HomeMy WebLinkAboutINDOT - Guilford Road Main to City CenterVersion 2-18-2014
INDIANA DEPARTMENT OF TRANSPORTATION - LOCAL PUBLIC AGENCY
PROJECT COORDINATION CONTRACT
EDS #: A249 -15-L140020
Des. No.: 1383180
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 refened 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 1NDOT, 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
With a copy to:
Chief Legal Counsel and Deputy Commissioner
Indiana Department of Transportation
100 North Senate Avenue IGCN 758
Indianapolis, IN 46204
B. Notices to INDOT regarding project management shall be sent to respective District Office:
Greenfield District Office
31 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 INDOT, andINDOT 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
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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
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 TI-IEREPORE, 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 theproject described in Attachment A (the "Project"), herein attached to and made an integral part
of this Contract.
SECTION H 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 II (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.
SEC'T'ION 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 fiords can be obligated (INDOT
obligates the fiords about 7 weeks before the date bids are opened for the construction
contract) between Judy 1, 2017 and June 30, 2018 INDOT will make the federal funds
shown in section 1.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
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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 ("F1-1WA") or its
authorized representative, and copies thereof shall be furnished free of charge, if requested by
INDOT, and/or PI-IV✓A. The LPA agrees that, upon request by any agency participating in
federally -assisted programs with whom the LPA has contracted or seeks to contract, the LPA niay
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 L,PA 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. '1'hc 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-I 1-1, et seq.,
and audit guidelines specified by the State.
The State considers the LPA to he 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 -I 33
(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 o.f 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 determined by the Indiana State Board of Accounts or the State to
he 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
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cooperative agreement, and the extension, continuation, renewal, amendtnent, 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
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 $] 00,000, 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.
The LPA shall comply with all applicable federal, state and local laws, ndes, 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 LI'A 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 I, 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 FI -RVA 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, el 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, 35-44.1-1-4 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.
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As required by I.C. 5-22-3-7:
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The LPA and any officials of the LPA certify that:
(A) the LPA, except for de mirumis 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
(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
(13) 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 minitnis 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
(13) will not violate the tenns of 1C §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, atter 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 cavy 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.
Should any disputes arise with respect to this Contract, the LPA and tNDOT agree to act
Mullediately 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 cavy 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.
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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:
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 Cormnissioner'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.
IL Drug -Free Workplace Certification. As required by Executive Order No. 90-5 dated April 12,
1990, issued by the Governor of Tndiana, 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 (I) above that as a condition
of continued employment, the employee will (1) abide by the terms of the statement; and (2)
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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;
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 nonperfornnance exceeds thirty (30) days from the receipt of
notice of the Porce 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 arc 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.
Indemnification. The LPA agrees to and shall indemnify, defend, exculpate, and hold harmless
the State of Indiana, 1NDOT 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, INDOT, 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;
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of any and all persons, frons, 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.
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 fiRy (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 arc 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.
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(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:
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.
e. 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 itnpose 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
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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
States of America to enter into such litigation to protect the interests of the United States of
Arnerica.
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 1.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 T -C. 4-13-2-20.
Penalties, Interest and Attorney's Fees. INDOT wilt 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, LC. 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;
Q.
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 tinder; and
3. Stipulates, as a condition of federal aid pursuant to this Contract, it shall notify TNDOT and the
PI-IWA of the receipt of any advice indicating that a facility to be utilized in perfonmanee 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
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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, I,PA and the State of Indiana have, through duly authorized representatives,
entered into this Contract. The PARTIES having read and understand the forgoing terns of this Contract do
by theft respective signatures dated below hereby agree to the terns thereof
LSA: City of Carmel
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"Joni eL , P.— ; in O{hctc
Print ar type name and title
Signa .re and date
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Print or type name and title
Signature and date
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IS a u' and date
LPADUNS# o?;4 033320
Attest
STATE OF INDIANA
Department of Transportation
Recommended kr approval by:
r
Robert D. Cales, Director
Contract Administration Division
Date: 7/7,z0/r
.DsDdi%
CauvtSS/A-- (FOR)
Commissioner
Department of Administration
°`
JessicaRohert on, Commission r
Sandra M Johns t�fl�
Deputy CIS Ytet Agency
Au
or or C :a k Treasurer
I) ane. Cordr-ay , iMGA , (net - -G-ecu Lrcr
This instrument prepared by:
Ellen I -lite
November 3, 2014
Brian E. Bailey, Director
Date:
Approved as to Form and Legality:
Fmk.,v(?C
(FOR)
Gregory F. Zoeller, AtilorneyZreneral of Indiana
Date: s--t-aot5
Pate 11 of 11
Version 2-18-2014
ATTACHMENT A
PROJECT DESCRIPTION
Dcs. No.: 1383180
Program: Group 1
Type of Project: Road Reconstruction (3R14R Standards)
Location: Guilford Rd
A general scope/description of the Project is as follows:
A project for road reconstruction (312/4R standards) for Guilford Road from City Center to Main
Street, in the City of Cancel, Hamilton County, Indiana.
Attachment A, Page 1 of 1
Version 2-18-2014
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
1NDOT's Design Manual (See htt)://www.in. ov/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 he in accordance with INDOT's Real Estate
Manuals(Scehttp://www.in.gov/indot/3018.htm).
2. The Ll'A 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 POR 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 "1.»A -CONSULTANT Agreement", which is found at
http://www.in.gov/indot/div/projects/LPASectionl 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 1NDOT 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 permit(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 I,PA to
fund the LPA's cost of the Project as described in Attachment D.
Attachment B, Page 1 of 4
Version 2-18-2014
7. It the 1.,PA 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 or 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 lull -time LPA employees:
The personnel must be employees of the LI'A. 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
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 1.,PA 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 2-18-2014
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 FIIWA 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 FIdWA 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 he reimbursed for any
of its right-of-way liabilities or costs that arc subject to any FIIWA citation in
force.
e. 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 ease of correctable noncompliance, the LPA shall make the corrections in a
reasonable amount of time to the satisfaction of PHWA and INDOT.
Attachment B, Page 3 of 4
Version 2-18-2014
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
fill amount it paid for said construction work, less the amount of federal funds
allowed by FHWA.
(1. In any case, the LPA shall reimburse INDOT the total cost of the Project, not eligible
for federal participation.
c. 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 1NDOT under the terms of this
Contract, then the LPA shall repay to 1NDOT such sum or sums within forty-five (45)
days after receipt of a billing from 1NDOT. Payment for any and all costs incurred by
the LPA which are not eligible for federal finding shall be the sole obligation of the
LPA.
Attachment B, Page 4 of 4
Version 2-18-2014
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 hill 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 011 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 LC. 8-23-
9, I.C. 8-23-10, and 105 I.A.C. 11), conduct a scheduled letting.
6. Subject to the LTA's written approval, IN OT 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 1.,1'A 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 i..PA. 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, refimd any Project
overpayment to the LPA.
Attachment C, Page 1 of 1
1. Project Costs.
X
Version 2-18-2014
ATTACH1HENT 1)
PROJECT FUNDS
A. If the Program shown on Attachment A is receiving Group 1 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
finds allocated to the Project is $ 2,800,000.00.
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 FMWA 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 accmnplislunent 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
Attaclnncnt D, Page 1 of 2
(5) Were not incurred prior to FHWA authorization.
II. Billings.
A. Billino:
Version 2-18-2014
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.
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 ILA.1 of Attachment D and/or proceed
in accordance with LC. 8-14-1-9 to compel the Auditor of the Stale 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 LC. of Attachment D.
]II. 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 wither 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 1.C. 8-14-] -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 clue has been repaid.
Attachment D, Page 2 of 2