Butler Fairman and Suefert/ENG/498300/116th from Keystone to Easter Limits ? ,
AGREEMENT
THIS AGREEMENT is made and entered into this day of 9.p_rok,,, „
1994, by and between the CITY OF CARMEL, acting by and through the BOARD OF
PUBLIC WORKS AND SAFETY, hereinafter referred to as the "LOCAL PUBLIC
AGENCY", and (BUTLER;FAIRMAN and SEUFERT,_INC7 9405 Delegates Row,
Indianapolis, Indiana, 46240, hereinafter referred to as the "CONSULTANT".
WITNESSETH
WHEREAS, the LOCAL PUBLIC AGENCY desires to contract for Construction
Inspection services in connection with the improvement of 116th Street from
Keystone Avenue (State Road 431 ) to the eastern City Limits (South River Road)
and the replacement of Bridge No. 155 over Cool Creek in Carmel, Indiana; Project
No. STP-B886(4).
WHEREAS, the CONSULTANT has expressed a willingness to furnish necessary
staff and supporting personnel to provide the required engineering services;
NOW, THEREFORE, the parties hereto agree that said CONSULTANT shall
provide the services and documents, hereinbefore and hereinafter described, in
relation to the following described project or projects:
Project No. STP-B886(4); Improvement of 116th Street from Keystone
Avenue (State Road 431 ) to the eastern City Limits (South River Road)
and the replacement of Bridge No. 155 over Cool Creek in Carmel, Indiana.
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NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto mutually covenant and agree as follows:
Section I Services by CONSULTANT
The services to be provided by the CONSULTANT under this Agreement are as
set out in Appendix "A", attached to this Agreement, and made an integral part
hereof.
Section II- information and Services to be Furnished by LOCAL PUBLIC AGENCY
The information and services to be furnished by the LOCAL PUBLIC AGENCY
are as set out in Appendix "B", attached to this Agreement, and made an
integral part hereof.
Section .Ill Notice to Proceed and Schedule
The CONSULTANT shall begin the work to be performed under this Agreement
immediately upon receipt of the written notice to proceed from the LOCAL
PUBLIC AGENCY, and shall deliver the work to the LOCAL PUBLIC AGENCY in
accordance with the Schedule contained in Appendix "C", attached to this
Agreement, and made an integral part hereof.
The CONSULTANT shall not begin work prior to the date of the notice to
proceed.
Section IV Compensation
The CONSULTANT shall receive payment for the work performed under this
Agreement as set forth in Appendix "D", attached to this Agreement, and made
an integral part hereof.
The cost principles contained in the Federal Acquisition Regulations, 48
CFR part 31, shall be adhered to for work under this agreement.
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1
Section V General Provisions
I . Work Office
The CONSULTANT shall perform the work under this Agreement at the
following office(s) Butler, Fairman and Seufert, Inc .
9405 Delegates Row
Indianapolis , Indiana 46240
The CONSULTANT shall notify the LOCAL PUBLIC AGENCY and the Indiana
Department of Transportation of any change in its mailing address and/or the
location(s) of the office(s) where the work is performed.
2. Employment
During the period of this Agreement, the CONSULTANT shall not engage, on
a on full or part time or other basis any LOCAL PUBLIC AGENCY Personnel who
remain in the employ of the LOCAL PUBLIC AGENCY.
3. Covenant Against Contingent Fees
The CONSULTANT warrants that he has not employed or retained any company
or person, other than a bona fide employee working solely for the CONSULTANT,
to solicit or secure this Agreement, and that he has not paid or agreed to pay
any company or person, other than a bona fide employee working solely for the
CONSULTANT, any fee, commission, percentage, brokerage fee, gifts or any other
consideration, contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty the LOCAL PUBLIC AGENCY
shall have the right to annul this Agreement without liability, or, in its
discretion to deduct from the Agreement price or consideration, or otherwise
recover, the full amount of such fee, commission, percentage, brokerage fee,
gift or contingent fee.
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4 . Subletting and Assignment of Contract
No portion of the work under the Agreement shall be sublet, assigned or
otherwise disposed of, except with the written consent of the LOCAL PUBLIC
AGENCY and the Indiana Department of Transportation. Consent to sublet, assign
or otherwise dispose of any portion of the work under this Agreement shall not
be construed to relieve the CONSULTANT of any responsibility for the fulfillment
of this Agreement. A subcontractor shall not subcontract any portion of its
work under this Agreement.
5. Ownership of Documents
All documents, including tracings, drawings, reports, estimates,
specifications, field notes, investigation, studies, etc. , as instruments of
service, are to be the property of the LOCAL PUBLIC AGENCY. During the
performance of the services, herein provided for, the CONSULTANT shall be
responsible for any loss or damage to the documents, herein enumerated, while
they are in his possession and any such loss or damage shall be restored at
his expense. Full access to the work during the progress of the work shall be
available to the LOCAL PUBLIC AGENCY.
6. Access to Records
The CONSULTANT and his subcontractors shall maintain all books,
documents, papers, accounting records and other evidence pertaining to the
cost incurred and shall make such materials available at its respective
offices at all reasonable times during the period of this Agreement and for
three years from the date of final payment under the terms of this Agreement,
for inspection by the LOCAL PUBLIC AGENCY, Indiana Department of Transportation,
Federal Highway Administration or any other authorized representatives of the
Federal Government and copies thereof shall be furnished if requested.
C
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7. Compliance with State and Other Laws
The CONSULTANT specifically agrees that in performance of the services
herein enumerated by him or by a subcontractor or anyone acting in behalf of
either, that he or they will comply with any and all State, Federal, and Local
Statutes, ordinances, and regulations and obtain all permits that are
applicable to the entry into and the performance of this Agreement .
8. Responsibility for Claims and Liabilities
The CONSULTANT shall be responsible for all damage to life and property
due to activities of the CONSULTANT, his subcontractor, agents, or employees
in connection with such services, and shall be responsible for all parts of
his work both temporary and permanent . It is expressly understood that the
CONSULTANT shall indemnify and hold harmless the LOCAL PUBLIC AGENCY and the
State of Indiana from claims, suits, actions, damages, and costs of every name
and description arising out of or resulting from the services of the
CONSULTANT under this Agreement, and such indemnity shall not be limited by
reason of the enumeration of any insurance coverage, hereinafter provided.
9. Status of Claims
The CONSULTANT shall be responsible for keeping the LOCAL PUBLIC AGENCY
currently advised as to the status of any claims made for damages against the
CONSULTANT resulting from services performed under this Agreement. The
CONSULTANT shall send notice of claims related to work under this Agreement to
the Local Public Agency. Copies of the notices shall be sent to:
Chief, Division of Internal Affairs
Indiana Department of Transportation
100 North Senate Avenue, Room 1201
Indianapolis, Indiana 46204-2249
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10. Workmen 's Compensation and Liability Insurance
The CONSULTANT shall procure and maintain, until final payment by the
LOCAL PUBLIC AGENCY for the services covered by this Agreement, insurance of
the kinds and in the amounts hereinafter provided in insurance companies
authorized to do such business in the State of Indiana covering all operations
under this Agreement whether performed by him or by his subcontractor. The
CONSULTANT will _not be given a notice to proceed until the CONSULTANT has
furnished a certificate or certificates in a form satisfactory to the LOCAL
PUBLIC AGENCY, showing that this section has been complied with. During the
life of this Agreement, the CONSULTANT shall furnish the LOCAL PUBLIC AGENCY
with certificates showing that the required insurance coverage is maintained.
A
The certificate or certificates shall provide that the policies shall not be
changed or canceled until ten ( 10) days written notice has been given to the
LOCAL PUBLIC AGENCY. In the event that such written notice of change or
cancellation is given, the LOCAL PUBLIC AGENCY may at its option terminate this
Agreement and not further compensation shall in such case be made to the
CONSULTANT.
The kinds and amounts of insurance required are as follows:
(A) Policy covering the obligations of the CONSULTANT in accordance with
the provisions of the Workmen's Compensation Law. This agreement
shall be void and of no effect unless the CONSULTANT procures such
policy and maintains it until acceptance of the work.
( '
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(B) Comprehensive Policies of Bodily Injury Liability and Property
Damage Liability Insurance, including Owners or Contractors
Protective Coverage and a Save and Hold Harmless Endorsement of the
types herein specified each with Bodily Injury Limits of liability
of not less than $ 100,000.00 for each person, including death at any
time resulting therefrom, and not less than $300,000.00 in any one
accident , and not less than $ 100,000.00 for all damages arising out
of injury to or destruction of property.
(C) Automobile Policies of Bodily Injury and Property Damage Liability
Insurance of the types herein specified with bodily injury limits
of liability of not less than $ 100,000.00 for each person, including
death at any time resulting therefrom, and not less than $300,000.00
in any one accident, and not less than $ 100,000.00 for all damages
arising out of injury to or destruction of property, including hired
and non—owned vehicles .
11 . Progress Reports
The CONSULTANT shall submit a monthly Progress Report to the LOCAL PUBLIC
AGENCY by the tenth of each month, showing progress to the first of the month.
The report shall consist of a progress chart with the initial schedule on
which shall be superimposed the current status of the work.
12. Changes in Work
In the event the LOCAL PUBLIC AGENCY requires a major change in scope,
character or complexity of the work after the work has progressed as directed
by the LOCAL PUBLIC AGENCY, adjustments in compensation to the CONSULTANT and
in time for performance of the work as modified, shall be determined by the
LOCAL PUBLIC AGENCY in the exercise of its honest and reasonable judgment and
the CONSULTANT shall not commence the additional work or the change of the
scope of the work until a supplemental agreement is executed and the
CONSULTANT is authorized in writing by the LOCAL PUBLIC AGENCY and the Indiana
Department of Transportation, to proceed with the work.
r
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13. Delays and Extensions
The CONSULTANT agrees that no charges or claim for damages shall be made
by him for any delays or hindrances from any cause whatsoever during the
progress of any portion of the services specified in this Agreement. Such
delays or hindrances, if any, shall be compensated for by an extension of time
for such period as may be determined by the LOCAL PUBLIC AGENCY in the
exercise of its honest and reasonable judgment, it being understood, however,
that the permitting of the CONSULTANT to proceed to complete any services, or
any part of them after the date to which the time of completion may have been
extended, shall in no way operate as a waiver on the part of the LOCAL PUBLIC
AGENCY of any of its rights herein.
14 . Abandonment and Termination
The LOCAL PUBLIC AGENCY reserves the right to terminate or suspend this
Agreement upon written notice.
(A) If the LOCAL PUBLIC AGENCY shall abandon the services herein
mentioned, the CONSULTANT shall deliver to the LOCAL PUBLIC
AGENCY all data, reports, drawings, specifications and estimates
completed or partially completed and these shall become the
property of the LOCAL PUBLIC AGENCY. 'The earned value of the
work performed shall be based upon an estimate of the portions
of the total services as have been rendered by the CONSULTANT
to the date of the abandonment and which estimate shall be as
made by the LOCAL PUBLIC AGENCY in the exercise of its honest
and reasonable judgment for all services to be paid for on a
lump sum basis and shall be based upon an audit for those services
i"�
r
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to be paid for on a cost basis or a cost plus fixed fee basis. The
audit shall be performed by the Indiana Department of Transportations'
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. The payment
as made to the CONSULTANT shall be paid as the final payment in
full settlement for his services hereunder.
(B) If, at any time, for any cause whatsoever, the CONSULTANT shall
abandon or fail to timely perform any of its duties hereunder,
including the preparation and completion of plans and specifications
within the several times hereinbefore specified, or within such
further extension or extensions of time as agreed upon, the LOCAL
PUBLIC AGENCY may give written notice, that if the CONSULTANT shall
not within twenty (20) calendar days from the date
of such notice, have complied with the requirements of this
Agreement, then the Agreement is deemed terminated. Upon the
mailing or delivery of such notice or personal delivery thereof to
the CONSULTANT, and the failure of the CONSULTANT within said
described (20) day period to fully comply with each and all
requirements of this Agreement, this Agreement shall terminate and
the LOCAL PUBLIC AGENCY may by any method it deems to be necessary
designate and employ other consultants by agreement or otherwise, to
perform and complete the services herein described. When written
notice is referred to herein, it shall be deemed given when
deposited in the mail addressed to the CONSULTANT at its last known
address.
r
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(C) In case the LOCAL PUBLIC AGENCY shall act under the last preceding
paragraph, then and in such event , all data, reports, drawings,
plans, sketches, sections and models, all specifications, estimates,
measurements and data pertaining to the project, prepared under the
terms or in fulfillment of this Agreement, shall be delivered within
twenty (20)_days to the LOCAL PUBLIC AGENCY. In the event of the
failure by the CONSULTANT to make such delivery upon demand, then
and in that event the CONSULTANT shall pay to the LOCAL PUBLIC
AGENCY any damage it may sustain by reason thereof.
15. Non-Discrimination
(A) Pursuant to I.C. 22-9- 1- 10, the CONSULTANT and his subcontractors, 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 age. Breach of this covenant may
be regarded as a material breach of the Agreement.
(B) The CONSULTANT in the performance of the work under this Agreement
shall comply with the United States Department of Transportation regulations
which follow:
During the performance of this Agreement, the CONSULTANT for itself, its
assignees and successors in interest agrees as follows:
( 1) Compliance with Regulations: The CONSULTANT will comply with
the Regulations of the Department of Transportation relative to
nondiscrimination in federally assisted programs of the
Department of Transportation, 49 CFR Part 21, as they may be
amended from time to time, (hereinafter referred to as the
n Regulations) , which are herein incorporated by reference and made
a part of this Agreement.
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• y
(2) Nondiscrimination: The CONSULTANT, with regard to the
work performed by it after award and prior to completion of
the Agreement work, will not discriminate as defined by the
regulations, in the selection and retention of subcontractors,
including procurements of materials and leases of equipment.
The CONSULTANT will not participate either directly or
indirectly in the discrimination prohibited by Section 21.5
of the Regulations, including employment practices when the
Agreement covers a program set forth in Appendix "B" of the
Regulations .
(3) Solicitations for Subcontractors, Including Procurements of
Materials and Equipment: In all solicitation either by
competitive bidding or negotiation made by the CONSULTANT for
work to be performed under a subcontract, including
procurements of materials or equipment, each potential
subcontractor or supplier shall be notified by the CONSULTANT
of the CONSULTANT'S obligations under this Agreement and the
Regulations relative to non—discrimination.
(4) Information and Reports: The CONSULTANT will provide all
information and reports required by the Regulations, or
directives issued pursuant thereto, and will permit access to
its books, records, accounts, and other sources of information,
•
and its facilities as may be determined by the LOCAL PUBLIC
AGENCY or the Federal Highway Administration to be pertinent to
ascertain compliance with such Regulations or directives.
Where any information required of a CONSULTANT is in the
exclusive possession of another who fails or refuses to furnish
this information, the CONSULTANT shall so certify to the LOCAL
PUBLIC AGENCY, 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 CONSULTANT'S
noncompliance with the nondiscrimination provisions of this
Agreement, the LOCAL PUBLIC AGENCY shall impose such contract
sanctions as it or the Federal Highway Administration may
determine to be appropriate, including, but not limited to,
(a) withholding of payments to the CONSULTANT under the
Agreement until the CONSULTANT compiles, and/or (b) cancellation,
termination or suspension of the Agreement, in whole or in part.
(6) Incorporation of Provisions: The CONSULTANT will include the
provision of paragraphs ( 1 through (6) in every subcontract,
including procurements of materials and leases of equipment,
unless exempt by the Regulations, or directives issued pursuant
thereto. The CONSULTANT will take such action with respect to
any subcontract or procurement as the LOCAL PUBLIC AGENCY or
(^' the Federal Highway Administration may direct as a means of
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enforcing such provisions including sanctions for
noncompliance. Provided, however, that, in the event the
CONSULTANT becomes involved in, o.r is threatened with,
litigation with a subcontractor or supplier as a result of such
direction, the CONSULTANT may request the LOCAL PUBLIC AGENCY
to enter into such litigation to protect the interests of the
LOCAL PUBLIC AGENCY, and in addition, the CONSULTANT may
request the United States to enter into such litigation to
protect the interests of the United States.
16. Successors and Assignees
The LOCAL PUBLIC AGENCY, insofar as authorized by law, binds itself and
its successors, and the CONSULTANT binds his successors, executors,
administrators and assignees, to the other party of this Agreement and to the
successors, executors, administrators and assignees of such other party, as
the case may be insofar as authorized by law, in respect to all covenants of
this Agreement .
Except as above set forth, neither the LOCAL PUBLIC AGENCY nor the
CONSULTANT shall assign, sublet or transfer its or his interest in this
Agreement without the consent of the other.
17. Disadvantaged Business Enterprise Proseram
A. General
1 . Notice is hereby given to the CONSULTANT or 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 LOCAL PUBLIC AGENCY 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 CONSULTANT
and any subcontractor.
a. It is the policy of the LOCAL PUBLIC AGENCY that
disadvantaged business enterprises, as defined in
49 CFR Part 23, shall have the maxim►m► opportunity
to participate in the performance of contracts financed
in whole or part with federal funds under this contract.
Consequently the DBE requirements of 49 CFR Part 23,
apply to this contract.
b
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b. The CONSULTANT 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 parr with Federal funds provided under this
contract. In this regard, the CONSULTANT 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 CONSULTANT 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 CONSULTANT'S equal opportunity affirmative
action program it is required that the CONSULTANT 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.
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 women, Black
Americans, Hispanic Americans, Native Americans, Asian—Pacific
Americans, Asian—Indians Americans or women 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,
(—N: and that the business has been reviewed and determined to
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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) .
C. Subcontracts
1 . If the CONSULTANT intends to subcontract a portion of the work,
the CONSULTANT is required to take affirmative actions to seek
out and consider disadvantaged business enterprises as
potential subcontractors 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 LOCAL PUBLIC AGENCY and
the FHWA when requested .
3. In those cases where the CONSULTANT 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 . No subletting will be approved until the CONSULTANT
demonstrates his compliance with paragraphs C. I and C.2 of
this Section. The CONSULTANT shall demonstrate his compliance
by submitting Form DBE-2 with each request to sublet. The
CONSULTANT shall also submit documentation with the DBE-2
evidencing contacts and the results thereof made with potential
disadvantaged business enterprise subcontractors for the
specific work to be subcontracted.
D. Affirmative Actions
The CONSULTANT 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 CONSULTANT shall:
1. Designate a liaison officer who will administer the
CONSULTANT'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
identify and award contracts to Disadvantaged Business
Enterprises.
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4 . Cooperate with the LOCAL PUBLIC AGENCY in any studies and
(--. surveys of the CONSULTANT'S Disadvantaged Business Enterprise
procedures and practices that the LOCAL PUBLIC AGENCY 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 LOCAL PUBLIC AGENCY may
prescribe.
E. Leases and Rentals
1. The CONSULTANT 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 transaction, and the type of purchase
made or type of equipment rented.
F. DBE Program
'Unless otherwise specified in this Agreement, the DBE Program
developed by the LOCAL PUBLIC AGENCY and approved by the Federal
Highway Administration applies to this agreement.
18. Certification for Federal-Aid Contracts
The Consultant certifies, by signing and submitting this contract, to the
best of his or her knowledge and belief, that he or she has complied with
Section 1352, Title 31 , U.S. Code, and specifically, that:
( 1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant,
• the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement.
(2) If any funds other .than Federal appropriated funds have been paid
or will be paid to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member
of Congress, an officer or employee of Congress, or an employee of
a Member of congress it connection with this Federal contract,
grant, loan, or cooperative agreement, the undersigned shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions. This form is
available through the Indiana Department of Transportation.
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This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered
into. This certification is a prerequisite for making or entering
into this transaction imposed by Section 1352, Title 31 , U.S. Code.
The Consultant also agrees by submitting his or her contract that he or she
shall require that the language of this certification be included in all lower
tier subcontractors , which exceed $ 100,000 and that such subrecipients shall
certify and disclose accordingly. Any person who fails to sign or file this
required certification shall be subject to a civil penalty of not less than
$ 10,000 and not more than $ 100,000 for each failure.
19. Supplements
This Agreement may only be amended, supplemented or modified by a written
document executed in the same manner as this Agreement .
IN TESTIMONY WHEREOF, the parties hereto have executed this Agreement .
CONSULTANT LOCAL PUBLIC AGENCY
BUTLER, FAIRMAN and SEUFERT, INC. BOARD OF PUBLIC WORKS AND SAFETY
CARMEL, . NDI,
•
BY
d C. Burgner
Executive Vice President
BY
Attest-
BY
Jo . Speidel
Secr ry-Treasurer
BY
ATTEST:
Approved as to Legality
and Form:
Attorney for Carmel
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A C K N O W L E D G M E N T Rev. 4/4/91
,-- State of Indiana County of Marion • SS:
Before me , the undersigned Notary Public in and for said County
personally appeared Fred C. Burgner, Executive Vice President, and
(name of signers, their official
John L. Speidel , Secretary-Treasurer, of Butler, Fairman and Seufert, Inc. ,
capacity and firm name)
and each acknowledged the execution of the foregoing contract on
this 22nd day of November , 19 94, and each acknowledged and stated
that he/she 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 \ a ^�D
May 19, 1997 �c
otary Pub -
Hamilton Marilyn L. Irish
County of Residence Print or type name
ACKNOWLEDGMENT
State of Indiana, County of , SS:
Before me, the undersigned Notary Public in and for said County,
personally appeared
(Name of signers, their official capacity and agency name)
and acknowledged the execution of the foregoing agreement on this day
of , 19
Witness my hand and seal this said last named date.
My Commission Expires
Notary Public
County of Residence Print or type name
Page 17 of 21 pages
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CERTIFICATE OF CONSULTANT
I hereby certify that I am the Executive Vice President and duly
authorized representative of the firm of BUTLER. FAIRMAN and SEUFERT. INC.
whose address is 9405 Delegates Row, Indianapolis, IN 46240
and that neither I nor the above firm I hereby represent has:
(a) employed or retained for a commission, percentage, brokerage,
contingent fee, or other consideration, any firm or person
(other than a bona fide employee working solely for me or the
above consultant) to solicit or secure this contract .
(b) agreed, as an express or implied condition for obtaining this
contract, to employ or retain the services of any firm or
person in connection with carrying out the contract, or
(c) paid, or agreed to pay, to any firm, organization or person
(other than a bona fide employee working solely for me or the
above consultant) any fee, contribution, donation, or consideration
of any kind for, or in connection with, procuring or carrying
out the contract;
except as here expressly stated (if any) :
I further certify that no employee, officer or agent or partner or any
member of their immediate families of this firm is employed or retained
either full or part-time, in any manner by the LOCAL PUBLIC AGENCY;
except as herein expressly stated (if any) ;
I acknowledge that this certificate is to be furnished to the Indiana
Department of Transportation and the Federal Highways Administration,
in connection with this contract involving participation of Federal-aid
highway funds, and is subject to applicable State and Federal Laws, both
criminal and civil.
4/ / zz� Iro� IV
(Date) (Signature
Fred C. Burgner
Executive Vice President
Page 18 of 21 pages
•
Rev . 5/ 1/90
CERTIFICATE OF LOCAL PUBLIC AGENCY
I hereby certify that (1Xfl) (we are) the Board of Public Works and Safety
of the City of Carmel , and that the above Consultant or his
representative has not been required, directly or indirectly as an express or
implied condition in connection with obtaining or carrying out this contract
to:
(a) employ or retain, or agree to employ or retain, any firm or person,
or
(b) pay, or agree to pay, to any firm, person, or organization, any fee,
contribution, donation, or consideration of any kind -
except as here expressly stated ( if any) :
(I) (We) further certify that no employee, officer or agent or partner,
or any member of their immediate families of the consultant is employed or
retained either full or part—time, in any manner by the LPA except as here
expressly stated ( if any) :
I acknowledge that this certificate is to be furnished to the Indiana
Department of Transportation and FHWA, in connection with this contract
involving participation of Federal Aid Highway Funds, and is subject to
applicable State and Federal laws, both criminal a civ.
/t - -7 q V
(Date)
r
Page 19 of 21 pages
Rev. 5/ 1/90
(Form approved by the Attorney General)
•
NON-COLLUSION AFFIDAVIT '
STATE OF INDIANA )
)
COUNTY OF MARION )
The undersigned, being duly sworn on oath says, that he is the
contracting party, or, that he is the representative, agent, member, or
officer of the contracting party, that he has not, nor has any other member,
representative, agent , or officer of the firm, company, corporation or
partnership represented by him, directly or indirectly, entered into or
offered to enter into any combination, collusion or agreement to receive or
pay, and that he has not received or paid, any sum of money or other
consideration for the execution of the annexed agreement other than that which
appears upon the face of the agreement.
Executive Vice President
Fred C. Burgner
(Print or type name)
Subscribed and sworn to before me this 22n 7 day of NOVem \ 94
\v\ `
. otary Pub1i i - '
My Commission Expires Marilyn L. Irish .
May 19, 1997
r
Page 20 of 21 pages
DEBARMENT CERTIFICATION
Fred C RuronPr
(PRINTED OR TYPED NAME OF OFFICIAL)
being duly sworn, certifies that except as noted below, the CONSULTANT or any
person associated therewith in the capacity of owner, .partner, director, officer,
principal investor, project director, manager, auditor, or any position involving
the administration of federal funds:
1) is not currently under suspension, debarment, voluntary
exclusion, or determination of ineligibility by any federal
agency;
2) has not been suspended, debarred, voluntarily excluded or
determined ineligible by any federal agency within the past
3 years;
3) does not have a proposed debarment pending; and
4) has not been indicted, convicted, or had a civil judgment
rendered against it by a court of competent jurisdiction in
any matter involving fraud or official misconduct within the
past 3 years.
Exceptions are as follows:
Exceptions will not necessarily result in denial of award, but will be
considered in determining the CONSULTANT'S responsibility. For any exception
ft-Th noted, indicate to whom it applies, initiating agency, and dates of action.
Providing false information may result in criminal prosecution or administrative
sanctions.
(SIGNATURE) /1 (TITLE)
Fred C. Burgner Fxecutive VirP PrPcident
PRINTED OR TYPED
BUTLER. FAIRMAN and SEUFFRT. INC.
COMPANY
Before me, a Notary Public in and for said County and State, personally
appeared Fred C. Burgner , who swore to and acknowledged the truth of the
statements in the foregoing certificat•on on this 22nd
day of November 19 94 . .. j
BY a,�, ���yyyA:a
( IGNA ) (NOTARY PUBLIC)
, My Commission Expires May 19, 1997 •
Hamilton Marilyn L. Irish
(COUNTY OF RESIDENCE) (PRINTED OR TYPED)
Page 21 of 21 pages
Rev. 7/1/89
• APPENDIX "A"
Services by CONSULTANT
A. Enoineerino Personnel
For the fulfillment of all services outlined in Section B below, the
CONSULTANT will provide one (1) fulltime Resident Project Representative, and
Inspectors and clerical and secretarial personnel as required for a period of
time necessary to complete the construction project and final construction
report.
The qualifications and experiences of personnel provided by the
CONSULTANT are subject to approval by the Local Public Agency and the Indiana
Department of .Transportation and no personnel will be assigned to the.project until
Local Public Agency and Indiana Department of Transportation approval is obtained.
The fulltime Resident Project Representative will take directions
from and report to the Indiana Department of Transportation's Area Engineer on all
matters concerning contract compliance and administration.
The fulltime Resident Project Representative will coordinate project
activities with the Local Public Agency' s Project Coordinator and Indiana
Department of Transportation's Area Engineer.
B. Description of Services
1. Construction Schedule: Review the construction schedule
prepared by the Contractor for compliance with the Contract, and
give to the Local Public Agency detailed documentation
concerning its acceptability.
Page 1 of 7 Pages Appendix "A"
Rev. 7/1/89
2 . Conferences : Attend pre-construction conferences as directed by
the Local Public Agency, arrange a schedule of progress
meetings, and such other job conferences as required for the
timely and acceptable conduct of the job, and submit such
schedules prepared, to the Local Public Agency for notification
to those who are expected to attend. Record for the Local
Public Agency, as directed, minutes of such meetings.
The CONSULTANT shall be available for conferences as requested
by the Local Public Agency, State, and Federal Highway
Administration to review working details of the project. The
Local Public Agency, State and Federal Highway Administration
may review and inspect the activities whenever desired during
the life of the Agreement.
3. Liaison: Serve as the Local Public Agency's liaison with the
contractor, working principally through the Contractor's field
superintendent or such other person in authority as designated
by the Contractor. Acting in liaison capacity, the fulltime
Resident Project Representative shall be throughly familiar with
the plans and specifications applicable to the project to insure
that all provisions therein are complied with. Any deviation
observed shall be reported to the Local Public Agency and
Indiana Department of Transportation by "the full—time Resident Project
Representative.
4. Cooperate with the Local Public Agency in dealing with the
various Federal , State and Local Agencies having jurisdiction •
I over the project.
Page 2 of 7 Pages Appendix "A"
Rev. 7/1/89
!�. 5. Assist the Local Public Agency and )ndiana Department of Transpor-
tation in obtaining from the Contractor a list of his proposed
suppliers and sub-contractors.
6. Assist the Local Public Agency and Indiana Department of Transpor-
tation in obtaining from the Contractor additional details or
information when needed at the job site for proper execution of
work.
7. Eauioment - Furnish all equipment necessary to sample and test
materials in accordance with Indiana Department of Transportation's
procedures.
8. Samples - Obtain field samples of materials delivered to the
site as required by the State and deliver such samples to the
appropriate Indiana Department of transportation laboratory office.
9. Shop Drawings:
a. Receive shop drawings and falsework drawings. Check for
completeness and then forward to INDOT personnel for
approval .
b. Review approved shop and falsework drawings, specifications
and other submissions; record receipt of this data,
maintain a file of all drawings and submissions, and check
construction for compliance in accordance with the Contract
Documents.
•
Page 3 of 7 Pages Appendix "A"
Rev. 7/1/89
c. Alert the Contractor' s field superintendent wnen it is
observed that materials or equipment are being or about to
be used or installed before approval of shop drawings or
samples , where such are required, and advise the Local
Public Agency and Indiana Department of Transportation when he
believes it is necessary to disapprove work as failing to
conform to the Contract Documents .
10. Review of Work, Inspection and lens:
a. Conduct on-site inspections for the Local Public Agency of
the work in progress as a basis for determining that the
project is proceeding in accordance with the Contract
Documents.
b. Provide on-site acceptance testing of materials in the
manner and extent prescribed by the latest edition of the
Indiana State Highway Commission Construction Manual and in
accordance with current accepted practices.
c. Accompany visiting inspectors , representing Local , State or
Federal Agencies having jurisdiction over the project, and
report details. of such inspection to the Local Public
Agency and Indiana Department of Transportation.
d. Verify that required testing has been accomplished.
11. Modification: Consider and evaluate the Contractor' s
suggestions for modifications in drawings and/or specifications
and report them with recommendations to the Local Public Agency
and Indiana Department of Transportation.
Page 4 of 7 Pages Appendix "A"
Rev. 7/1/89
12. Records:
a. Prepare and maintain at the job site orderly files of
correspondence, reports of job conferences, shop drawings
and other submissions , reproductions of original Contract
Documents, including all addenda, change orders and
additional drawings subsequent to the award of the
Contract, progress reports and other project related
documents .
b. Keep a diary or log book, recording hours on the job site ,
weather conditions, list of visiting officials , decisions,
general observations , and specific observations with regard
to test procedures. Upon request furnish copies of such a
diary or log book to the Local Public Agency.
c. Maintain for the Local Public Agency, a record of names,
addresses and telephone numbers of all sub-contractors and
major material suppliers.
d. Maintain a set of drawings on which authorized changes are
noted, and deliver to the Local Public Agency upon request,
but in any event at the completion of the project.
e. Prepare the Final Construction Record and Final Estimate as
required by the Indiana Department of Transportation and the
.Local Public Agency.
13. Reports: Furnish to the Indiana Department of Transportation and the
Local Public Agency at periodic. intervals, as required, progress
reports of the project, including the Contractor' s compliance
with the approved construction schedule.
Page 5 of 7 Pages Appendix "A"
hey. 7/1/89
)4 . vrooress Estimates: Prepare progress estimates for periodic
partial payments to the Contractor and deliver to the Local
Public Agency and Indiana Department of Transportation for review and
processing. The payments to the Contractor will be based on
estimates of the value of work performed and materials complete
in place in accordance with the contract.
15. Project Responsibility: The Resident Project Representative
will be responsible for the documentation of pay quantities and
estimates, and the maintenance of appropriate records related to
the construction of this project.
16. Work Schedule and Suspension: The consultant' s crew will be
required to regulate their work week to conform to the
contractor's hours in accordance with the directions of the
Indiana Department of Transportation's Area Engineer. If work on the
construction project is suspended and all matters concerning
contract compliance and administration are complete, the
services of the consultant may also be suspended without cost to
the project.
17. Contract Administration: The CONSULTANT will administer the
contract in accordance with Indiana Department of Transportation's
procedures.
Page 6 of 7 Pages Appendix "A"
Rev. 7/1/89
1E. Conflict of Interest : The CONSULTANT acknowledges and agrees
that the CONSULTANT, a firm associated with the CONSULTANT or an
individual associated with the CONSULTANT can not accept or
perform any work ( including but not limited to construction
engineering, production staking, falsework drawings, shop
drawings) for the contractor, material supplier of the
contractor or for any of the contractor' s subcontractors on this
project. For purposes of this section a firm is associated with
the CONSULTANT if the firm and CONSULTANT have a common
director, common officer or a common owner. For purposes of
this section an individual is associated with the CONSULTANT if
the individual is an employee of the CONSULTANT or an employee
�-- of a firm associated with the CONSULTANT.
For purposes of this section the following definitions shall be
used:
Director - Any member of the board of directors of a
corporation.
Officer - The president, secretary, treasurer, or such other
officers as may be prescribed by the corporations bylaws.
Owner - A sole proprietor, any partner in a partnership , or any
shareholder of a corporation.
•
Page 7 of 7 Pages Appendix "A"
Rev. 7/1/89
APPENDIY "p"
Information and Services to be furnished by Local Public Aoencv
The Local Public Agency shall furnish the CONSULTANT with the following:
1. Local Public Agency shall designate an employee as Project
Coordinator to coordinate activities between Consultant , IADOT and
the Local Public Agency.
2. Assistance to the CONSULTANT by placing at his disposal all
available information pertinent to the project.
•
Page 1 of 1 Paoe Appendix "B"
I •
hey. 7/1/89
APPENDIX "C"
Schedule
The CONSULTANT will be prepared to begin the work under this Agreement
within five (5) days after a Letter of Notification to proceed is received
from the Local Public Aoency. The CONSULTANT shall complete and deliver the
final construction record and final estimate to the District Manager within
sixty (60) calendar days after the contractor's last day of work.
I
Page 1 of 1 Page Appendix "C"
Rev. 7/1/89
APPENDIX "D"
Compensation
A. Amount of Payment
The CONSULTANT will receive as payment for the work performed under this
Agreement, as follows, unless a modification of the Agreement is approved in
writing by the Local Public Agency and the INDOT.
1. For those services performed by the CONSULTANT, the CONSULTANT will
be paid on the basis of actual hours of work performed by essential personnel
exclusively on this Agreement at the direct salary and wages of each employee,
PLUS a provisional overhead rate thereof of ni nil percent , PLUS direct non-
salary costs (the actual costs of such out-of-pocket expenses directly
attributable to this Agreement such as fares , subsistence, mileage, long
distance calls, equipment rentals, reproductions, etc. ) as approved by the
Local Public Agency, PLUS a fixed fee. The provisional overhead rate shall
never exceed 160.00 percent. The CONSULTANT shall adjust the provisional
overhead rate on the invoice subsequent to receipt of a new overhead rate from
the INDOT'S Division of Accounting and Control. The overhead rate shall be
determined by the INDOT.'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. However, the overhead
rate for each of the consultant ' s fiscal years is limited to 160.00 percent.
2. For those services performed by other than the CONSULTANT, the
CONSULTANT will be reimbursed for the actual invoice for the services
performed by other than the CONSULTANT, provided that each such invoice shall
be subject to approval as reasonable by the Local Public Agency prior to any
("` reimbursement therefore.
Page 1 of 3 Pages Appendix "D"
hey. 7/1/89
3'. The total amount of the fixed fee is $ 61 .571.95
4. The total compensation for Section A(1) , (2) and (3) of this
Appendix "D" shall not exceed S 498.300.0O unless approved in writing by
the Local Public Agency, Indiana Department of Transportation and Federal Yighway
Administration.
5. A breakdown of the estimated costs for the project is as follows :
Base Payroll Cost S 185,866.24
Payroll Burden and General Overhead
@ 1 .3164 S 244.624.31
Estimated Total Labor & Overhead
Casts S 43O.54O.55
Fixed Fee S 64.571 95
Direct Non-Salary Cost S 3.1117.5fl
TOTAL S 4cm_ann_nfl
B. Method of Payment
1. Payment shall be made monthly to the CONSULTANT upon submission to
the Local Public Agency of an invoice, including an amount of the Fixed Fee
arrived at by taking a ratio of the accumulative monthly labor cost to the
total labor cost as estimated above and multiplying this ratio by the total
Fixed Fee. From the partial payment computed each month, there shall be
deducted all previous partial fee payments made to the CONSULTANT.
2. Should the scope of the work be modified or this Agreement
terminated for any reason, the direct costs incurred by the CONSULTANT will be
reimbursed and a revised amount of the Fixed Fee to be paid shall be
r^ negotiated between the parties to this Agreement to reflect the changes in the
scope,. extent and character of the services to be furnished by the CONSULTANT
Page 2 of 3 Pages Appendix "D"
Rev. 7/1/69
from those contemplated for full completion of the Agreement , had the scope of
work not been adjusted or the Agreement terminated.
3. If, prior to the satisfactory completion of the services under this
Agreement, for any reason the total of the direct and indirect costs incurred
by the CONSULTANT is within five percent (5:) of the maximum amount payable ,
the status will be evaluated. Adjustments to the maximum amount payable
provided for by this Section will not affect the Fixed Fee shown in Section
A(3) of this Appendix "D".
4_ It is the policy of the Indiana Department of Transportation that Project
Representatives and/or Inspectors be on the construction site whenever the
Contractor is engaged in any activity requiring inspection or testing
concurrent with the construction or activity.
In order for the contractor to comply with the Contract Plans and
Specifications and complete the work within the time required, it is often
necessary for the Contractor to work more than an 8-hour day, and more than a
5-day week. This in turn, may require the Resident Project Representative and
Inspectors to work over 40 hours per week. Should this become necessary then
Overtime Premium may be paid on this project at the rate of 1.5 times the
actual hourly rate for all hours worked on this project by the Project
Representative and Inspectors over 40 hours per week.
f
Page 3 of 3 Pages Appendix "D"
•
EXHIBIT D-1
116TH STREET FROM KEYSTONE AVENUE TO EASTERN CITY LIMITS AND
BRIDGE NO. 155 OVER COOL CREEK
CARMEL, INDIANA
CONSTRUCTION INSPECTION FEE BREAKDOWN
1 . Basic Assumptions
Assume approximate contract construction period equals eighteen calendar months,
or 78 calendar weeks.
During the construction period, the resident engineer is assumed to be on the project
full time or 40 hours per week. Two inspectors are assumed to be on the project
full time, or 40 hours per week. A third inspector is assumed to be on the project
part-time, or 20 hours per week. The coordinating engineer is assumed to be
involved eight hours per week. Clerical assumed to be required eight hours per
week. Travel is assumed as one round trip from the office plus incidental travel
each day (approximately 25 miles) plus one additional round trip from the office each
week at 25 miles.
Final construction record preparation is assumed to involve the resident four weeks,
the coordinating engineer two weeks, one inspector two weeks, and clerical two
weeks. Travel is assumed as 30 trips at 25 miles per trip.
Final changes as a result of State review are assumed to involve the resident one
week, the coordinating engineer one week, an inspector one week, and one week
of clerical time. Travel is assumed as ten trips at 25 miles per trip.
2. Itemized Breakdowns
A. Construction Period
FP-IV - Coordinating Engineer 78 weeks x 8 hours/week x $30.84/hour =$ 19,244.16
FP-II - Resident Engineer 78 weeks x 40 hours/week x $18.50/hour = 57,720.00
FP-I - Inspector 2.5 x 78 weeks x 40 hours/week x $11.79/hour = 91,962.00
C-I - Clerical 78 weeks x 8 hours/week x $10.92/hour = 6,814.08
TOTAL $175,740.24
Travel = (78 x 25) + (78 x 5 x 25) = 11,700 miles
B. Final Preparation
FP-IV - Coordinating Enginee 2 weeks x 40 hours/week x $30.84/hour =$ 2,467.20
FP-II - Resident Engineer 4 weeks x 40 hours/week x $18.50/hour = 2,960.00
FP-1 - Inspector 2 weeks x 40 hours/week x $11.79/hour = 943.20
C-I - Clerical 2 weeks x 40 hours/week x $10.92/hour = 873.60
C
TOTAL $ 7,244.00
Travel = 30 x 25 = 750 miles
C. Final Revisions
FP•IV - Coordinating Engineer 1 week x 40 hours/week x $30.84/hour =$ 1,233.60
FP-II - Resident Engineer 1 week x 40 hours/week x $18.50/hour = 740.00
FP-I - Inspector 1 week x 40 hours/week x $11.79/hour = 471.60
C-I - Clerical 1 week x 40 hours/week x $10.92/hour = 436.80
TOTAL =S 2,882.00
Travel = 10 x 25 = 250 miles
D. Total Base Payroll Costs A + B + C = $185,866.24
Travel = 12,750 miles at $0.25 = $ 3,187.50
E. Application of Overhead Factor Plus Fixed Fee
Total Base Payroll Costs A + B + C = $185,866.24
Plus Payroll Burden and General Overhead at 1.3164 = 244,674.31
TOTAL = S430,540.55
Plus Fixed Fee = $ 64,571 .95
Plus Mileage = 3,187.50
TOTAL ESTIMATED COST = S498,300.00
(Preliminary construction cost estimated at S3,470,000.00 - Roadway and
$530,000.00 - Bridge; TOTAL = $4,000,000.00)
C