HomeMy WebLinkAboutBPW-01-16-08-02 Ratify/Mayor SignatureRESOLUTION NO. BPW-01-16-08-02
WHEREAS, the executive officer of a municipality has the right and authority under Indiana law
to enter into contracts on behalf of the municipal corporation; and
WHEREAS, due to the exigencies of time, City of Carmel Mayor James Brainard, upon the
advice of the Carmel City Attorney, executed that certain Agreement To Fund Transportation project
("Agreement'), the original copy of which is attached hereto and incorporated herein as Exhibit A; and
WHEREAS, the City of Carmel Board of Public Works and Safety now desires to ratify the above
actions of Mayor Brainard and to adopt the,same as the act of the Board.
NOW, THEREFORE, BE IT RESOLVED by the Board of Public Works and Safety of the City
of Carmel, Indiana, as follows:
1. The foregoing Recitals are fully incorporated herein by this reference.
2. The actions of Mayor James Brainard in executing the Agreement are hereby ratified and such
actions are hereby approved and adopted by the Board as its own.
SO RE
4.day of
VED by the Board of Public Works and Safety of the'City of Carmel, Indiana, this
n
Date:
Mary n Burke, e ber
Date:
r_
Lori S. Watson ' temer
Date: to 40rbATT ST:
iana L. Cordray, MCyyClerk-Treasurer
Date: / /v 7/1-
Sandra M. Johnson,
Deputy Clerk for ,
Im?.aaz?c msomr ez???rnw.?wmiuumx?sun wmrt ?x?,w?. v.,?we?woi?e?:irvmel
Agreement to Fund Transportation Project
THIS AGREEMENT is made and entered 1 D-cL-e rNkC , 2007, by and between the
Indianapolis Public Transportation Corporation ["IPTC"] and the City of Carmel,
Indiana, ["Carmel"].
WHEREAS, the IPTC, a municipal corporation organized under the laws of the State of
Indiana, is a designated recipient for federal funds in the Indianapolis metropolitan area
from grants issued by the Federal Government, particularly the Federal Transit
Administration ["FTA"] and -the Federal Highway Administration ["FHWA"]; and
WHEREAS, IPTC has received a Congestion Mitigation and Air Quality ["CMAQ']
grant from the FHWA for the purpose of a three-year demonstration project ("Project") to
provide express bus services and%or a park-and-ride transit alternative ["Express
Service"] in the Indianapolis metropolitan area; and
WHEREAS, the CMAQ grant supplies up "to eighty percent (80%) of the funding
necessary to operate such a service and the.FHWA expects local sources to fund the
remaining twenty percent (20%); and
WHEREAS, IPTC will supply the technical expertise and oversight for the Project but
intends that Carmel and fare revenue supply the local match; and
WHEREAS, IPTC and Carmel intend that the Express Service begin on or about
November 5, 2007; and
NOW THEREFORE, in consideration of the promises and the mutually
dependent covenants herein contained (the adequacy of which consideration as to each of
the parties to this Agreement is hereby mutually acknowledged), and other good and
valuable consideration, the receipt of which is hereby acknowledged, and intending to be
legally bound,, Carmel and IPTC hereby covenant and agree as follows:
ARTICLE I
IPTC RESPONSIBILITIES
1.01. The estimated amount of the Project listed in Article 11 is $600,000 per year.
1.02. IPTC agrees to administer the Express Service and arrange for necessary buses,
operators and-maintenance to provide the service.
1.03. IPTC agrees to provide the marketing, advertising and public relations to
promote the service.
1.04. IPTC agrees to provide necessary funding (estimated at $30,000) to advance
payment of expenses during the first three months of service.
12/7/2007 Page 1 of 8
1.05. IPTC agrees to provide Carmel quarterly reports of the cost of providing the
services.
1.06 IPTC agrees to lease/contract for use of park and ride location(s) deemed
suitable by IPTC where passengers may park personal vehicles and board buses
for the Express Service.
ARTICLE 11
CARMEL RESPONSIBILITIES
1.01. Caramel will assist in identifying locations deemed suitable by IPTC where
passengers may park personal vehicles and board buses for the Express Service.
1.02. Carmel agrees to provide up to twenty percent (20%) of the cost of the Project
as set out in Article III below.
1.03. Carmel agrees to actively assist in the promotion and distribution of marketing
material for the Express Service.
ARTICLE Ill
1.01. Project Completion. The Project shall expire on mlfrr; 2010. However,
notwithstanding any other provision hereof, if either party hereto wishes to
earlier terminate this Agreement for any reason or for no reason at all, for cause
or without cause, such party, in its sole discretion and without penalty or
recourse, may do so by providing the other party hereto with written notice of
termination. Carmel must provide such notice to IPTC at least sixty (60) days
prior to said early termination date and IPTC must provide such notice to
Caramel within sixty (60) days prior to said early termination date. If
unforeseen circumstances require an extension of this Agreement beyond its
established termination date, the parties agree to extend the terms of this
Agreement for up to ninety (90) additional days in order to negotiate an
extension agreement.
1.02. Project Acceptance. This Agreement shall be deemed accepted as of the date on
which the same is last executed by a party hereto.
1.03. Project Funding. Carmel shall make payment to IPTC, as estimated herein,
quarterly. At the end of each quarter, 1PTC shall calculate the cost of the
Project, attribute twenty percent (20%) of that cost to Carmel and subtract the
amount of farebox revenue collected from that total and notify Carmel of hoNN
12/712007 Page 2 of 8
much is due. Carmel shall then be responsible for paying the twenty percent
(20%) minus°farebox revenue:witbin thirty (30) days.
1PTC will conduct.an annual reconciliation and.closure of the Project expenses
and funds between Carmel and IPTC:
On ana thual`basis, IPTC will apply any accumulated excess funds from
farebox:revenue-to additional°marketing and/or service:
ARTICLE N
1.01 Conflict,of Interest.
As used in-this section:
Immediate;family" means the spouse. and the•unernancipated children of an individual.
"Interested. party," means:
The individual.exacuting_this Agreement;
2. Anymember.ofthe immediate family of an, individual specified under subdivi"ibn 1.
or 2.
"IPTC" means the Indianapolis Publie Transportation,Corp.
"Carmel meanstlte City of Carmel,, Indiana.
A. IPTC may cancel this Agreement without recourse:if'anyinterested party is an
employee of IPTC.
B. Carmel has.an affirma$veobligation under this Agreement to disclose to. PTC
when an interested party:is or becomes an'employea'of Carmel.. The obligation under this
section extends only to thosefacts that Carinel knows: or reasonably should know:
1.02 Drug-Frec Workplace: Certification. Carmelhereby covenants and-agrees to
make a good.faith effort to,provide and maintain a drug tree workplace. Carmel will give
writtewtiotice to, IFTC within ten (10) days afreceiving-actual notice that-Carnrel orrali.
employee of Carmel is convicted of'a criminal drug violation occurring isthe workplace.
False certi'ftcafibn:orvicla6un of the certification-may resulYin sanctions including, but
not limited to, suspension of datitractpayments; termination of thisAgreement an&or
debarment of contracting?oppormnities for.up to three (3) years.
1.2(712007 Page 3 of8
In addition to the provisions of the above paragraphs, IPTC hereby further agrees that
this Agreement is expressly subject to the terms, conditions, and representations of the
following certification:
This certification is required by Executive Order No. 90-5, April 12, 1990, issued by the
Governor of Indiana. Pursuant to its delegated authority, the Indiana Department of
Administration is requiring the inclusion of this certification in all contracts and grants
from the State of Indiana in excess of $25,000.00. No award of a .contract shall be made,
and no contract, purchase order or agreement, the total amount of which exceeds
$25,000.00, shall be valid, unless and until this certification has been fully executed by
I.PTC and made apart of the contract or agreement as part of the contract documents.
Carmel certifies and agrees that it will provide a drug-free workplace by:
A. Publishing and providing to all of its employees a statement notifying employees
that the unlawful manufacture, distribution, dispensing, possession or use of a controlled
substance is prohibited in Cannel's workplace, and specifying the actions that will be
taken against employees for violations of such prohibition;
B. Establishing a drug-free awareness program to inform it's employees of (1) the
dangers of drug abuse in the workplace; (2) Carmel'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 Carmel of any criminal drug statute conviction for a violation
occurring in the workplace no later than five (5) days after such conviction;
D. Notifying in writing IPTC 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,
or other appropriate agency; and
F. Making a good faith effort to maintain a drug-free workplace through the
implementation of subparagraphs (A) through (E) above.
12/7/2007 Page 4 of 8
1.03. Funding Cancellation. If IPTC receives a written determination that funds are not
appropriated or otherwise available to support continuation of performance of this
Agreement, this Agreement shall be canceled.
1.04 Nondiscrimination. Pursuant to Ind. Code SS 22-9-1-10 and the Civil Rights Act
of 1964, Carmel and its contractors or subcontractors; shall not discriminate against any
employee or applicant for employment in the performance of this Agreement. IPTC shall
not discriminate with respect to the 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 or ancestry. Breach of this covenant may
be regarded as a material breach of this Agreement. Cannel's execution of this
Agreement 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.
Carmel understands that IPTC is a recipient of federal funds. Pursuant to that
understanding, IPTC agrees that if IPTC employs fifty (50) or more employees and does
at least $50,000.00 worth of business with the I.PTC and is not exempt, Carmel will
comply with the affirmative action reporting requirements of 41 CFR 60-1.7. Carmel
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 this Agreement.
1.05 Modification/Entire Agreement. This Agreement may be amended from time to
time hereafter only in writing executed by IPTC and Carmel. No verbal change,
modification, or amendment shall be effective, unless in writing and signed by the
parties. The provisions hereof constitute the entire agreement between the parties and
supersede any verbal statements, representations or warranties stated or implied.
1.06 Governing Laws. This Agreement 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.
1.07 Subsequent Acts. The parties agree that they will, at any time and from time to
time, from and after the execution of this Agreement, 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. Agreement.
1.08 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.
1.09 Headings. Headings.in this Agreement are-for convenience only and shall not be
used interpret or construe its provisions.
12/7/2007 Page 5 of 8
1.10 Assignment. This. Agreement shall be bindiug,ypon and shall inure"to the benefits
of the parties, their legal representatives, successors:and assigns, provided, however,
because this.Agreement is personal to each of the parties hereto; no party may sell,
assign, delegate, or'transfer tliis,Agreement or any portion thereof, includings without
limitation, any rights, title, inter ests;.remedies,powers,.and/ondutieshereunderwithout
the express. wri tten consent ofthe=other party.
1.11 'Severability. Wherever possible, each;pfovision of.this Agreement shall be,
interpreted in such manner as to be effective and valid under-'applicable law; brit.if any"
provision of this Agreeinentshall be "p"rohibited by or invalid under, applicable law, such
provision shall be ineffective only to the extent of such 'prohibition oiFinyalidity; without.
invalidating'.11ie remainder`of such provision or the,remamingprovisions of this
Agreement.
L.12 Authorizations. Any person executittg'tltis Agreement in a, representative capacity
hereby warrants.that'he/she has been ditfy.authorized by°his/her.principal to execute this
Agreement on such priiicipal's behalf.
1.13 Force Ivlajeure, Suspensibn.and>Teraiination. In the>eventthat either party is.unable
to perform any of its obligations on der this Agreement or-to enjoy any of its benefits
because of natural disaster, actions or decrees.of govertunental'bodies or communication
line failure not the f, tulf 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 Agreement shall'be immediately suspended. If the
period of nonperformance exceeds,thirty (30) days from receipt'ofnotice of the Force
Majeure Event; the, party whose ability to perform has not been so affected may be given
written ,noti'ce to terminate this Agreement:
1.14 Substantial Performance. This.Agreemeit,shall be deemed to.havebeen
substantially performed' only when fully performed according_to,its terms and conditions
and any modification. thereof.
1.15 lndemnificatron. Carmel shall, indemnify,,defend,,exculpate; and.hold harmless
IPTC,;its officials and employees from"anyliability due to loss, damage,' injuries, or other
casualties of whatever kind, or by whomsoever caused, to the pefson,or.propertyof
anyone on or off the right-of-way,'a.rising out of; or resulting; from the work, covered by
this Agreement or.the work connected therewith, or from the instaliation,.existence, use,
maintenance, condition, repairs, alteration, or removal of any equipment, or material, to
the extent the same are due to the negligent acts or "omissions of Carmel,,its officers,
officials,tageots, contractors and/or employees, including any claims arising out of the
Workers' Compensation Act or any other law; ordinance, order or decree. Carmel also
agrees to paya]I reasonable expenses and attorneys` fees', incurred by or imposed on IPTC
in connection herewith in'the event that :Carmel materially defaults, under the provisions
of this Section. Notwithstanding the proceeding.provisions of this Section, the obligation
of Carmel to indemnify, defend, exculpate, and, bold harm less.shall only arise-if Carmel
12/712007 Page;G of 8
rvoui'd also be liable under Ind. Code"34-0-3-1, et. seq.. Further, the liability of Carmel
shall be limited. by'the•provisions,of Iird. Code 34-13-374 and all other applicable laws.
1.16 Non-Collusion and Acceptance. The undersigned attest, subjectto the penalties
for perjury,-that, they are duly authorized representatives of the City of Carmel,. Indiana,.
that they,. to the best of theirinformation, knowledgeand belief, but without conducting
any independent investigation thereof, have not,'nor'has any other member, employee,
representative, agent or officer of Carmel, directly or_indirectly,,entered into or offered to
,enter into anv.c6hibination„collusion .or agreementjo receive,or pay, and.they haveLnot
received or-paid, any sum'of money cr other consideration for the, exeddtion of.this
Agreement,other than that which, appears upon the, face of this, Agreement.
1.17 Miscellaneous Terms And Conditions.
1.17.1 The, scheduled pick-up and drop off times, routes; bus.connector rights'and
information and passenger fare prices for all buses operating under: and`pursumt
to this Agreement are set forth in the.linnlemeritation Plari for Regional Express
Bus; dated'May 2007.on Exhibit A, a copy of which is attached hereto and.
incorporated herein as Exhibit' A by;this, reference.
1.17.2 Bi6y6le.Accommooation. IPTC.agrees to make:a good faith effort to study
afternative,solutions for.allowing bicycles to be, fra isported upon the express bus,
with.the intent to-implement 'a reasonable, cost'effective,solution,-suclt.as front
bumper rack; or use of luggage storagecareas, within the first 180 days of the
Project,
[The rest of this page is left, blank, intentionally.]
12/7/2007 Page '7 of,8
In testimony whereof, IPTC and The City of Cannel, Indiana have executed this
Agreement.
h 11 /"?
Indianapolis Public Transportation Corp.
By Gilbert Holmes, President/CEO
.Zt4 - 4
Witness
ity of Carmel, Indiana,
by and through its Board of Public
Works and Safety A)
Date Signed: /
t'v I TA) ES S
12/7/2007 Page 8 of 8