LPA Agreeement - 116th from Keystone to Eastern City LimitsVERS 1/4/91
STATE - LOCAL PUBLIC AGENCY AGREEMENT
CONSTRUCTION AND PROJECT MANAGEMENT FOR FEDERAL AID PROJECTS
THIS AGREEMENT is made and entered into J a nctar-1 +
19Q S , by and between the STATE of Indiana, acting by and through the Indiana
Department of Transportation, hereinafter referred to as the "STATE", and the
Local Public Agency, City of Carmel , hereinafter
referred to as the "LPA".
WITNESSETH .
WHEREAS, plans and specifications have been prepared for this project;
WHEREAS, the right-of-way for the project is of sufficient width to meet
the approved design standards for the project; and
WHEREAS, any additional right-of-way procured for the project was
obtained by the LPA in compliance with STATE and Federal Highway
Administration policies and procedures.
WHEREAS, through the cooperation of the LPA, the STATE and the Federal
Highway Administration, the following designated project has been approved by
the Federal Highway Administration and is ready for letting by the STATE:
Project No.
STP -8886(004) & STP -B886(005) Des. No. 9380670 & 9385290
Description: Road reconstruction on 116th Street from Keystone Ave. to
eastern city limits including the rehabilitation of Hamilton ]/155 over Cool Creek
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NOW THEREFORE, in consideration of the mutual covenants, herein
contained, the LPA and STATE mutually covenant and agree as follows:
1. The LPA's share of the cost shall be the total amount of the entire
cost of said project (approximately $ 5.362 000 ) less the
amount contributed by the Federal Government through Federal -aid.
The LPA has by an appropriation duly made and entered of record
appropriated the sum of $ 1,072,400 to apply to the cost
of said project, which amount is estimated to equal the LPA's share
of the entire cost of the project.
2. The LPA hereby agrees that all utilities which cross or otherwise
occupy the right-of-way of said highway shall be regulated on a
continuing basis by the LPA with written use and occupancy
agreements in accordance with the STATE'S utility accommodation
policy titled "STATE of Indiana STATE Highway Commission Policies
Covering the Use and Occupancy of Public Highway by Utilities".
3. rhe LPA shall comply with the applicable conditions set forth in (1)
Title 23, U.S. Code, Highways, (2) the regulations issued pursuant
thereto,
and (3) the policies and procedures promulgated by the
STATE and Federal Highway Administration relative to the project.
4. A. General
Notice is hereby given to the LPA or its subcontractor that
failure to carry out the requirements set forth in 49 CFR,
Sec. 23.43(a) shall constitute a breach of contract and,
after notification, may result in termination of the
contract or such remedy as the STATE deems appropriate.
2. The referenced section requires the following policy and
Disadvantaged Business Enterprise (DBE) obligation to be
included in all subsequent agreements between the LPA and
any subcontractor.
a. It is the policy of the Indiana Department of
Transportation that disadvantaged business enterprises,
as defined in 49 CFR, Part 23, shall have the
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maximum opportunity to participate in the per-
formance of contracts financed in whole or part
with Federal funds under this contract.
Consequently the DBE requirements of the 49 CFR,
Part 23, apply to this contract.
b. The LPA agrees to ensure that disadvantaged business
enterprises, as defined in 49 CFR, Part 23, have the
maximum opportunity to participate in the performance
of contracts and subcontracts financed in whole or in
part with Federal funds provided under this contract.
In this regard, the LPA shall take all necessary and
reasonable steps, in accordance with 49 CFR, Part 23,
to ensure that disadvantaged business enterprises have
the maximum opportunity to compete for, and perform
contracts. The LPA shall not discriminate on the basis
of race, color, national origin, or sex in the award
and performance of Federal assisted contracts.
3. As part of the LPA's equal opportunity affirmative action program
it is required that the LPA shall take positive affirmative actions
and put forth good faith efforts to solicit proposals or bids from
and to utilize Disadvantaged Business Enterprise subcontractors,
vendors or suppliers.
4. B. Definitions
The following definitions apply to this section.
1. "Disadvantaged Business Enterprise" means a small business
concern: (a) Which is at least 51 percent owned by one or
more socially and economically disadvantaged individuals,
or, in the case of any publicly owned business, at least 51
percent of the stock of which is owned by one or more
socially and economically disadvantaged individuals: and
(b) whose management and daily business operations are
controlled by one or more of the socially and economically
disadvantaged individuals who own it.
2. "Small Business concern" means a small business as defined
pursuant to section 3 of the Small Business Act and
relevant regulations promulgated pursuant thereto.
3. "Socially and economically disadvantaged individuals" means
those individuals who are citizens of the United States (or
lawfully admitted permanent residents) and who are black
Americans, Hispanic Americans, Native Americans, Asian -
Pacific Americans, Asian -Indian Americans women, or and any
other minorities or individuals found to be disadvantaged by
the Small Business Administration pursuant to section 8(a) of
the Small Business Act.
4. "Certified Disadvantaged Business Enterprises" means
the business has completed and filed with the Indiana
Department of Transportation a request for certification,
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and that the business has been reviewed and determined to
comply with the guidelines established in 49 CFR, Part 23.
Businesses which are determined to be eligible will be
certified as a Disadvantaged Business Enterprise (DBE).
4. C. Subcontracts
1. If the LPA intends to subcontracts a portion of the work, the
LPA is required to take affirmative actions to seek out and
consider disadvantaged business enterprises as potential sub-
contractors prior to any subcontractual commitment.
2. The contacts made with potential disadvantaged business
enterprise subcontractors and the results thereof shall be
documented and made available to the STATE and the FHWA
when requested.
3. In those cases where the LPA originally did not intend to
subcontract a portion of the work and later circumstances
dictate subletting a portion of the contract work, the
affirmative action contacts covered under paragraph C.I.
and C.2. of this Section shall be performed.
4. D. Affirmative Actions
The LPA agrees to establish and conduct a program„which will
enable Disadvantaged Business Enterprises to be considered
fairly as subcontractors and suppliers under this contract.
In this connection the LPA shall:
1. Designate a liaison officer who will administer the LPA's
Disadvantaged Business Enterprise program.
2. Ensure that known Disadvantaged Business Enterprises will
have an equitable opportunity to compete for subcontracts,
so as to facilitate the participation of Disadvantaged
Business Enterprises.
3. Maintain records showing (1) procedures which have been
adopted to comply with the policies set forth in this
clause, including the establishment of a source list of
Disadvantaged Business Enterprises, (2) awards to
Disadvantaged Business Enterprises on the source
list, and (3) specific efforts to identify and award
contracts to Disadvantaged Business Enterprises.
4. Cooperate with the STATE in any studies and surveys of the
LPA's Disadvantaged Business Enterprise procedures and
practices that the STATE may from time to time conduct.
5. Submit periodic reports of subcontracting to known
Disadvantaged Business Enterprises with respect
to the records referred to in Subparagraph (3) above, in
such form and manner and at such times as the STATE may
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prescribe.
4. E. Leases and Rentals
1. The LPA shall notify the Indiana Department of Transportation
when purchases or rental of equipment (other than leases
for hauling) are made with disadvantaged businesses. The
information submitted shall include the name of the business,
the dollar amount of the transactions, and the type of purchase
made or type of equipment rented.
4. F. DBE Program
Unless otherwise specified in this Agreement, the DBE Program
developed by the STATE and approved by the Federal Highway
Administration applies to this Agreement.
5. The plans, specifications and special provisions shall be subject to
the approval of the STATE and the Federal Highway Administration.
The STATE will prepare the Engineer's Estimate for the construction
project. The STATE will advertise for bids for construction of the
project. Upon receipt of an acceptable bid less than the Engineer's
Estimate the STATE will award a contract for the project If the
acceptable bid is within 5% above the Engineer's Estimate, and the
LPA concurs, the STATE may award the contract.
6. The construction contract shall be awarded based on unit prices and
on estimated quantities, and if the total payment to the contractor
under the construction contract is more or less than the estimated
cost at the time of the signing of the construction contract, the
LPA portion of the cost shall increase or decrease accordingly.
Changes in the construction contract shall not be made without
approval of the LPA, the STATE and the Federal Highway
Administration.
7. When the construction contract is awarded and before the beginning
of the work thereunder, the LPA shall pay to the STATE, within
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forty—five (45) days after the contract is awarded, a sum equal to
one hundred percent (100%) of the LPA's share of the bid price for
construction. If an Advice of Change Order, AC, is approved which
increases the project cost, the LPA shall pay to the STATE within
ninety (90) days a sum equal to one hundred percent (100%) of the
LPA's share of the increased cost.
8. The LPA shall provide competent and adequate engineering, testing,
and inspection service to insure the performance of the work is in
accordance with the construction contract, plans and specifications.
In the event that the engineering and inspection service provided by
the LPA shall, in the opinion of the STATE, be incompetent or
inadequate, the STATE shall have the right to supplement the
engineering and inspection force or to replace engineers or
inspectors employed in such work at the expense of the LPA.
The STATE's engineers shall control the work the same as on other
construction contracts.
9. If the LPA or its consultant is providing project management, the
LPA shall make reports to the STATE as to the progress and
performance of the work at such times as the STATE may require.
10. Upon completion of the construction and project management and prior
to final reimbursement of the project management costs pursuant to
this Agreement, a final audit of the project management costs shall
be done by the Indiana Department of Transportation's Division of
Accounting and Control in accordance with generally accepted
auditing standards and the cost principles contained in the Federal
Acquisition Regulations, 48 CFR Subpart 31.2. After the final audit
is approved by the STATE, then final payment shall be made.
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A. The LPA portion of the construction cost shall equal the total
payment to the contractor less the amount eligible for Federal -
aid reimbursement.
11. B. The LPA portion of the project management costs shall equal the
cost incurred by the LPA in providing such service for this
project less the amount eligible for Federal -aid reimbursement.
Costs eligible for Federal -aid Reimbursement shall be limited
to a maximum percentage of the construction cost. The maximum
percentage rates are:
Types of Funds Project Prefix Max. %
Interstate Substitution IX 15%
Urban M, MG 15%
Rural Secondary RS, RSG, SR 157,
Bridge Replacement & BRM, BRS, BRZ 15%
Bridge Rehabilitation BHM, BHS, BHZ 15%
Railroad Demonstration RR Unlimited
Hazard Elimination HES Unlimited
Railroad Protection RRP Unlimited
Railroad Crossing RRS Unlimited
Minimum Allocation MA Same as
for the
type of
funds for
the project
"but for"
using MA
funds
1. Project Management by Consultant - A Separate Agreement
between the LPA and the Consultant, setting forth the scope
of work and fee, is required and must be approved by the
STATE before the letting. Only costs incurred after the
STATE's written notice to proceed to the LPA and the LPA's
written notice to proceed to the Consultant shall be
eligible for Federal -aid reimbursement.
The STATE shall approve in writing the Consultant's
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personnel prior Co their assignment to the project.
2. Project Management by LPA - The personnel must be bona fide
employees of the LPA. They can not be paid on a "retainer"
basis. Only costs incurred after the STATE's written notice
to proceed to the LPA shall be eligible for Federal -aid
reimbursement.
The STATE shall approve in writing the LPA's personnel prior
to their assignment to the project.
If. C. In accordance with IC 8-23-2-14 the LPA shall pay the STATE the
actual cost, less the amount eligible for Federal -aid reimburse-
ment, for performing laboratory testing of materials. The
material -testing charge shall be determined by application of the
approved material testing rate to actual construction costs incurred
excluding project management costs. This rate is based upon the
amount of eligible costs of operating the Indiana Department of
Transportation material testing function divided by the total costs
incurred for specific types of contracts which utilize the services
of the material testing function. The cost of providing material
testing is included in the maximum limitation mentioned in Section
IIB.
11. D. The LPA shall pay the STATE for expenses incurred in performing the
final audit less the amount eligible for Federal -aid reimbursement.
This cost is eligible for Federal -aid and is not included in the
maximum limitation mentioned in Section 1IB.
II. E. The LPA shall pay the STATE for expenses incurred in supervising
the project according to the terms in Section 8 less. the amount
eligible for Federal -aid reimbursement. This cost is included
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in the maximum limitation mentioned in Section IIB.
11. F. If, for any reason, the STATE is required to repay to the
Federal Highway Administration the sum or sums of Federal funds
paid to the LPA or any other entity through the STATE under the
terms of this Agreement, then the LPA shall repay to the STATE such
sum or sums upon receipt of a billing from the STATE. Payment
for any and all costs incurred by the LPA which are not eligible
for Federal funding shall be the sole obligation of the LPA.
12. A. Construction by Contractor - During the progress of the work,
the contractor through the LPA or its representative shall
submit invoice vouchers to the STATE for construction
completed.
12. B. Construction by LPA - During the progress of the work, the LPA
shall submit claim vouchers to the STATE for construction
completed.
When claiming costs, the contractor or LPA shall certify by its
responsible officer and/or engineer that those costs represented
by the subject billing represent work physically completed. Upon
approval of the voucher by the STATE, the STATE will request
Federal -aid funds from the Federal Highway Administration for the
amount of the subject voucher. Upon receipt of Federal -aid funds,
the STATE will make payment to the contractor or LPA.
13. Project Management by LPA or Consultant - The LPA shall be
reimbursed for management costs expended by submitting claim
vouchers to the STATE not more often then once per month during
the progress of the work. Upon approval of the claim voucher by
the STATE, the STATE will request Federal -aid funds from the Federal
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Highway Administration for the amount of the subject claim voucher.
Upon receipt of Federal -aid funds, the STATE will make payment to the
LPA.
14. The LPA's share of the project cost shall be the amount as
determined by the procedure outlined in Section 11 of this
Agreement. From the LPA's share thus computed, there shall be
deducted all previous payments made by the LPA to the STATE.
Billings to the LPA for its share of project costs shall be due and
payable 30 days from date of billing by the STATE. If the LPA has
not paid the full amount due within 60 days past the due date, the
STATE shall be authorized to proceed in accordance with IC 8-14-1-9
to compel the Auditor of the STATE of Indiana to make a mandatory
transfer of funds from the LPA's allocation of the Motor Vehicle
Highway Account to the Indiana Department of Transportation's account.
15. The LPA, prior to final acceptance of the project by the STATE and
the Federal Highway Administration, shall place and maintain
informational, regulatory, and warning signs or other markings and
traffic signals necessary for proper traffic operations in the
vicinity of the project subject to the approval of the STATE and the
concurrence of the Federal Highway Administration. The LPA shall
not open the project to traffic for unrestricted use until all
appropriate traffic control devices, either temporary or permanent,
are installed and functioning properly. Both temporary and
permanent traffic control devices shall conform to the National
Manual on Uniform Traffic Control Devices.
16. After the completion of the construction work in accordance with the
plans and specifications and the approval thereof by the LPA, the
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STATE and Federal Highway authorities, the LPA shall provide all
maintenance, satisfactory to the STATE and the Federal Highway
Administration, at the LPA's expense.
17. During the contract period and for three (3) years from the date of
final payment the LPA shall maintain ail books, documents, papers,
accounting records and other evidence pertaining to the cost
incurred and shall make such materials available at their respective
offices at all reasonable times for inspection by the Federal
Highway Administration, the STATE, or other authorized
representatives of any unit providing money for the project and
copies thereof shall be furnished if requested.
18. The LPA agrees to indemnify, defend, exculpate, and hold harmless
the STATE, its officials and employees from any liability due to
loss, damage, injuries, or other casualties of whatever kind, or by
whomsoever caused, to the person or property of anyone on or off the
right—of—way arising out of, or resulting from the work covered by
this Agreement or the work connected therewith, or from the
installation, existence, use, maintenance, condition, repairs,
alteration, or removal of any equipment or material, whether due in
whole or in part to the negligent acts or omissions (A) of the
STATE, its officials, or employees; or (B) of the LPA, its
agents or employees, or other persons engaged in the performance of
the work; or (C) of the Federal Highway Administration, its
officials, agents, or employees; or (D) the joint negligence of any
of them; including any claims arising out of the Workmen's
Compensation Act or any other law, ordinance, order, or decree. The
LPA agrees to pay all reasonable expenses and attorneys fees
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incurred by or imposed on the STATE in connection herewith in the
event that the LPA shall default under the provisions of this
Section.
19. Pursuant to I.C. 22-9-1-10 the LPA and its subcontractor, if any,
shall not discriminate against any employee or applicant for
employment, to be employed in the performance of work under this
Agreement, with respect to hire, tenure, terms, conditions or
privileges of employment or any matter directly or indirectly
related to employment, because of race, color, religion, sex,
handicap, national origin or ancestry. Breach of this covenant may
be regarded as a material breach of the Agreement.
20. If this Agreement is for $100,000.00 or more the LPA
20. A. Stipulates that any facility to be utilized in performance
under or to benefit from this Agreement is not listed on the
Environmental Protection Agency (EPA) List of Violating
Facilities issued pursuant to the requirements of the Clean Air
Act, as amended, and the Federal Water Pollution Control Act,
as amended.
20. B. Agrees to comply with all of the requirements of section 114 of
the Clean Air Act and Section 308 of the Federal Water
Pollution Control Act, and all regulations and guidelines
issued thereunder.
20. C. Stipulates that as a condition of Federal -aid pursuant to this
Agreement it shall notify the STATE and Federal Highway
Administration of the receipt of any advice indicating that a
facility to be utilized in performance under or to benefit from
this Agreement is under consideration to be listed on the EPA
Listing of Violating Facilities.
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Insofar as authorized by law this contract shall be binding Upon
parties hereto, their successors or assigns.
This Contract shall not be effective unless and until approved by the
Attorney General of Indiana, or his authorized representatives, as to legality
and form.
the
In Witness whereof, the state of Indiana and the LPA, through their
respective officials, have hereto affixed their signatures.
Clerk -Treasurer ar Cr rrty Aud'ttt7r
ATTEST:
0-1/LA:LL C. 1 ma
Signature
r1n)E C. W2TMAIJ 3E'PurJ
aes, Clerk -Treasurer
(Print or type Name and Title
Approved as to legality and form
Pamela Carter
Attorney General of Indiana
Dated approved: 9- a _ 9i
Mayor, with (Board of Public Works)
es (-'Pews-Board4
or teennty-Cemeleeiemeri
\Jei
Signature /
i
Ted E .T'bh snnMayor
/,
(Print or typeName -nd Title)
Signature
Rick McKinney,
ber BPW
(Print or type Name and Title)
Signature
Steven M. -Brown, Member BPW
(Print or type Name and Title)
Signature
(Print or type Name and Title)
OF TRANSPORTATION
Stanley C.
Commissioner
• i
State of
VERS 1/4/91
ACKNOWLEDGMENT
Tndi ana
County of Hamilton
SS:
Before me, the undersigned Notary Public in and for said County
personally appeared Ted E. Johnson. Rick McKinney, Steven Brown
(name of signers, their official
Mayor and Board of Public Works and Safety Members, respectfully
capacity and firm name)
and each acknowledged the execution of the foregoing contract on this c/4'
day of ,Jail. , 19 9 S , and each acknowledged and stated that he is the
party authorized by the said firm to execute the foregoing contract.
Witness my hand and seal the said last named date.
My Commission Expires
March 4, 1996
Notary Public
Hamilton Phyllis G. Morrissey
County of Residence Print of type name
ACKNOWLEDGMENT
State of Indiana, County of Marion, SS:
Before me, the Iunde/r�signed NotaryPublicin and for said County,
personally appearedS-I-(A/v� c\C,S+v.&_i8) , yrYlAr t_C L
(name)
(title)
of the Indiana Department of Transportation, and acknowledged the executioncuof
the foregoing contract on this Q_a �
day of cS\ , 19 (15.
Witness my hand and seal this said last named date.
My Commission Expires
S - 9 54-01A-
NceSty Public r
rvt - rc Ly # ° r1
County of Residen66
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