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INDOT/Carmel/Cool Creek Train Maintenance r:\4462Idocumentlrow'rNenglagrmntlcool creek agreement. doc APPROYEDAS1OI'ORM8Y~ AGREEMENT FOR MAINTENANCE OF PEDESTRIANIBICYCLE T~ jr THIS AGREEMENT is made and entered into this -L day of ~ . 2007, by and between the State ofIndiana, acting by and through the Indiana Department of Transportation (hereinafter referred to as lNDOT or the STATE), and The City of Carmel (hereinafter referred to as the CITY or CONTRACTOR), acting by and through its proper officials. WITNESSETH WHEREAS, the CITY is, or will be, the owner of a pedestrian/bicycle trail (hereinafter referred to as the TRAIL) in the City of Carmel, Indiana, that crosses under Keystone Ave (SR 431) and WHEREAS, the TRAIL is, or will be, located in the City of Carmel from the Monon Trail across Rangeline Road northeasterly to Keystone Ave (SR 431), and under Keystone Ave. (SR 431) to l46'h St.; and WHEREAS, INDOT and the CITY desire an agreement regarding the maintenance, liability and advertising of the TRAIL and appurtenances associated with the TRAIL and WHEREAS, Keystone Ave. (SR 431) is a limited-access highway, such that without benefit of an agreement for access, the City would not be entitled to enteronto the property; NOW THEREFORE, in consideration of the premises and the mutual agreements and covenants herein contained, including the above recitals, (the adequacy of which consideration as to each of the parties to this Agreement is hereby mutually acknowledged), and other good and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, lNDOT and the CITY hereby covenant and agree as follows: r:\4462\documanflrowltwanglagrmnt\cool creak agrsamant.doc ARTICLE I THE CITY'S RESPONSffilLITIES 1.01 The CITY shall be responsible for the maintenance of the TRAIL. 1.02 The CITY agrees to indemnify, release and hold harmless INDOT, its officials and employees from any liability due to negligence on the part of the CITY occurring on or directly associated with the TRAIL. This indemnification is in addition to the indemnification set forth within Section 3.13 of this document. 1.03 The CITY shall allow INDOT periodic inspections of the TRAIL in order to assure safe operation. 1.04 The parties agree that if said TRAIL is removed or compromised due to road improvements or repair, the CITY will be responsible for all costs associated with the replacement removal or reconstruction of said TRAIL. Under no circumstances will INDOT be responsible for either reconstruction removal or repair of the TRAIL. ARTICLE II ADVERTISING 2.01 There shall be no commercial advertising allowed to be directed at passing traffic along the TRAIL within the Keystone Ave (SR 431) boundaries. ARTICLE III MISCELLANEOUS 3.01 Nondiscrimination Pursuant to IC 22-9-1-10 and the Civil Rights Act of 1964, CONTRACTOR and its subcontractors shall not discriminate against any employee or applicant for employment in the performance of this contract. The CONTRACTOR shall not discriminate with respect to the hire, 2 r:\4462Idocumentlrowltwenglagrmntlcool creek agreement. doc 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 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, age, sex, disability or status as a veteran. The CONTRACTOR understands that the STATE is a recipient of federal funds. Pursuant to that understanding, the CONTRACTOR and its subcontractor, if any, agree that if the contractor employs fifty (50) or more employees and does at least $50,000.00 worth of business with the State and is not exempt, the CONTRACTOR will comply with the affirmative action reporting requirements of 41 CFR 60-1.7. The CONTRACTOR 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. 3.02 ModificationJEntire Agreement. This Agreement may be amended from time to time hereafter only in writing executed by INDOT and the CITY, and submitted to the Attorney General of Indiana for approval as to form and legality. No verbal change, modification, or amendment shall be effective, unless in writing and signed by the parties and approved by the Attorney General. The provisions hereof constitute the entire agreement between the parties and supersede any verbal statements, representations or warranties stated or implied. 3.03 Governing Laws. This Agreement 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. 3 r:14462Idocumen/'row'lwenglagnnn/lcool creek agreement. doc 3.04 Drug-Free Workplace Certification 1. The CONTRACTOR hereby covenants and agrees to make a good faith effort to provide and maintain a drug-free workplace. CONTRACTOR will give written notice to the STATE within ten (10) days after receiving actual notice that an employee has been convicted of a criminal drug violation occurring in contractor's workplace. 2. 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 the State ofIndiana for up to three (3) years. 3. In addition to the provisions of the above paragraphs, if the total Contract amount set forth in this Agreement is in excess of $25,000.00, CONTRACTOR hereby further agrees that this agreement is expressly subject to the terms, conditions and representations of the following certification: This certification is 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 and grants from the State of Indiana in excess of $25,000.00. No award of a contract shall be made, and no contract, purchase order or agreement, the total amount of which exceeds $25,000.00, shall be valid, unless and until this certification has been fully executed by the CONTRACTOR and made a part of the contract or agreement as part of the contract documents. 4. The CONTRACTOR certifies and agrees that it will provide a drug-free workplace by: A. Publishing and providing to all of its employees a statement notifying their employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the CONTRACTOR'S workplace and specifying the actions that will be taken against employees for violations of such prohibition; and 4 r:\4462\document1rowitwenglagrmnt\cool creek agreement. doc B. Establishing a drug-free awareness program to inform their employees of (1) the dangers of drug abuse in. the. workplace; (2) the CONTRACTOR'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 (I) abide by the terms of the statement; and (2) notify the CONTRACTOR of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; D. Notifying in writing the ST ATE 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 abuse violations occurring in the workplace: (I) 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 subparagraphs (a) through (e) above. 3.05 Subsequent Acts. The parties agree that they will, at any time and from time to time, from and after the execution of this Agreement, upon request, perform or cause to be performed such acts, and 5 r:\4462\documen/lrowliwenglagrmn/\cool creek agreement.doc 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 Agreement. 3.06 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. 3.07 Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 3.08 Assignment. This Agreement shall be binding upon and shall inure to the benefits of the parties, their legal representatives, successors and assigns, provided, however, because this Agreement is personal to each of the parties hereto, no party may sell, assign, delegate, or transfer this Agreement or any portion thereof, including, without limitation, any rights, title, interests, remedies, powers, and/or duties hereunder without the express written consent of the other party. 3.09 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement 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 Agreement. 3.10 Attorney General Approval. This Agreement shall not be effective unless and Until approved by the Attorney General of Indiana, or his authorized representative, as to form and legality. 6 r:14462Idocument\row\rwenglagrmntlcool creek agreement.doc 3.11 Authorizations. Any person executing this Agreement in a representative capacity hereby warrants that he/she has been duly authorized by his/her principal to execute this Agreement on such principal's behalf. 3.12 Force Majeure, Suspension and Termination. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, actions or decrees of governmental bodies or communication line failure not the fault of the affected party (hereinafter referred to as a "Force Majeure Event"), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from receipt of notice ofthe Force Majeure Event, the party whose ability to perform has not been so affected may be given written notice to terminate this Agreement. 3.13 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 performance of a 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. 3.14 Indemnification. The CITY agrees to indemnify, defend, exculpate, and hold harmless the STATE, its officials and employees from any liability due to loss, damage, injuries, or other casualties of whatever kind, to the person or property of anyone on or off the right-of-way arising out of, or resulting from the work covered by this Agreement or the work connected therewith, or from the 7 r:\4462\document\rowitwenglagrmnt\cool creek agreement. doc installation, existence, use, maintenance, condition, repaIrs, alteration, or removal of any equipment or material, to the extent of negligence of the CITY, including any claims arising out of the Worker's Compensation Act or any other law, or\linance, order, or decree. The CITY agrees to pay all reasonable expenses and attorney fees incurred by or imposed on the STATE in connection herewith in the event the CITY shall default under the provisions of this Section. 3.15 Contlict of Interest A. As used in this section: "Immediate family" means the spouse and the nnemancipated children of an individual; "Interested party," means; 1. The individual executing this Contract; 2. An individual who has an interest of three percent (3%) or more of CONTRACTOR, if CONTRACTOR is not an individual; or 3. Any member of the immediate family of an individual specified under subdivision 1 or 2. "DEPARTMENT" means the Indiana Department of Administration. "COMMISSION" means the State Ethics Commission. B. The DEPARTMENT may cancel this Contract without recourse by CONTRACTOR if any interested party is an employee of the State ofIndiana. C. The DEPARTMENT will not exercise its right of cancellation under section B above if the CONTRACTOR gives the DEPARTMENT an opinion by the COMMISSION indicating that the existence of this contract and the employment by the State of Indiana of the interested party does not violate any statute or code relating to ethical conduct of state employees. The DEPARTMENT may take action, including cancellation of this Contract consistent with an opinion of the COMMISSION obtained under this seciion. 8 r:\4462Idocumentlrowlrwenglagrmntlcool creek agreement.doc D. CONTRACTOR has an affirmative obligation under this Contract to disclose to the DEP ARTMENT when an interested party is or becomes an employee of the State of Indiana. The obligation under this section extends only to those facts that CONTRACTOR knows or reasonably could know. 3.16 Debarment and Suspension CONTRACTOR certifies, by entering into this agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into this agreement by any federal agency or department, agency or political subdivision of the State of Indiana. The term ''principal' for purposes of this agreement is defined as 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 CONTRACTOR. 3.17 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 himiher, 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. 9 r:\4462\documentVow\rwenglagrmnt\coof creek agreement. doc In Witness Whereof, CITY and the State of Indiana have, through duly authorized representatives, entered into this agreement. The parties having read and understand the foregoing terms of the contract do by their respective signatures dated below hereby agree to the terms thereof. City of Carmel: By:dn 7~' &- Prifd Name: _\~ ~n Tit e: tv\ <>"'1 M Date: q't,104 Indiana Department of Transportation Karl B. Browning Commissioner Date: Department of Administration Carrie Henderson Commissioner Date: State Budget Agency Charles E. SchaIliol Director Date: (Wh= Applio"'l,) ~ Attested By: ~tJ<.. ./ ~uaA"c:l.. N.~1o /07 k~:~ H4 A:r-.I"\ ~~ I~~ Office of the Attorney General Stephen Carter Attorney General Date: 10 BUTLER, FAIRMAN and SEUFERT, INC. Civil Engineers 8450 Westfield Boulevard, Suite 300 INDIANAPOLIS, IN 46240-8302 317 713-4615 FAX 317 713-4616 LETTER OF TRANSMITTAL TO: Mr. Mike McBride, P.E. City Enqineer City of Carmel. Indiana One Civic Square Carmel. IN 46032 DATE July g, 2007 I JOB NO. 4462.06 ATTENTION: Mr. Mike McBride RE: Cool Creek Trail NE ARE SENDING YOU 181 Attached 0 Under separate cover via o Shop drawings 0 Prints 0 Plans o Copy of letter 0 Change order 0 o Sample the following items: o Specifications COPIES DATE NO. DESCRIPTION 1 Agreement For Maintenance of Pedestrian/Bicycle Trail rHESE ARE TRANSMITTED as checked below: o o o 181 o ,EMARKS Dear Mr. McBride: )ur office is forwardina to vou said aareement for vou to review and sian. Basicallv. this aareement arants the Citv permission to access (evstone Avenue across existino Limited Access R1W. Please sian on oaae 10 and return the aareement to our office. Upon reception. we viii then forward it to INDOT for their review and aporoval. For approval 0 Approved as submitted 0 Resubmit copies for approval For your use d Approved as noted 0 Submit copies for distribution As requested 0 Returned for corrections 0 Return corrected prints. For review and comment 0 FOR BIDS DUE 20 0 PRINTS RETURNED AFTER LOAN TO US Please contact our office should vou have anv ouestions. ;OPY TO Alan Hamerslev Javson Earlvwine SIGNED: :\4462\document\row\rweng\mjsc\trans~memo-fax-email\20070709-jrn-mm-trans.do .