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HomeMy WebLinkAboutJoint_Use_and_Maintenance_Agreement_-_INDOT,_Westfield_&_Carmel_-_Signs_and_Totem_StructureJOINT USE AND MAINTENANCE AGREEMENT Between THE INDIANA DEPARTMENT OF TRANSPORTATION And THE CITY OF WESTFIELD And THE CITY OF CARMEL Concerning INSTALLATION AND MAINTENANCE CzTfshfzHsfdivlijobu22;56bn-Kvm23-3134Of SIGNS AND TOTEM STRUCTUREON US 31 This Joint Use and Maintenance Agreement(“Agreement”), by and between the Indiana Department of Transportation (“INDOT”), and the City of Westfield, Indiana(“Westfield”)and the City of Carmel, Indiana (“Carmel”), collectively referred to as the “PARTIES,” isexecuted pursuant to the termsand conditions setforthherein and shall be effective as of the date of approval by the Office ofthe Indiana Attorney General. In consideration of those mutual undertakings and covenants, the PARTIESagreeas follows: RECITALS WHEREAS, Westfieldwas issued a permit #E18GCR0373 to install a gateway totem structure with concrete foundation inthe median of US 31 approximately 400 feet south ofthe 146th Street bridge, located inHamilton County, Indiana (the “Totem”), and five (5) backlit sports signs and a Home of Grand Park” sign on the south side of the 146th Street bridge inWestfield(hereinafter the “Signs”), depicted in “Exhibit A”attached hereto and incorporated herein byreference; and WHEREAS, theTotem is located on the Westfield and Carmel line in Hamilton County, Indiana; and WHEREAS, the PARTIES desire to delineate certain costs and maintenance responsibilities relating to the installation and maintenance of the Signs and the Totem; and WHEREAS, Westfield has agreed tobe solely responsible for all costs associated with the installation and maintenance of the Signs; and WHEREAS, Westfield and Carmel (collectively, the “LPA”) agree that Westfield shall be solely responsible for the installation and maintenance of the Totem, and all costs associated with the maintenance of the Totem shall besplit equally between Westfield and Carmel; and WHEREAS, the installation and maintenance of the Signsand Totemwill occur within limited access right-of-way(“LARW”), under the jurisdiction of INDOT, as shown in “Exhibit A;” and WHEREAS, it is of mutual interest for INDOT and the LPA to cooperate in providing highway improvements for the convenience and safety of the public; Page1of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B NOW THEREFORE, in consideration of the promises and the mutually dependent covenants herein contained, the PARTIES hereto agree as follows: ARTICLE I. PURPOSE AND TERM 1.1. Recitals. The Recitals recorded above are incorporated byreference into this Agreement. All captions, section headings, paragraph titles and similar items are provided for the purpose of reference and convenience and are not intended to be inclusive, definitive or to affect the interpretation of this Agreement. 1.2. Purpose ofAgreement. The purpose ofthis agreement is todelineate the costs and responsibilities for installation and maintenance ofthe Signs and Totem. 1.3. Term of Agreement. This Agreement shall be for a ten (10) year period, commencing as of the date approved as to form and legality bythe Attorney General of Indiana, or an authorized representative, and shall be subject to renewal upon the same terms for four (4) successive ten (10) year periods. This Agreement shall be subject to cancellation and termination by either party upon giving the other party thirty (30) days written notice of such action. ARTICLE II. THE LPA’SRESPONSIBILITIES 2.1. Financial Responsibilities. 2.1.1. Westfield shall have sole responsibility for all associated costs with the maintenance of the Signs. Westfield shall be responsible for fifty percent (50%) of the costs of the maintenance of the Totem. To the extent permitted by law, in addition to the terms agreed upon pursuant to Section 4.22 of this Agreement, Westfield shall indemnify and hold INDOT harmless for any claims arising out ofthe Signs and/or Totem. This provision shall survive the termination of this Agreement. 2.1.2. Carmel shall be responsible for fifty percent (50%) of the costs of the maintenance of the Totem. To the extent permitted by law, in addition to the terms agreed upon pursuant toSection 4.22 of this Agreement, Westfield shall indemnify and hold INDOT harmless for any claims arising out of the Totem. This provision shall survive the termination of this Agreement. 2.2. Project Responsibilities. 2.2.1.Westfield shall have sole responsibility for the maintenance, improvements, and removal ofthe Signs and Totem. Westfield understands and agrees that INDOT shall be the sole and final decision maker on anything that is related to and/ormay impact the quality and function of US 31. Westfield shall conduct allmaintenance, improvements, and removal of the Signs and Totem inaccordance with all applicable federal and state laws as well asINDOT and FHWA standards and good engineering practices asset forth in the following: (1) Title 23, US Code, Highways, (2) the regulations issued pursuant thereto, 3) the Americans with Disabilities Act of 1990, (4) I.C. 36, and (5) the policies and Page2of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B procedures promulgated by INDOT and FHWArelative to the Agreement. All plans shall be completed in accordance with all requirements of the most recent edition of INDOT’s Standard Specifications and the Indiana Design Manual. Westfield shall comply with all terms and conditions of itsPermit. 2.2.2. Westfield shall be solely responsible to remove and/or relocate any interferences with any future INDOT transportation project. 2.3. Maintenance Responsibilities. Westfield shall perform, or cause to be performed, all necessary routine maintenance forthe Signs and Totem in accordance with all applicable state and federal laws, as well as INDOT standards, policies, and procedures relative to this Agreement. Westfield understands and agrees that if the Signs and/or Totemare damaged or need to be replaced, it is Westfield’s responsibility to repair or replace the Signs and/orTotem within ninety 90) days. If Westfield has not repaired or replaced the Signs and/or Totem within ninety (90) days after INDOT deemed it necessary to repair or replace the Signs and/or Totem, INDOT may remove the damaged Signs and/or Totem at Westfield’s expense. Maintenance activities performed on any portion of the Signs and/or Totem shall not create any adverse impact or interfere with the safety and travel of the motoring public. 2.3.1. Future maintenance shall include but not be limited to: A. Westfield shall be responsible for the maintenance responsibilities of the Signs and/or Totem. B. Westfield shall be solely responsible for the payment of all fees and costs for any utility services serving the Signs and/or Totem. INDOT shall not be responsible for the costs of any fees or costs for utility services serving the Signs and/or Totem, now or in the future. C.Westfieldshall be responsible toplan out maintenance activities performed within the LARW. Westfield shall submit to the Greenfield District Permit Manager (“Permit Manager”) a maintenance plan for approval prior to commencement of any maintenance activities within the LARW. The maintenance plan shall identify the types of maintenance activities to be completed and an estimated schedule of when these activities will occur. The plan shall include a Maintenance of Traffic (“MOT”) plan if such activities will require lane closures or traffic restrictions on US 31. The Permit Manager shall promptly notify Westfield of any concerns or deficiencies in the plan. 2.3.2 Modifications to Signs and/or Totem. Westfieldshall not erect any signs, sculptures, or structures within the LARW, outside of those covered by this Agreement, without the prior approval of INDOT. If Westfield wishes to install additional improvements within the LARW, prior to installation, Westfield shall apply for a permit, Page3of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B submit a design plan to the Permit Manager for review and approval, and enter into an amendment to this Agreement. 2.3.3 Removal of Signs and/or Totem. A.Upon termination of the Agreement pursuant to Section 1.3, Westfield may be required to remove the Signs and/or Totem and/or their infrastructure at INDOT’srequest. Failure to remove the Signs and/or Totem and/or their infrastructure may result in INDOT removing the Signs and/or Totem and/or their infrastructure and billing Westfield for costs of removal. B. In the event that INDOT determines, in its sole reasonable discretion, that Westfield is not adequately maintaining the Signs and/orTotem and/or their infrastructure, or for any other justified reason (i.e., safety concerns for pedestrians, bicyclists, the motoring public, change in policy, requirement for compliance with federal law or other federal mandate, etc.), INDOT may order Westfield to remove or modify the Signs and/or Totem and/or their infrastructure at Westfield’s expense. Except in cases of emergency (i.e., eminent threat of harm tothe traveling public), INDOT will provide ninety (90) days written notice to Westfield that the Signs and/or Totem and/or their infrastructure must be removed or modified. If the Signs and/or Totem and/or their infrastructure are not removed or modified toINDOT’s satisfaction within ninety (90) days of issuance of notice under this section, INDOT may remove the Signs and/or Totem and/or their infrastructure and bill Westfield for the costs of removal. C. Westfield understands and agrees that it shall not be entitled to any damages or any other compensation in the event that INDOT requires complete or partial removal of the Signs and/or Totem and/or their infrastructure for any reason. 2.4. Use of State Right-of-Way. 2.4.1. Subject to the terms and conditions of this Agreement, INDOT grants permission to Westfield, its employees, and its contractors toenter upon LARW for the sole and exclusive purposes of installing, inspecting, maintaining, operating, and repairing the Signs and/or Totem. Prior to entering the LARW, Westfield shall apply for a permit each time it intends toenter the LARW before commencing any such work. This includes even routine maintenance and repair activities. Pursuant to applicable state and federal law, for highway and limited access facilities, INDOT must grant written permission for each entry into the LARW, which must be based on specific traffic control and/or worker safety plans. Accordingly, as a condition precedent to giving effective notice, Westfield shall provide to INDOT all such traffic control and worker safety plans and other information as INDOT shall request or require inconnection with granting such permission. Westfield shall not enter upon the LARW until Westfield has received written approval via a permit from INDOT, which shall not be unreasonably withheld, toenter upon the LARW. INDOT shall Page4of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B only berequired toapprove Westfield’srequest to enter upon LARW if Westfield’s request is consistent with all applicable federal and state laws and this Agreement. 2.4.2. Any use of the LARW permitted by this Agreement remains secondary to the interest of INDOT to use the LARW for highway or other transportation purposes. Westfield agrees that it shall surrender the LARW upon which the Signs and/or Totem are located, whether in part or inits entirety, if, in INDOT’s discretion, the LARW or any portion thereof, is required for future expansion, modification, or maintenance of US 31. The Parties understand that this Agreement does not: (1) grant any interest or other rights in the land, either temporarily or permanently; or (2) establish a shared-use facility which would require replacement if INDOT has a need touse the affected property for highway purposes in the future. ARTICLE III. INDOT’s RESPONSIBILITIES 3.1. Financial Responsibilities. Under no circumstances shall INDOT be responsible for any costs associated with the installation, maintenance, improvement, removal of the Signs and/or Totem, or for the utilities serving the Signs and/or Totem. 3.2. Project Responsibilities. INDOT shall have the right to review and approve all plans for the Signs and/or Totem that are to be installed and located withinLARW. INDOT shall promptly notify Westfieldin the event that changes are required. INDOT shall be the sole and final decision maker on anything that is related to and/or may impact the quality and function of US 31. INDOT shall have approval authority for Westfield’s maintenance of the Signs and/or Totem and for any improvements located within the LARW. Such review and approval shall be completed in a reasonable period of time. Under no circumstances shall INDOT be responsible for any work associated with theinstallation, maintenance, improvement, orremoval ofthe Signs and/or Totem. 3.3. Future Maintenance. INDOT shall maintain any INDOT structures located within the LARW. INDOT shall have no maintenance responsibilities regarding the Signs and/or Totem. In the event Westfield fails to timely complete any necessary repairs or maintenance to the Signs and/or Totem in the interest of the safety of pedestrians, bicyclists, or the motoring public, INDOT may complete any necessary repairs ormaintenance and invoice Westfield for the total cost of the repair. Westfield shall pay each invoice within thirty (30) days of issuance of the invoiceand Carmel shall reimburse Westfield for 50% of the total costs for the necessary repairs or maintenance to the Totem. IfINDOT or its contractors damage the Signs and/or Totem during maintenance activities that fall under this section, INDOT has no responsibility torepair or to compensate Westfield orCarmel for the cost of repairs. ARTICLE IV. GENERAL PROVISIONS 4.1. Access to Records. The LPA shall maintain allbooks, documents, papers, correspondence, accounting records and other evidence pertaining to the cost incurred under this Agreementand shall make such materials available at their respective offices at allreasonable times during the period of this Agreement and for ten (10) years from the date approval under the terms of this Agreement, for Page5of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B inspection or audit by INDOT, or its authorized designee. Copies shall be furnished at no cost to INDOT, if requested. The LPA agrees that, upon request by any Party or state or federal agency, INDOT may release or make available to the agency any working papers from an audit performed by INDOT of the LPA inconnection with this Agreement, including any books, documents, papers, accounting records and other documentation which support or form the basis for the audit conclusions and judgments. 4.2.Assignment; Successors.\[OMITTED – NOT APPLICABLE\] 4.3. Assignment ofAntitrust Claims. As part of the consideration for this Agreement, 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 orservices which are the subject of this Agreement. 4.4. Audits. The LPA acknowledges that it may berequired to submit toan audit of funds paid, if any, through this Agreement. Any such audit shall be conducted in accordance with IC §5-11- 1, et seq., and audit guidelines specified by the State. 4.5. Authority to Bind the LPA. The signatory for the LPArepresents that he/she has been duly authorized to execute this Agreement on behalf of the LPAand has obtained all necessary or applicable approvals to make this Agreement fully binding upon the LPA when his/her signature is affixed and accepted by the State. 4.6. Changes in Work. The LPAshall not commence any additional work or change the scope of the work until authorized in writing by the State. This Agreement may only be amended, supplemented, or modified bya written document executed inthe same manner asthis Agreement. 4.7. Certification for Federal-Aid Contracts Lobbying Activities. The LPA certifies, by signing and submitting this Agreement, to the best of its knowledge and belief that the LPAhas complied with Section 1352, Title 31, U.S. Code, and specifically, that: A. No federal appropriated funds have been paid or will be paid, by or on behalf ofthe LPA, to any person for influencing or attempting to influence an officer or employee of any federal agency, aMember of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal agreements, 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 agreement, grant, loan, or cooperative agreement. B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence anofficer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, oran employee of a Member ofCongress in connection with such federal agreement, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying," in accordance with its instructions. Page6of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B C. The LPA also agrees by signing this Agreement that it shall require that the language of this certification be included in all contractor agreements including lower tier subcontracts, which exceed $100,000, and that allsuch sub recipients shall certify and disclose accordingly. Any person who fails tosign 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. 4.8.Compliance with Laws. A. The LPAshall 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 ofrules or regulations thereunder after execution of this Agreement shall be reviewed by the State and the LPA to determine whether the provisions of this Agreement require formal modification. B. The LPA and its agents shall abide by all ethical requirements that apply to persons who have abusiness relationship with the State as set forth in IC §4-2-6, et seq., IC §4- 2-7, et seq. and the regulations promulgated thereunder. If the LPA has knowledge, or would have acquired knowledge with reasonable inquiry, that a state officer, employee, or special state appointee, as those terms are defined in IC 4-2-6-1, has a financial interest in the Agreement, the LPA shall ensure compliance with the disclosure requirements in IC 4-2-6-10.5 prior to the execution of this contract. 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 Inspector General’s website athttp://www.in.gov/ig/. If the LPA or its agents violate any applicable ethical standards, the State may, in its sole discretion, terminate this Agreement immediately upon notice to the LPA. In addition, the LPA may besubject to penalties under IC §§4- 2-6, 4-2-7, 35-44.1-1-4, and under any other applicable laws. C. The LPA certifies by entering into this Agreement 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 LPAagrees that any payments currently due to INDOT may be withheld from payments due to the LPA. Additionally, further work or payments may be withheld, delayed, or denied and/or this Agreement suspended until the LPAis current inits payments and has submitted proof of such payment to INDOT. D. The LPA 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 ofsuch actions, the LPA agrees that INDOT may delay, withhold, or deny work under any supplement, amendment, change order or other contractual device issued pursuant tothis Agreement. E. If a valid dispute exists as to the LPA’s liability or guilt in any action initiated by the State or its agencies, and INDOT decides todelay, withhold, or deny work to the LPA, Page7of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B the LPA may request that it be allowed to continue, or receive work, without delay. 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. F.The LPA warrants that the LPA and its contractors shall obtain and maintain all required permits, licenses, registrations, and approvals, and shall comply with all health, safety, and environmental statutes, rules, or regulations in the performance of work activities under thisAgreement. Failure todo so may be deemed a material breach of this Agreement and grounds for immediate termination and denial of further work with the State. G. The LPA affirms that it is properly registered and owes no outstanding reports to the Indiana Secretary of State. H. As required byIC §5-22-3-7: 1. The LPA and any principals 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 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 Agreement, even if IC §24-4.7 is preempted by federal law. 2.The LPA and any principals of the LPA certify that an affiliate or principal ofthe LPA and any agent acting on behalf of the LPA or on behalf ofan affiliate or principal 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 byfederal law; and B) will not violate the terms of IC §24-4.7for the duration of the Agreement, even ifIC §24-4.7 is preempted by federal law. 4.9. Condition of Payment. \[OMITTED – NOT APPLICABLE.\] 4.10. Confidentiality of State Information. The LPA understands and agrees that data, materials, and information disclosed to the LPA may contain confidential and protected information. The LPA covenants that data, material, and information gathered, based upon, or Page8of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B disclosed to the LPAfor the purpose of this Agreement, will not be disclosed to or discussed with third parties without the prior written consent of INDOT. 4.11. Continuity of Services. \[OMITTED – NOT APPLICABLE.\] 4.12. Debarment and Suspension. A.The LPAcertifies by entering into this Agreement 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 Agreement by any federal agency or by any department, agency, or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement 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 LPA. B. The LPA certifies that it has verified the state and federal suspension and debarment status for all contractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred contractor. The LPA shall immediately notify INDOT if any contractor becomes debarred orsuspended, 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 Agreement. 4.13. Default by State. \[OMITTED – NOT APPLICABLE.\] 4.14. Disputes. \[OMITTED – NOT APPLICABLE.\] 4.15. Drug-Free Workplace Certification. As required by Executive Order No. 90-5 dated April 12, 1990, issued by the Governor of Indiana, the LPA hereby covenants and agrees to make a good faith effort to provide and maintain a drug-free workplace. The LPAwill give written notice tothe State within ten (10) days after receiving actual notice that the LPA, or an employee ofthe LPA, inthe 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 Agreement and/or debarment of contracting opportunities with the State for up tothree (3) years. In addition to the provisions of the above paragraph, if the total amount set forth in this Agreement is in excess of $25,000.00, the LPA certifies and agrees that it will provide a drug-free workplace by: A.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 LPA’s workplace, and specifying the actions that will be taken against employees for violations of such prohibition; Page9of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B B. Establishing adrug-free awareness program to inform its employees of (1) the dangers of drug abuse in the workplace; (2) the LPA’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; C. 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 LPAof any criminal drug statute conviction for aviolation occurring in the workplace no later than five (5) days after such conviction; D. Notifying the State inwriting within ten (10) days after receiving notice from an employee under subdivision (C)(2) above, or otherwise receiving actual notice of such conviction; E. Within thirty (30) days after receiving notice under subdivision (C)(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, orother appropriate agency; and F. Making a good faith effort to maintain a drug-free workplace through the implementation of subparagraphs (A) through (E) above. 4.16. Employment Eligibility Verification. TheLPAswears or affirms under the penalties of perjury that the LPA does not knowingly employ an unauthorized alien. The LPA further agrees that: A. The LPA shall enroll in and verify the work eligibility status of all his/her/its newly hired employees through the E-Verify program as defined in IC §22-5-1.7-3. The LPA is not required to participate should the E-Verify program cease to exist. Additionally, the LPA is not required toparticipate if the LPA is self-employed and does not employ any employees. B. The LPA shall not knowingly employ or contract with an unauthorized alien. The LPA shall not retain an employee or contract with aperson that the LPA subsequently learns isan unauthorized alien. C. The LPA shall require his/her/its subcontractors, who perform work under this Agreement, to certify to the LPA that the subcontractor does not knowingly employ or contract with an unauthorized alien and that the subcontractor has enrolled and is participating in the E-Verify program. The LPA agrees to maintain this certification throughout the duration of the term of a contract with a subcontractor. Page10of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B The State may terminate for default if the LPAfails to cure a breach of this provision no later than thirty (30) days after being notified by the State. 4.17. Employment Option. \[OMITTED – NOT APPLICABLE.\] 4.18. Force Majeure. In the event that any Party is unable to perform any of its obligations under this Agreement 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 or as soon as is reasonably possible under the circumstances give notice tothe other Parties and shall do everything possible toresume performance. Upon receipt of such notice, all obligations under this Agreement 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 Agreement. 4.19. Funding Cancellation. As required by Financial Management Circular 3.3 and IC 5-22- 17-5, when the Director of the State Budget Agency makes awritten determination that funds are not appropriated or otherwise available tosupport continuation of the performance of this Agreement, this Agreement shall be canceled. Adetermination by the Director of State Budget Agency that funds are not appropriated or otherwise available to support continuation of performance shall be final and conclusive. 4.20. Governing Law. This Agreement shall be governed, construed, and enforcedin accordance with the laws of the State of Indiana, without regard to its conflict of laws rules. Suit, if any, must be brought inthe State of Indiana. 4.21. HIPAA Compliance. \[OMITTED – NOT APPLICABLE.\] 4.22. Indemnification. The LPAagrees to indemnify, defend, exculpate and hold harmless the State of Indiana, INDOT, and their officials and employees from any liability due to loss, damage, injuries, or other causalities of whatever kind, to the person or property ofanyone arising out of, or resulting from the performance of this Agreementor the work connected therewith, or from the installation, existence, use, maintenance, condition, repairs, alteration or removal of any equipment or material, to the extent such liability iscaused by the negligence of the LPA, including any claims arising out the Worker'sCompensation Act or any other law, ordinance, order or decree. INDOT shall not provide indemnification to the LPA. The LPA agrees to pay all reasonable expenses and attorney's fees incurred by or imposed on the State and INDOT in connection herewith in the event that the LPA shall default under the provisions of this Section. 4.23. Independent Entity; Workers’ Compensation Insurance. The LPA isperforming as an independent entity under this Agreement. No part of this Agreementshall be construed to represent the creation of an employment, agency, partnership, or joint venture agreement between the Parties. Neither Party will assume liability for any injury (including death) to any persons, or damage to any property, arising out of the acts or omissions of the agents, employees, or subcontractors of the other Party. The LPA shall provide all necessary unemployment and Page11of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B workers’ compensation insurance for the LPA’s employees andshall provide the State with a Certificate of Insurance evidencing such coverage prior to starting work under this Agreement. 4.24. Indiana Veteran’s Business Enterprise Compliance. \[OMITTED – NOT APPLICABLE.\] 4.25 Information Technology Enterprise Architecture Requirements. \[OMITTED – NOT APPLICABLE.\] 4.26. Insurance. \[OMITTED – NOT APPLICABLE.\] 4.27. Key Person(s).\[OMITTED – NOT APPLICABLE.\] 4.28. Licensing Standards. \[OMITTED – NOT APPLICABLE.\] 4.29. Merger & Modification. This Agreement constitutes the entire agreement between the PARTIES. No understandings, agreements, or representations, oral or written, not specified within this Agreement will be valid provisions of this Agreement. This Agreement may not bemodified, supplemented, or amended, except by written agreement signed by allnecessary PARTIES. 4.30. Minority and Women’s Business Enterprises Compliance. \[OMITTED - NOT APPLICABLE.\] 4.31. Non-Discrimination. A. Pursuant to the Indiana Civil Rights Law, specifically including IC 22-9-1-10, and in keeping with the purposes of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, the LPAcovenants that it shall not discriminate against any employee or applicant for employment relating to this Agreement with respect to the hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of the employee’s or applicant’s race, color, national origin, religion, sex, age, disability, ancestry, status as a veteran, or any other characteristic protected by federal, state or local law (“Protected Characteristics”). The LPAcertifies compliance with applicable federal laws, regulations and executive orders prohibiting discrimination based on the Protected Characteristics in the provision of services. Breach of this paragraph may be regarded as a material breach of this Agreement, but nothing in this paragraph shall be construed toimply orestablish an employment relationship between the State and any applicant oremployee of the LPA or any subcontractor. B. INDOT isa recipient of federal funds, and therefore, where applicable, the LPA and any subcontractors shall comply with requisite affirmative action requirements, including reporting, pursuant to 41 CFR Chapter 60, as amended, and Section 202 of Executive Order 11246 as amended by Executive Order 13672. Page12of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B The LPAagrees that if the LPA employs fifty (50) or more employees and does at least 50,000.00 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 complies 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 inall 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 nondiscrimination enforcement is broader than the language of Title VI and encompasses other State and Federal protections. INDOT’s nondiscrimination enforcement shall include the following additional grounds: sex, sexual orientation, gender identity, ancestry, age, income status, religion, disability, income status, limited English proficiency, or status as a veteran.) C. During the performance of this Agreement, the LPA, for itself, its assignees, and successors in interest (hereinafter collectively referred toas, the “CITY”) agrees to the following assurances under Title VI of the Civil Rights Act of 1964: 1.Compliance with Regulations: The LPAshall comply with the regulations relative to nondiscrimination in Federally assistedprograms 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 Agreement. 2.Nondiscrimination: The LPA, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, sex, sexual orientation, gender identity, 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 inthe discrimination prohibited by section 21.5of the Regulation, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. 3.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 LPAof the LPA’s obligations under this Agreement, and the Regulations relative to nondiscrimination on the grounds of race, color, sex, sexual Page13of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B orientation, gender identity, national origin, religion, disability, ancestry, income status, limited English proficiency, or status as a veteran. 4. 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 the 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. 5. Sanctions for Noncompliance: In the event of the LPA’s noncompliance with the nondiscrimination provisions of this Agreement, 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 Agreement until the LPA complies, and/or (b) cancellation, termination or suspension of the Agreement, in whole or in part. 6. Incorporation of Provisions: The LPA shall include the provisions of paragraphs 1 through 5 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 ofTransportation or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance, provided, however, that inthe event the LPAbecomes involved in, oris 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, inaddition, the LPA may request the United States of America to enter into such litigation to protect the interests of the United States of America. 4.32. Notice to Parties. Whenever any notice, statement or other communication is required under this Agreement, it shall be sent to the following addresses, unless otherwise specifically advised: A. For INDOT: Valerie Cockrum Technical Services Director - Greenfield District 32 South Broadway Greenfield, IN 46140 Email: vcockrum@indot.in.gov Page14of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B With Copy To: Chief Legal Counsel and Deputy Commissioner Indiana Department of Transportation 100 North Senate Avenue, IGCN 758 Indianapolis, IN 46204 B.For City of Westfield: Johnathon Nail Director of Public Works st2706E. 171Street Westfield, IN 46074 Phone: 317-804-3150 Email: publicworks@westfield.in.gov C.For City of Carmel: Jeremy Kashman, City Engineer Carmel City Hall One Civic Square Carmel, IN 46032 Phone: 317-571-2441 Email: engineering@carmel.in.gov 4.33. Order of Precedence; Incorporation by Reference. \[OMITTED – NOT APPLICABLE.\] 4.34. Ownership of Documents and Materials. \[OMITTED – NOT APPLICABLE.\] 4.35. Payments. \[OMITTED – NOTAPPLICABLE.\] 4.36. 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 asrequired by Indiana law in part, IC §5-17-5, IC §34-54-8, and IC §34-13- 1. Notwithstanding the provisions contained in IC §5-17-5, any liability resulting from the State’s failure to make prompt payment shall be based solely on the amount of funding originating from the State and shall not be based on funding from federal or other sources. 4.37. Progress Reports. \[OMITTED – NOT APPLICABLE.\] 4.38. Prohibited Telecommunications and Video Surveillance Equipment and Services. OMITTED – NOTAPPLICABLE.\] 4.39. Public Record. The LPAacknowledges that the State will not treat this Agreement as containing confidential information and will post this Agreement on its website as required by Executive Order 05-07. Use by the public of the information contained inthis Agreement shall not be considered anact of the State. Page15of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B 4.40 Renewal Option. This Contract may be renewed under the same terms and conditions, subject to the approval of the Commissioner of the Department of Administration and the State Budget Director in compliance with IC § 5-22-17-4. The term of the renewed contract may not be longer than the term ofthe original Contract. 4.41. Severability.The invalidity of any section, subsection, clause, or provision of this Agreementshall not affect the validity ofthe remaining sections, subsections, clauses, or provisions of this Agreement. 4.42. Status of Claims. The LPA shall beresponsible for keeping INDOT currently advised as to the status of any claims made for damages against the LPAresulting from services performed under this Agreement. 4.43. Substantial Performance. This Agreement shall be deemed tobe substantially performed only when fully performed according to its terms and conditions and any written amendments or supplements. 4.44. 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 LPA orits contractors as aresult of this Agreement. 4.45. Termination for Convenience. This Agreement may be terminated, in whole or inpart, by INDOT whenever, for any reason, INDOT determines that such termination is in its best interest. Termination shall be affectedby delivery to the LPA 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. 4.46. Termination for Default. \[OMITTED – NOT APPLICABLE.\] 4.47. Travel. \[OMITTED – NOT APPLICABLE.\] 4.48. Waiver of Rights.No right conferred on either party under this Agreement shall be deemed waived, and no breach of this Agreement excused, unless such waiver is in writing and signed by the party claimed to have waived such right. Neither the State’s review, approval or acceptance of, nor payment for, the work performed under this Agreement shall be construed to operate as awaiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and the LPA shall be and remain liable to the State inaccordance with applicable law for all damages to the State caused by the LPA’s negligent performance of any of the services furnished under this Agreement. 4.49. Work Standards.\[OMITTED – NOT APPLICABLE.\] 4.50 State Boilerplate Affirmation Clause. I swear or affirm under the penalties of perjury that I have not altered, modified, changed, ordeleted the State’s standard contract clauses (as contained in the 2022 SCM Template) in any way except as follows: None. Page16of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B Non-Collusion and Acceptance The undersigned attests, subject to the penalties for perjury, that the undersigned is the Party, or that the undersigned is the properly authorized representative, agent, member,or officer ofthe Party. Further, to the undersigned’sknowledge, neither the undersigned nor any other member, employee, representative, agent, or officer of the Party, directly or indirectly, has entered into or been offered any sum of money or other consideration for the execution of this Agreement other than that which appears upon the face hereof. Furthermore, if the undersigned has knowledge that a state officer, employee, or special state appointee, as those terms are defined in IC §4- 2-6-1, has a financial interest in the Agreement, the Party attests to compliance with the disclosure requirements in IC §4-2-6-10.5. Agreement to Use Electronic Signatures Iagree, and it is my intent, to sign this Agreement by accessing State of Indiana Supplier Portal using the secure password assigned to me and by electronically submitting this Agreement to the State of Indiana. Iunderstand that my signing and submitting this Agreement in this fashion is the legal equivalent of having placed my handwritten signature on the submitted Agreement and this affirmation. Iunderstand and agree that by electronically signing and submitting this Agreement in this fashion Iam affirming to the truth of the information contained therein. I understand that this Agreement will not become binding on the State until ithas been approved by the Office of the Attorney General, which approvals will be posted on the Active Contracts Database: https://fs.gmis.in.gov/psp/guest/SUPPLIER/ERP/c/SOI_CUSTOM_APPS.SOI_PUBLIC_CNTR CTS.GBL In Witness Whereof, the PARTIES have, through their duly authorized representatives, entered into this Agreement. The PARTIES, having read and understood the foregoing terms of this Agreement, do by their respective signatures dated below agree to the terms thereof. THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK Page17of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B CITY OF WESTFIELD, INDIANA BOARD OF PUBLIC WORKS AND SAFETY J. Andrew Cook, Mayor Date: ______________________________________ Jim Ake, Member Date: ________________________________________ Larry Clarino, Member Date: ________________________________________ Attest: Patricia Leuteritz Date: ________________________________________ Page18of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B CITY OF CARMEL, INDIANA BOARD OF PUBLIC WORKS AND SAFETY James Brainard, Mayor Date: ______________________________________ Mary Ann Burke, Member Date: ________________________________________ Lori Watson, Member Date: ________________________________________ Attest: Sue Wolfgang, Clerk Date: ________________________________________ Page19of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B 7/19/2023 7/19/2023 7/19/2023 7/19/2023 STATE OFINDIANA Indiana DepartmentofTransportation Recommended for approval by: Clark W. Packer Greenfield District Deputy Commissioner Date: _________________________________________ Executed By: FOR) Michael Smith, Commissioner Date: _________________________________________ Page20of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B APPROVALS State approvals are electronic – see attached confirmation page.\] STATE OF INDIANA Budget Agency By: (FOR) Zachary Q. Jackson, Director Date: STATE OF INDIANA Department ofAdministration By: (FOR) Rebecca Holwerda, Commissioner Date: Approved as to Form and Legality: Office of the Attorney General By: (FOR) Theodore E. Rokita Attorney General Date: This instrument was prepared for the Indiana Department of Transportation, 100 N. Senate Avenue, Indianapolis, IN 46204, by the undersigned attorney. Marjorie A. Millman, Attorney No. 21748-36 Page21of21 DocuSign Envelope ID: 657F94F3-EFFE-4735-A05E-CDBADFA24E5B