INDOT Decorative Lighting AGreement - UNEXECUTEDOlt tT
4.c "?$-'72 /.2/g/ f
CONTRACT
FOR DECORATIVE LIGHTING DEVICES ON STATE HIGHWAYS
IN CITY OF CARMEL,
HAMILTON COUNTY, INDIANA
EDS #A249-13-320398
THIS CONTRACT by and between the STATE OF INDIANA through the INDIANA
DEPARTMENT OF TRANSPORTATION, hereinafter referred to as "INDOT" and the CITY
OF CARMEL hereinafter referred to as the CITY through their duly authorized
and undersigned officials,
W I T N E S S E T H:
WHEREAS, in the interest of community beautification, the CITY wishes to
install and maintain ornamental lighting devices (the lighting) on state
right-of-way in and near the City of Carmel, Hamilton County, Indiana, with
the fixture type and locations listed in Exhibit "A", attached and made a part
of this Contract; and,
WHEREAS, INDOT deems the installation and maintenance of the lighting at'
the locations listed in Exhibit "A", to be beneficial to the public, to the
extent of permitting such improvements to be made on the state highway and
participating in the same under conditions as specified below:
IT IS THEREFORE AGREED BY AND BETWEEN INDOT and the CITY that the
lighting at locations listed in Exhibit "A", installed and maintained under
terms and conditions as follows:
1. TERM OF CONTRACT
a. Effective date: This CONTRACT shall become effective on the date it
is approved by the Attorney General of Indiana or an authorized
representative.
b. Termination date is the earliest of:
1. If the highway lighting permitted by this Contract has not been
installed within one (1) year of the date of the approval required
in 1.a., this Contract shall terminate.
2. If the highway lighting permitted by terms of this Contract is
removed from the highway right-of-way, this Contract shall
terminate on the date the highway lighting is removed.
3. The date a lack of funding determination is made by the State
Budget Director as provided in Section 10 of this CONTRACT.
4. If the State determines there has been an ethics violation, the
date notice is given to the CITY as provided in Section 7 of this
CONTRACT.
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2. DESIGN
INDOT will retain a Consulting Engineer to prepare plans and
specifications for the lighting installation at the locations listed in
Exhibit "A" in accordance with the terms set forth in the project cost
sharing agreement (EDS # A249-13-320235) for project designation
numbers 0600438 & 1296427 and the 2010 Standard Specifications and any
subsequent revisions. Specifications information is available from the
INDOT website at: http://www.in.gov/indot/.
3. CONSTRUCTION
INDOT will hire a contractor preapproved for lighting installation on
INDOT highways to construct the decorative lighting installations in
accordance with the terms set forth in the project cost sharing
agreement (EDS # A249-13-320235) for project designation numbers
0600438 & 1296427.
4. ACCEPTANCE OF THE LIGHTING
After satisfactory completion of the lighting installation, the
lighting will become the property of the CITY. Costs for electrical
energy shall be paid as provided in Section 9.
5. RIGHTS OF ENTRY
INDOT grants the CITY, its contractor and subcontractors
permission to enter upon the State right-of-way for the sole
purpose of maintaining the lighting at the locations listed in
Exhibit "A".
6. MAINTENANCE
a. The maintenance of the lighting shall be done either by a contractor
prequalified with INDOT for lighting work or by CITY employees.
Prequalification information is available on INDOT's website at:
http://www.in.gov/indot/7179.htm.
b. The maintenance, and any removal of the lighting shall be in
accordance with all current procedures for temporary traffic control
and work zone safety, including but not limited to those procedures
defined in the Indiana Department of Transportation Polices,
Processes, & Procedures on Work Zone Safety & Mobility and Part 6 of
the Indiana Manual on Uniform Traffic Control Devices.
c. The CITY shall send the Greenfield Maintenance Director a lighting
maintenance plan every two (2) years for approval. The lighting
maintenance plan shall identify the types of maintenance activities
to be completed and an estimated schedule of when these activities
will occur.
d. The Greenfield Maintenance Director may require the CITY to perform
specific maintenance activities, such as relamping, if the
illumination of the roadway is not uniform, or if there is other
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evidence that the lighting permitted by this Contract is not being
adequately maintained.
e. The lighting may be removed by INDOT, if INDOT determines that the
CITY is not adequately maintaining the highway lighting and INDOT
provides thirty (30) days notice that the highway lighting will be
removed.
f. The lighting may be removed by INDOT at any time, if INDOT determines
that there are safety problems with the lighting type based on an
increase in night-time accidents or from research at other locations,
and the safety problems cannot be corrected.
7. CITY RESPONSIBILITIES
The CITY responsibilities shall include but are not limited to:
a. Wherever in this contract any obligation or responsibility is assumed
by the CITY, same shall be deemed an obligation of said CITY.
b. The CITY shall perform all work permitted under this Contract to
INDOT's reasonable satisfaction, as determined at the discretion of
INDOT and in accordance with all applicable federal, state, local
laws, ordinances, rules, and regulations.
c. Compliance With Laws
1. The CITY shall comply with all applicable federal, state and local
laws, rules, regulations and ordinances, and all provisions
required thereby to be included herein are hereby incorporated by
reference. The enactment of any state or federal statute or the
promulgation of rules or regulations thereunder after execution of
this Contract shall be reviewed by INDOT and the CITY to determine
whether the provisions of this Contract require formal
modification.
2 The CITY and its agents shall abide by all ethical requirements
that apply to persons who have a business relationship with INDOT
as set forth in IC § 4-2-6 et seq., IC § 4-2-7, et. seq., the
regulations promulgated thereunder, and Executive Order 04-08,
dated April 27, 2004. If the CITY is not familiar with these
ethical requirements, the CITY should refer any questions to the
Indiana State Ethics Commission, or visit the Indiana State Ethics
Commission website at http://www.in.gov/ethics/. If the CITY or
its agents violate any applicable ethical standards, INDOT may, in
its sole discretion, terminate this Contract immediately upon
notice to the CITY. In addition, the CITY may be subject to
penalties under IC §§ 4-2-6 and 4-2-7.
3. The CITY certifies by entering into this Contract that neither it
nor its principal(s) is presently in arrears in payment of taxes,
permit fees or other statutory, regulatory or judicially required
payments to INDOT. The CITY agrees that any payments currently
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due to INDOT may be withheld from payments due to the CITY.
Additionally, further work or payments may be withheld, delayed,
or denied and/or this Contract suspended until the CITY is current
in its payments and has submitted proof of such payment to INDOT.
4. The CITY warrants that it has no current, pending or outstanding
criminal, civil, or enforcement actions initiated by INDOT, and
agrees that it will immediately notify INDOT of any such actions.
During the term of such actions, the CITY agrees that INDOT may
delay, withhold, or deny work under any supplement, amendment,
change order or other contractual device issued pursuant to this
Contract.
5. If a valid dispute exists as to the CITY's liability or guilt in
any action initiated by INDOT or its agencies, and INDOT decides
to delay, withhold, or deny work to the CITY, the CITY may request
that it be allowed to continue, or receive work, without delay.
The CITY must submit, in writing, a request for review to the
Indiana Department of Administration (IDOA) following the
procedures for disputes outlined herein. A determination by IDOA
shall be binding on the parties.
6. Any payments that INDOT may delay, withhold, deny, or apply under
this section shall not be subject to penalty or interest under IC
§ 5-17-5.
7. The CITY warrants that the CITY and its contractors, if any, shall
obtain and maintain all required permits, licenses, registrations,
and approvals, as well as comply with all health, safety, and
environmental statutes, rules, or regulations in the performance
of work activities for INDOT. Failure to do so may be deemed a
material breach of this Contract and grounds for immediate
termination and denial of further work with INDOT.
8. The CITY affirms that, if it is an entity described in IC Title
23, it is properly registered and owes no outstanding reports to
the Indiana Secretary of State.
9. As required by IC 5-22-3-7:
i. the CITY and any principals of the CITY certify that (A) the
CITY, except for de minimis and nonsystematic violations, has
not violated the terms of (i) IC 24-4.7 (Telephone
Solicitation Of Consumers], (ii) IC 24-5-12 [Telephone
Solicitations] or (.iii) IC 24-5-14 [Regulation of Automatic
Dialing Machines] in the previous three hundred sixty-five
(365) days, even if IC 24-4.7 is preempted by federal law;
and (8) the CITY will not violate the terms of IC 24-4.7 for
the duration of the Contract, even if IC 24-4.7 is preempted
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by federal law.
ii The CITY and
affiliate
behalf of
any principals of the CITY certify that an
or principal of the CITY and any agent acting
on
the CITY or on behalf of an affiliate or principal
of the CITY (A) except for de minimis and nonsystematic
violations, has not violated the terms of IC 24-4.7 in the
previous three hundred sixty-five (365) days, even if IC 24-
4.7 is preempted by federal law; and (B) will not violate the
terms of IC 24-4.7 for the duration of the Contract, even if
IC 24-4.7 is preempted by federal law.
d. Confidentiality of State Information - The CITY understands and
agrees that data, materials, and information disclosed to the CITY
may contain confidential and protected information. The CITY
covenants that data, material and information gathered, based upon or
disclosed to the CITY for the purpose of this Contract, will ice..,, be
disclosed to or discussed with third parties without t
written consent of INDOT.
e. Indemnification - The CITY agrees to indem
harmless INDOT, its agents, officer
and suits including court cost
caused by any act or omission o
any, in the performance of this
provide such indemnification to t
f. Drug -Free Workplace Certification
agrees to make a good faith effort
free workplace. The CITY will give
ten (10) days after receiving actual
employee'of the CITY in the State of I
criminal drug violation occurring in th
certification or violation of this certi
sanctions including, but not limited to, `,`' ' Yrs act
payments, termination of this Contract an
contracting opportunities with INDOT for u
of
hree (3) years.
In addition to the provisions of the above paragraphs, if the
contract amount set
$25,000.00, the CITY
expressly subject to
forth in this Contract
hereby further agrees
the terms, conditions,
the following certification:
total
is in excess of
that this Contract is
and representations of
This certification is required by Executive Order No. 90-5, April 12,
1990, issued by the Governor of Indiana. No award of a contract
shall be made, and no contract, purchase order or agreement, the
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total amount of which exceeds $25,000.00, shall be valid, unless and
until this certification has been fully executed by the CITY and made
a part of the contract or agreement as part of the contract
documents.
The CITY certifies and agrees that it will provide a drug-free
workplace by:
1. Publishing and providing to all of its employees a statement
notifying them that the unlawful manufacture, distribution,
dispensing, possession or use of a controlled substance is
prohibited in the CITY's workplace, and specifying the actions
that will be taken against employees for violations of such
prohibition;
2. Establishing a drug-free awareness program to inform its employees
of (1) the dangers of drug abuse in the workplace; (2) the CITY's
policy of maintaining a drug-free workplace; (3) any available
drug counseling, rehabilitation and employee assistance programs;
and (4) the penalties
drug abuse violations
that may be
imposed upon an employee for
occurring in the workplace;
3. 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 CITY of any criminal drug statute conviction for a
violation occurring in the workplace no later than five (5) days
after such conviction;
4. Notifying INDOT in writing within ten (10) days after receiving
notice from an employee under subdivision (C) (2) above, or
otherwise receiving actual notice of such conviction;
5.
Within
(C) (2)
thirty (30) days after receiving notice under subdivision
above of a conviction, imposing the following sanctions or
remedial measures on any employee who is convicted of drug abuse
violations occurring in the workplace: (1) taking appropriate
personnel action against the employee, up to and including
termination; or (2) requiring such employee to satisfactorily
participate in a drug abuse assistance or rehabilitation program
approved for such purposes by a federal, state or local health,
law enforcement, or other appropriate agency; and
6. Making a good faith effort to maintain a drug-free workplace
through the implementation of subparagraphs (A) through (E) above.
g. Non -Discrimination - Pursuant to I.C. 22-9-1-10 and the Civil Rights
Act of 1964, the CITY, its agents, contractors and subcontractors,
shall not discriminate against any employee or applicant for
employment in the performance of this Contract with respect to hire,
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tenure, terms, conditions or privileges of employment or any matter
directly or indirectly related to employment, because of race, color,
religion, sex, disability, national origin, or ancestry. Breach of
this covenant may be regarded as a material breach of the Contract.
Acceptance of this Contract also signifies compliance with applicable
Federal Laws,. regulations, 'and Executive Orders prohibiting
discrimination in the provision of services based on race, color,
national origin,
CITY understands
Pursuant to that
agree
age, sex, disability or status as a veteran. The
that INDOT :i.s a recipient of federal funds.
understanding, the CITY and its contractor, if any,
and does
that if the CITY employs fifty (50) or more employees
at least $50,000.00 worth of business with INDOT and is not exempt,
the CITY will comply with the affirmative action reporting
requirements of 41 CFR 60-1.7. The CITY shall comply with Section
202 of Executive Order 11246, as amended, 41 CFR 60-250, and 41 CFR
60-741, as amended, which are incorporated herein by specific
reference. Breach of this covenant may be regarded as a material
breach of contract.
h. Status of Claims - The CITY shall be responsible for keeping INDOT
currently advised as to the status of any claims made for damages
against the CITY resulting from work performed under this Contract.
The CITY shall send notice of claims related to work under this
Contract to:
Chief Counsel
Indiana Department of Transportation
100 North Senate Avenue, Room N758
Indianapolis, IN 46204-2249
8. NOTICE
a. Wherever in or under this contract notice must or may be given by
INDOT to the CITY, such notice shall be deemed given when addressed
to the CITY at City of Carmel Street Department, Attn: Street
Commissioner, 3400 W 131s` Street, Westfield, Indiana 46074, and
deposited postage paid in the U.S. Mail system of collection.
b. Wherever in or under this contract notice must or may be given by
the CITY to INDOT, such notice shall be deemed given when received
by the Traffic Engineer at the Greenfield District Office,
32 S. Broadway, Creenfield, IN 46140.
9. PAYMENTS
As required by IC 4-13-2-14.8: Notwithstanding any other law, rule, or
custom, a person or company whom has a contract with the State or
submits invoices to the state for payment shall authorize in writing the
direct deposit by electronic funds transfer of all payments by the state
to the person or company. The written authorization must designate a
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financial institution and an account number to which all payments are to
be credit. For forms and additional information, the CITY may visit the
Auditor of State's website at: http://www.in.gov/auditor/2340.htm.
a. To providers other than INDOT, the CITY shall pay for:
1. Costs to install the lighting as described in the project cost
sharing agreement (EDS # A249-13-320235) for project designation
numbers 0600438 & 1296427.
2. Electrical energy to operate the lighting at the intersection
from the initial testing and turn on until the lighting devices
are removed. The CITY shall make arrangements with the utility
company to bill the CITY directly for the energy provided. The
CITY shall provide the Traffic Engineer with written
documentation of said billing authorization before the lighting
is accepted.
3. The maintenance of the lighting at the locations listed in Exhibit
„A„
b. In its normal course of business, INDOT will incur costs for
installation as described in the project cost sharing agreement (EDS
# A249-13-320235) for project designation numbers 0600438 & 1296427.
10. GENERAL PROVISIONS
a. Attorney General Approval - This Contract shall not be effective
unless and until approved by the Attorney General of Indiana, or an
authorized representative, as to form and legality.
b. Assignment - The CITY binds its successors and assignees to all the
terms and conditions of this Contract. The CITY shall not assign or
subcontract the whole or any part of this Contract without INDOT's
prior written consent.
c. Debarment and Suspension -
1. The CITY certifies by entering into this Contract that neither it
nor its principals nor any of its contractors are presently
debarred, suspended, proposed for debarment, declared ineligible
or voluntarily excluded from entering into this Contract by any
federal agency or by any department, agency or political
subdivision of INDOT. The term "principal" for purposes of this
Contract means an officer, director, owner, partner, key employee
or other person with primary management or supervisory
responsibilities, or a person who has a critical influence on or
substantive control over the operations of the CITY.
2. The CITY certifies that it has verified the state and federal
suspension and debarment status for all contractors receiving
funds under this Contract and shall be solely responsible for any
recoupment, penalties or costs that might arise from use of a
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suspended or debarred contractor. The CITY shall immediately
notify INDOT if any contractor becomes debarred or suspended, and
shall, at INDOT's request, take all steps required by INDOT to
terminate its contractual relationship with the contractor for
work to be performed under this Contract.
d. Delay of work. No delay or failure by either party to exercise any
right hereunder, and no partial or single exercise of any such right,
shall constitute a waiver of that or any other right, unless
otherwise expressly provided herein.
e. Force Majeure, Suspension and Termination - In the event that either
party is unable to perform any of its obligations under this Contract
or to enjoy any of its benefits because of natural disaster or
decrees of governmental bodies not the fault
(hereinafter referred to as a "Force Majeure
has been so affected shall immediately give
and shall do everything possible to resume
of such notice, all obligations under this
of the affected party
Event"), the
notice
to
the
party who
other party
performance. Upon
Contract shall be
receipt
immediately suspended. If the period of nonperformance exceeds
thirty (30) days from the receipt of notice of the Force Majeure
Event, the party whose ability to perform has not been so affected
may, by giving written notice, terminate this Contract.
f. Funding Cancellation. When the Director of the State Budget Agency
makes a written determination that funds are not appropriated or
otherwise available to support continuation of this Contract, the
Contract shall be canceled. A determination by the Budget Director
that funds are not appropriated or otherwise available to support
continuation of performance shall be final and conclusive.
Termination for Convenience. This Contract may be terminated, in
whole or in part, by INDOT whenever, for any reason, :CNDOT determines
that such termination is in its best interest. Termination of
services shall be effected by delivery to the CITY of a Termination
Notice at least thirty (30) days prior to the termination effective
date, specifying the extent to which performance of services under
such termination becomes effective.
h. Governing Laws. This Contract shall be construed in accordance with
and governed by the laws of the State of Indiana and suit, if any,
must be brought in the State of Indiana.
i. Headings. Headings in this Contract are for convenience only and
shall not be used to interpret or construe its provisions.
Modification/Entire Contract. This Contract may be amended from time
g.
to time hereafter only in writing executed by
submitted to the Indiana Attorney General for
legality. No verbal change, modification, or
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the parties hereto and
approval as to form and
amendment shall be
effective unless in writing and signed by the parties and approved by
the Attorney General or his authorized representative. Except,
elements of the lighting and associated work design may be added,
deleted or modified in the normal course of plan review or
construction field revision without
for approval. The provisions hereof
submittal to the Attorney
constitute the entire
General
Contract
between the parties and supersede any verbal statement,
representations, or warranties, stated, or implied.
k. Non -Waiver. No delay or failure by either party to exercise any
right hereunder, and no partial or single exercise of any such right,
shall constitute a waiver of that or any other right, unless
otherwise expressly provided herein.
1. Order of Precedence. Any inconsistency or ambiguity in this Contract
shall be resolved by giving precedence in the following order:
(1) This Contract,
(2) attachments prepared by INDOT,
(3) attachments prepared by the CITY.
All of the foregoing is incorporated fully by reference.
m. Severability. Wherever possible, each provision of this Contract
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Contract shall be
prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Contract.
n. Subsequent Acts. The parties agree that they will, at any time and
from time to time, from and after the execution of this Contract,
upon request, perform or cause to be performed such acts, and
execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered, such documents as may be reasonably
required for the performance by the parties of any of their
obligations under this Contract.
o. Substantial Performance. This Contract shall be deemed to have been
substantially performed only when fully performed according to its
terms and conditions and any modification thereof.
Taxes. The State is exempt from most state and local taxes and many
federal taxes. The State will not be responsible for any taxes levied
on the CITY as a result of this Contract.
q. Previous Contracts Superseded or Revoked. This Contract supersedes
and revokes any previous contract between said parties hereto
pertaining to lighting at the locations listed in Exhibit "A". Such
above terms and conditions as they apply to INDOT shall remain in
P.
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effect only so long as the location mentioned herein is a part of the
State Highway System.
r. Authorizations. Any person executing this Contract in a
representative capacity hereby warrants that he/she has been duly
authorized by his/her principal to execute this Contract on such
principal's behalf.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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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 contract other than that which
appears upon the face of the contract.
IN WITNESS WHEREOF, the State of Indiana, through said INDOT, and the CITY,
through their undersigned officials, have hereunto affixed their signatures.
CITY OF CARMEL STATE OF INDIANA
INDIANA DEPT OF TRANSPORTATION
amen Brainard, C�
ayor
Date:
ATTESff
CALA
%iana L. Cordray
Clerk -Treasurer/ �,f/
/ 0�7/i
Brandye Hendrickson
Greenfield District Deputy Commissioner
Date:
Sandra M Johnson
Deputy Clerk For
Date:
Approved:
Approved:
Department of Administration State Budget Agency
(FOR) (FOR)
Jessica Robertson, Commissioner Brian E. Bailey, Director
Date: Date:
Approved as to Form and Legality:
(FOR)
Gregory F. Zoeller
Attorney General of Indiana
Date:
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