LPA - 122nd Street ExtensionAPPROVED AS TO FORM BY 16
STATE - LOCAL PUBLIC AGENCY AGREEMENT
VER 2/05/03
CONSTRUCTION AND PROJECT MANAGEMENT FOR FEDERAL AID PROJECTS
THIS CONTRACT is made and entered into
J oioo-(( ,
2004, 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. DEM -1N36(001) Des. No. , 9980520
Description: Road Construction on 122nd St. Extension from Pennsylvania St. to Adams St.
Contract: R-27472
File:I:\wfdes\ceagmII2.Doc
Page 1 of 15 Pages
VER 2/05/03
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 the project (approximately $ 4,097,077.06* ) less the
amount contributed by the Federal Government through Federal -aid.
The LPA has by an appropriation duly made and entered of record
0**
appropriated the sum of $ 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 "Indiana Department of Transportation, Utility
Accommodation Policy".
3. The 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
1. 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 contracts between the LPA and
any subcontractor.
a. It is the policy of the Indiana Department of
Transportation that disadvantaged business enterprises,
Total =Award Amount; Supervision Cost @a 100% Local Funds
** Local Match=Total x 20% - match credits= $'4,097,077.06x.2 -$1,269,44=$0
(match credits equal the approved right of way costs incurred by the City for this project). In this case,
the approved amount by the R/W Dept. is for $1,269,448.
Page 2 of 15 Pages
VER 2/05/03
as defined in 49 CFR Part 23, shall have the
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 federally 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
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VER 2/05/03
Department of Transportation a request for certification,
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 Disadvantaged Business Enterprises (DBE).
4. C. Subcontracts
1. If the LPA intends to subcontract 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.1.
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 agreement.
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 Dis-
advantaged 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 prescribe.
Page 4 of 15 Pages
VER 2/05/03
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. 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 work thereunder, the LPA shall pay to the STATE, within
Page 5 of 15 Pages
VER 2/05/03
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 ensure the performance of the work is in
accordance with the construction contract, plans and specifications.
In the event that the engineering, testing, 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, testing, 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 and in such manner 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 Contract, 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 Part 31. After the final audit is
approved by the STATE, then final payment shall be made.
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11. 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 for reimbursement of eligible costs are:
Types of Funds
Urban
Rural < 5000 Population
Bridge Replacement
Bridge Rehabilitation
High Priority
Hazard Elimination/Safety
Railroad Protection
Railroad Crossing
Minimum Guarantee
Enhancement
Congestion -Mitigation
Project Prefix *Max. %
STP, STPG
STP, STPG
BRF, BRO
BHF, BHO
DEM
STP, STPG
STP, STPG
STP, STPG
MG
STP
CM
* Construction contracts of $500,000 or less
15%
15%
15%
15%
15%
15%
15%
15%
15%
15%
15%
17%
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 must approve, in writing, the Consultant's
personnel prior to their assignment to the project.
Page 7 of 15 Pages
VER 2/05/03
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 must approve in writing the LPA's personnel
prior to their assignment to the project.
11. 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
11B.
11. D. The LPA shall pay the STATE for expenses incurred in performing the
fmal 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 11B.
11. 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
in the maximum limitation mentioned in section 11B.
Page 8 of 15 Pages
VER 2/05/03
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
Highway Administration for the amount of the subject claim
voucher. Upon receipt of Federal -aid funds, the STATE will make
Page 9 of 15 Pages
VER 2/05/03
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 properly functioning. 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
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
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VER 2/05/03
final payment the LPA shall maintain all 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. Indemnification. The LPA agrees to indemnify, defend, exculpate, and hold
harmless INDOT its officials and employees from any liability due to loss,
damage, injuries, or other casualties of whatever kind, to the person or property
of anyone on or off the right-of-way rising 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, to the extent of negligence
of the LPA, 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 attorney fees incurred by or imposed on INDOT
in connection herewith in the event the LPA shall default under the
provisions of this Section. Notwithstanding the proceeding provisions
of this Section, the obligation of the LPA to indemnify, defend, exculpate
and hold harmless shall only arise if the LPA also would be liable under I.C. 34-13-3.
Further, the liability of the LPA shall be limited by the provisions of I.C. 34-13-3-4.
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, disability,
Page 11 of 15 Pages
VER 2/05/03
national origin or ancestry. Breach of this covenant may be regarded as a material breach of this
Agreement. Acceptance of this contract also signifies compliance with acceptable 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.
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 Contract 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
Contract 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 Contract is under consideration to be listed on the EPA
Listing of Violating Facilities.
21. MAINTAINING A DRUG-FREE WORKPLACE EXECUTIVE ORDER #90-5
21A. LPA hereby covenants and agrees to make a good faith effort to provide and maintain during the
term of this Agreement a drug-free workplace, and that it will give written notice to the Indiana
Department of Administration and Indiana Department of Transportation within ten (103 days after
receiving actual notice that an employee of LPA has been convicted of a criminal drug violation occurring
in LPA's workplace
21B. In addition the provisions of subparagraph (A) above, if the total Agreement amount set forth in
this Agreement is in excess of $25,000 LPA hereby further agrees that this Agreement is expressly
subject to the terms, conditions and representations contained in the Drug -Free Workplace certification
executed by LPA in conjunction with this contract.
21C. It is further expressly agreed that the failure of LPA to in good faith comply with the terms of sub
paragraph (A) above, or falsifying or otherwise violating the terms of the certification referenced in sub
paragraph (B) above shall constitute a material breach of this Agreement.
DRUG-FREE WORKPLACE CERTIFICATION
This certification 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 with the State of Indiana in excess of $25,000. No award of an Agreement or Contract
shall be made, and no contract, purchase order or agreement, the total amount of which exceeds $25,000, shall be
valid unless and until this certification has been fully executed by the Contractor and attached to the Contract or
agreement as a part of the Contract documents. False certification or violation of the certification may result in
sanctions including, but not limited to suspension of Contract payments , termination of the Contract or agreement
and/or debarment of contracting opportunities with INDOT for up to three (3) years.
Page 12 of 15 Pages
VER 2/05/03
The LPA certifies and agrees that it will provide a drug-free workplace by:
a. Publication 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 prohibit in the LPA'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 employees about (1) the dangers of drug abuse in
the workplace; (2) the LPA's policy of maintaining a drug-free workplace; (3) any available drug counseling,
rehabilitation, and employee assistance programs; and (4) the penalties that may be imposed upon an employee
for drug abuse violations occurring in the workplace;
c. Notifying all employees in the statement required by subparagraph (a) above that as a condition of
continued employment the employee will (1) abide by the terms of the statement; and (2) notify the employer of
any criminal drug statue conviction for a violation occurring in the workplace no later than five (5) days after such
conviction;
d. Notifying in writing the Indiana Department of Administration and Indiana Department of
Transportation 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 above violations occurring in
the workplace: (1) take appropriate personnel action against the employee, up to and including termination; or (2)
require 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 subparagraph
(a) through (e) above.
NON -COLLUSION AND ACCEPTANCE.
The undersigned attests, subject to the penalties for perjury, that he/she is the contracting party, or that
he/she is the representative, agent, member or officer of the contracting party, that he/she has not, nor has any other
member, employee, representative, agent or officer of the firm, company, corporation or partnership represented by
him/her, directly or indirectly, to the best of his/her knowledge, entered into or offered to enter into any
combination, collusion or agreement to receive or pay, and that he/she has not received or paid, any sum of money or
other consideration for the execution of this agreement other than that which appears upon the face of the agreement.
FUNDING CANCELLATION CLAUSE
When the Director of the State Budget Agency makes a written determination that funds are not appropriated or
otherwise available to support continuation of performance of an agreement, the agreement shall be cancelled. A
determination by the Budget Director that funds are not appropriated or otherwise available to support continuation
of performance shall be final and conclusive.
Insofar as authorized by law this agreement shall be binding upon the parties hereto, their successors or
assigns ,including, if this agreement is in excess of $25,000, Paragraph 21 "Maintaining a Drug-free
workplace Executive Order #90-5"
Page 13 of 15 Pages
VER 2/05/03
This Agreement shall not be effective unless and until approved by the Attorney General of
Indiana, or his/her authorized representatives, as to form and legality
In Witness whereof, the State of Indiana and the LPA, through their respective officials, have
hereto affixed their signatures.
Clerk -Treasurer or County Auditor
ATTE,t;T: _
Signature
(Print or type Name
and Title
Date
�/ WOK)
Approved as to form and legality:
Stephen Carter
Attorney General of Indiana
Date approved:
Mayor, with (Board of Public Works)
or (Town Board)
or (County Commissioners)
nature
1'9°6 /18//i0/ c/
(Print or type Name an itle)
Signature
a
or type){ame and Titled & Ifl
Signatu
%,4'wJJEheJtc
(Print of type Name and Title)
STATE OF INDIANA
BY: INDIANA DEPARTMENT OF TRANSPORTATION
J. Bryan Nicol
Commissioner
Page 14 of 15 Pages
VER 2/05/03
ACKNOWLEDGMENT
(
State of Lnc-t t'�c�- County of -1-1/111; �rYl i for SS:
Before me, the undersigned Notary Public in and for said County
personally appeared %i of s `)ta.;nz. a1 Etiaed Members , 1`‘( -
(name of signers, their official )
-nn E(fce... Loci. 46:1 ---on; Neck. Treetwec duan a. ad( \
capacity and firm name)
and each acknowledged the execution of the foregoing contract on this q`
day ofe,x. tom, 200 , 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
a0o.1-Oit)
Count¢ of Residence
fndrd A4-TAnse
Print of type name-.
ACKNOWLEDGMENT
State of Indiana, County of Marion, SS:
Before me, the undersigned Notary Public in and for said County,
personally appeared
(name) (title)
of the Indiana Department of Transportation, and acknowledged the execution of
the foregoing contract on this
day of , 20
Witness my hand and seal this said last named date.
My Commission Expires
County of Residence
Page 15 of 15 Pages
Notary Public