tempore Carol Sc - , i , '' - 4. Ro•A .t4A4'1l Carter Richard Sharp • . _ _.----, ...,. / S - inka • uci • der O ATT T: Diana L. Cordray, IAMC, C1-j Treasurer . Presented by me to the Mayor of the City of Carmel, Indiana this Oi` day of a1 , 2014, at la:a" P .M. Diana L. Cordray, IAM , Clerk-Treasurer Approved by me, the Mayor of the City of Carmel, Indiana, this Q day ofC u , 2014, at a, v5 P .M. 7 . J". es Brainard, Mayor ATTEST: .n , . s 62,14(7' Diana L. Cordray, IAMC, Clerk-Treasurer Ordinance D-2164-14 Page Two of Two Pages This Ordinance was prepared by Douglas Haney, Carmel City Attorney, on 2/24/14 at 4:30 p.m. No subsequent revision to this Ordinance has been reviewed by Mr. Haney for legal sufficiency or otherwise. Illssvrappsl\user data-admin\LAW\E Bass\My Documents\ORDINANCES 1INTERLOCAL AGREEMENT ORDS\20141D-2164-14-Bike-Pedestrian facilities along 106th Street.rtfyp71201411:14 AM 2 Version 12-17-2013 INDIANA DEPARTMENT OF TRANSPORTATION-LOCAL PUBLIC AGENCY PROJECT COORDINATION CONTRACT 400$� EDS#: A249-14-320693 Des.No.: 1006027 CFDA No.: 20.205 This Contract is made and entered into effective as of the date of the Indiana Attorney General signature affixed to this Contract, by and between the State of Indiana, acting by and through the Indiana Department of Transportation, (hereinafter referred to as INDOT), and the City of Carmel, a local public agency in the State of Indiana (hereinafter referred to as the LPA), and collectively referred to as the PARTIES. NOTICE TO PARTIES Whenever any notice, statement or other communication is required under this Contract, it shall be sent to the following address,unless otherwise specifically advised. A. Notice to INDOT,regarding contract provisions shall be sent to: Office of LPA and Grant Administration Attention: Director of LPA and Grant Administration 100 North Senate Avenue,Room N955 Indianapolis, Indiana 46204 B. Notices to INDOT regarding project management shall be sent to respective District Office: Greenfield District Office 32 South Broadway Greenfield,Indiana 46140 C. Notices to the LPA shall be sent to: City of Carmel One Civic Square Carmel,Indiana 46032 RECITALS WHEREAS, LPA has applied to 1NDOT, and INDOT has approved the LPA's application to receive federal funds for the Project described in Attachment A, and WHEREAS,LPA agrees to pay its share of the Project cost as stated in this Contract, and WHEREAS, the PARTIES desire to contract on certain project description, scheduling, and funding allocation, and WHEREAS, the PARTIES have determined the Project, is in the best interests of the citizens of the State of Indiana,and Page 1 of 11 Version 12-17-2013 WHEREAS, the PARTIES execute this Contract pursuant to Indiana Code §§ 8-23-2-5, 8-23-2-6, 8-23-4-7, 36-1-4-7, and 36-1-7-3, and Titles 23 and 49 of the United States Code and Titles 23 and 49 of the Code of Federal Regulations, and WHEREAS, the LPA desires to expedite delivery of the Project, comply with all Federal requirements and fiscally manage the Project, and NOW THEREFORE, in consideration of the mutual covenants and promises herein contained, the LPA and INDOT agree as follows: The"Recitals" and"Notice to PARTIES" above are hereby made an integral part and specifically incorporated into this Contract. SECTION I PROJECT DESCRIPTION. INDOT and the LPA enter into this Contract to complete the project described in Attachment A(the "Project"),herein attached to and made an integral part of this Contract. SECTION II LPA RESPONSIBILITIES. The LPA will provide the information and services, or shall cause the information and services to be provided, as set out in Attachment B (LPA's Rights and Duties), herein attached to and made an integral part of this Contract. The LPA will follow all applicable INDOT procedures,guidelines,manuals,standards,specifications and directives. SECTION III INDOT RESPONSIBILITIES. INDOT will provide the information and services as set out in Attachment C (INDOT's Rights and Duties), herein attached to and made an integral part of this Contract. SECTION IV PROJECT FUNDS. INDOT will not share in the cost of the Project. INDOT will disburse funds from time to time; however, INDOT will be reimbursed by the Federal Highway Administration(FHWA) or the LPA. Payment will be made for the services performed under this Contract in accordance with Attachment D (Project Funds), which is herein attached to and made an integral part of this Contract. SECTION V TERM AND SCHEDULE. A. If the LPA has the plans, special provisions, and cost estimate (list of pay items, quantities, and unit prices) for the Project ready such that federal funds can be obligated (INDOT obligates the funds about 7 weeks before the date bids are opened for the construction contract) between July 1, 2014 and June 30, 2015, INDOT will make the federal funds shown in section I.A. and/or I.B. of Attachment D available for the Project, provided the Project is eligible. B. In the event that federal funds for the Project are not obligated during the period listed in section V.A., the federal funds allocated to the Project will lapse. SECTION VI GENERAL PROVISIONS A. Access to Records. The LPA shall maintain all books, documents, papers, correspondence, accounting records and other evidence pertaining to the cost incurred under this Contract, and shall make such materials available at their respective offices at all reasonable times during the period of this Contract and for five (5) years from the date of final payment under the terms of this Contract, for inspection or audit by INDOT and/or the Federal Highway Administration ("FHWA") or its authorized representative, and copies thereof shall be furnished free of charge, if requested by INDOT, and/or FHWA. The LPA agrees that, upon request by any agency participating in Page 2 of 11 Version 12-17-2013 federally-assisted programs with whom the LPA has contracted or seeks to contract, the LPA may release or make available to the agency any working papers from an audit performed by INDOT and/or FHWA of the LPA in connection with this Contract, including any books, documents, papers, accounting records and other documentation which support or form the basis for the audit conclusions and judgments. B. Assignment of Antitrust Claims. As part of the consideration for the award of this Contract, the LPA assigns to the State all right, title and interest in and to any claims the LPA now has, or may acquire, under state or federal antitrust laws relating to the products or services which are the subject of this Contract. C. Audits. The LPA acknowledges that it may be required to submit to an audit of funds paid through this Contract. Any such audit shall be conducted in accordance with IC §5-11-1, et seq., and audit guidelines specified by the State. The State considers the LPA to be a "sub-recipient" for purposes of this Contract. However, if required by applicable provisions of the Office of Management and Budget Circular A-133 (Audits of States, Local Governments, and Non-Profit Organizations), following the expiration of this Contract the LPA shall arrange for a financial and compliance audit of funds provided by the State pursuant to this Contract. Such audit is to be conducted by an independent public or certified public accountant (or as applicable, the Indiana State Board of Accounts), and performed in accordance with Indiana State Board of Accounts publication entitled "Uniform Compliance Guidelines for Examination of Entities Receiving Financial Assistance from Governmental Sources," and applicable provisions of the Office of Management and Budget Circulars A-133 (Audits of States, Local Governments, and Non-Profit Organizations). The LPA is responsible for ensuring that the audit and any management letters are completed and forwarded to the State in accordance with the terms of this Contract. Audits conducted pursuant to this paragraph must be submitted no later than nine (9) months following the close of the LPA's fiscal year. The LPA agrees to provide the Indiana State Board of Accounts and the State an original of all financial and compliance audits. The audit shall be an audit of the actual entity, or distinct portion thereof that is the LPA, and not of a parent, member, or subsidiary corporation of the LPA, except to the extent such an expanded audit may be deters pined by the Indiana State Board of Accounts or the State to be in the best interests of the State. The audit shall include a statement from the Auditor that the Auditor has reviewed this Contract and that the LPA is not out of compliance with the financial aspects of this Contract. D. Certification for Federal-Aid Contracts Lobbying Activities. The LPA certifies, by signing and submitting this Contract, to the best of its knowledge and belief that the LPA has complied with Section 1352,Title 31,U.S.Code,and specifically,that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal Contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,loan,or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Page 3 of 11 Version 12-17-2013 undersigned shall complete and submit Standard Form-LLL, (Disclosure Form to Report Lobbying),in accordance with its instructions. 3. The LPA also agrees by signing this Contract that it shall require that the language of this certification be included in all lower tier subcontracts,which exceed$100,000, and that all such sub recipients shall certify and disclose accordingly. Any person who fails to sign or file this required certification shall be subject to a civil penalty of not less than $10,000 and not more than$100,000 for each failure. E. Compliance with Laws. 1. The LPA shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby to be included herein are hereby incorporated by reference. The enactment or modification of any applicable state or federal statute or the promulgation of rules or regulations there under, after execution of this Contract shall be reviewed by INDOT and the LPA to determine whether the provisions of this Contract require formal modification. 2. The LPA acknowledges that federal requirements provide for the possible loss of federal funding to one degree or another when the requirements of Public Law 91-646 and other applicable federal and state laws,rules and regulations are not complied with. 3. The LPA acknowledges paragraph 7 of the Federal Highway Program Manual, Volume 7, Chapter 1, Section 3, entitled "Withholding Federal Participation" which is herewith quoted in part as follows: "Where correctable noncompliance with provisions of law or FHWA requirements exist, federal funds may be withheld until compliance is obtained. Where compliance is not correctable, the FHWA may deny participation in parcel or project costs in part or in total." 4. The LPA and its agents shall abide by all ethical requirements that apply to persons who have a business relationship with the State, as set forth in Indiana Code § 4-2-6, et seq., Indiana Code § 4-2-7, et seq., the regulations promulgated there under, and Executive Order 05-12, dated January 12, 2005. If the LPA is not familiar with these ethical requirements, the LPA should refer any questions to the Indiana State Ethics Commission, or visit the Indiana State Ethics Commission website at <<http://www.in.gov/ethics/>>>. If the LPA or its agents violate any applicable ethical standards, INDOT may, in its sole discretion, terminate this Contract immediately upon notice to the LPA. In addition, the LPA may be subject to penalties under Indiana Code §§ 4-2-6,4-2-7, 35-44-1-3 and under any other applicable State or Federal laws. 5. The LPA represents and warrants that the LPA and its subcontractors, if any, shall obtain and maintain all required permits, licenses,registrations and approvals, as well as comply with all health, safety, and environmental statutes, rules, or regulations in the performance of work activities under this agreement. Failure to do so may be deemed a material breach of this Contract and grounds for termination and denial of further work with the State. 6. As required by I.C. 5-22-3-7: (1) The LPA and any officials of the LPA certify that: (A) the LPA, except for de minimis and nonsystematic violations, has not violated the terms of: (i) IC §24-4.7 [Telephone Solicitation Of Consumers]; (ii) IC §24-5-12 [Telephone Solicitations]; or Page 4 of 11 Version 12-17-2013 (iii) IC §24-5-14 [Regulation of Automatic Dialing Machines]; in the previous three hundred sixty-five (365) days, even if IC §24-4.7 is preempted by federal law; and (B) the LPA will not violate the terms of IC §24-4.7 for the duration of the Contract, even if IC §24-4.7 is preempted by federal law. (2) The LPA and any officials of the LPA certify that an affiliate or official of the LPA and any agent acting on behalf of the LPA or on behalf of an affiliate or official of the LPA except for de minimis and nonsystematic violations, (A) has not violated the terms of IC §24-4.7 in the previous three hundred sixty-five (365) days,even if IC §24-4.7 is preempted by federal law; and (B) will not violate the terms of IC §24-4.7 for the duration of the Contract, even if IC §24-4.7 is preempted by federal law. F. Disadvantaged Business Enterprise Program. Notice is hereby given to the LPA or a LPA Contractor that failure to carry out the requirements set forth in 49 CFR Sec. 26.13(b) shall constitute a breach of this Contract and, after notification,may result in termination of this Contract or such remedy as INDOT deems appropriate. The referenced section requires the following policy and disadvantaged business enterprise ("DBE") assurance to be included in all subsequent contracts between the LPA and any contractors, vendors or suppliers: The LPA shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The LPA shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the LPA to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy, as INDOT, as the recipient, deems appropriate. As part of the LPA's equal opportunity affirmative action program, it is required that the LPA shall take positive affirmative actions and put forth good faith efforts to solicit proposals or bids from and to utilize disadvantaged business enterprise contractors, vendors or suppliers. G. Disputes. 1. Should any disputes arise with respect to this Contract, the LPA and INDOT agree to act immediately to resolve such disputes. Time is of the essence in the resolution of disputes. 2. The LPA agrees that, the existence of a dispute notwithstanding, it shall continue without delay to carry out all of its responsibilities under this Contract that are not affected by the dispute. Should the LPA fail to continue to perform its responsibilities regarding all non- disputed work, without delay, any additional costs incurred by INDOT or the LPA as a result of such failure to proceed shall be borne by the LPA. 3. If a party to the contract is not satisfied with the progress toward resolving a dispute, the party must notify in writing the other party of this dissatisfaction. Upon written notice, the PARTIES have ten (10) working days, unless the PARTIES mutually agree to extend this period, following the notification to resolve the dispute. If the dispute is not resolved within ten (10) working days, a dissatisfied party will submit the dispute in writing according to the following procedure: Page 5 of 11 Version 12-17-2013 4. The PARTIES agree to resolve such matters through submission of this dispute to the Commissioner of INDOT. The Commissioner shall reduce a decision to writing and mail or otherwise furnish a copy thereof to the LPA within ten (10) working days after presentation of such dispute for action. The presentation may include a period of negotiations, clarifications, and mediation sessions and will not terminate until the Commissioner or one of the PARTIES concludes that the presentation period is over. The Commissioner's decision shall be final and conclusive unless either party mails or otherwise furnishes to the Commissioner, within ten (10) working days after receipt of the Commissioner's decision, a written appeal. Within ten (10) working days of receipt by the Commissioner of a written request for appeal, the decision may be reconsidered. If a party is not satisfied with the Commissioner's ultimate decision, the dissatisfied party may submit the dispute to an Indiana court of competent jurisdiction. 5. INDOT may withhold payments on disputed items pending resolution of the dispute. The unintentional nonpayment by INDOT to the LPA of one or more invoices not in dispute in accordance with the terms of this Contract will not be cause for LPA to terminate this Contract, and the LPA may bring suit to collect these amounts without following the disputes procedure contained herein. H. Drug-Free Workplace Certification. As required by Executive Order No. 90-5 dated April 12, 1990, issued by the Governor of Indiana, the Contractor hereby covenants and agrees to make a good faith effort to provide and maintain a drug-free workplace. The Contractor will give written notice to the State within ten (10) days after receiving actual notice that the Contractor, or an employee of the Contractor in the State of Indiana, has been convicted of a criminal drug violation occurring in the workplace. False certification or violation of this certification may result in sanctions including, but not limited to, suspension of contract payments, termination of this Contract and/or debarment of contracting opportunities with the State for up to three(3)years. In addition to the provisions of the above paragraph,if the total amount set forth in this Contract is in excess of$25,000.00,the Contractor certifies and agrees that it will provide a drug-free workplace by: 1. Publishing and providing to all of its employees a statement notifying them that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the Contractor's workplace, and specifying the actions that will be taken against employees for violations of such prohibition; 2. Establishing a drug-free awareness program to inform its employees of(1) the dangers of drug abuse in the workplace; (2) the Contractor's policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation and employee assistance programs; and (4) the penalties that may be imposed upon an employee for drug abuse violations occurring in the workplace; 3. Notifying all employees in the statement required by subparagraph (1) above that as a condition of continued employment, the employee will (1) abide by the terms of the statement; and (2) notify the Contractor of any criminal drug statute conviction for a violation occurring in the workplace no later than five(5) days after such conviction; 4. Notifying the State in writing within ten (10) days after receiving notice from an employee under subdivision(3)(2)above, or otherwise receiving actual notice of such conviction; Page 6 of 11 Version 12-17-2013 5. Within thirty (30) days after receiving notice under subdivision (3)(2) above of a conviction, imposing the following sanctions or remedial measures on any employee who is convicted of drug abuse violations occurring in the workplace: (1) taking appropriate personnel action against the employee, up to and including termination; or (2) requiring such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate agency; and 6. Making a good faith effort to maintain a drug-free workplace through the implementation of subparagraphs (1) through(5) above. I. Force Majeure. In the event either party is unable to perform any of its obligations under this Contract or to enjoy any of its benefits because of natural disaster or decrees of governmental bodies not the fault of the affected party(hereinafter referred to as a Force Majeure Event),the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Contract shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice,terminate this Contract. J. Funding Cancellation Clause. When the Director of the State Budget Agency makes a written determination that funds are not appropriated or otherwise available to support continuation of the performance of this Contract, this Contract shall be canceled. A determination by the Director of the State Budget Agency that funds are not appropriated or otherwise available to support continuation of performance shall be final and conclusive. K. Governing Laws. This Contract shall be construed in accordance with and governed by the laws of the State of Indiana and suit, if any,must be brought in the State of Indiana. L. Indemnification. The LPA agrees to and shall indemnify, defend, exculpate, and hold harmless the State of Indiana, INDOT and/or its/their officials, agents,representatives, attorneys and employees , individually and/or jointly, from any and all claims,demands,actions,liability and/or liens that may be asserted by the LPA and/or by any other person, firm, corporation, insurer, government or other legal entity,for any claim for damages arising out of any and all loss, damage, injuries, and/or other casualties of whatsoever kind, or by whomsoever caused, to the person or property of anyone on or off the right-of-way, arising out of or resulting from the performance of the contract or from the installation,existence,use,maintenance, condition, repairs, alteration and/or removal of any equipment or material,whether due in whole or in part to the acts and/or omissions and/or negligent acts and/or omissions: (a) of the State of Indiana,1NDOT, and/or its/their officials, agents,representatives, attorneys and/or employees,individually and/or jointly; (b) of the LPA, and/or its officials, agents,representatives,attorneys and/or employees, individually and/or jointly; (c) of any and all persons, firms, corporations, insurers, government or other legal entity engaged in the performance of the contract; and/or (d) the joint negligence of any of them, including any claim arising out of the Worker's Compensation law or any other law, ordinance,order, or decree. Page 7 of 11 Version 12-17-2013 The LPA also agrees to pay all reasonable expenses and attorney's fees incurred by or imposed on the State of Indiana,INDOT and/or its/their officials, agents,representatives,attorneys, and/or employees,individually and/or jointly, in connection herewith in the event that the LPA shall default under the provisions of this section. The LPA also agrees to pay all reasonable expenses and attorney's fees incurred by or imposed on the State of Indiana, INDOT and/or its/their officials, agents, representatives, attorneys, and/or employees, individually and/or jointly, in asserting successfully a claim against the LPA for indemnity pursuant to this contract. M. Merger & Modification. This Contract constitutes the entire agreement between the PARTIES. No understandings, agreements, or representations, oral or written, not specified within this Contract will be valid provisions of this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by all necessary PARTIES. N. No Investment in Iran. As required by IC 5-22-16.5, the LPA certifies that the LPA is not engaged in investment activities in Iran. Providing false certification may result in the consequences listed in IC 5-22-16.5-14, including termination of this Contract and denial of future state contracts,as well as an imposition of a civil penalty. O. Non-Discrimination. 1. Pursuant to I.C. 22-9-1-10 and the Civil Rights Act of 1964, the LPA, shall not discriminate against any employee or applicant for employment, to be employed in the performance of work under this Contract, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, color,religion, sex, disability, national origin, ancestry or status as a veteran. Breach of this covenant may be regarded as a material breach of this Contract. Acceptance of this Contract also signifies compliance with applicable Federal laws, regulations, and executive orders prohibiting discrimination in the provision of services based on race, color, national origin, age, sex, disability or status as a veteran. 2. The LPA understands that INDOT is a recipient of Federal Funds. Pursuant to that understanding, the LPA, agrees that if the LPA employs fifty(50) or more employees and does at least $50,000 worth of business with the State and is not exempt, the LPA will comply with the affirmative action reporting requirements of 41 CFR 60-1.7. The LPA shall comply with Section 202 of executive order 11246, as amended, 41 CFR 60-250, and 41 CFR 60-741, as amended,which are incorporated herein by specific reference. Breach of this covenant may be regarded as a material breach of Contract. It is the policy of INDOT to assure full compliance with Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act and Section 504 of the Vocational Rehabilitation Act and related statutes and regulations in all programs and activities. Title VI and related statutes require that no person in the United States shall on the grounds of race, color or national origin be excluded from participation in,be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance. (INDOT's Title VI enforcement shall include the following additional grounds: sex, ancestry, age, income status,religion and disability.) 3. During the performance of this Contract, the LPA, for itself, its assignees and successors in interest (hereinafter referred to as the "LPA") agrees to the following assurances under Title VI of the Civil Rights Act of 1964: Page 8 of 11 Version 12-17-2013 a. Compliance with Regulations: The LPA shall comply with the regulations relative to nondiscrimination in Federally-assisted programs of the Department of Transportation, Title 49 CFR Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract. b. Nondiscrimination: The LPA, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, sex, national origin, religion, disability, ancestry, or status as a veteran in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The LPA shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulation, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations. c. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the LPA for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the LPA of the LPA's obligations under this Contract, and the Regulations relative to nondiscrimination on the grounds of race, color, sex, national origin, religion, disability, ancestry, or status as a veteran. d. Information and Reports: The LPA shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Indiana Department of Transportation and Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of an LPA is in the exclusive possession of another who fails or refuses furnish this information, the LPA shall so certify to the Indiana Department of Transportation or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. e. Sanctions for Noncompliance: In the event of the LPA's noncompliance with the nondiscrimination provisions of this Contract, the Indiana Department of Transportation shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding payments to the LPA under the Contract until the LPA complies, and/or (b) cancellation,termination or suspension of the Contract,in whole or in part. f. Incorporation of Provisions: The LPA shall include the provisions of paragraphs a through f in every subcontract, including procurements of materials and leases of equipment,unless exempt by the Regulations, or directives issued pursuant thereto. The LPA shall take such action with respect to any subcontract or procurement as the Indiana Department of Transportation or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance,provided,however, that in the event the LPA becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the LPA may request the Indiana Department of Transportation to enter into such litigation to protect the interests of the Indiana Department of Transportation, and, in addition, the LPA may request the United Page 9 of 11 Version 12-17-2013 States of America to enter into such litigation to protect the interests of the United States of America. P. Payment. All payments made by INDOT, if any, shall be made in arrears in conformance with State fiscal policies and procedures and, as required by I.C. 4-13-2-14.8, by electronic funds transfer to the financial institution designated by the LPA in writing unless a specific waiver has been obtained from the Indiana Auditor of State. No payments will be made in advance of receipt of the goods or services that are the subject of this Contract except as permitted by I.C. 4-13-2-20. Q. Penalties,Interest and Attorney's Fees. INDOT will in good faith perform its required obligations hereunder, and does not agree to pay any penalties, liquidated damages, interest, or attorney's fees, except as required by Indiana law in part,I.C. 5-17-5,I.C. 34-54-8,and I.C. 34-13-1. R. Pollution Control Requirements. If this Contract is for$100,000 or more,the LPA: 1. Stipulates any facility to be utilized in performance under or to benefit from this Contract is not listed on the Environmental Protection Agency (EPA) List of Violating Facilities issued pursuant to the requirements of the Clean Air Act, as amended, and the Federal Water Pollution Control Act,as amended; 2. Agrees to comply with all of the requirements of the Clean Air Act(including section 114) and the Federal Water Pollution Control Act (including section 308) and all regulations and guidelines issued there under; and 3. Stipulates, as a condition of federal aid pursuant to this Contract, it shall notify INDOT and the FHWA of the receipt of any advice indicating that a facility to be utilized in performance under or to benefit from this Contract is under consideration to be listed on the EPA List of Violating Facilities. S. Severability. The invalidity of any section, subsection, clause or provision of the Contract shall not affect the validity of the remaining sections, subsections,clauses or provisions of the Contract. T. Status of Claims. The LPA shall be responsible for keeping INDOT currently advised as to the status of any claims made for damages against the LPA resulting from services performed under this Contract. The LPA shall send notice of claims related to work under this Contract to: Chief Counsel Indiana Department of Transportation 100 North Senate Avenue,Room N758 Indianapolis,Indiana 46204-2249 The remainder of this page is intentionally left blank. Page l0 of 11 Version 12-17-2013 Non-Collusion The undersigned attests, subject to the penalties for perjury, that he/she is the LPA, or that he/she is the properly authorized representative, agent, member or officer of the LPA, that he/she has not, nor has any other member, employee, representative, agent or officer of the LPA, directly or indirectly, to the best of his/her knowledge, entered into or offered to enter into any combination, collusion or agreement to receive or pay, and that he/she has not received or paid, any sum of money or other consideration for the execution of this Contract other than that which appears upon the face of this Contract. In Witness Whereof, LPA and the State of Indiana have, through duly authorized representatives, entered into this Contract. The PARTIES having read and understand the forgoing terms of this Contract do by their respective signatures dated below hereby agree to the terms thereof. LPA: City of Carmel STATE OF INDIANA Department of Transportation .Tamps Brnirurd,Presiding Offirpr Recommended for approval by: Print or type name and title YO- 1 ,) 4 °2 iq 1\11 Robert D. Cales,Director Signature and date Contract Administration Division Mary Ann Burke, Member Date: P .or type .m- and title l ) _ ' Executed by Signatu and date Troy A.Woodruff,Chief of Staff Lori S. Watson, Member Print or type name'and title Date: �`- /1 / fig Department of Administration Signatai!e and date I ' t,..r Jessica Robertson,Commissioner Date: 52) test iAll , 69 State Budget Agency ter-or Cl k Treasurer ci{ Diana Cordray, IMCA, Clerk—Treasurer Brian E. Bailey,Director Date: away L'Acat for Approved as to Form and Legality: This instrument prepared by: Ellen Hite (FOR) January 31, 2014 Gregory F. Zoeller,Attorney General of Indiana Date: Page 11 of 11 Version 12-17-2013 ATTACHMENT A PROJECT DESCRIPTION Des.No.: 1006027 Program: Group I CMAQ Type of Project: Bike/Pedestrian Facilities Location: Along 106`"St A general scope/description of the Project is as follows: A project for bike/pedestrian facilities 0.1 mile west of US 31 to 1.4 miles west of US 31 along 106th Street,in the City of Carmel,Hamilton County,Indiana. Attachment A, Page 1 of 1 Version 12-17-2013 ATTACHMENT B LPA'S RIGHTS AND DUTIES In addition to any other rights and duties required by Indiana or federal law, regulations, rules, policies or procedures, or described elsewhere in this Contract, the following are the LPA's rights and duties under this Contract for the Project. 1. The LPA has requested and intends to use federal funds to partially pay for the Project. The LPA asserts that the LPA has completed or will complete the Project in accordance with INDOT's Design Manual (See http://www.in.uov/div/contracts/standards/dm.html) and all pertinent state and federal laws,regulations,policies and guidance. The LPA or its consultant shall prepare the environmental document(s) for the Project in accordance with INDOT's Environmental Manual (See http://www.in.gov/indot/7287.htm.). Land acquisition for the Project by the LPA or its consultant shall be in accordance with INDOT's Real Estate Manuals(See http://www.in.uov/indot/3018.htm). 2. The LPA acknowledges that in order for the cost of consultant services to be eligible for federal funds or federal credits, the consultant selection must be accordance with INDOT's consultant selection procedure. 3. REQUIREMENTS FOR ADDITIONAL CONTRACTS A. If the LPA wishes to contract with a consultant, contractor or other agent to complete work on the Project,LPA may: 1. use the"LPA-CONSULTANT Agreement",which is found at http://www.in.gov/indot/div/projects/LPASection/and is incorporated by reference; or 2. use a form of agreement that has been reviewed and approved by INDOT. 4. The LPA agrees to provide all relevant documents including, but not limited to, all plans, specifications and special provisions, to INDOT for review and approval, and such approval will not be unreasonably withheld. If INDOT does not approve an LPA submittal, the LPA shall cause the submittal to be modified in order to secure INDOT's approval. The LPA understands that if it fails to provide a submittal, submits it late, or the submittal is not approvable, the schedule, cost, and federal funds for the Project may be jeopardized. 5. The LPA agrees to complete all right-of-way acquisition, utility coordination and acquire the necessary pennit(s) and submit documentation of such to INDOT. The utility coordination shall be in accordance with 105 IAC 13. 6. At least ninety to one hundred twenty (90 to 120) calendar days prior'to INDOT's scheduled construction letting for the project, the LPA will submit to INDOT documentation of the LPA's fiscal body's resolution or other official action irrevocably committing the LPA to fund the LPA's cost of the Project as described in Attachment D. Attachment B,Page 1 of 4 Version 12-17-2013 7. If the LPA has failed to meet any of the requirements of sections 1, 2, 4, 5, or 6 above, INDOT will not let the construction project. If INDOT, and FHWA where necessary, approve LPA's submittals, INDOT shall schedule the Project for letting at the next reasonable date. 8. The LPA shall pay the cost of the invoice of the construction, utility, and/or railroad work within thirty(30) calendar days from the date of INDOT's award of the construction contract. 9. The LPA. understands time is of the essence regarding the Project timeline and payment of costs by the LPA. Delays in payment may cause substantial time delays and/or increased costs for the Project. If the LPA has not paid the full amount of the amount billed by INDOT, in accordance with Attachment D, within sixty (60) calendar days past the due date, INDOT shall be authorized to cancel all contracts relating to this contract including the contracts listed in II.A.1 of Attachment D and/or proceed in accordance with I.C. 8-14-1-9 to compel the Auditor of the State of Indiana to make a mandatory transfer of funds from the LPA's allocation of the Motor Vehicle Highway Account to INDOT's account. 10. The LPA shall also be responsible for all costs associated with additional provisions and/or expenses in excess of the federal funds allocated to the project. The LPA, in conjunction with FHWA(if applicable)and INDOT shall review and approve all change orders submitted by the field Project Engineer/Supervisor, and such approvals shall not be unreasonably withheld. 11. The LPA shall provide competent and adequate engineering, testing, and inspection service to ensure the performance of the work is in accordance with the construction contract,plans and specifications and any special provisions or approved change orders. If, in INDOT's opinion, the services enumerated in this section are deemed to be incompetent or inadequate or are otherwise insufficient or if a dispute arises, INDOT shall,in its sole discretion,have the right to supplement the services or replace the engineers or inspectors providing these services at the sole expense of the LPA. A. If project inspection will be provided by full-time LPA employees: The personnel must be employees of the LPA. Temporary employment or retainage- based payments are not permissible. INDOT must pre-approve, in writing, the LPA's personnel. Only costs incurred after INDOT's written notice to proceed to the LPA shall be eligible for federal-aid participation. All claims for federal-aid shall be submitted to the District office,referenced on Page 1, for payment. or B. If project inspection will be provided by the LPA's consultant: INDOT must approve, in writing, the consultant personnel prior to their assignment to the project. The LPA shall execute a contract with a consultant setting forth the scope of work and fees. The LPA shall submit this contract to INDOT prior to INDOT's construction letting for the Project. Only costs incurred after INDOT's written notice to proceed to the LPA and the LPA's written notice to proceed to the consultant shall be eligible for federal aid participation. All claims for federal-aid shall be submitted to the District office,referenced on page 1, for payment. Attachment B,Page 2 of 4 Version 12-17-2013 12. The LPA shall submit reports, including but not limited to quarterly reports, to INDOT regarding the project's progress and the performance of work per INDOT standard reporting methods. If the required reports are not submitted, federal funds may be withheld. 13. The LPA hereby agrees that all utilities which cross or otherwise occupy the right-of- way of said Project shall be regulated on a continuing basis by the LPA in accordance with INDOT's Utility Procedure and Accommodation Policy (See http://www.in.gov/indot/2376.htm). The LPA shall execute written use and occupancy contracts as defined in this Policy. 14. If FHWA or INDOT invokes sanctions per Section VI.D.2. of the General Provisions of this contract, or otherwise denies or withholds federal funds (hereinafter called a citation or cited funds) for any reason and for all or any part of the Project,the LPA agrees as follows: a. In the case of correctable noncompliance, the LPA shall make the corrections, to the satisfaction of FHWA and INDOT, in a reasonable amount of time. If the LPA fails to do so,paragraph 14.b. and/or 14.c.below,as applicable, shall apply. b. In case a citation for noncompliance is not correctable or if correctable and the LPA does not make any corrections, or if correctable and the LPA makes corrections that are not acceptable to FHWA and INDOT, or for whatever reason the FHWA citation continues in force beyond a reasonable amount of time, this paragraph shall apply and adjustments shall be made as follows: 1. The LPA shall reimburse INDOT the total amount of all right-of-way costs that are subject to FHWA citation that have been paid by INDOT to the LPA. 2. If no right-of-way costs have as yet been paid by INDOT to the LPA or to others, INDOT will not pay any right-of-way claim or billing that is subject to FHWA citation. 3. The LPA agrees that it is not entitled to bill INDOT or to be reimbursed for any of its right-of-way liabilities or costs that are subject to any FHWA citation in force. c. If FHWA issues a citation denying or withholding all or any part of construction costs due to LPA noncompliance with right-of-way requirements, and construction work was or is in progress, the following shall apply: 1. INDOT may elect to terminate, suspend, or continue construction work in accord with the provisions of the construction contract. 2. INDOT may elect to pay its obligations under the provisions of the construction contract. 3. In the case of correctable noncompliance, the LPA shall make the corrections in a reasonable amount of time to the satisfaction of FHWA and INDOT. Attachment B,Page 3 of 4 Version 12-17-2013 4. In case the noncompliance is not correctable, or if correctable and the LPA does not make any corrections, or if correctable and the LPA makes corrections that are not acceptable to FHWA or INDOT, or for whatever reason the FHWA citation continues in force beyond a reasonable amount of time, and construction work has been terminated or suspended, the LPA agrees to reimburse INDOT the full amount it paid for said construction work, less the amount of federal funds allowed by FHWA. d. In any case, the LPA shall reimburse INDOT the total cost of the Project, not eligible for federal participation. e. If for any reason, INDOT is required to repay to FHWA the sum or sums of federal funds paid to the LPA or any other entity through INDOT under the terms of this Contract, then the LPA shall repay to INDOT such sum or sums within forty-five (45) days after receipt of a billing from INDOT. Payment for any and all costs incurred by the LPA which are not eligible for federal funding shall be the sole obligation of the LPA. Attachment B,Page 4 of 4 Version 12-17-2013 ATTACHMENT C INDOT'S RIGHTS AND DUTIES In addition to any other rights and duties required by Indiana or federal law or regulations or described elsewhere in this Contract,the following are INDOT's rights and duties under the Contract: 1. INDOT shall have full authority and access to inspect and approve all plans, specifications and special provisions for the Project regardless of when those plans, specifications, special provisions or other such Project documents were created. 2. INDOT shall complete all railroad coordination for the Project on behalf of the LPA. 3. After the LPA has submitted and INDOT has accepted and/or approved all pre-letting documents,INDOT will prepare the Engineer's Estimate for construction of the Project. 4. If the LPA owes INDOT money which is more than 60 days past due, INDOT will not open the construction bids for the Project. 5. Not later than sixty (60) calendar days after receipt by INDOT of a certified copy of a resolution from the LPA's fiscal body authorizing the LPA to make payment to INDOT according to the terms of Attachment D, and fulfillment of all other pre-letting obligations of this contract, 1NDOT shall,in accordance with applicable laws and rules (including I.C. 8-23- 9, I.C. 8-23-10, and 105 I.A.C. 11),conduct a scheduled letting. 6. Subject to the LPA's written approval, INDOT shall award the construction contract for the Project according to applicable laws and rules. 7. Not later than seven (7) calendar days after INDOT awards the construction contract described above,INDOT shall invoice the LPA for the LPA's share of the construction cost. 8. If INDOT has received the LPA's share of the Project construction cost and if the lowest qualified bidder has not otherwise been disqualified, INDOT shall issue notice to proceed for the Project to the contractor within fourteen (14) calendar days of its receipt of the LPA share of the construction cost. 9. INDOT shall have the right and opportunity to inspect any construction under this Contract to determine whether the construction is in conformance with the plans and specifications for the Project. 10. In the event the engineering, testing, and inspection services provided by the LPA, in the opinion of INDOT, are deemed to be incompetent or inadequate or are otherwise insufficient or a dispute arises, INDOT shall, in its sole discretion, have the right to supplement the engineering, testing, and inspection force or to replace engineers or inspectors employed in such work at the expense of the LPA. INDOT's engineers shall control the work the same as on other federal aid construction contracts. 11. After the final Project audit is approved by INDOT, the LPA shall, within forty-five(45) days after receipt of INDOT's bill, make final payment to INDOT pursuant to Attachment D or INDOT shall, within forty-five (45) days after approval of the audit, refund any Project overpayment to the LPA. Attachment C, Page 1 of 1 Version 12-17-2013 ATTACHMENT D PROJECT FUNDS I. Project Costs. A. If the Program shown on Attachment A is receiving Group I CMAQ federal-aid funds for the project, the LPA is allocated the funds through the MPO as written in their fiscally constrained TIP. Any adjustments (positive or negative) to the dollar amount listed in the TIP are hereby considered adjustments to the contract between the LPA and INDOT, as the MPO must maintain fiscal constraint for all projects listed. Federal funds made available to the LPA by INDOT will be used to pay 80%of the eligible Project costs. The maximum amount of federal-aid X funds allocated to the Project is $ 1,440,000.00. OR B. Federal-aid Funds made available to the LPA by INDOT will be used to pay % of the eligible Project costs. The maximum amount of federal funds allocated to the project is $ C. The LPA understands and agrees that in accordance with I.C. 8-23-2-14, federal reimbursement for construction inspection and testing construction materials, after INDOT retains 2.5% of the final construction costs for oversight, is limited to: (1) 14.5% of the final construction cost if the final construction cost is less than or equal to$500,000; or (2) 12.5% of the final construction cost if the final construction cost is greater than$500,000. D. The remainder of the Project cost shall be borne by the LPA. For the avoidance of doubt, INDOT shall not pay for any costs relating to the Project unless the PARTIES have agreed in a document (which specifically references section I.D. of Attachment D of this contract) signed by an authorized representative of INDOT, the Indiana Department of Administration, State Budget Agency, and the Attorney General of Indiana. E. Costs will be eligible for FHWA participation provided that the costs: (1) Are for work performed for activities eligible under the section of title 23,U.S.C., applicable to the class of funds used for the activities; (2) Are verifiable from INDOT's or the LPA's records; (3) Are necessary and reasonable for proper and efficient accomplishment of project objectives and meet the other criteria for allowable costs in the applicable cost principles cited in 49 CFR section 18.22; (4) Are included in the approved budget, or amendment thereto; and Attachment D, Page 1 of 2 Version 12-17-2013 (5) Were not incurred prior to FHWA authorization. II. Billings. A. Billing: 1. When INDOT awards and enters into a contract (i.e., construction, utility, and/or railroad) on behalf of the LPA, INDOT will invoice the LPA for its share of the costs. The LPA shall pay the invoice within thirty (30) calendar days from date of INDOT's billing. 2. The LPA understands time is of the essence regarding the Project timeline and costs and delays in payment may cause substantial time delays and/or increased costs for the Project. 3. If the LPA has not paid the full amount due within sixty (60) calendar days past the due date, INDOT shall be authorized to cancel all contracts relating to this Contract, including the contracts listed in II.A.1 of Attachment D and/or proceed in accordance with I.C. 8-14-1-9 to compel the Auditor of the State of Indiana to make a mandatory transfer of funds from the LPA's allocation of the Motor Vehicle Highway Account to INDOT's account. B. Other Costs: 1. The LPA shall pay INDOT for expenses incurred in performing the final audit less the amount eligible for Federal-aid reimbursement. 2. The LPA shall pay INDOT for expenses incurred in supervising the Project out of the maximum limitation shown in section I.C. of Attachment D. III. Repayment Provisions. If for any reason, INDOT is required to repay to FHWA the sum or sums of federal funds paid to the LPA or on behalf of the LPA under the terms of this Contract, then the LPA shall repay to INDOT such sum or sums within thirty (30) days after receipt of a billing from INDOT. If the LPA has not paid the full amount due within sixty (60) calendar days past the due date, INDOT may proceed in accordance with I.C. 8-14-1-9 to compel the Auditor of the State of Indiana to make a mandatory transfer of funds for the LPA's allocation of the Motor Vehicle Highway Account to INDOT's account until the amount due has been repaid. Attachment D, Page 2 of 2