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Court Avenue Extension
INDIANA DEp~d~TMENT OF TRANSPORTATION PROGRAM DEVELOPMENT DIVISION-LOCAL"fRANSPORTATION SF~'ION 100 North Senate Avenue IGCN, Room N601 Indianapolis, Indiana 46204-2228 (317) 232-5319 FAX: (317) 233-4929 FRANK O'BANNON, Governor J. BRYAN NICOL, Commissioner Writer's Direct Line January 24, 2003 The HOnOrable Thomas Galligan Mayor City of Jeffersonville 501 East Court Ave. Jeffersonville, IN 47130 SUBJECT: Construction Supervision: Contract No: R-26461 Project No: STP-C 740(1) Description: Court Avenue from U.S. In The City of Jeffersonville Des.#: 9682470 RECEIVE MAYOR IEFFERSONV~LLE 31 to 1-65 Dear Mayor Oalligan: In regard to your above mentioned project, which was on the January 22,2003 bid letting we received a low bid from Gob_mann Asphalt & Constr., Inc. who bid $758,900. This contractor and low bid has been approved by INDOT, therefore, this is your notice to proceed with construction supervision as of the date the contractor is notified to proceed, except that you may charge' expenses for attendance at the preconstruction conference and for any involvement in relocation of utilities prior to the date mentioned above. This Supervision may involve local forces, a consultant engineer or a combination of the above. Since a consultant firm is involved, you should give the firm a notice to proceed in writing. It is important that no work proceed, except as noted. If some of this work is to be accomplished by local forces, the personnel used must be employees on your payroll and treated the same as other employees; You must deduct all taxes and any fringe benefits from their salary. The employee cannot'be paid on a "retainer" basis, such as a town engineer. The only agreement required in this situation is one between you and the INDOT for construction and construction engineering which was sent to you and executed before the letting. If the construction supervision is to be done by a consultant engineer, then we need an additional agreement between you and your consultant, setting the scope of work and fee, said agreement to be approved by INDOT and FHWA, and executed prior to the letting. If there is no approved agreement between you and your Consultant,. then the final audit will cite this situation and this work will not be reimbursable. Pdnt~ on R_eeyekxl Paper · · An Equal Opportunity Employer http://www.state.in, us/doff Construction Supervision, STP-C 740(1) page 2 of 3 It is realized that the above information on agreements is after the fact, bu~ is included here to rectify any existing misunderstanding concerning this subject and for reference on future projects. --~HWA will participate in 5he cost of construction engineering up to 15% of the total construction cos5 for projects using Urban and Non- Urban Area (STP, STPG) funds and Bridge Replacement (BRF, BHF, BRO, BHO) funds. The federal funds available for construction engineering on this project will be 80~ of the amoun5 allowed by the jus~ mentioned maximum (15%) percentage relative 5o this particular project. It must be noted that included in construction engineering cos5 is a cost for testing materials, concrete, etc., when 5his work is done by~State forces and any cost incurred by district personnel for assistance in supervision of construction. The charge added for tessing is arrived at by ~he formula. Total Cost for Operating Division of Material and Test, INDOT, Divided by Total Contracted Construction Cost, INDOT It is averaged over a four-year period and applied the following calendar year. It is estimated this service will cos5 approximately 2% of the construction cost. Construction staking, which is a bid item, is not charged as a cost against the previously mentioned 15%. If local forces are involved, we will expect you to maintain a separate daily time sheet for each employee whose tlme is being claimed for Federal reimbursement. The time sheet should show: (1) direct on the job productive time on a daily basis, or hourly basis if paid by a hourly rate and time per day applicable to each specific projec5 number, (2) ~a complete record of employee's total time, both on and off the project, and (3) the type of daily construction engineering activity being performed by the respective employee. Please bear in mind that the salaries of chief administrative personnel and upper level supervisory personnel and the salaries of elected officials are no5 eligible for Federal reimbursement. Salaries being claimed for federal reimbursement should be claimed only for direct, on the job, productive t~me. Sick leave, vacation, paid holidays, military leave, jury leave, or any other unproductive time, or any non-payroll expense such as paid health insurance, employers share of retirement, social security, etc., cannot be claimed as direct cost on a daily basis. However, such costs can be claimed as a payroll additive, or a percent to be added to the total labor cost for the project, provided the LPA can develop and compile a payroll additive rate for these costs, INDOT will not take the initiative to develop this rate for the LPA. INDOT will review rates which the LPA might compile, and if acceptable, approve them for application to the labor claim at the time of audit. COnstruction Supervision, STP-C 740(1) Page 3 of 3 Auto expense on a rate basis is allowable provided it can be documented as to usage for a specific project on an hourly, daily or mileage basis and as to the employee who used the vehicle. Any rate per mile, or day for auto usage will need to be documented as to method of determining the rate and cost factors involved in compiling the rate. These rates will also need to be developed and approved at the time of audit. One way to establish the cost per mile for a given fleet of vehicles for a given year is as follows: On vehicles used by the engineer, inspectors, etc., keep a complete cost records for the entire year, including gas, oil, insurance, maintenance, tires, repairs not covered by insurance and depreciation. Record each vehicle's odometer at start and end of each year to determine miles traveled. Divide total cost by total miles driven to arrive at a cost per mile for vehicles involved. Ail claims for construction engineering shall be filed with the District Construction Engineer on a Claim Form A-12LPA. Instructions are on the back of the form. Enclosed, please find a copy of the executed agreement for construction and construction engineering between you and the INDOT for your files. Please find a copy of the executed agreement for any future work for the project between you and the INDOT for your files. Also there are two original agreements between you and your consultant for construction engineering. One is for your files and the other for your consultant. You may transmit the agreement to your consultant along with the notice to proceed. If you have any questions, contact this office in Room #N601 at (317) 232-5319, or the highway district office in whose area the project is located. Sincerely, Bruno F. Canzian, P.E. Manager, Local Transportation Section Indiana Department of Transportation BFC/bc Enclosures ** Original ST/LPA Agreement * Copy of Agreement Original CONS/LPA Agreement Copy of Agreement CC: Jeffersonville Custodial File Seymour District Director Mr. W. H. Wiese, Contract Services Manager Mr. Danny Williams, Accounts Receivable A & F Engineering Seymour District Coordinator Marka Burke MPO File ~s 8 ~ o ? AGREEMENT THIS AGREEMENT is made and entered into this 2l 6C day of. ~C7~, 2002, by and between the City of Jeffersonville. Indiana, acting by and through its proper officials, hereinafter referred to as the LOCAL PUBLIC AGENCY or LPA, and Jacobi. Toombs and Lanz. Inc.. Consulting Engineers. 120 Bell Avenue~ ClarksJille. Indiana. hereinafter referred to as the CONSULTANT. WITNESSETH WHEREAS, the LPA desires to contract for Construction Engineering Services in connection with STP Project No. C740(), the Court Avenue Extension and U.S. 31 Intersection in Jeffersonville and Clarksville. Clark County~ Indiana. WHEKEAS, the CONSULTANT has expressed a willingness to perform such Construction .E_ngineering Services on behalf of the Local Public Agency or LPA; and WHEREAS, the parties have agreed that the CONSULTANT shall provide the services and documents described herein, in relation to the following described project(s): Project: _STP Project No. C740(). the Court Avenue Extension and U.S. 31 Intersection in Jeffersonville and Clarksville. Clark County. Indiana: NOW THEREFORE, in consideration of the following mutual covenants, the parties hereto mutually covenant and agree as follows: SECTION I SERVICES BY CONSULTANT The services to be provided by the CONSULTANT under this Agreement are as set out in Appendix "A", attached to this Agreement, and made an integral part hereof. SECTION II INFORMATION AND SERVICES TO BE FURNISHED BY LPA The information and services to be furnished by the LOCAL PUBLIC AGENCY are as set out in Appendix "B", attached to this Agreement, and made an integral part hereof. Page 1 of 22 SECTION III NOTICE TO PROCEED AND SCHEDULE The CONSULTANT shall begin the work to be performed under this Agreement upon receipt of the written notice to proceed from the LOCAL PUBLIC AGENCY, and shall deliver the work to the LOCAL PUBLIC AGENCY in accordance with the schedule contained in Appendix "C", attached to this Agreement, and made an integral part hereof. The CONSULTANT shall not begin work prior to the date of the notice to proceed. SECTION IV COMPENSATION The CONSULTANT shall receive payment for the work performed under this Agreement as set forth in Appendix "D", attached to this Agreement, and made an integral part hereof. The cost principles contained in the Federal Acquiskion Regulations, 48 CFR Part 31, shall be adhered to for work under this Agreement. SECTION V GENERAL PROVISIONS 1. Work Office The CONSULTANT shall perform the work under this Agreement at the following office(s): Jacobi, Toombs and Lanz, Inc., Consulting Engineers 120 Bell Avenue Clarksville, Indiana 47129 The CONSULTANT shall notify the LOCAL PUBLIC AGENCY of any change in its mailing address and/or the location(s) of the office(s) where the work is performed. 2. ~mployment During the period of this Agreement, the CONSULTANT shall not engage, on a full or part time or other basis, any LPA personnel who remain in the employ of the LOCAL PUBLIC AGENCY. C:\Sydnq,\,qxloe,\9~9751\9751e¢\LPAagreement.~txt Page 2 of 22 Cgven~,r~t A-~alnst Contln-~ent Fee~ The CONSULTANT wm'r~s that k h~ no~ employed or r~in~d ~ny ~om~ny or ~crson, than a bona fid~ ~mptoy~¢ wo~ing solely for ~e CONSULTANT, to solick or s~ure this Ag~emen~ and tha~ k h~ no~ void or a~r~d ~o pay ~v comply or person, other ~an a bona ~d~ emp!oyee workin~ solely for the CONSULTANT, ~Y fee, commission, perc~ntag:, brok~mg~ re:, gift[or any other consideration, contin~en: upon or r~sulfing from ~e awed or making of this A~:em~n~. For breach or viola6on of this w~W, ~e LOCAL P~LIC AGENCY shall haw ~e right to ~nul this Aar~emen: wi~out tiabili~ or, --~ ' d~duct ~m ~e A~eement pHc~ or consid~t~on, or othe~s~ recover, ~e full amount ~ne CONSULT.~N~ and i~ subcon~cm~, iffy, shall not ~sian, subie2 su~on~cL or o~e~se dispose of ~ whole or ~y pm of~e work under ~is A~emen~ wi~out prior wfia~n co~n~ of~e LPA and th~ [ndi~a Deponent ofT~nspor~tion ("~DO~'). Consent for such ~si~m~nt shalI not th: CONSULTANT of ~ny off i~ dut es or res~onsibilkies hereunder. f. Qwner~hi~ Of 9ocumen~ All document, incI~din~ tracings, drawings, r~po~, ~stimatos, specifications, ficld notos, inwsd=ations, ~dies, etc. ("~e document"), ~ in~men~ of s~ice, shall amain ~ prop~ of~e LPA. Ne~er ~a LOC.~ PUBLIC AG~CY, nor ~y pe~on, fi~ or :o~omtion actin~ on behalfof ~e LOC.~ PU~LtC AG~CY, shall use ~e document, or copies of ~ doc~cn~, for ~ work or projec: o~e: ~ work or proj~c: for which the CONS~TA~ pr~p~ed ~e d~umen~. ~ne CONS~T.~N'T shall have no llabiliw for pe~onal mju~, d~, pmp~ d~a!e or economm loss, or wn~eve, kmd or chatty,, out of, or r~la~ing tot th~ use by LOCAL PUBLIC AGENCY or ~y person, fi~ or co~omtlon actin~ on behalf of LOC.~ PUBLIC AG~CY, of~c document, or :opi~ of~e docmen=, for ~y work or other ~an ~e work or p~j~:t for which the CONSULT~ p~p~d ~e document. Pa§e 3 of Z/~ R~viscd ~1 IY~8 The LOCAL PUBLIC AGENCY may make unlimited copies of the documents furnished by the CONSULTANT. 6. ,access to Records During the Agreement period and for three (3) years from the date of'finat payment under the too'ms of this Agreement, the CONSULTANT and its subcontractors shall maintain ali books, documents, papers, accounting records and other evidence pe,w2ining to the cost incurred and shall make such materials available at their respective offices at all m~onable tim~s for insp~fion or audit by the LOCAL PLrBLIC AGENCY, i"NDOT, the Federal Highway Administration ("FFtWA"), or other authorized representatives of the federal government., and copies thereof shall be famished if requfisted. Audit Work~n~ pa~e.~, and Conclusions The CONSULTANT agrees that, upon request by any agency participating in federal!y-~sis~ed prog?,~as with whom the CONSULTANT has contmcied or seeks to con,-act, the LPA, INDOT, FHWA., or other authorized representatives of'the redes'al government may release or make available to the agency any working papers from an audit performed by such agency of the CONSULTANT and its subcontractors in connection with this A_zreemenr., including any books, documents, papers, accounting records and other documentation which suppor~ or form the basis for ',.he audit conclusions and judgments. 8. Ccm;~lia~ce with State and Other Laws The CONSULT.aNT a~ees to comply with ail federal, state and local laws, mles, regulations, or ordinances, that.are applicable at the time the CONSULTA-NWs se,wices pursuant to this Agreement are rendered, and ali pr~vislons required thereby to be included herein a~e hereby incorpom:ed by reference. 9. p, esp0n~Upiti.w 9fthe CONSULTANT A. The CONSULTAN'T shall be responsible for t.he professional quaiity, tecknicaI accuracy, ~d the coordination of all designs, drawing, specifioationz and other services furnished by the CONSULTANT under this contract. The CONSULTANT shall, without additional compensation, eorre~'t or revise any errors or deficiencies in its designs, drawings, specifiaa~ions, and other se,'wic~ if the errors or deficiencies resulted, independently of all other ~auses, from negligence of the CONSULTANT. The CONSULTANT shall not be Page 4 of 22 responsible for errom, omissions or deficiencies in'the d~signs, drawings, specifications, reports or other services of the LOCAL PUBLIC AGENCY or other consultants, including, without limitation, surveyors and geotechnical engineers, who have ben retained by LOCAL PUBLIC AGENCY. 'I-ne CONSULTANT shall have no liability for errors or deficiencies in its desi~s, drawings, sp~ifications and other services that were eau.sect, or contributld to, by errors or deficiencies (unless such errors, omissions or deficiencies were known or should have been known by the CONSULTANT) in the designs, drawings, sp~ifieations and other services ~rnished by the LOCAL PUBLIC AGENCY. D4'DOT, or other consultants retained by the LOCAL PUBLIC AGENCY. Neither the LOC.aL PUBLIC AGENCY's review, approval or accepW_nce of, nor payment for, the services required under this contract shall be construed to operate a.s a waiver of any rights under this contract or of any caase of action arising out of the performance of this contract, and the CONSULTANT shall be and remain liable to the LOCAL PUBLIC AGENCY in accordance with applicable law for ail damages to the LOCAL PUBLIC AGEN. CY caused by the cONSULTANTs negligent performance of any of the services furnished under this conu'ant. The CONSULTANT shall be responsibie for all damage to life and property, caused by errors or omi.~ions of the CONSULTANT, its subcontrac.~ors, agents, or employees in connection with the services rendered by the CONSULTANT pursuant to this contract. The CONSULTANT shall indemnify., defend, and hoid harmless the LOCAL PUBLIC AGENCY, FNDOT and the State o flndiana~ their officials and employe~, from any liability. due to loss. damage, injuries, or other casualties of whatever kind, which, directly and independently of all other causes, arise out of, or result from, the negiigence of the CONSULTANT, its agents or employees, in performing the se,wices that are required of ~e CONSULTA. N'T by this contract. The CONSULTANT shall have no responsibility for supervising, directing or controlling the work of conn-acto~ or other consultants retained by the LOCAL PUBLIC AGENCY. nor shall the CONSULTANT have authority over. or responsibility for, the means, methods. techniques, sequences or procedures of construction (except those required by the contract plans, specifications, special provisions, etc. prepared by the CONSULTANT) selected by contractors. The CONSULTANT shall have no responsibili .ty for the safety of persons on or offthejob site, and whether or not engaged in the work, for safety precautions and pro_m-~ms incident to the work of con=actors, or £or any failure of contractors or oth='~ tO exercise ca.~e for the safew of any pemon, including employees of contractors, or to comply with laws, ~ies, regulations, ordinances, codes or orders appiieable to contractors' performance o~' the work. The rights and remedies of the LOC,aL PUBLIC AG=~N'CY provided for under Wis contract are in addition to any other rights and remedies provided by law. The CONSULTANT shall have an affirmative duty. to advise the LOCAL PUBLIC AGENCY of any known or obviot~ errors, omissions, or deficiencies in the designs, drawings, specifications, reports, or other services of the LOCAL PUBLIC AGENCY or consultants retained by the LOCAL PUBLIC AGENCY. . Page $ oi~22 10. Status oFClaim~ The CONSULTANT shall be responsible for keeping the LOCAL PUBLIC AGENCY and [ND©T currently advised as to the status of'any claims made for damages against the CONSULTANq' resulting from services performed under this A~eement. The CONSULTANT shall send notice of'claims related to work under this Agreement to Chief Counsel, indiana Depar'~nent oi'Transpor:ation, 100 North Senate Avenue, Room N730, indianapolis, I'N 4620~--2249. I I.' Workman'$ Comuensadon and r~iabilirv The CONSULTANT shall procure and maintain insurance covering all operations under this AgreemenL whether performed by the CONSULTANT or its subcontractor, from insara.nce companies licensed to do business in the State of'indiana, of the kinds and in the amounts hereinafter provided, until final payment by the LPA for the services covered in this Agreement. The CONSULTANT shall not be given notice to proceed until it has furnished ceaificates in a form satisfactory, to the LPA, showing compliance with this section. During the life oFthis AgreemenL the CONSULTANT shall provide the L?A with certificates showing that the required insurance has been maintained, at the request of the LPA. The ceaificates shall provide that the poticies shall not be changed or caneeted without ten (10) days prior wrlt~en not[ce to the LPA. i£such notice is given, the LPA, at its sole option, may terminate this Agreement. in such event, the CONSULTANT shall not be entitled to ~ny furrier compensation under this Agreement. The kinds and a-mounts o£ insurance required are as follows: A. Policies covet-ins the obligations of the CONSULTANT pursuant to the provisions of the Workers' Compensation laws. This A~eement shall be void and of n0 effect unless the CONSULTANT procures and maintains such policies until final acceptance of the work. B. Comprehensive oo:'-ur~nfe policies for bodily injur'y, liability and prope:'ry damage liability harmless endorsement for the types herein specified each with limits of $1,000,000.00 per occurrence for bodily injury, or property, damage with a 1~2,000,000.00 annual aggregate. Such policies shall have no deductibles or self-insured retentions. C. Automobile policies for bodily injury and propen'y damage liability insurance for the types her~in specified with limits ors 1,000,000.00 p~r person and ~:'~,000,000.00 per accident and Page 6 of 22 R~wis~d ~I 1/98 $I,000,000.00 for property dam-~e, including hir~d'an~ non-owned v~h~c[~. Such shah h2v~ no d~duc~b[~ or s~l~-bsur~d 13. Pro~ress Repg~ ~ne CONS~TA~ shall submit a p~ss repo~ to the LPA on or before the t:nth (10th) day of each month, showin6 pro~ss to ~e fi~: of~e mon~. ~e repom shall consist ora pro,mss cha~ with the initial schedule on which shall be superimposed the cu~en~ ~ams of ~he work. I3. Chan~es in Work In ~e event ~e LPA ~qulres a matefi~] ~h~ge [n ~ope, character or complexi~ of~e work · e work h~ progressed ~ did:ted by ~¢ LOCAL PUBLIC AO~CY, adjus~enu in compensation to CONSULTANT ~nd in time for peffo~nce of ~e work ~ modified shall be dete~ined by the LPA, subje:: to ~e CONS~TAN~s approval. The CONSULT,~NT shall not commence ~e ~dkional work or · e change of~e scope of~e work until ~ supp[emen~l contac: b executed and me CONSULTANT h~ received wriUen au~or]~on from the LPA ~d ~'DOT to proceed wi~ ~e work. 14. De}ars and ~xtenslons ~ne CONSC~T.~ a~s ~hat no ch~ges or ci~m for ~ag~ shall be made by it for any minor delays from any cause wM~oever during ~e progress of ~y pomion of ~e se~ices spe:ified in Agreement. Any such deiays shall be c~mpensat~d for by ~ extension of time for such period ~ may dete~ined by ~e LPA, subject to ~e CONS~TAN~s approval. However, it being un~emtood, that ~e pe~ining of ~e CONSU~T~NW m proc~d ro complete ~y se~ices, or ~y pa~ of ~em aker ~e date which ~e time ~f completion may have been :~nded, shalI in no way operate ~ a waiver on ~e pa~ of the LPA of any ofi~ hghB herein. I5. Abandonment and Te~inafioB The LOCAL PUBLIC AGENCY rose,es the right to resinate or suspend ~is Ag~ement upon · i~ (30) days ~inen notice. ?a~e ? of ~ I6. If the LOCAL PUBLIC AGb'-NCY shall abandon the services herein mentioned, the CONSULTANT shall deliver to the LOCAL PUBLIC AGENCY all data. reports, drawings, specifications and estimates completed or partially completed, which shall become the property, of the LPA. The earned value of the work performed shall be based upon an estimate of the pordon of the total servic~ that have been rendered by the CONSULTANT to the date of the abandonment and which estimate shalI be made bv the LOCAL PUBLIC AGENCY in the exereise of its honest and reasonable judgment for services to be paid on a lump sum basis, and it shall be based upon an audit for those services to be paid for on a cost basis or a cost plus fixed fee basis. The audit shall be performed by the Indiana Department of Transporz. ation's Division of Accounting and Control in accordance with generally accepted auditing standa?ds and the cost principles contained in the Federal Acquisition Regulations, 48 CFR Parr .31. The payment made to the CONSULTANT shall be paid as the final payment in fulI settlement for its serv.ices hereunder. h? at an. nme, for any cause whatsoever, the CONSULTANT shall abandon or Fail to timeN p~rform any oflts duties hereunder, including the preparation and completion ct'plans an~ specifications within the time specified, or within such further extension or extensions of time as may b,e agreed upon, the LOCAL PUBLIC AGENCY may give writ'ten not{ce that if the CONSULTANT has not complied with the requirements of this Ae'reement within t~venty (20) calendar days from the date of such notice, then the Agrm~ent is deemed te,wninated. Upon the mailing or deiivery of such notice or personal delivery thereof to the CONSULTANT, and the hilum of the CONSULTANT within the twenty i20) day period to fully comnly with each and all requirements of this Agreement, this],.~,reemlnt shall termmate *.nd the LOCAL PUBLIC AGENCY may by any method it deems [o be necessary designate and employ other consultants, by contract or otherwise, to perform and comutet~ tine se,wic~ herein described. When written notice is referred to herein, it shall be de~med given when deposited in the mail addressed to the CONSULTANT ar its last known address. If the LOCAL PUBLIC AGz--NCY shall act under the preceding paragraph, then ali data. reports, drawings, plans, sketches, sections and models, all specifications, estimates, measurements and dam. pertaining to the project, pre~ared under the terms or in fulfillment of this A~reement, shall be delivered with' A ..... ~ .... m tW.nty (-0) days to LOCAL PUBLIC ~Jzr~t..~. zr me CONSULTANT fads to make such delivery upon demand, then the CONSUL~T~A~NT shall pay to LOCAL PUBLIC AGm-NCY any ~amage it may sustain by reason thereof. ' ' ' ' Non~D~scrim in~t~Qn Pursuant to I.C. 22-9-I-I0, the CONSULTAN-F and its subcontractors, if any, shall nor discriminate against any employee or applicant for empioymen~ 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 emolovmenr. because of race, color, religion, sex, disahiliry, national origin o~ ancestry.. Bre~¢h'ofthis covenant may be regarded as a material breach of'this A_zreement. The CONSULTANT, and any agent of the .CONSULTANT, in the performance of the work under this Agreement, shall comply with 42 U.S.C. §2000e, provided the CONSULTANT has fifteen or more employees for each working day in each of twenty or more calendar Page 8 of 22 weeks in ~e current or preceding calendar year. 43 U.S.C. §2000e states in part that it shall be unlawful for the CONSULTANT to: fail Or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or priviIeges of employment, because of'such individual's race, color, religion, sea or national origip; or tb limit, segregate, or classi~ ia employees or applicant: for emnlovment in any way whioh wouid deprive or tend to deprive any individual 'of'emp[o.vme,~t opportunities or otherwise adversely affect any individual's smms as an employee, because of such individual's ,.`ace, cotor, religion, sex or national origin. The CONSULTANT shall comply with ~.Z U.S.C. §2000e, the terms of which are incorporated by refe~nce and made a paa~ of this Agreement. Brach of this covenant ma.,,' be retarded_ as a material breach ofth~' ° A_r~.m~nt.= "" ~' The CONSULTANT agrees to comply with the regulations of the U.S. Denartmen= of Transportation relative to non-discrimination in federally-assisted programs'of' the U.S. Department of. Tr'anspor~ation. Title ag, Code of Federal RegulationS. Par:. 2 I, effectuates ~2 U.S.C. §2000e above, and is incorporated by reference and made a par~ of this Agreement. Pursuant to 49 CFR Pat 2t, the CONSULTANT agrees as follows: NondlseHmlnafign: T'ne CONSULTA.,WT, with regard to'the work per'~ormed by it after award and prior to completion of the conmact work, will not discriminate on the ground of' ,'-ace, color, or national origin in the selection and retention of subconnmctorg, including procurement of'materials and leases of equipment. 'Cue CONSULTANT will not participate either directly or indirectly in '.he discrimination prohibited by Section 21.5 of'the regulations, includin=, emolovment practices when the con:,'-act covers a program set forth in Appendix ".&" ~f the regulations. Solicitations for Subcont~c*4, Including ,~r0cu~ment~ of Mate,dais and Eoulpment: in all solicitations either by competitive bidding or negotiation made by the CONSULTANT for work to be performed under a subcontract, including procuremen~ of materials or equipment, each potential subconxactor or suppiier shall be notified by the CONSU'LTvMN'T of the CONSULTA.N"T's obligations under this Agreement and the regulations relative to non-discrimination. Info~mation and Rep9~: The CONSULT.-MN'T will provide ail information, and reporm required by the regulations, or directives issued pursuant thereto, and will permit access to its booi.~, records, accounts, and other soumes of infor'rnation, and its facilities as may be de[ermined by the LOCAL PUBLIC AGENCY or the FedemI Highway Administration to be pertinent to ascertain compiianoe with such regulations or directives. Where any information required ora CONSULTANT is in the exclusive possession of another who fails or refuses to ~mish this Pag~ 9 of 22 Revisit{ "'1 information, the CONSULTANT shall 'so certify to the LOCAL PUBLIC AGENCY, or the Federal H{ghway AdminisTration as appropriate, and shall set forth what efforts it has made To obtain the ~nformadon. Sanctions for Noncornotlane.~- In the event of the CONSULTANTs noncompliance with the nondiscrimination provisions of this Agreement, the LOCAL PUBLIC AGEN, CY shall impose such sanctions as it or the ~:ederal Hiahwav Adminisn'arion may determine to be appropriate, 'including, but not limited to, suspension or {ermination or refusal To =m-ant or to continue federal financial assistance or by any ocher means authorized by law. Incorporation Of Provisions: The CONSULTANT will include the provisions of paragraphs (I) through (5) in every subcontran% including procurements of' materials and leases of'equipment, unless exempt b? the regulations or directives issued pursuant thereto. The CONSULTANT will take sUCh action with resnec: co any subconn"aot or procurement ms the LOCAL PUBLIC AGENCY or the ,~ederai Highway Administration may direc: as a means of enforcing such provisions including sanctions for noncompliance. In the event the CONSULTANT becomes involved in, or is threatened with, litigation with a subcontractor or sunDller az a result of such direction, the CONSULT:kN'T may request the LOCAr' 'PUBLIC AGENCY to enter into such litigation to protect the interegr, s of the LOCAL PUBLIC AGENCY and, in addition, the CONSULTANT may request the United States to enter into such litigation to protect the interests of ~e United States. I7. Successors and Assignees In so far as authorized by law, the paxies bind their successors, executor% administrato~ and assignees ro ail covenants of this A_m-eement. Except as above sec forth, neither the CONSULTANT nor the LOCA~ PUBLIC AGENCY shall assign, sublet or transfer its interest in this A~eement without the prior written, Consent of the other. 18. r~i~advanta~ed Business EnteroriSe Program A. General Notice is hereby given co the CONSLrLTA_NT or subcontractor that failure to carry out the requirements set forth in 49 CFR. Sec. 2.3.43(a) shall constitute a breach o'f contract and, after notification, may resuk in termination of the contract or such remedy as the LOCAL PUBLIC AGENCY deems appropriate. The refe~nced section requires the following poliey and disadvantar, ed business enterprise (DBE) obligation to be included in all subsequent contrac~et:ween The CONSULTANT a.nd any subcontractor: Page 10 of*'~ It is the policy of the Indian,~ Department of. Transportation that d~sadvantaged business enterprises, ~s defined in 49 CFR. Par~ 23, shall have the ma.'dmum opportunity to parzicipate in the performance of contracts financed in whole or in par~ with federal funds under this A~ment. Consequently the DBE r~.uirements of 49 CFR. Par~ 2.3 apply to this Agreement. (b) The CONSULTANT agrees to ensure that disadvantaged business enterprises, as defined in 49 CFR Parr 23, have the maximum opportunity to participate in the pe,~ormance of conu-acts and subcontrac~ financed in whole or in pa~ with federal funds provided under this A_o'reement. tn this regard, the CONSULTANT shall take all necessary and~easonable stens, in accordance with 49 CFR Part 23, to ensure that disadvantgzed business enterprises have the maximum opportunity to compete f.or ~.nd perform contracts. T'ne CONSULTANT shall not discriminate on the basis of'race, color, national origin, or sex in the award and performance of federally assisted conLrac~, As part of the CONSULTANT.s equal oppormniu affirmative action program, it is required that the CONSULTANT shall take positive affirmative aciions and out forth good faith efforts to solicit pmposats or bids from and to utilize disadvantaged business enterprise subcont,-ac:ors, vendor's or suppliem. Definitions 1. "Disadvantaged business ~ ; " ent.rpr,se means a small business concern: (a) which is at tenet 5t percent owned by one or more sociallv and economically disadvantaged individuals, or, in the case of any p,~biicty owned business, at lea~t 51 pement oft. he stock of.which is owned by one or mor~ socially and economically disadvantaged individuals; and (b) whose management and daily business operations are controlled by one or more of the socially and ~onomicaHy disadvantaged individuals ~ho own it. "Small business concern" means a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto, except that a small business concern shall not include tony concern or group of concerns controlled by the same socially and economicallv disadvantaged individual or individuals which has annual average g'roas ~ceipts 'in excess million over the previous three fiscal years. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States (or law'fully admittad permanent residenu) and who are women. Black Americans, Hispanic Amer/uans, native Americans, Page 11 of"_2':' Asian-Pacific Ameriuans. or Asian-Indian Americans and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to section $(a) of the Small Business Act. "Certified disadvantaged business enterprise" means the businms has completed and flied with the Indiana DeparUnent of Transportation a requea for certification. and that the basine~ has been reviewed and determined to compty with the _~uidelines established in ~-9 CFR Pm 2_3. A business which is determined to be eligible wilt be cci'tiffed as a disadvantaged bt~siness enterprise Subcontracts If the CONSULTANT intends to subconn'act a portion of the work. the CONSULT.&'WT is required to rake a~rmative actions to seek out and consider DBEs as poten:iaI subcontractom prior to any subcontractuaI commitment. The contac~ made with pot=ntiat DBE subcontr'actors':and the rsmalr~ thereoFsh=ll be documented and made available to the LOCAL PUBLIC AGENCY and the Federal Highway Adminisn"ation ('FHWA) when requested. A request to sublet a pomian of the work to a firm that s not a DBE shall include Form DBE~2 and documentation evidencing contact~ and the results thereof made with potential DBEs for the specific work to be subconnmcted, in compliance with C.1 and C.2. !fa portion of'the work under this Agr~ment is subcontracted to a DBE firm,, then upon completion of the pro}ecL a Disadvantaged Business Enz~,~rorlse Utilization Affidavit, Form DBE-3, shall be completed by the CONSULTAJ,,rT and feint-ned to the LOCAL PUBLIC AGENCY. The contractor and the subconu-actor/ tessor/supplier shall certify, on the DBE-3 form that specific arnount~ have been paid and received. A~'irmative Actions The CONSULTANT shall, as a minimum, develop an a~flrmative artion plan for a Disadvantaged Business Enterprise Pro_m-am which includes: Appointment ora representative with authority to administer the CONSULTANTs Disadvantaged Business Enterprise Pro_re'am. Documentation of afr']rmative action methods and procedures intended to be used in seeking out and considering ee~ifled DBE~ as subcontractors or suppliers. Maintenance of a list of' certified DBEs to be contacted prior to the selection of a potential subconu'actor for the pamiculat items, within the capabilities o£the DBEs. This list shall include but not be limited to: (a) the nm'ne of each subcontractor or supplier and a notation as to their DBE 1:2 of 2~. Revised ~dl I/9 certification status; and (b) the potential .type of work or services to be performed by each subcontractor or supplier. Records and Reports I. The CONSULTANT shall keep such records aa are necessarv to determine compliance with this contract. The records kept by the CONSULTJCqT shalI show, aa a minimum: the number of di~dvanraged and non-minority subcontractors and suppliers and type and dollar value of work, mate'rials or services being performed on or incorporated in this project; ~ the progress and efforts, made in seeking out disadvantaged contractor organizations and individual disadvantaged contractors for work on this project; documentation of ali correspondence, contacts, telephone calls, etc., to obtain the services of DBEs on this Agr~men:. T'ne CONSULTANT shall submit reports, aa required by the LOCAL PUBLIC AGm--NCY, of those corm'acts and other business agreements executed with DBEs with respect to the records referred to in paragraph E.I. Ali such records mast be maintained for a period of three, years following acceptance of final payment and shall be available for insoection'bv The LOCAL PUBLIC AGENCY and the Federal Highway Admini.etratiou. F. Leaaes and Rentals The CONSULTANT shall notiI5, the LOCAL PUBLIC AG=M-NCY when pumhaaes 0r mt. al of equipment are made with disadvantaged businesses. The information submit'ted shall include the name of the business, the dollar amount of the transaction, ~d the .type of purch~.ses made or Lype of equipment rented. DBE Prot=rarn Unless otherwise specified in this Agreement, the DBE Pro_re'am developed by the LOCAL PUBLIC AGENCY and approved by the Federal Highway Administration applies to this Agreement. t9. Suonlement~ This A.m'eement may onlv be amended, supplemented or modified by a written document executed in the same manner aa this Agreement. Page 13 of 22 20. Pollution Control P, enu~rement$ I f this Agreement is for $ 100,000 or more, the CONSULTANT: stipulates that any facili~ to be utilized in performance under or to benefit from this Agreement is not listed on the Environmental Protection Agency (EPA) List of Violatin_* Facilities issued pursuant to the requirement~ o[the Clean Air Act, as amended, and th~ Federal Water Pollution Control Act, as amended; agrees to comply with ali of the requirements of se:lion II4 of the Clean Air Act and section 30g of the Federal Water Pollution Control Act, and all regulations and guidelines issued thereunder;, and stipulates that, as a condition of federal-aid pursuant to th, is Agreement, it shall notify, the LPA and the Federal Highway Administration of the receipt of any advice indicating that a faciliry to be utilized in pe~'ormance under or to benefit from this Agreement is under consideration to be listed on the EPA Listing of' Violating Facilities. 20. Oovernine_ Laws This Agreement shah be consm~ed in accordance with and governed by the laws of the State of Indiana and suit, if any, max, be brought in the State of Indiana. 2 I. Independent COnt~ctgr Tn: parties hereto, in the pe,~o..rmance of this Agreement. will be acting in an individual capacity and not as ag:nm, employ~'-x, parme.,'s joint ventures or associates of one another. The employees or agents of one parry, ishalI not be d~rned or cons,--ued to be employees or agents of the other parry for any purpose whatsoever. 22. Certification fq>r Federal-Aid Contwaet~ The CONSULTANT cc, ti/les, by signing and submitting this Agreement, to the best of its knowledge and belief, that the CONSLrLTA.WT' has complied with Section 1352, Title 31, U.S. Code. and specifically, that: No federal appropriated ~nds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee ora Member of Cong'mss in connection with the awarding of*my federal contract, Page 14 of 22 the making of any federal grant, the making o~'any federal loan. the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in conneation with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "DiscIosure Form to Repo~ Lobbying," in accordance with its instractions. 'Fnis form is available through the [nd~ana Department of Transportation. 'Fais certification is a material representation of fact upon which reiiance '~'~ placed when this transaction was made,or entered into. This certification is a prerequisite for making or entering into this transaction imposed 3 t U.S.C. sec. 1.~~. The CONSULTANT also agrees by signing this Agreement that it shall require that the language cf this certification be inctuded in ali lower tier subcontracts, which exceed $I00,000, and that ali such subreciplents shall certify and disclose accordingly. Any person who fails to sign or file this required certification shall be subjeot to a civil penalty, or' not [ess than S I 0,000 and not more than S 100,000 for each failure. Page I5 of 22 · IN TESTIMONY WHEREOF, the parties hereto have ekecuted this Agreement. ~e I. Lanz, President Print or type name and title) ATTEST: ~oombs~ lr.~ Vice President (Print or type name and title) LOCAL PUBLIC AGENCY Jeffersonville Board of Public Works and Safety Indian~j~'~/ Mayor Thom~ R. G~ligm~resident ype n~e and title) ~ S~gnatur .... ~ .... Robe~ L. Miller~ Member Robert L. W~z~ lr. Member Crint or type name or title) ATTEST: Signatur~ '~ (Prl'fi~'~r type name ahd title) e:\$~n~\,qxtocAg\9?Sl\9751caLPAa~ment.t~t Page 16 of 22 A OWLEDGME T STATE OF INDIANA ), COUNTY OF CLARK )SS: Before me, the undersigned Notary Public in and for said County personally appeared Jorge I. Lanz, President and John H. Toombs~ Jr., V.P. actin~ on behalf of Jacobi, Toombs & Lanz~ Inc. (name of signers, their official capacity and agency name) ~ ' ~ ract on this '~"~da of0o'/o/~f", 2002, and each acknowledged the execution o~ me ~oregoing cont ~ y and each acknowledged and stated that he/she is the party authorized by said agency to execute the foregoing contract. My Commission Expires 12/29/06 Clark Count- of Residence STATE OF INDIANA A K OW EDGME T ), COUNTY OF CLARK )SS: Before me, the undersigned Notary Public in and for. said County personally appeared Mayor Thomas R. Galligan~ President; Robert L. Miller, Member; and Robert L. Waiz~ Ir., Member, acting as the duly appointed members of the leffersonville Board of Public Works and Safety (name of signers, their official capacity and agency name) and each acknowledged the execution of the foregoing contract on this ~ day of ~, 2002, and each acknowledged and stated that he/she is the party authorized by said agency to execute the foregoing contract. My Qom_ro~ssioq, Expi~s, County of Residence 7 Print or type name C:\S~ln~y\,~lo=\9\97~l\gZSlcc~L1pA~S~eat.~ed Page 17 of 22 CERTIFICATE OF CONSULTANT I hereby certify that I am the President (title) and duly authorized representative of the firm of JacobL Toombs and Lanz. Inc. whose address is 120 Bell Avenue. Clarksvitle. Indiana 47129. and that neither I nor the above firm I here represent has: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this Agreement, (b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the Agreement, or (c) paid, or agreed to pay, to any firm, organization o/' person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration or any kind for, or in connection with, procuring or carrying out the Agreement; except as herein expressly stated (if any): None I further certify that no employee, officer, agent, partner, or any member of their immediate families of this firm is employed or retained either full or part-time, in any manner by the Indiana Department of Transportation, except as herein expressly(if any): None I acknowledge that this certificate is to be furnished to the Indiana Department of Transportation and/or the Federal Highway Administration - Department of Transportation, in connection with this and is subject to applicat State and ent CERTIFICATE OF LOCAL PUBLI~ AGENCY I hereby certify that we are the duly appointed members of the Jeffersonville Board of Public Works and Safety (LPA), and the above CONSULTANT or its representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this Agreement to: (a) ¢) employ or retain, or agree to employ or retain, any firm or person, or pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind except as herein expressly stated (if any): None (I) (We) further certify that no employee, officer, agent, or partner, or any member of their immediate families of the CONSULTANT is employed or retained either in a full-time or part-time basis in any manner by the LPA except as herein expressly stated (if any):. None I acknowledge that this certificate is to be furnished to the Federal Highway Administration and the Indiana Department of Transportation, in connection with this Agreement involving participation of federal-aid highway funds, and is subject to applicable state and fede~ laws, botj3 crimj~aJ~nd civil. ~Vlayor Thomas R.M~ ~Iliga~esid . Ikober~ L7 MillerTMember J Robert I~.~tWaiz, Jr.,'Member Page 19 of 22 NON-COLLUSION AFFIDAVIT STATE OF INDIANA ) ) SS: COUNTY OF CLARK ) The undersigned, being duly sworn on oath, says 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, entered into or offered to enter into any combination, collusion or contract to receive or pay, and that he/she has not received or paid, any sum ~.~oney or other considerar~jZ~, for the execution of the annexed Agreement other that which appears u he face of the Agree e .. Printed Name President Title Jacobi, Toombs and Lanz, Inc. Company Before me, a Notary Public in and for said County and State, personally appeared Jorte I. Lanz. p.E.. President, who acknowledged the troth of the statements in the foregoing affidavit on thisbe_ day of t/)F':l-c~at'' , 2002. My Commission Expires: 12/29/06 Clark County of Residence Print or type name Page 20 of 22 DEB~'VT CERTIFICATION This certification applies to the CONSULTANT or any person associated therewith in the capaci~ of' owner, partner, director, officer, principal investor, project director, manager, auditor, or any position involving the administration of Fede~l funds. .t. nSrructign$ for Codification 1. By si~ing and submk~ing this Agreem?nt, the prospective primary, participant is providing the certification set out below, Z. The inabiii .ty cfa person to provide the certification required below witl not necessarily result in denial of participation in this covered n-ansacdon. The prospective participant shall submit mn .oxptanation of why it cannot provide the certification set out below, The certification or explanation wiIl be considered in connection with the department or agency's dete,'-mlnation whether to enter into this transaction. However. failure of the prospective primary, participant to furnish a certification or an explanation shall disquaii~ such person from participation in this transaction. 3. The certification in this ciause is a mate~al representation of fact upon which reiiance was placed when the department or agency determined to enter into this transaction. If it is later dete,-nined that the prospective primary, participant 'knowingly rendered an erroneous ce,'xification, in addition to other remedies avaiiable to the Federal Government, the department or agency may terminate this t~usacdon for cause or default. 4. The prospective primary participant shall provide immediate written notice to the depa~-u-nen: or agency to whom this Agreement is submitted if at any time the prospective primary, paniclpant learns that its certification was erroneous when submitted or has become e.n-oneous by reason of changed circumstances. 5, The terms "covered tr'mnsactiork" "debarred." "suspended," 'ineligible,' "lower tier covered transaction," "pardcipank" "per, on/' "primary. covered n-aasaction," "principa{/' "proposai," and "voluntaziIy excluded," as used in thfs clause, have the m~.nings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the deparn-nent or agency to which this Agreement is being submkted for a~$1stance in obtaining a copy of those regulations· 6. The prospective pdraary par:icipant~ agrees by submitting this Agreement that should the proposed covered transaction be entered into, it shalI not 'k~owingty enter into any lower tier covered transaction with a person who is debarred, suspended, declared ine!ig{b[e, or voluntarily excluded ~om participation in this covered transaction unless authorized by the department or agency entering into this transaction. '7. The prospective priraary pamicipant farther agrees by subrni~thg this Agreement that it wiII include the clause titled "Certification Regarding Debarmenk Suspension, tne!igibiiity and Voluntary Exclusion-Lower Tier Covered Tm.nsacdon,' provided by the depm-tment or agency entering thto this covered transaction without modification in ali lower tier covered transactions and in alt solicitations for lower tier covered tr~usactions. g. A participant in a covered tr~.nsaction ~nay reiy upon a certification cfa pros,Deetive participant in a lower tier covered tr~.nsaction that it is not debarred, suspended, ineligible or voluntarily excluded from the covered transaction unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibilky of its principals. Each participant may, but is not required to, check the Nonprocurement List. 9, Nothing contained in the foregoing shall be construed to require establishment cfa system of records in order to render in good faith the certification required by this clause. The knowledge and information cfa pmXicipant is not roquired to exceed that which is normally possessed by a prudent person in the ordinary, co~r~e of b~sin~s dealings. P~ge 21 of 22 10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Certification Regarding Debarment. Suspension and other Responsibility Matters - - Primary. Covered Transactions (1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three:year period preceding this Agreement been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicated for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not w~thln a three-year period preceding this Agreement had one or more public transactions (Federal, State or local) terminated for cause or default. n (2) Where the prospect~primary participant is unable to certify to any of the statements in this ~cation, such prospectiyg'v, drticipant sh.._~l attach an explanation to this proposal. (~_, j~orge I. Lanz, P.E. Printed Name President Title Jacobi, Toombs and Lanz, Inc. Company Before me, a Notary Public in and for said County and State, personally appeared Jorge I. Lanz. P.E., President, who acknowledged the truth of the statements in the foregoing affidavit on this~.9~~ day of (~.-k~/qa~," , 2002. My Commission Expires: 12/29/06 Clark County of Residence Print or type name Page 22 of 22 Services by CONSULTANT A. APPENDIX "A" Rev. 7/1/89 Engineering Personnel For the fulfillment of all services outlined in Section B below, the CONSULTANT will provide one (1) full time Resident Project Representative, and Inspectors and clerical and secretarial personnel as required for a period of time 'necessary to complete the construction project and final construction report. The qualifications and experiences of personnel provided by the CONSULTANT are subject to approval by the Local Public Agency and the Indiana Department of Transportation and no personnel will be assigned to the project until Local Public Agency and the Indiana Department of Transportation approval is obtained. The full time Resident Project Representative will take directions from and report to the Indiana Department of Transportation's Area Engineer on ali maters concerning compliance and administration. The full time Resident Project Representative will coordinate project activities with the Local Public Agency's Project Coordinator and Indiana Department of Transportation's Area Engineer. Page 1 of 7 Pages Appendix"A" Rev. 7/I/89 Description of Services 1. Construction Schedule: Review the construction schedule prepared by the Contractor for compliance with the contract, and give to the Local Public Agency detailed documentation concerning its acceptability. 2. Conferences: Attend pre-construction conferences as directed by the Local Public Agency, arrange a schedule of pr6gress meetings, and such other job conferences as required for the timely and acceptable conduct ~of the job, and submit such schedules prepared, to the Local Public Agency for notification to those who are expected to attend. Record for the Local Public Agency, as directed, minutes of such meetings. The CONSULTANT shall be available for conferences as requested by the Local Public Agency, State and Federal Highway Administration to review working details of the project. The Local Public Agency, State and Federal Highway Administration may review and inspect the activities whenever desired during the life of the agreement. 3. Liaison: Serve as the Local Public Agency's liaison with the Contractor, working principally through the Contractor's field superintendent or such other person in authority as designated by the Contractor. Acting in liaison'opacity, the full time Resident Project Representative shall be thoroughly familiar with the plans and specifications applicable to the project to insure that all provisions therein are complied with. Any deviation observed shall be reported to the Local Public Page 2 of' 7 Pages AppendLx "A" Rev. 7/1/89 Agency and Indiana Department of Transportation by the full time Resident Project Representative. Cooperate with the Local Public Agency in dealing with the various Federal, State and Local Agencies having jurisdiction over the project. Assist the L~cal Public Agency and Indiana Department of Transportation in obtaining from the Contractor a list of his proposed suppliers and subcontractors. Assist the Local Public Agency and Indiana Department of Transportation in obtaining from the Contractor additional details or information when needed at the job site for proper execution of work. Equipment: Furnish all equipment necessary to sample and test materials in accordance with the Indiana Department of Transportation's procedures. Samples: Obtain field samples of materials delivered to the site as required by the State and deliver such samples to the appropriate Indiana Department of Transportation laboratory office. Shop Drawings: a. Receive shop drawings and falsework drawings. Check for completeness and then forward to Indiana Department of Transportation personnel for approyal. b. Review approved shop and falsework drawings, specifications and other submissions, record receipt of this data, maintain a file of all drawings and Page 3 of 7 Pages Appendix "A" I0. Rev. '7/1/89 submissions, and check construction for compliance in accordance with the contract documents. c. Alert the Contractor's field superintendent when it is observed that material or equipment are being or about to be used or installed before approval of shop drawings or samPles, where such are required, and advise the Local Public Agency and Indiana Department of Transportation when he believes it is necessary to disapprove work as failing to conform to the contract documents. Review of Work. Inspection and Tests: a. Conduct on-site inspections for the Local Public Agency of the work in progress as a basis for determining that the project is proceeding in accordance with the contract documents. b. Provide on-site acceptance testing of materials in the manner and extent prescribed by the latest edition oflthe Indiana State Highway Commission Construction Manual and in accordance with current accepted practices. c. Accompany visiting inspectors, representing Local, State or Federal agencies having jurisdiction over the project, and report details of such inspection to the Local Public, Agency and Indiana Department of Transportation. d. Verify that required testing has been accomplished. Page 4 of 7 Pages Appendix "A" 11. Modification: modifications Rev. 7/1/89 Consider and evaluate the Contractor's suggestions for in drawings and/or specifications and report them with 12. recommendations to the Local Public Agency and Indiana Department of Transportation. Records: a. Prepare and maintain at the job site orderly files of correspondence, reports of job conferences, Shop drawings and other submissions, reproductions of o/'iginal contract documents, including ali addenda, changer orders and additional drawings subsequent to the award of the contract, progress reports and other project related documents. b. Keep a diary or log book, recording hours on the job site, weather conditions, list of visiting officials, decisions, general observations, and specific observations with regard to test procedures. Upon request, furnish copies of such a diary or log book to the Local Public Agency. c. Maintain for the Local Public Agency, a record of names, addresses and telephone numbers of all subcontractors and major material suppliers. d. Maintain a set of drawings on which authorized changes are noted, and deliver to the Local Public Agency upon request, but in any event at the completion of the project. e. Prepare the final construction record and final estimate as required by the Indiana Department of Transportation and the Local Public Agency. Page 5 of 7 Pages Appendix "A" 14. 16. 17. Rev. 7/1/89 Reports: Furnish to the Indiana Department of Transportation and the Local Public Agency at periodic intervals, as required, progress reports of the project, including the Contractor's compliance with the approved construction schedule. ~mates: Prepare progress estimates for periodic partial payments to the Contractor and deliver to the Local Public Agency and Indiana Department of Transportation for review and processing. The payments to the Contractor will be based on estimates of the value of work performed and materials complete in place in accordance with the contract. Project Responsibility: The Resident Project Representative will be responsible for the documentation of pay quantities and estimates, and the maintenance of appropriate records related to the construction of this project. Work Schedule and Suspension: The CONSULTANT's crew will be required to regulate their work week to conform to the Contractor's hours in accordance with the directions of the Indiana Department of Transportation's Area Engineer. If work on the construction project is suspended and all matters concerning contract compliance and administration are complete, the services of the CONSULTANT may also be suspended without cost to the project. Contract Administration: The CONSULTANT will administer the contract in accordance with Indiana Department of Transportation's procedures. Page 6 of 7 Pages Appendix "A" 18. Rev. 7/1/89 Conflict of Interest: The CONSULTANT acknowledges and agrees that the CONSULTANT, a firm associated with the CONSULTANT, or an individual associated with the CONSULTANT cannot accept or perform any work (including, but not limited to construction engineering, production stating, falsework drawings and shop drawings) for the Contractor, material supplier of the Contractor, or for any of the Contractor's subcontractors on this project. For purposes of this section, a firm is associated with the CONSULTANT if the firm and CONSULTANT have a common director, common officer or a common owner. For purposes of this section, an individual is associated with the CONSULTANT if the individual is an employee of the CONSULTANT or an employee of a firm associated with the CONSULTANT. For purposes of this section, the following definitions shall be used: Director - any member of the board of directors of a corporation. Officer - The president, secretary, treasurer, or such other officers as may be prescribed by the corporations by-laws. Owner - A sole proprietor, any partner in a partnership, or any shareholder of a corporation. Page 7 of 7 Pages Appendix "A" Information and Services to be furnished by the Local Public Agency The Local Public Agency shall furnish the CONSULTANT with the following: Rev. 7/1/89 The Local Public Agency shall designate an employee as Project Coordinator to coordinate activities between the CONSULTANT, Indiana Department of Transportation and the Local Public Agency. Assistance to the CONSULTANT'by placing at his disposal all available information pertinent to the project. Page 1 of 1 Page Appendix"B" Rev. 3/1/99 Schedule The CONSULTANT will be prepared t begin the work under this agreement within five (5) days after a letter of notification to proceed is received from the Local Public Agency. The CONSULTANT shall complete and deliver the final construction reco~d and final estimate to the District Director within forty-five (45) calendar days after the Contractor's last day of work. Page 1 of 1 Page AppendLx "C" Rev. 7/1/89 m.~_qmp_~t ion Amount of Payment The CONSULTANT will receive as payment for the work performed under this agreement, as follows, unless a modification of the agreement is approved in writing by the Local Public Agency and the Indiana Department of Transportation: 1. For those services performed by the CONSULTANT, the CONSULTANT will be paid on the basis of actual hours of work performed by essential personnel exclusively on this agreement at the direct salary and wages of each employee, PLUS a provisional overhead rate thereof of 125.00 percent, PLUS direct non- salary costs (the actual costs of such out-of-pocket expenses directly attributabl~ to this agreement such as fares, subsistence, mileage, long distance calls, equipment rentals, reproductions, etc.) as approved by the Local Public Agency, PLUS a fixed fee. The ~,,~,¢~s;~,**al ' · ' " J ......... CONSULTANT shall adjust the provisional overhead rate on the invoice subsequent to receipt of a new overhead rate from the Indiana Department of Transportation's Division of Accounting and Control. The overhead rate shall be determined 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 Subpart 31.2. IIo~,, 2. For those services performed by other than the CONSULTANT, the CONSULTANT will reimburse for the actual invoice for the services performed by other than the CONSULTANT, provided that each~ such invoice shall be subject to approval as reasonable by the Local Public Agency prior to any reimbursement therefore. Page 1 of 3 Pages AppendLx"D" Rev. 7/1/89 The total amount of the fixed fee is $10,360.000. The total compensation for Section A(1), (2) and (3) of this Appendix "D" shall not exceed $80,502.50 unless approved in writing by the Local Public Agency, Indiana Department of Transportation and Federal Highway Administration. A breakdown of the estimated costs for the project is as follows: Base Payroll Cost $ Payroll Burden and General Overhead at 125.0% $ Estimated Total Labor and Overhead Costs $ Fixed Fee $ Direct Non-Salary Cost $ TOTAL $ 30~698.00 38~372.50 69~070.50 10~360.00 1~072.00 80~502.50 Method of Payment 1. Payment shall be made monthly to the CONSULTANT upon submission to the Local Public Agency of an invoice, including an amount of the fixed fee arrived at by taking a ratio of the accumulative monthly labor cost to the total labor cost as estimated above and multiplying this ratio by the total fixed fee. From the partial payment computed each month, there shall be deducted all previous partial fee payments made to the CONSULTANT. 2. Should the scope of the work be modified or this agreement terminated for any reason, the direct costs incurred by the CONSULTANT will be reimbursed and a revised amount of the fixed fee to be paid shall be negotiated between the parties to this agreement to reflect the changes in the scope, extent and character of the services to be furnished by the CONSULTANT from those contemplated for full completion of the agreement, had the scope of work not been adjusted or the agreement terminated. Page 2 of 3 Pages AppendLx "D" Rev. 7/1/89 If, prior to the satisfactory completion of the services under this agreement, for any reason the total of the direct and indirect costs incurred by the CONSULTANT is within five percent (5%) of the maximum amount payable, the status will be evaluated. Adjustments to the maximum amount payable provided for by this section will not affect the fixed fee shown in Section A(3) of this Appendix "D". It is the policy of the Indiana Department of Transportation that Project Representatives and/or Inspectors be on the construction site whenever the Contractor is engaged in any activity requiring inspection or testing concurrent with the construction or activity. tn order for the Contractor to comply with the contract plans and specifications and complete the work within the time required, it is often necessary for the Contractor to work more than an 8-hour day, and more than a 5-day week. This in turn, may require the Resident Project Representative and Inspectors to work over 40 hours per week. Should this become necessary, Overtime Premium may be paid on this project at a rate of 1.5 times the actual hourly rate for all hours worked on this project by the Project Representative and Inspectors over 40 hours per week. Page 3 of 3 Pages Appendix "D" ' ~ AGREEMENT FOR COURT AVENUE INTERSECTION THIS AGREEMENT is made and entered this /~/ day of "'~-.~-~". ,2002, by and among the State of Indiana, acting by and through the Indiana Department of Transportation (hereinafter referred to as INDOT), and the City of Jeffersonville (hereinafter referred to as CITY). WlTNESSETH WHEREAS, pursuant to I.C. 36-1-7, the CITY and INDOT are authorized to cooperate on projects; and WHEREAS, the CITY is extending Court Avenue to connect with U.S. 31 (the "Project"); and WHEREAS, Court Avenue is a CITY street; and WHEREAS, according to CITY data, there have been no accidents reported in the Project area; and WHEREAS~ the CITY has prepared a "Gap Analysis" to measure existing gaps in traffic along Court Avenue; and WHEREAS, the purpose of the gap analysis is to determine if sufficient gaps exist for North Shore Drive traffic to attempt to enter onto 1-65 SB on-ramp; and WHEREAS, the CITY has provided traffic counts for the 1-65 entrance ramp; and WHEREAS, the CITY has provided a traffic engineering study to warrant traffic signal (oo0 P, iecl' installation at the intersection of US 31 and Court Avenue. NOW THEREFORE, in consideration of the premises and the mutual agreements and covenants herein contained (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 1Page 1 of 9 receipt of ~hich is hereby acknowledged, and ~ntendmg to be legally bound, INDOT and CITY hereby covenant and agree as follows: ARTICLE I 1.01. The CITY agrees to place signs at the 1-65 overpass warning eastbound Court Avenue traffic concerning tums or changes in direction towards the ramp to 1-65 as part of the Project. The CITY shall enforce this restriction and incur all costs associated with it. 1.02. INDOT agrees that it will not require that the CITY place a signal at the intersection of North Shore Drive (formally Illinois Avenue) and Court Avenue (the "Iht?section") as part of the Project. 1.03. During construction, and after completion, of the Project, the CITY agrees to monitor traff~c at the intersection and make improvements/modifications as necessary at its own cost. 1.04: After completion of the Project, upon either the CITY'S or INDOT'S determination that a signal warrant is met, the CITY shall, at its own cost, perform engineering studies at the Intersection to determine the improvement(s), if any, required to eliminate the conditions that warrant a traffic signal. L05. The CITY shall, at its own cost, complete the improvements, as determined by the engineering studies that are required to eliminate the conditions warranting a traffic signal, including but not limited to installing a physical barrier along the center of Court Avenue. 1.06. The CITY shall, at its own cost, provide design, installation and electrical energy to operate a fully traffic actuated traffic signal at the intersection of US 31 and Court Avenue. 2Page 2 of 9 '" S 1.07. The design of the traffic signal atU 31 and Court Avenue shall have the concurrence of 1NDOT prior to construction. 1.08. Upon completion of the installation and acceptance by INDOT, the traffic signal at US 31 and Court Avenue shall become the property of INDOT for operation and maintenance except costs for electrical energy shall be paid by the CITY. ARTICLE II 2.01. Nondiscrimination, Pursuant to lC 22-9-1-10 and the Civil Rights Act of 1964, CITY shall not discriminate against any employee or applicant for employment in the performance of this contract. CITY shall not discriminate with respect to the 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 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. 2.02. Drug-Free Workplace Certification. CITY hereby covenants and agrees to make a good faith effort to provide and maintain a drag-free workplace. CITY will give written notice to the State within ten (10) days after receiving actual notice that an employee of CITY has been convicted of a criminal drug violation occurring in the CITY's workplace. 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 of Indiana for up to three (3) years. 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, CITY 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 3Page 3 of 9 executed by the CITY and made a part of the contract or agreement as part of the contract documents. CITY certifies and agrees that it will provide a drug-free workplace by: 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 ~s prohibited ~n CITY workplace and specifying the actions that will be taken against employees for violations of such prohibition; B. Establishing a drug-free a~vareness program to inform employees of(l) the dangers of drug abuse in the workplace; (2) CITY'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 CITY 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 State 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 drag 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) tkrough (E) above. 2.03. Modification/Entire Agreement. This Agreement may be amended from time to time hereafter only in writing executed by 1NDOT and 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. 2.04. Conflict of Interest. 4Page 4 of 9 As used in this section: "Immediate family" means the spouse and the unemancipated children of an individual: "Interested party," means: The individual executing this Contract; An individual who has an interest of three percent (3%) or more of CITY, if CITY is not an individual; or Any member of the immediate family of an individual specified under subdivision 1 or2. "Department" means the Indiana Department of Transportation. Commission means the State Ethics Commission. The Department may cancel this Contract without recourse by CITY if any interested party is an employee of the State of Indiana. The Department will not exercise its right of cancellation under section B above if CITY 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 section. CITY has an affirmative obligation under this Contract to disclose to the Department when an interested party is or becomes an employee of the State of Indiana. The obligation under this sectiqn extends only to those facts that CITY knows or reasonably could know. 2.05. 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. 2.06. 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 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. 2:07. 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. 2.08. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 5Page 5 of 9 2.0% )/~'s~gnment. 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. 2.10. 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. 2.11. Attorney General Approval. This Agreement shall not be effective unless and until approved by the Attorney General of Indiana, or an authorized representative, as to form and legality. 2.12. 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. 2.13. Force Majeure, Suspension and ~Termination. In the event that either party is unable to perform any o£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 of the Force Majeure Event, the party whose ability to perform has not been so affected may be given written notice to terminate this Agreement. 2.14. Substantial Performance. This Agreement shall be deemed to have been substantially performed only when fully performed according to its terms and conditions and any modification thereof. ~2,15. Multi-Term 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 multi-term contract, the multi-term 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. 2;16. Indemnification. CITY agrees to indemnify, defend, exculpate, and hold harmless INDOT, its officials and employees from any liability, loss, damage, injuries, or other 6Page 6 of 9 ~ 'd ct/iimlties of whatever km, or by whomsoever caused, due to the performance of any of the obligations under this Agreement, whether due in whole or in part to the negligent acts or omissions of 1NDOT, its officials, or employees; or CITY, its agents or employees, or other persons engaged in the performance of the work; or the joint or several acts or omissions of any of them; including any claims arising out of the Worker*s Compensation Act or any other law, ordinance, order, or decree. CITY further agrees to pay all reasonable expenses and attorneys' fees incurred by or imposed on 1NDOT in connection herewith in the event that CITY shall default under the provisions of this Section. 2.17. Debarment and Suspension. CITY 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 CITY. 2.18. 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. ]Remainder of Page Intentionally Left Blank] 7Page 7 of 9 Insofar as authorized by Iaw, this Agreement shaI1 be binding upon the parties hereto, their successors or assigns. IN TESTIMONY WHEREOF, the parties hereto have executed this Agreement. THE CITY OF JEFFERSONVILLE STATE OF INDIANA Department of Transportation BY: ~.Oalli~ Mayor RECOMMENDED FOR APPROVAL: BY: Richard S~tzer .......... (.) Chief Engineer ATTEST: EXECUTED BY: J. Bryan Nicol Commissioner APPROVED AS TO FORM AND e~hent~Z'j~r Attoml:/y'~neral of Indi~a 8Page 8 of 9 ACKNO~WLEDGMENT State of Indiana County of Before me, the undersigned Notary Public in and for said County personally appeared (n~le o f"s~~ SS: City of Jeffersonville capacity and firm name) and each acknowledged the execution of the foregoing contract on this day of November 14 ,20.02 , 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 Cormty of Residence Notary Public 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 '-~, ~)P~.~ /TS;¢t~[ , (nf~!~e) (title) of the Indiana Department of Transportation, and acknowledged the execution of the foregoing contract on this L_-~O4A~ day of~ ~'~¢ (~ ~,,m~ ,~- , 20 D~ Witness my hand and seal this said last named date.. My Commission Expires County of R~-sidence N~ Public~ 9Page 9 of 9 VER 4/19/01 STATE - LOCAL PUBLIC AGENCY AGREEMENT CONSTRUCTION AND PROJECT MANAGEMENT FOR FEDERAL AID PROJECTS THIS CONTRACT is made and entered into 2002_, 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, referred to as the "LPA" Jeffersonville WITNESSETH hereinafter 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 desitin 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 desi~ated project has been approved by the Federal Highway Administration and is ready for letting by the STATE: Project No. STP-C740(001) Des. No. 9682470,998247.A Description: Court Ave from 1-65 to US. 31 Contract: R-26461 Page 1 of 15 Pages NOW THEREFORE, in consideration of the mutual covenants, herein contained, the LPA arid 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 $ 1,140,000' ) less the amount contributed by the Federal Government through Federal-aid. The LPA has by an appropriation duly made and entered of record appropriated the sum of $ 228,000 ** 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 high~vay shall be regulated on a continuing basis by the LPA with ~vritten use and occupancy agreements in accordance with the STATE's utility accommodation policy tided "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 subsequc~nt contracts between the LPA and any subcontractor. a. It is the policy of the Indiana Department of Transportation that disadvantaged business enterprises, as defined in 49 CFR Part 23, shall have the * Total = EstimatedBidLettin~ Cost+ Supervision Cost (15°/o)+Contin~encie$ (5%) **Local Match=TotalS.2 Page 2 of 15 Pages VER4/19/01 VER 4/19/01 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. 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 oppommity 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) ~vhose 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, As/an- 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. "Certified disadvantaged business enterprises" means the business has completed and filed with the Indiana Department of Transportation a request for certification, Page 3 of 15 Pages VER 4/19/0I 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). 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: Designate a liaison officer who will administer the LPA's Disadvantaged Business Enterprise program. 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. 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 disadx~antaged 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. 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. 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 4/19/01 E. Leases and Rentals I. 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. DBEProgram Unless othe~wvise 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 a~varded 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 Page 5 of 15 Pages beginning of work thereunder, the LPA shall pay to the STATE, within 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 p~formance 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 ~vith 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. VER 4/19/01 Page 6 of 15 Pages VER~/19/01 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 managemant 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 are: Types of Funds Project Prefix Max. % Interstate Substitution Urban Rural Secondary Bridge Replacement & Bridge Rehabilitation Raikoad Demonstration Hazard Elimination Railroad Protection Raikoad Crossing Minimum Allocation IX 15% M, MG 15% RS, RSG, SR 15% BRM, BRS, BRZ 15% BHM, BHS,BHZ 15% RR Unlimited HES Unlimited RRP Unlimited RRS Unlimited MA Same as for the type of funds for the project "but for" using MA funds I. Project Management by Consultant - A separate agreement bet~veen 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 Page 7 of 15 Pages VER 4/19/01 personnel prior to their assignment to the project. 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 aetual 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 liB. 11. D. The LPA shall pay the STATE for expenses incurred in performing the final 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 1 lB. 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 Page 8 of 15 Pages in the maximum limitation mentioned in section 1 lB. 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 w/Il 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 VER4/19/01 Page 9 of 15 Pages Highway Administration for the amount of the subject claim voucher. Upon receipt of Federal-aid funds, the STATE will make 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-i4-1-9 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 o£the STATE and the concurrc~nce 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 VER 4/19/01 Page 10 of 15 Pages VER4/19/01 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 final payment the LPA shall maintain all books, documents, papers, accounting records and other evidence pertaining to the cost incurred and shall make such mater/als 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 ~vhatever kind, to the person or property of anyone on or offthe 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 mater/al, to the extent of negligence of the LPA, including any claims ar/sing out of the Worlmaen's Compensation Act or any other law, ordinance, order, or decreb. 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. Page 11 of 15 Pages VER 4/19/01 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 ~vork 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 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 Environmantal 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 2lA. 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 (10~ days after receiving actual notice that an employee of LPA has been convicted of a criminal drug violation occurring in LPA's workplace 2 lB. 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 g°°d faith c°mply with the terms °f 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. Page 12 of 15 Pages VER 4/19/01 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 a~vard of an Agreement or Contract shall be made, and no contract, purchase order or agreement, the total mount 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. 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 unla~vful 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 drag 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 Deparanent 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 la~v 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. Page 13 of 15 Pages VER4/19/01 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 Drag-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 ATTEST: Signa~-mg~-xO Peggy Wilder (Pr[ffC6~ 't yTp-e2Wa~e- ~md Title Date Auqust 26, 2002 Mayor, with (Board of Pubhc Works) or (Town Board) or (County Commissioners) (Pnn~ 6r t~e Nme ~d Title) Si~atme Me.er, Board of Public Works (Prim or t~e N~e ~d Title) Signature (Prim or type Name and Title) Approved as to form and legality: Stephen Carter Attorney General of Indiana Date approved: STATE OF INDIANA BY: INDIANA DEPARTMENT OF TRANSPORTATION J. Bryan Nicol Commissioner Page 14 of 15 Pages VER 4/19/01 ACKNOWLEDGMENT State of Indiana County of Clack SS: Before me, the undersigned Notary Public in and for said County personally appeared Thomas R. Galliqan, Mavor of jeffersonville, (name of signers, their official Robert L. Miller, Member, Board of Public Works and Peggy Wilder, Clerk-Treasurer · capacity and firm name) and each acknowledged the execution of the foregoing contract on this 26th day of August ,20 O2 ~ and each acknowledged and stated that he is the party authorized by the said firm to execute the foregoing contract. Wimess my hand and seal the said last named date. My Commission Expires ~_,~. )/~~ _~ 5/7/09 Notary Public H¢,I ~=n R. Mr-~ri d~ Print of type name County of Residence ACKNOWLEDGMENT State of Indiana, County of Marion, SS: Before me, the undersigned Notary Public in and for said County, personally appeared J r~,,'d~jz'/~ ~ ,4]/dO [name/ (title) of the Indiana Department of Transportation, and acknowledged the execution of the foregoing contract on this ~ ~( --(~ day of/~g~, 20 Wimess my hand and seal this said last named date. My Commission Expires County of~ Page 15 of 15 Pages ?