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HomeMy WebLinkAboutINDOT Decorative Lighting AGreement - UNEXECUTEDOlt tT 4.c "?$-'72 /.2/g/ f CONTRACT FOR DECORATIVE LIGHTING DEVICES ON STATE HIGHWAYS IN CITY OF CARMEL, HAMILTON COUNTY, INDIANA EDS #A249-13-320398 THIS CONTRACT by and between the STATE OF INDIANA through the INDIANA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as "INDOT" and the CITY OF CARMEL hereinafter referred to as the CITY through their duly authorized and undersigned officials, W I T N E S S E T H: WHEREAS, in the interest of community beautification, the CITY wishes to install and maintain ornamental lighting devices (the lighting) on state right-of-way in and near the City of Carmel, Hamilton County, Indiana, with the fixture type and locations listed in Exhibit "A", attached and made a part of this Contract; and, WHEREAS, INDOT deems the installation and maintenance of the lighting at' the locations listed in Exhibit "A", to be beneficial to the public, to the extent of permitting such improvements to be made on the state highway and participating in the same under conditions as specified below: IT IS THEREFORE AGREED BY AND BETWEEN INDOT and the CITY that the lighting at locations listed in Exhibit "A", installed and maintained under terms and conditions as follows: 1. TERM OF CONTRACT a. Effective date: This CONTRACT shall become effective on the date it is approved by the Attorney General of Indiana or an authorized representative. b. Termination date is the earliest of: 1. If the highway lighting permitted by this Contract has not been installed within one (1) year of the date of the approval required in 1.a., this Contract shall terminate. 2. If the highway lighting permitted by terms of this Contract is removed from the highway right-of-way, this Contract shall terminate on the date the highway lighting is removed. 3. The date a lack of funding determination is made by the State Budget Director as provided in Section 10 of this CONTRACT. 4. If the State determines there has been an ethics violation, the date notice is given to the CITY as provided in Section 7 of this CONTRACT. Page 1 of 13 2. DESIGN INDOT will retain a Consulting Engineer to prepare plans and specifications for the lighting installation at the locations listed in Exhibit "A" in accordance with the terms set forth in the project cost sharing agreement (EDS # A249-13-320235) for project designation numbers 0600438 & 1296427 and the 2010 Standard Specifications and any subsequent revisions. Specifications information is available from the INDOT website at: http://www.in.gov/indot/. 3. CONSTRUCTION INDOT will hire a contractor preapproved for lighting installation on INDOT highways to construct the decorative lighting installations in accordance with the terms set forth in the project cost sharing agreement (EDS # A249-13-320235) for project designation numbers 0600438 & 1296427. 4. ACCEPTANCE OF THE LIGHTING After satisfactory completion of the lighting installation, the lighting will become the property of the CITY. Costs for electrical energy shall be paid as provided in Section 9. 5. RIGHTS OF ENTRY INDOT grants the CITY, its contractor and subcontractors permission to enter upon the State right-of-way for the sole purpose of maintaining the lighting at the locations listed in Exhibit "A". 6. MAINTENANCE a. The maintenance of the lighting shall be done either by a contractor prequalified with INDOT for lighting work or by CITY employees. Prequalification information is available on INDOT's website at: http://www.in.gov/indot/7179.htm. b. The maintenance, and any removal of the lighting shall be in accordance with all current procedures for temporary traffic control and work zone safety, including but not limited to those procedures defined in the Indiana Department of Transportation Polices, Processes, & Procedures on Work Zone Safety & Mobility and Part 6 of the Indiana Manual on Uniform Traffic Control Devices. c. The CITY shall send the Greenfield Maintenance Director a lighting maintenance plan every two (2) years for approval. The lighting maintenance plan shall identify the types of maintenance activities to be completed and an estimated schedule of when these activities will occur. d. The Greenfield Maintenance Director may require the CITY to perform specific maintenance activities, such as relamping, if the illumination of the roadway is not uniform, or if there is other Page 2 of 13 evidence that the lighting permitted by this Contract is not being adequately maintained. e. The lighting may be removed by INDOT, if INDOT determines that the CITY is not adequately maintaining the highway lighting and INDOT provides thirty (30) days notice that the highway lighting will be removed. f. The lighting may be removed by INDOT at any time, if INDOT determines that there are safety problems with the lighting type based on an increase in night-time accidents or from research at other locations, and the safety problems cannot be corrected. 7. CITY RESPONSIBILITIES The CITY responsibilities shall include but are not limited to: a. Wherever in this contract any obligation or responsibility is assumed by the CITY, same shall be deemed an obligation of said CITY. b. The CITY shall perform all work permitted under this Contract to INDOT's reasonable satisfaction, as determined at the discretion of INDOT and in accordance with all applicable federal, state, local laws, ordinances, rules, and regulations. c. Compliance With Laws 1. The CITY 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 of any state or federal statute or the promulgation of rules or regulations thereunder after execution of this Contract shall be reviewed by INDOT and the CITY to determine whether the provisions of this Contract require formal modification. 2 The CITY and its agents shall abide by all ethical requirements that apply to persons who have a business relationship with INDOT as set forth in IC § 4-2-6 et seq., IC § 4-2-7, et. seq., the regulations promulgated thereunder, and Executive Order 04-08, dated April 27, 2004. If the CITY is not familiar with these ethical requirements, the CITY 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 CITY or its agents violate any applicable ethical standards, INDOT may, in its sole discretion, terminate this Contract immediately upon notice to the CITY. In addition, the CITY may be subject to penalties under IC §§ 4-2-6 and 4-2-7. 3. The CITY certifies by entering into this Contract that neither it nor its principal(s) is presently in arrears in payment of taxes, permit fees or other statutory, regulatory or judicially required payments to INDOT. The CITY agrees that any payments currently Page 3 of ] 3 due to INDOT may be withheld from payments due to the CITY. Additionally, further work or payments may be withheld, delayed, or denied and/or this Contract suspended until the CITY is current in its payments and has submitted proof of such payment to INDOT. 4. The CITY warrants that it has no current, pending or outstanding criminal, civil, or enforcement actions initiated by INDOT, and agrees that it will immediately notify INDOT of any such actions. During the term of such actions, the CITY agrees that INDOT may delay, withhold, or deny work under any supplement, amendment, change order or other contractual device issued pursuant to this Contract. 5. If a valid dispute exists as to the CITY's liability or guilt in any action initiated by INDOT or its agencies, and INDOT decides to delay, withhold, or deny work to the CITY, the CITY may request that it be allowed to continue, or receive work, without delay. The CITY must submit, in writing, a request for review to the Indiana Department of Administration (IDOA) following the procedures for disputes outlined herein. A determination by IDOA shall be binding on the parties. 6. Any payments that INDOT may delay, withhold, deny, or apply under this section shall not be subject to penalty or interest under IC § 5-17-5. 7. The CITY warrants that the CITY and its contractors, 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 for INDOT. Failure to do so may be deemed a material breach of this Contract and grounds for immediate termination and denial of further work with INDOT. 8. The CITY affirms that, if it is an entity described in IC Title 23, it is properly registered and owes no outstanding reports to the Indiana Secretary of State. 9. As required by IC 5-22-3-7: i. the CITY and any principals of the CITY certify that (A) the CITY, 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 (.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 (8) the CITY will not violate the terms of IC 24-4.7 for the duration of the Contract, even if IC 24-4.7 is preempted Page 4 of 13 by federal law. ii The CITY and affiliate behalf of any principals of the CITY certify that an or principal of the CITY and any agent acting on the CITY or on behalf of an affiliate or principal of the CITY (A) except for de minimis and nonsystematic violations, 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. d. Confidentiality of State Information - The CITY understands and agrees that data, materials, and information disclosed to the CITY may contain confidential and protected information. The CITY covenants that data, material and information gathered, based upon or disclosed to the CITY for the purpose of this Contract, will ice..,, be disclosed to or discussed with third parties without t written consent of INDOT. e. Indemnification - The CITY agrees to indem harmless INDOT, its agents, officer and suits including court cost caused by any act or omission o any, in the performance of this provide such indemnification to t f. Drug -Free Workplace Certification agrees to make a good faith effort free workplace. The CITY will give ten (10) days after receiving actual employee'of the CITY in the State of I criminal drug violation occurring in th certification or violation of this certi sanctions including, but not limited to, `,`' ' Yrs act payments, termination of this Contract an contracting opportunities with INDOT for u of hree (3) years. In addition to the provisions of the above paragraphs, if the contract amount set $25,000.00, the CITY expressly subject to forth in this Contract hereby further agrees the terms, conditions, the following certification: total is in excess of that this Contract is and representations of This certification is required by Executive Order No. 90-5, April 12, 1990, issued by the Governor of Indiana. No award of a contract shall be made, and no contract, purchase order or agreement, the Page 5 of 13 total amount of which exceeds $25,000.00, shall be valid, unless and until this certification has been fully executed by the CITY and made a part of the contract or agreement as part of the contract documents. The CITY 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 CITY'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 CITY's policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation and employee assistance programs; and (4) the penalties drug abuse violations that may be imposed upon an employee for occurring in the workplace; 3. Notifying all employees in the statement required by subparagraph (A) above that as a condition of continued employment, the employee will (1) abide by the terms of the statement; and (2) notify the CITY of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; 4. Notifying INDOT in writing within ten (10) days after receiving notice from an employee under subdivision (C) (2) above, or otherwise receiving actual notice of such conviction; 5. Within (C) (2) thirty (30) days after receiving notice under subdivision 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 (A) through (E) above. g. Non -Discrimination - Pursuant to I.C. 22-9-1-10 and the Civil Rights Act of 1964, the CITY, its agents, contractors and subcontractors, shall not discriminate against any employee or applicant for employment in the performance of this Contract with respect to hire, Page 6 of 13 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, or ancestry. Breach of this covenant may be regarded as a material breach of the 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, CITY understands Pursuant to that agree age, sex, disability or status as a veteran. The that INDOT :i.s a recipient of federal funds. understanding, the CITY and its contractor, if any, and does that if the CITY employs fifty (50) or more employees at least $50,000.00 worth of business with INDOT and is not exempt, the CITY will comply with the affirmative action reporting requirements of 41 CFR 60-1.7. The CITY 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. h. Status of Claims - The CITY shall be responsible for keeping INDOT currently advised as to the status of any claims made for damages against the CITY resulting from work performed under this Contract. The CITY 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, IN 46204-2249 8. NOTICE a. Wherever in or under this contract notice must or may be given by INDOT to the CITY, such notice shall be deemed given when addressed to the CITY at City of Carmel Street Department, Attn: Street Commissioner, 3400 W 131s` Street, Westfield, Indiana 46074, and deposited postage paid in the U.S. Mail system of collection. b. Wherever in or under this contract notice must or may be given by the CITY to INDOT, such notice shall be deemed given when received by the Traffic Engineer at the Greenfield District Office, 32 S. Broadway, Creenfield, IN 46140. 9. PAYMENTS As required by IC 4-13-2-14.8: Notwithstanding any other law, rule, or custom, a person or company whom has a contract with the State or submits invoices to the state for payment shall authorize in writing the direct deposit by electronic funds transfer of all payments by the state to the person or company. The written authorization must designate a Page 7 of 13 financial institution and an account number to which all payments are to be credit. For forms and additional information, the CITY may visit the Auditor of State's website at: http://www.in.gov/auditor/2340.htm. a. To providers other than INDOT, the CITY shall pay for: 1. Costs to install the lighting as described in the project cost sharing agreement (EDS # A249-13-320235) for project designation numbers 0600438 & 1296427. 2. Electrical energy to operate the lighting at the intersection from the initial testing and turn on until the lighting devices are removed. The CITY shall make arrangements with the utility company to bill the CITY directly for the energy provided. The CITY shall provide the Traffic Engineer with written documentation of said billing authorization before the lighting is accepted. 3. The maintenance of the lighting at the locations listed in Exhibit „A„ b. In its normal course of business, INDOT will incur costs for installation as described in the project cost sharing agreement (EDS # A249-13-320235) for project designation numbers 0600438 & 1296427. 10. GENERAL PROVISIONS a. Attorney General Approval - This Contract shall not be effective unless and until approved by the Attorney General of Indiana, or an authorized representative, as to form and legality. b. Assignment - The CITY binds its successors and assignees to all the terms and conditions of this Contract. The CITY shall not assign or subcontract the whole or any part of this Contract without INDOT's prior written consent. c. Debarment and Suspension - 1. The CITY certifies by entering into this Contract that neither it nor its principals nor any of its contractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Contract by any federal agency or by any department, agency or political subdivision of INDOT. The term "principal" for purposes of this Contract means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the CITY. 2. The CITY certifies that it has verified the state and federal suspension and debarment status for all contractors receiving funds under this Contract and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a Page 8of13 suspended or debarred contractor. The CITY shall immediately notify INDOT if any contractor becomes debarred or suspended, and shall, at INDOT's request, take all steps required by INDOT to terminate its contractual relationship with the contractor for work to be performed under this Contract. d. Delay of work. No delay or failure by either party to exercise any right hereunder, and no partial or single exercise of any such right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. e. Force Majeure, Suspension and Termination - In the event that 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 (hereinafter referred to as a "Force Majeure has been so affected shall immediately give and shall do everything possible to resume of such notice, all obligations under this of the affected party Event"), the notice to the party who other party performance. Upon Contract shall be receipt 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. f. Funding Cancellation. When the Director of the State Budget Agency makes a written determination that funds are not appropriated or otherwise available to support continuation of this Contract, the Contract shall be canceled. A determination by the Budget Director that funds are not appropriated or otherwise available to support continuation of performance shall be final and conclusive. Termination for Convenience. This Contract may be terminated, in whole or in part, by INDOT whenever, for any reason, :CNDOT determines that such termination is in its best interest. Termination of services shall be effected by delivery to the CITY of a Termination Notice at least thirty (30) days prior to the termination effective date, specifying the extent to which performance of services under such termination becomes effective. h. 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. i. Headings. Headings in this Contract are for convenience only and shall not be used to interpret or construe its provisions. Modification/Entire Contract. This Contract may be amended from time g. to time hereafter only in writing executed by submitted to the Indiana Attorney General for legality. No verbal change, modification, or Page 9 of 13 the parties hereto and approval as to form and amendment shall be effective unless in writing and signed by the parties and approved by the Attorney General or his authorized representative. Except, elements of the lighting and associated work design may be added, deleted or modified in the normal course of plan review or construction field revision without for approval. The provisions hereof submittal to the Attorney constitute the entire General Contract between the parties and supersede any verbal statement, representations, or warranties, stated, or implied. k. Non -Waiver. No delay or failure by either party to exercise any right hereunder, and no partial or single exercise of any such right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 1. Order of Precedence. Any inconsistency or ambiguity in this Contract shall be resolved by giving precedence in the following order: (1) This Contract, (2) attachments prepared by INDOT, (3) attachments prepared by the CITY. All of the foregoing is incorporated fully by reference. m. Severability. Wherever possible, each provision of this Contract shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Contract shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Contract. n. Subsequent Acts. The parties agree that they will, at any time and from time to time, from and after the execution of this Contract, upon request, perform or cause to be performed such acts, and execute, acknowledge and deliver or cause to be executed, acknowledged and delivered, such documents as may be reasonably required for the performance by the parties of any of their obligations under this Contract. o. Substantial Performance. This Contract shall be deemed to have been substantially performed only when fully performed according to its terms and conditions and any modification thereof. Taxes. The State is exempt from most state and local taxes and many federal taxes. The State will not be responsible for any taxes levied on the CITY as a result of this Contract. q. Previous Contracts Superseded or Revoked. This Contract supersedes and revokes any previous contract between said parties hereto pertaining to lighting at the locations listed in Exhibit "A". Such above terms and conditions as they apply to INDOT shall remain in P. Page 10 of 13 effect only so long as the location mentioned herein is a part of the State Highway System. r. Authorizations. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his/her principal to execute this Contract on such principal's behalf. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Page 11 of 13 Non -collusion and Acceptance. The undersigned attests, subject to the penalties for perjury, that he/she is the contracting party, or that he/she is the representative, agent, member or officer of the contracting party, that he/she has not, nor has any other member, employee, representative, agent or officer of the firm, company, corporation or partnership represented by him/her, 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 the contract. IN WITNESS WHEREOF, the State of Indiana, through said INDOT, and the CITY, through their undersigned officials, have hereunto affixed their signatures. CITY OF CARMEL STATE OF INDIANA INDIANA DEPT OF TRANSPORTATION amen Brainard, C� ayor Date: ATTESff CALA %iana L. Cordray Clerk -Treasurer/ �,f/ / 0�7/i Brandye Hendrickson Greenfield District Deputy Commissioner Date: Sandra M Johnson Deputy Clerk For Date: Approved: Approved: Department of Administration State Budget Agency (FOR) (FOR) Jessica Robertson, Commissioner Brian E. Bailey, Director Date: Date: Approved as to Form and Legality: (FOR) Gregory F. Zoeller Attorney General of Indiana Date: Page 12 of 13