INDOT/Old Meridian/Engr INDIANA DEPARTMENT OF TRANSPORTATION
PROGRAM DEVELOPMENT DIVISION~LOCAL TRANSPORTATION SECTION
1 O0 North Senate Avenue
IGCN, Room N6lJl
Indianapolis, Indiana 46204-2228
(317) 232-5319 FAX: (317) 233-A929
JOSEPH E. KERNAN, Governor
J. BRYAN NICO1-. Commissioner
Writer's Direct Line
FAX: (317) 23324929
PHONE: (317)232-5319
December 11, 2003
The Honorable James Brainard
Mayor of Cannel
One Civic Square
Carmel, IN 46032
RE: Project No: STP-INS0 (001) & STP-IN48 (032)
Old Meridian Street from Pennsylvania Street
to Guilford Road
Des #: 9980500
Carmel
Dear Mayor Brainard:
Enclosed are two (2) copies of the agreements for the above project between the Indiana
Department of Transportation and the City of Carmel.
Please see that the following list of instructions are completed on all the enclosed copies.
The Mayor and Board of Public Works must sign and type names and titles on the
appropriate lines.
2. The Chief Fiscal Officer, Controller or Clerk-Treasurer must attest the agreement.
3. Notary must complete appropriate blanks and affix a seal to the document.
The two (2) copies of each agreement must be returned to this office promptly so that
processing may be completed. The fully executed agreements will be returned to the City at a later
date.
Si~9~ely A /2
,~/--~ mo F. Canzian, Manager
Local Transportation Section
Program Development Division
BFC
Attachments
*Agreement
CC: Butler, Fairman & Seufert, Inc.
*File
Version 4/19/01
STATE-LOCAL AGENCY RIGHT OF WAY AGREEMENT
This Agreement is made and entered into ,
20 , by and between the State of Indiana, acting by and through the Indiana Department of
Transportation, (hereinafter referred to as "INDOT"), and
City of Carmel
a local public agency in the State of Indiana (hereinafter referred to as the "LPA").
WITNESSETH
WHEREAS, the LPA proposes to advance a certain road, street, bridge or other project
through to completion and the project is identified as follows:
Project No. Des. No. Location:
DEM-IN50(001)
9980500 Old Meridian St fi:om Pennsylvania St to Guilford Rd
WHEREAS, the project shall require acquisition by the LPA for certain lands or rights of
lands for public right-of-way purposes (hereinafter referred to as the right-of-way).
(CHECK ONE)
( X ) All right-of-way activities and costs will be programmed with and authorized by
Federal Highway Administration (hereinaiSer referred to as FHWA) for Federal
participation funds. Until FHWA has authorized federal participation, the LPA
acknowledges it may not commence any activities nor incur any costs.
( ) other(specify):
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained
in'this Agreement, INDOT and the LPA agree as follows:
INDOT will not share in the costs of the project. While INDOT will disburse funds
fi:om time to time to defray the project costs, INDOT shall be reimbursed 100%
fi:om FHWA's share and/or the LPA's share thereof.
The LPA shall comply with all federal and state laws, rules and regulations
applicable to the acquisition of right-of-way, and acknowledges that federal
requirements provide for the possible loss of federal funding to one degree or
another when the requirements of Public Law 91-646 and the other applicable
federal and state rules and regulations are not complied with.
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The LPA acknowledges paragraph 7 of the Federal Highway Program Manual,
Volume 7, Chapter 1, Section 3, entitled "Withholding Federal Participation" wkich
is herewith quoted in part as follows: "Where correctable noncompliance with
provisions of law or FHWA requirements exist, federal funds may be withheld until
compliance is obtained. Where noncompliance is not correctable, the FHWA may
deny participation in parcel or project costs in part or in total."
INDOT will provide information and guidance when requested by the LPA
concerning right-of-way requirements, including applicable parts of the Federal
Highway Program Manual. and Public Law 91~646, the Uniform Relocation
Assistance and Real Property Acquisition Policies Act (84 State. 1894), 91st U. S.
Congress, as amended.
Should FHWA invoke sanctions per paragraph 3 above, or deny or withhold federal
funds for any reason and for all or any part of the project, hereinafter called a
citation or cited funds, the LPA herewith agrees as follows:
In the case of correctable noncompliance, the LPA shall make the corrections
in a reasonable amount of time to the satisfaction of INDOT and FHWA.
Failing in this, paragraphs 5.b. and/or 5.c. below, as applicable, shall apply:
In case a citation for noncompliance is not correctable or if correctable and the
LPA does not make any corrections, or if correctable and the LPA makes
corrections that are not acceptable to INDOT and FHWA, or for whatever
'reason the FI-DVA citation continues in force beyond a reasonable amount of
time, this paragraph shall apply and adjustments shall be made as follows:
1. The LPA shall reimburse INDOT the total amount of all right-of-way costs
that are subject to FHWA citation that have been paid by 1NDOT to the
LPA.
2. If no right-of-way costs have as yet been paid by INDOT to the LPA or to
others, INDOT will not pay any right-of-way claim or billing that is
subject to the FHWA citation.
3. The LPA agrees that it is not entitled to bill INDOT or to be reimbursed for
any of its right-of-way liabilities or costs that are subject to any FHWA
citation in force.
If FHWA issues a citation denying or withholding all or any part of
conslruction costs due to LPA noncompliance with right-of-way requirements,
and construction work was or is in progress, the following shall apply:
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i. INDOT may elect to terminate, suspend, or continue construction work in
accord with the provisions of the constmction contract.
2. INDOT may elect to pay its obligations under the provisions of the
construction contract.
In the case of correctable noncompliance, the LPA shall make the
corrections in a reasonable amount of time to the satisfaction of INDOT
and FHWA.
In case the noncompliance is not correctable, or if correctable and the LPA
does not make any corrections, or if correctable and the LPA makes
corrections that are not acceptable to INDOT and FHWA, or for whatever
reason the FHWA citation continues in force beyond a reasonable amount
of time, and consC-uction work has been terminated or suspended, the
LPA agrees to reimburse INDOT the full amount it paid for said
construction work, less any that is not eligible for federal participation.
In any case, the LPA shall reimburse INDOT the total costs of said project,
not eligible for federal participation.
The LPA's share of the project cost shall be the amount as determined by the
procedure outlined in Sections 5 and 10 of this Agreement. From the LPA's share
thus computed, there shall be deducted all previous payments made by the LPA to
INDOT. Billings to the LPA for its share of project costs shall be due and payable
30 days from date of billing by INDOT. If the LPA has not paid the full amount due
within 60 days past the due date, INDOT 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 INDOT's account.
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 offthe right-of-way arising out of, or resulting from the work
covered by this Agreement or the work connected therewith, or from the
installation, existence, use, maintenance, condition, repairs, alteration, or removal
of any equipment or material, 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 oft/tis 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
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10.
11.
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liable under I.C. 34-13-3. Further, the liability of the LPA'shall be limited by the
provisions ofI. C. 34-13-3-4.
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, national origin or
ancestry. Breach of this covenant may be regarded as 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.
if this Agreement is for a right-of-wayproject that is $ 100,000.00 or more the LPA:
Stipulates that any facility to be utilized in performance under or to benefit
from this Agreement is not listed on the Environmental Protection Agency
(EPA) List of Violating Facilities issued pursuant to the requirement of the
Clean Air Act, as amended, and the Federal Water Pollution Control Act, as
amended.
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 of guideline~ issued thereunder.
Stipulates that as a condition of Federal-aid pursuant to this Agreement it shall
notify INDOT and FHWA of the receipt of any advice indicating that a
facility to be utilized in performance under or to benefit from this Agreement
is under consideration to be listed on the EPA listing of Violating Facilities.
Any Real property acquired for this project that is determined by the FHWA or
INDOT to be excess of present or future program needs shall be disposed 0fby the
LPA in accordance with guidelines provided by the FHWA. The LPA shall pay
1NDOT an amount equal to the prOCeeds from the sale (after deducting actual and
reasonable selling and fix-up expenses, if any, from the sales proceeds) times the
federal percentage of participation in the cost of the property when it was acquired.
If the LPA has not disposed of the excess property within two years after the
construction project was accepted, the LPA shall pay INDOT an amount equal to the
current fair market value times the federal percentage of participation in the cost of
the property when it was acquired. INDOT shall transmit all money received
pursuant to this section to the FHWA.
Insofar as authorized by law, this Agreement shall be binding upon INDOT and
LPA, their successors or assigns.
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12. Funding Cancellation Clause
13.
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.
Maintaining a Drug-Free Workplace (Executive Order No. 90-5)
The CONSULTANT hereby covenants and agrees to make a good faith effort
to provide and maintain during the term of this Agreement a drug-fi.ee
workplace, and that it will give written notice to the Agreementing state
agency and the Indiana Department of Administration with/n ten (10) days
after receiving actual notice that an employee of the CONSULTANT has been
convicted of a criminal drag violation occurring in the CONSULTANT's
workplace.
In addition to the provisions of subparagraph (a) above, if the total Agreement
amount set forth in this Agreement is in excess of $25,000, the
CONSULTANT hereby further agrees that this Agreement is expressly
subject to the terms, conditions and representations contained in the
Drug-Free Workplace certification executed by the CONSULTANT in
conjunction with this Agreement and which is appended as an Attachment
hereto.
It is further expressly agreed that the failure of the CONSULTANT to in good
faith comply with the terms of subparagraph (a) above, or falsifying or
otherwise violating the terms of the certification referenced in subparagraph
(b) above, shall constitute a material breach of this Agreement, and shall
entitle INDOT to impose sanctions against the CONSULTANT including, but
not 1/m/ted to, suspension of Agreement payments, termination of this
Agreement and/or debarment of the CONSULTANT fi.om doing further
business with the State of Indiana for up to three (3) years.
DRUG-FREE WORKPLACE CERTIFICATION
Pursuant to Executive Order No. 90-5, April 12, 1990, issued by Governor Evan
Bayh, the Indiana Department of Administration requires the inclusion Of this
certification in ail Agreements with and grants from the State of Indiana In excess of
$25,000.00. No award of a Agreement or grant shall be made, and no Agreement,
purchase order or agreement, the total amount of which exceeds $25,000.00, shall
be valid unless and until tiffs certification has been fully executed by the LPA and
attached to the Agreement or agreement as part of the Agreement documents. False
certification or violation of the certification may result in sanctions including, but
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not limited to, suspension of Agreement payments, termination of the Agreement or
agreement and/or debarment of Agreementing opportunities with the state for up to
three (3) years.
The LPA certifies and agrees that it will provide a dmg-~:ee workplace by:
(a) Publishing and providing to all of its employees a statement notifying
employees that the unlawful manufacture, distribution, dispensing, possession
or use of a controlled substance is prohibited in the LPA's workplace and
specifying the actions that will be taken against employees for violations of
such prohibition; and
(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 drag counsel/ng, 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 statute
conviction for a violation occurring in the workplace no later than five (5) days
after such conviction;
Notifying in writing the Indiana Department of Transportation and the Indiana
Department of Administration within ten (10) days after receiving notice from
an employee under subdivision (c) (2) above or otherwise receiving actual
notice of such conviction;
Within thirty (30) days after receiving notice under subdivision (c) (2) above of
a conviction, imposing the following sanctions or remedial measures on any
employee who is convicted of drug abuse violations occurring in the workplace:
(1) 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
Making a good faith effort to maintain a drag-free workplace through the
implementation of subparagraphs (a) through (e) above.
(d)
(e)
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 off~red 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.
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ACKNOWLEDGMENT
State of Indiana County Hamilton SS:
Before me, the undersigned Notary Public in and for said County
personally appeared Mayor James Brainard, Board Members; Lori Watson and Mary
(name of signers, their official
Ann Burke, Carmel Board o~ Public Works and Safety and Diana L. Cordray, Clerk Treasurel
capacity and agency name)
and each acknowledged the execution of the foregoing contract on this 17 th
day of December , 20 03 , and each acknowledged and stated that he/she
is the party authorized by the said agency to execute the foregoing contract.
Witness my hand and seal the said last named date.
My Commission Expires
Hamilton
County of Residence
Notary Public
C. Ann Davis
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
Notary Public
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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 14
"Maintaining a Drug-free Workplace Executive Order #90-5".
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
A',TTEST: ,, . ~
(Print or type Name and Title
Date
Mayor, with (Board of Public Works)
or (Town Board)
or (County Commis~ners)
James Braiuard, Mayor
(Print or typeNName and Title)
Si)/nature
Mary Ann Burke. Board-Member
Si na e
Lot± WaJ:~on, Board Member
(Prinfor type Name and Title)
APPROVED AS TO FORM AND LEGALITY
TRANSPORTATION
STATE OF INDIANA
BY: INDIANA
DEPARTMENT
OF
Stephen Carter
Attorney General of Indiana
Date approved:
J. Bryan Nicol
Commissioner
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