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HomeMy WebLinkAbout2011-R-28 (Not Final w/ all signatures) 20 /i -2 -R$' INTERLOCAL COOPERATIVE AGREEMENT Between THE INDIANA DEPARTMENT OF TRANSPORTATION And THE CITY OF ,JEFFERSON VILLE Concerning Construction and Maintenance of Indiana Approaches to the Big Four Bicycle and Pedestrian Bridge over the Ohio River EDS: This Agreement is made and entered into this day of 2011 by and between the Indiana Department of Transportation (hereinafter referred to as " INDOT"), and the City of Jeffersonville, Indiana (hereinafter referred to as the "CITY"), and jointly referred to as the "PARTIES ". RECITALS WHEREAS, the Big Four Bridge structure exclusive of bridge approaches is owned by the Louisville Waterfront Development Corporation. a Kentucky Not for Profit Corporation (hereinafter referred to as "WDC "); and WHEREAS, the CITY is cooperating with the City of Louisville, Kentucky and the WDC to construct a pedestrian bridge and path upon the Big Four Bridge and to construct necessary approaches to the Big Four Bridge; and WHEREAS, INDOT and KYTC have agreed to cooperate and coordinate with the CITY, the City of Louisville, thc WDC and any other necessary parties to complete the pedestrian bridge and path upon thc Big Four Bridge and approaches in each state (hereinafter referred to as the "Big Four Bi -state Agreement" and attached hereto as Exhibit A); and WHEREAS, under the Big Four Bi -state Agreement, INDOT has agreed to provide up to EIGHT MILLION DOLLARS in federal aid funds to the CITY to assist in construction of needed approaches to the Big Four Bridge in Indiana (hereinafter referred to as the "Project "); and WHEREAS, the CITY and 1NDOT acknowledge that the available funding for the Project is from various federal -aid sources requiring contribution of local matching funds; and WHEREAS. the CITY shall provide at least TWO MILLION DOLLARS ($2,000,000.00) in local funds to satisfy matching requirements for t Project; and WHEREAS, the CITY is in the process of completing necessary environmental studies for the Indiana approach, which will reference environmental studies already completed for the Kentucky approach and the Big Four Bridge structure; and WHEREAS, INDOT shall assist the CITY in letting the Project in accordance with 1NDOT's usual procedures for local public agency projects once the environmental document is completed and approved by the Federal Highway Administration (hereinafter "FHWA ") and any necessary permits are issued; NOW TIIEREFORE, in consideration of the premises and the mutually dependent covenants herein contained. the Parties hereto agree as follows. 1.1. CITY'S Responsibilities. A. Prerequisites to Availability of Funds. Prior to federal funds being made available for the Project. the CITY shall complete the following requirements: i.) Environmental Document. The CITY shall complete all required environmental and historic preservation documentation in accordance with all applicable federal and state law or regulations. The CITY shall also enter into any mitigation agreements or memoranda required by reviewing agencies. The environmental document shall incorporate or reference other environmental studies previously completed for the Big Four Bridge structure and the Kentucky Access Ramp, and must be approved FHWA before INDOT will make federal funds available for the Project under this Agreement. ii.) Right -of -way Certification and Utility Relocation. The CITY shall acquire all right -of- way needed for the Project at its expense and in its own name and shall submit documentation to have all right-of-way certified by INDOT's Seymour District in accordance with INDOT's usual Local Public Agency (LPA) project procedures. All right - of -way must be certified before INDOT will make federal funds available for the Project under this Agreement. The CITY shall also be responsible to ensure that any necessary utility relocation occurs in accordance with applicable federal and state laws and regulations. iii.)Design and Bid Package. The CITY shall have all necessary design work for the Project completed at its expense in accordance with applicable federal and INDOT standards, and shall submit completed plans and a bid package to INDOT in accordance with INDOT's LPA process and all applicable federal and state law. Acceptable design plans and a complete bid package for the Project must be submitted to INDOT before INDOT will make federal funds available for the Project under this Agreement. B. Local Matching Funds. In accordance with the terms of Section 1.3 of this Agreement, the CITY shall pay an amount equal to twenty (20) percent of Project costs in local funds, and shall pay an amount equal to one hundred (100) percent of all Project costs in excess of TEN MILLION DOLLARS. The CITY shall pay the entire required amount of local matching funds (equal to twenty (20) percent of the bid price of the Project up to TEN MILLION DOLLARS ($10,000,000) plus one hundred (100) percent of any Project costs exceeding TEN MILLION DOLLARS (S10,000,000)) before INDOT will issue notice to proceed for the Project The CITY shall also pay the entire cost of any change orders and cost increases associated with the Project in accordance with the terms of Section 1.3 of this Agreement. The CITY understands that it must make the twenty (20) percent matching payments described herein with local funds. C. Because federal -aid highway funds arc being used in construction of the Project, the CITY shall be required to maintain ownership of the Project. D. Upon completion of construction of the Project, the CITY shall be required to maintain, inspect, and operate the Project in accordance with all applicable state and federal laws or 2 regulations. The CITY may choose to accomplish its maintenance, inspection and operation responsibilities by entering into agreements with any necessary third parties (including the WDC or the City of Louisville, Kentucky) to provide necessary services. The CITY shall be solely responsible for all costs of maintenance, operation and inspection of the Project once constructed. 1.2. INDOT'S Responsibilities. A. INDOT will let a contract for construction of the Project (the "Contract ") in accordance with applicable law and usual INDOT LPA procedures. Upon receipt of LPA concurrence and responsive and acceptable bids, and in its sole discretion, INDOT may choose to award the Contract to the lowest and best bidder. B. INDOT will conduct all required construction inspection associated with the Project as a part of their administration of the Contract. C. INDOT will make federal -aid funds available to the CITY to cover up to eighty (80) percent of Project costs. INDOT will make such federal -aid funds available to the CITY in an amount up to but not to exceed EIGHT MILLION DOLLARS ($8,000,000) for the sole and exclusive purpose of paying costs of construction or construction inspection of the Project Under no circumstances shall INDOT be responsible for any other costs associated with the Project, including costs of preliminary design, right -of -way acquisition. operation, maintenance or inspection. D. INDOT will provide final documentation of all costs associated with the Project at the conclusion of construction of the Contract. 1.3. Payment. A. If the CITY concurs with the award of the CONTRACT including the Project as required under Section 1.1 of this Agreement, INDOT shall invoice the CITY for the bid price of the Project less INDOT's federal aid funds contribution (in accordance with Section 1.2(C) of this Agreement) of eighty (80) percent of Project costs up to but not to exceed EIGHT MILLION DOLLARS (S8.000,000). The CITY shall remit the full amount owed on the invoice to INDOT, using local funds, within thirty (30) days of the award of the CONTRACT or before work begins on the Project, whichever occurs soonest. B. The CITY shall remit the full amount of any approved change orders or cost increases to INDOT within thirty (30) days of' approval of the change order or cost increase. In the event that the total costs of the Project are less than the bid amount paid by the CITY to INDOT, INDOT shall return the unused portion of any funds paid by the CITY after final accounting for the CONTRACT is complete. C. The maximum amount of INDOT's costs for the Project shall not exceed EIGHT MILLION DOLLARS AND NO CENTS (S8.000,000). 1.4. Duration and Renewal of Agreement. This term of this Agreement shall be from the date of the last signature to this Agreement through December 31, 2015 or completion of final audit of the Project by INDOT, whichever occurs last. This Agreement may be renewed under the same terms and conditions subject to the approval of all signing Parties. 3 1.5. Amendment. No alteration, modification, or amendment to This Agreement is permitted, except by written agreement sitmed by the Parties. 1.6. Dispute Resolution. Any dispute arising hereunder shall be submitted to the Indiana Department of Administration for final resolution. 1.7. Captions. All captions, section headings, paragraph titles and similar items are provided for the purpose of reference and convenience and are not intended to be inclusive, definitive or to affect the interpretation of this Agreement. 1.8. Integration. This Agreement and any documents or exhibits incorporated into this Agreement represent the entire understanding between the Parties. By signing this Agreement, the Parties recognize that no other oral or written contracts or agreements conceming the Project exist, and that if any such oral or written contracts or agreements exist, they are hereby superseded. Each Party hereby represents that it will not rely upon any agreement, contract or understanding not reduced to writing and incorporated into this Agreement prior to the execution hereof or not reduced to writing and incorporated into written amendments of this Agreement. [Remainder of Page Intentionally Left Blank] 4 11. GENERAL PROVISIONS 2.1. Access to Records. The CITY shall maintain all books, documents, papers, correspondence, accounting records and other evidence pertaining to the cost incurred under this Agreement. and shall make such materials available at their respective offices at all reasonable times during the period of this Agreement and for five (5) years from the date of' final payment under the terms of' this Agreement, for inspection or audit by INDOT, or its authorized representative, and copies thereof shall be furnished free of charge, if requested by INDOT. The CITY agrees that, upon request by any agency participating in federally- assisted programs with whom the CITY has Agreed to or seeks to agree to. INDOT may release or make available to the agency any working papers from an audit performed by INDOT of the CITY in connection with this Agreement, including any books, documents, papers, accounting records and other documentation which support or form the basis for the audit conclusions and judgments. 2.2. Audit. The CITY acknowledges that it may be required to submit to an audit of funds paid through this Agreement. Any such audit shall be conducted in accordance with IC 5 -11 -1, et. seq. and audit guidelines specified by the State and/or in accordance with audit requirements specified elsewhere in this Agreement. 23. Authority to Bind CITY. The signatory for the CITY warrants that he/she has the necessary authority to enter into this Agreement. The signatory for the CITY represents that he/she has been duly authorized to execute this Agreement on behalf of the CITY, and has obtained all necessary or applicable approval to make this Agreement fully binding upon the CffY when his/her signature is affixed to this Agreement. 2.4. Certification for Federal -Aid Contracts Lobbvin2 Activities. The CITY certifies. by signing and submitting this Agreement, to the best of its knowledge and belief that the CITY has complied with Section 1352, Title 31, U.S. Code, and specifically, that: A. No federal appropriated funds have been paid or will be paid, by or on behalf of the CITY, 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 connection with the awarding of any federal Agreements, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal Agreement. grant, loan, or cooperative agreement. B. 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 connection with this federal Agreement, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. C. The CITY also agrees by signing this Agreement that it shall require that the language of this certification be included in all contractor agreements including lower tier subcontracts, which exceed $100,000, and that all such sub recipients shall certify and disclose accordingly. Any person who fails to sign or file this required certification shall be subject to a civil penalty of not less than 510,000 and not more than $100,000 for each failure. 5 2.5. Compliance with Laws. A. The CITY shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, and all provisions required thereby to be included herein are hereby incorporated by reference. The enactment of any state or federal statute, or the promulgation of regulations thereunder, after execution of this Agreement, shall be reviewed by INDOT to determine whether formal modifications are required to the provisions of this Agreement. B. The CITY and its agents shall abide by all ethical requirements that apply to persons who have a business relationship with the State, as set forth in Indiana Code § 4 -2 -6, et seq., Indiana Code § 4-2 -7, et. seq., the regulations promulgated thereunder, and Executive Order 05 -12, dated January 12, 2005. If the CITY is not familiar with these ethical requirements, the CITY should refer any questions to the Indiana State Ethics Commission, or visit the Indiana State Ethics Commission website at «http: / /www.in.gov /ethics. +5 ». If the CITY or its agents violate any applicable ethical standards, the State may, at its sole discretion, terminate this Agreement immediately upon notice to the CITY. In addition, the CITY may be subject to penalties under Indiana Code §§ 4-2-6 and 4 -2- 7, and under any other applicable state or federal laws. C. The CITY certifies by entering into this Agreement. that neither it nor its principal(s) are presently in arrears in payment of its taxes, permit fees or other statutory, regulatory or judicially required payments to the State of Indiana. Further, the CITY agrees that any payments in arrears and currently due to the State of' Indiana may be withheld from payments due to the CITY. Additionally, further work or payments may be withheld, delayed, or denied and/or this Agreement suspended until the CITY becomes current in its payments and has submitted proof of such payment to INDOT. D. The CITY warrants that it has no current or outstanding criminal, civil, or enforcement actions initiated by the State of Indiana pending, and agrees that it will immediately notify INDOT of any such actions. During the term of such actions, the CITY agrees that INDOT may delay, withhold, or deny work under any supplement, amendment, change order, contract or the like. E. If a valid dispute exists as to the CITY'S liability or guilt in any action initiated by the State of Indiana or its agencies, and INDOT decides to delay, withhold, or deny work to the CITY, the CITY may request that it be allowed to continue, or receive work, without delay. The CITY must submit, in writing, a request for review to INDOT. A determination by the INDOT shall be final and binding on the Parties and not subject to administrative review. Any payments that the INDOT may delay, withhold, deny, or apply under this section shall not be subject to penalty or interest under IC 5-17-5. F. The CITY represents and warrants that the CITY shall obtain and maintain all required permits, licenses, registrations and approvals, as well as comply with all health, safety, and environmental statutes, rules, or regulations in the performance of work activities for INDOT. Failure to do so may be deemed a material breach of this Agreement and grounds for termination and denial of further work with the State. G. The CITY hereby represents and warrants that, if it is an entity described in IC Title 23, it is properly registered and owes no outstanding reports with the Indiana Secretary of State. II. As required by IC 5- 22 -3 -7: (1) the CITY and any principals of the CITY certify that (A) the CITY, except for de minimis and nonsystematic violations, has not violated the terms of (i) 6 IC 24-4.7 [Telephone Solicitation Of Consumers], (ii) IC 24-5-12 [Telephone Solicitations] , or (iii) IC 24 -5 -14 [Regulation of Automatic Dialing Machines] in the previous three hundred sixty -five (365) days, even if IC 24-4.7 is preempted by federal law; and (B) thc CITY will not violate the terms of IC 24-4.7 for the duration of the Agreement, even if IC 24-4.7 is preempted by federal law. (2) The CITY and any principals of the CITY certify that an affiliate or principal of the CITY and any agent acting on behalf of the CITY or on behalf of an affiliate or principal of the CITY (A) except for de minimis and nonsystematic violations, has not violated the terms of IC 24-43 in the previous three hundred sixty-five (365) days, even if IC 24-4.7 is preempted by federal law; and (B) will not violate the terms of IC 24 -4.7 for the duration of' the Agreement, even if IC 24-4.7 is preempted by federal law. 2.6. Con flict of Interest A. As used in this section: "Immediate family" means the spouse and the un- emancipated children of an individual. "Interested Party," means: 1. The individual executing the Agreement; 2. An individual who has an interest of three percent (3 %) or more of CITY, if CITY is not an individual; or 3. Any member of the immediate family of an individual specified under subdivision I or 2. "Commission" means the State Ethics Commission. B. INDOT may cancel this Agreement without recourse by the CITY if any interested Party is an employee of the State of Indiana. C. INDOT will not exercise its right of cancellation under Section 13, above, if the CITY gives INDOT an opinion by the Commission indicating that the existence of this Agreement and thc employment by the State of the interested Party does not violate any statute or code relating to ethical conduct of state employees. INDOT may take action, including cancellation of this Agreement, consistent with an opinion of the Commission obtained under this section. D. The CITY has an affirmative obligation under this Agreement to disclose to INDOT when an interested Party is or becomes an employee of INDOT. The obligation under this section extends only to those facts that the CITY knows or reasonably could know. 2.7. D is ad vanta ¢ ed Business Enterprise Program. Noticc is hereby given to the CITY that failure to carry out the requirements set forth in 49 CFR Sec. 26.I3(b) shall constitute a breach of this Agreement and, after notification, may result in termination of this Agreement or such remedy as INDOT deems appropriate. The referenced section requires the following policy and disadvantaged business enterprise ( "DBE ") assurance to be included in all subsequent Agreements between the CITY and any contractors. The CITY shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The CITY shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT- assisted Agreements. Failure by the CITY to carry out 7 these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as INDOT, as the recipient, deems appropriate. As part of the CITY'S equal opportunity affirmative action program. CITY, it is required that the CITY shall take positive affirmative actions and put forth good faith efforts to solicit proposals or bids from and to util disadvantaged business enterprise, vendors or suppliers. 2.8. Drug -Free Workplace Certification. The CITY hereby covenants and agrees to make a good faith effort to provide and maintain a drug -free workplace, and that it will give written notice to the Indiana Department of Transportation and the Indiana Department of Administration within ten (10) days after receiving actual notice that an employee of the CITY in the State of Indiana 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 Agreement payments, termination of the 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 Agreement amount set forth in this Agreement is in excess of 325,000.00. the CITY hereby further agrees that this Agreement is expressly subject to the teens, conditions and representations of the following certification: This certification is required by Executive Order No. 90 -5. April 12, 1990. issued by the Govemor of Indiana. Pursuant to its delegated authority, the Indiana Department of Administration is requiring the inclusion of this certification in all Agreements with and grants from the State of Indiana in excess of 325,000.00. No award of an Agreement shall be made, and no Agreement, purchase order or agreement. the total amount of which exceeds $25,000.00, shall be valid, unless and until this certification has been fully executed by the CITY and made a part of the Agreement as part of the Agreement documents. The CITY certifies and agrees that it will provide a drug -free workplace by: a. Publishing and providing to all of its employees a statement notifying their employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the CITY'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 its employees of (I) the dangers of drug abuse in the workplace; (2) the CITY'S policy of maintaining a drug -free workplace; (3) any available drug counseling, rehabilitation, and employee assistance programs; and (4) the penalties 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 aeons of' the statement; and (2) notify the CITY of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; d. Notifying in writing the State within ten (10) days after receiving notice from an employee under subdivision (cX2) above, or otherwise receiving actual notice of such conviction; 8 e. Within thirty (30) days after receiving notice under subdivision (0X2) above of a conviction, imposing the following sanctions or remedial measures on any employee who is convicted of drug abuse violations occurring in the workplace: (1) take appropriate personnel action against the employee. up to and including termination; or (2) require such employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; and f. Making a good faith effort to maintain a drug -free workplace through the implementation of subparagraphs (a) through (e) above. 2.9. Force Maieure. In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster or decrees of govcmmcntal bodies 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 the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may. by giving written notice. terminate this Agreement. 2.10. Funding Cancellation Clause. When the Director of the Office of Management and Budget makes a written determination that funds are not appropriated or otherwise available to support continuation of the performance of this Agreement, this Agreement 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. 2.11. Governing Laws. This Agreement shall be construed in accordance with and governed by the laws of the State of Indiana and the suit, if any, must be brought in the State of Indiana. 2.12. Indemnification. The CITY agrees to indemnify exculpate, and hold harmless the State of Indiana, INDOT, and their officials and employees from any liability due to loss, damage, injuries, or other causalities of whatever kind, or by whosoever caused, to the person or property of anyone on or off the Project arising out of, or resulting from the work covered by this AGREEMENT or the work connected therewith, or from the installation, existence. use, maintenance, condition, repairs, alteration or removal of any equipment or material, to the extent of negligence of the CITY, including any claims arising out the Worker's Compensation Act or any other law, ordinance, order or decree. The CITY agrees to pay all reasonable expenses and attorney's fees incurred by or imposed on the State and INDOT in connection herewith in the event that the CITY shall default under the provisions of this Section. 2.13. Non - Discrimination. I. Pursuant to I.C. 22- 9 -1 -10 and the Civil Rights Act of 1964, the CITY, shall not discriminate against any employee or applicant for employment, to be employed in the performance of work under this Contract, with respect to hire, tenure, terms. conditions or privileges of employment or any mattcr directly or indirectly related to employment, because of race. color. religion, sex, disability, national origin, ancestry or status as a veteran. Breach of this covenant may be regarded as a material breach of this Contract. Acceptance of this Contract also signifies compliance with applicable Federal laws, regulations, and executive 9 orders prohibiting discrimination in the provision of services based on race, color, national origin, age, sex, disability or status as a veteran. 2. The CITY understands that INDOT is a recipient of Federal Funds. Pursuant to that understanding, the CITY, agrees that if the CITY employs fifty (50) or more employees and does at least $50,000 worth of business with the State and is not exempt, the CITY will comply with the affirmative action reporting requirements of 41 CFR 60 -1.7. The CITY shall comply with Section 202 of executive order 11246, as amended. 41 CFR 60 -250, and 41 CFR 60 -741, as amended, which are incorporated herein by specific reference. Breach of this covenant may be regarded as a material breach of Contract. 3. During the performance of this Contract, the CITY, for itself, its assignees and successors in interest (hereinafter referred to as the "CITY") agrees to the following assurances under Title VI of the Civil Rights Act of 1964: a. Compliance with Regulations: The CITY shall comply with the regulations relative to nondiscrimination in Federally- assisted programs of the Department of Transportation, Title 49 CFR Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract. b. Nondiscrimination: The CITY, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, sex, national origin, religion, disability, ancestry, or status as a veteran in the selection and retention of subcontractors, including procurements of materials and leases of equipment. the CITY shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulation, including employment practices when the Contract covers a program set forth in Appendix B of the Regulations. c. Solicitations for Subcontracts. Includin Procur ements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the CITY for work to be performed under a subcontract, including procurements of materials or leases of equipment. each potential subcontractor or supplier shall be notified by the CITY of the CITY's obligations under this Contract, and the Regulations relative to nondiscrimination on the grounds of race, color, sex, national origin, religion, disability, ancestry, or status as a veteran. d. Information and Reports: The CITY shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Indiana Department of Transportation and Federal Highway Administration to bc pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a CITY is in the exclusive possession of another who fails or refuses furnish this information, the CITY shall so certify to the Indiana Department of Transportation or the Federal Highway Administration as appropriate. and shall set forth what efforts it has made to obtain the information. 10 e. Sanctions for Noncompliance: In the event of the CITY's noncompliance with the nondiscrimination provisions of this Contract, the Indiana Department of' Transportation shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding payments to the CITY under the Contract until the CITY complies, and/or (b) cancellation, termination or suspension of the Contract_ in whole or in part. f. Incorporation of Provisions: The CITY shall include the provisions of paragraphs a through f in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The CITY shall take such action with respect to any subcontract or procurement as the Indiana Department of Transportation or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non- compliance, provided, however, that in the event the CITY becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the CITY may request the Indiana Department of Transportation to enter into such litigation to protect the interests of the Indiana Department of Transportation, and, in addition. the CITY may request the United States of America to enter into such litigation to protect the interests of the United States of America. 2.14. Notice to Parties. Whenever any notice, statement or other communication is required under this Agreement, it shall be sent to the contact below, unless otherwise specifically advised: For INDOT: Steven Flores, MSM Project Manager, INDOT Seymour District 185 Agrico Lane Seymour, IN 47274 (812) 524-3969 shores a indot.in.gov For the CITY: Brian Fogle Director of Planning and Zoning, City ofJeflersonville City Hall, Suite 250 500 Quartermaster Court Jeffersonville, IN 47130 812- 285 -6413 bfoele(citvoljettnet 2.15. Payment. All payments shall be made according to the terms of this Agreement and in conformance with State fiscal policies and procedures and, as required by IC 4-13 -2 -14.8, by electronic funds transfer to the financial institution designated by the CITY in writing unless a specific waiver has been obtained from the Indiana Auditor of State. No payments will be made in advance of receipt of the goods or services that are the subject of this Agreement except as permitted by IC 4- 13 -2 -20. 11 2.16. Penalties, Interest and Attorney's Fees. INDOT will in good faith perform its required obligations hereunder, and does not agree to pay any penalties, liquidated damages, interest, or attomey's fees, except as required by Indiana law in part, IC 5 -17 -5, I. C. 34 -54 -8, and I. C. 34 -13 -1. 2.17. Severabilitv. The invalidity of any section, subsection, clause or provision of this Agreement shall not affect the validity of the remaining sections, subsections, clauses or provisions of this Agreement 2.18 Status of Claims. The CITY shall be responsible for keeping INDOT currently advised as to the status of any claims made for damages against the CITY resulting from services performed under this Agreement 2.19. Termination. Any party may terminate this Agreement upon thirty (30) days written notice to the others, provided the agency requesting the termination can show cause that there has been a failure on the part of the other to substantially fulfill its responsibilities pursuant to this Agreement or that the Agreement is otherwise not working to the satisfaction of either party. and after providing notice and sufficient opportunity for remedy. The terminating party shall be responsible for any and all costs associated with or resulting from termination of the Agreement. 2.20. General. This Agreement represents the entire understanding between the Parties relating to the subject matter, and supersedes any and all prior oral and/or written communications, understandings or agreements relating to the subject matter. Any amendment or modification to this Agreement must be in writing, reference this Section 20 and be signed by duly authorized representatives of the Parties. Neither this Agreement nor any portions of it may be assigned, licensed or otherwise transferred by the CITY without the prior written consent of INDOT. This Agreement will be binding upon the Parties and their permitted successors or assigns. Failure of either Party to enforce any provision of' this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings are inserted for convenience only and do not constitute part of this Agreement. [Remainder of Page Intentionally Left Blank] 12 Non- Collusion The undersigned attests, subject to the penalties for perjury, that he/she is the properly authorized representative, agent. member or officer of the CITY, that he/she has not. nor has any other member. employee, representative, agent or officer of the CITY, 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 this Agreement. In Witness Whereof, the CITY and the State of Indiana have, t trough duly authorized representatives, entered into this Agreement. The Parties having read and understand the forgoing terms of this Agreement do by their respective signatures dated below hereby agree to the terms thereof. CITY OF JEFFERSONVILLE. STATE OF INDIANA Department of Transportation Executed by: Recommend for Approval: "7 /4, / omas R. Galligan Ma or Robert L. Zier, Chief of Staff Date: St QII Date: Attest: Executed by: ci phnulaillit PeguWWer, Clerk- Treasurer Michael B. Cline, Commissioner Date: S II.rtr(4t t7 (� t am/ Date: 13 APPROVALS STATE OF INDIANA State Budget Agency Adam M. Horst. Director Date: STATE OF INDIANA Department of Administration Robert D. Wynkoop, Commissioner Date: Approved as to Form and Legality: (For) Attorney General Gregory F. Zoeller Date Approved: l4