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HomeMy WebLinkAboutProfessional Services Agreement - DLZ Indiana LLC - Bendix Drive Right of Way AcquisitionVersion 6-8-2017 LPA - CONSULTING CONTRACT This Contract ("this Contract') is made and entered into effective as of 0C0 , 20V1 ("Effective Date") by and between City of_South Bend, acting by and through its proper officials ("LOCAL PUBLIC AGENCY" or "LPA"), and DLZ Indiana, LLC ("the CONSULTANT"), a limited liability company organized under the laws of the State of Indiana. Des. No.: 1400634 Project Description: Right of Way Acquisition Services for Road Reconstruction on Bendix Drive from approximately. 470 feet north of the centerline of Lathrop Street to 1-80 bridge. RECITALS WHEREAS, the LPA has entered into an agreement to utilize federal monies with the Indiana Department of Transportation ("INDOT") for a transportation or transportation enhancement project ("the Project'), which Project Coordination Contract is herein attached as Attachment I and incorporated as reference; and WHEREAS, the LPA wishes to hire the CONSULTANT to provide services toward the Project completion more fully described in Appendix "A" attached hereto ("Services"); WHEREAS, the CONSULTANT has extensive experience, knowledge and expertise relating to these Services; and WHEREAS, the CONSULTANT has expressed a willingness to furnish the Services in connection therewith. NOW, THEREFORE, in consideration of the following mutual covenants, the parties hereto mutually covenant and agree as follows: The "Recitals" above are hereby made an integral part and specifically incorporated into this Contract. SECTION I SERVICES BY CONSULTANT. The CONSULTANT will provide the Services and deliverables described in Appendix "A" which is herein attached to and made an integral part of this Contract. SECTION II INFORMATION AND SERVICES TO BE FURNISHED BY THE LPA. The information and services to be furnished by the LPA are set out in Appendix "B" which is herein attached to and made an integral part of this Contract. SECTION III TERM. The term of this Contract shall be from the date of the last signature affixed to this Contract to the completion of the construction contract which is estimated to be November 2020. A schedule for completion of the Services and deliverables is set forth in Appendix "C" which is herein attached to and made an integral part of this Contract. SECTION IV COMPENSATION. The LPA shall pay the CONSULTANT for the Services performed under this Contract as set forth in Appendix "D" which is herein attached to and made an integral part of this Contract. The maximum amount payable under this Contract shall not exceed $ 30,590.00. SECTION V NOTICE TO PROCEED AND SCHEDULE. The CONSULTANT shall begin the work to be performed under this Contract only upon receipt of the written notice to proceed from the LPA, and shall deliver the work to the LPA in accordance with the schedule contained in Appendix "C" which is herein attached to and made an integral part of this Contract. Vernon 6-8-2017 SECTION VI GENERAL PROVISIONS 1. Access to Records. The CONSULTANT and any SUB -CONSULTANTS shall maintain all books, documents, papers, correspondence, accounting records and other evidence pertaining to the cost incurred under this Contract, and shall make such materials available at their respective offices at all reasonable times during the period of this Contract and for five (5) years from the date of final payment under the terms of this Contract, for inspection or audit by the LPA, INDOT and/or the Federal Highway Administration ("FHWA") or its authorized representative, and copies thereof shall be furnished free of charge, if requested by the LPA, INDOT, and/or FHWA. The CONSULTANT agrees that, upon request by any agency participating in federally -assisted programs with whom the CONSULTANT has contracted or seeks to contract, the CONSULTANT may release or make available to the agency any working papers from an audit performed by the LPA, INDOT and/or FHWA of the CONSULTANT and its SUB -CONSULTANTS in connection with this Contract, including any books, documents, papers, accounting records and other documentation which support or form the basis for the audit conclusions and judgments. 2. Assienment, Successors. A. The CONSULTANT binds its successors and assignees to all the terms and conditions of this Contract. The CONSULTANT shall not assign or subcontract the whole or any part of this Contract without the LPA's prior written consent, except that the CONSULTANT may assign its right to receive payments to such third parties as the CONSULTANT may desire without the prior written consent of the LPA, provided that the CONSULTANT gives written notice (including evidence of such assignment) to the LPA thirty (30) days in advance of any payment so assigned. The assignment shall cover all unpaid amounts under this Contract and shall not be made to more than one party. B. Any substitution of SUB -CONSULTANTS must first be approved and receive written authorization from the LPA. Any substitution or termination of a Disadvantaged Business Enterprise ("DBE") SUB -CONSULTANT must first be approved and receive written authorization from the LPA and INDOT's Economic Opportunity Division Director. 3. Audit. The CONSULTANT acknowledges that it may be required to submit to an audit of funds paid through this Contract. Any such audit shall be conducted in accordance with 48 CFR part 31 and audit guidelines specified by the State and/or in accordance with audit requirements specified elsewhere in this Contract. 4. Authority to Bind Consultant. The CONSULTANT warrants that it has the necessary authority to enter into this Contract. The signatory for the CONSULTANT represents that he/she has been duly authorized to execute this Contract on behalf of the CONSULTANT and has obtained all necessary or applicable approval to make this Contract fully binding upon the CONSULTANT when his/her signature is affixed hereto. 5. Certification for Federal -Aid Contracts Lobbying, Activities. A. The CONSULTANT certifies, by signing and submitting this Contract, to the best of its knowledge and belief after diligent inquiry, and other than as disclosed in writing to the LPA prior to or contemporaneously with the execution and delivery of this Contract by the CONSULTANT, the CONSULTANT has complied with Section 1352, Title 31, U.S. Code, and specifically, that: No federal appropriated funds have been paid, or will be paid, by or on behalf of the CONSULTANT 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 contracts, the making of any federal grant, the making of any federal loan, the 2 Version 6-8-2017 entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. ii. 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 Contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. B. The CONSULTANT also agrees by signing this Contract that it shall require that the language of this certification be included in all 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 $10,000 and not more than $100,000 for each failure. 6. Changes in Work. The CONSULTANT shall not commence any additional work or change the scope of the work until authorized in writing by the LPA. The CONSULTANT shall make no claim for additional compensation or time in the absence of a prior written approval and amendment executed by all signatories hereto. This Contract may be amended, supplemented or modified only by a written document executed in the same manner as this Contract. The CONSULTANT acknowledges that no claim for additional compensation or time may be made by implication, oral agreements, actions, inaction, or course of conduct. 7. Compliance with Laws. A. The CONSULTANT 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. If the CONSULTANT violates such rules, laws, regulations and ordinances, the CONSULTANT shall assume full responsibility for such violations and shall bear any and all costs attributable to the original performance of any correction of such acts. The enactment of any state or federal statute, or the promulgation of regulations thereunder, after execution of this Contract, shall be reviewed by the LPA and the CONSULTANT to determine whether formal modifications are required to the provisions of this Contract. B. The CONSULTANT represents to the LPA that, to the best of the CONSULTANT'S knowledge and belief after diligent inquiry and other than as disclosed in writing to the LPA prior to or contemporaneously with the execution and delivery of this Contract by the CONSULTANT: State of Indiana Actions. The CONSULTANT has no current or outstanding criminal, civil, or enforcement actions initiated by the State of Indiana pending, and agrees that it will immediately notify the LPA of any such actions. During the term of such actions, CONSULTANT agrees that the LPA may delay, withhold, or deny work under any supplement or amendment, change order or other contractual device issued pursuant to this Contract. ii. Professional Licensing Standards. The CONSULTANT, its employees and SUBCONSULTANTS have complied with and shall continue to comply with all applicable licensing standards, certification standards, accrediting standards and any other laws, rules or regulations governing services to be provided by the CONSULTANT pursuant to this Contract. Version 6-8-2017 iii. Worlr Specific Standards. The CONSULTANT and its SUB -CONSULTANTS, if any, have obtained, will obtain and/or will 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 the LPA. iv. Secretary of State Registration. If the CONSULTANT is an entity described in IC Title 23, it is properly registered and owes no outstanding reports with the Indiana Secretary of State. V. Debarment and Suspension of CONSULTANT. Neither the CONSULTANT nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into this Contract by any federal agency or by any department, agency or political subdivision of the State and will immediately notify the LPA of any such actions. The term "principal" for purposes of this Contract means an officer, director, owner, partner, key employee, or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the CONSULTANT or who has managerial or supervisory responsibilities for the Services. vi. Debarment and Suspension of any SUB -CONSULTANTS. The CONSULTANT's SUB - CONSULTANTS are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into this Contract by any federal agency or by any department, agency or political subdivision of the State. The CONSULTANT shall be solely responsible for any recoupment, penalties or costs that might arise from the use of a suspended or debarred SUBCONSULTANT. The CONSULTANT shall immediately notify the LPA and iNDOT if any SUB - CONSULTANT becomes debarred or suspended, and shall, at the LPA's request, take all steps required by the LPA to terminate its contractual relationship with the SUB - CONSULTANT for work to be performed under this Contract. C. Violations. In addition to any other remedies at law or in equity, upon CONSULTANT'S violation of any of Section 7(A) through 7(B), the LPA may, at its sole discretion, do any one or more of the following: terminate this Contract; or delay, withhold, or deny work under any supplement or amendment, change order or other- contractual device issued pursuant to this Contract. D. Disputes. If a dispute exists as to the CONSULTANT's liability or guilt in any action initiated by the LPA, and the LPA decides to delay, withhold, or deny work to the CONSULTANT, the CONSULTANT may request that it be allowed to continue, or receive work, without delay. The CONSULTANT must submit, in writing, a request for review to the LPA. A determination by the LPA under this Section 7.1) shall be final and binding on the parties and not subject to administrative review. Any payments the LPA may delay, withhold, deny, or apply under this section shall not be subject to penalty or interest under IC 5-17-5. $. Condition of Payment. The CONSULTANT must perform all Services under this Contract to the LPA's reasonable satisfaction, as determined at the discretion of the LPA and in accordance with all applicable federal, state, local laws, ordinances, rules, and regulations. The LPA will not pay for work not performed to the LPA's reasonable satisfaction, inconsistent with this Contract or performed in violation of federal, state, or local law (collectively, "deficiencies") until all deficiencies are remedied in a timely manner. El Version 6-8-2017 9. Confidentiality of LPA Information. A. The CONSULTANT understands and agrees that data, materials, and information disclosed to the CONSULTANT may contain confidential and protected information, Therefore, the CONSULTANT covenants that data, material, and information gathered, based upon or disclosed to the CONSULTANT for the purpose of this Contract, will not be disclosed to others or discussed with third parties without the LPA's prior written consent. B. The parties acknowledge that the Services to be performed by the CONSULTANT for the LPA under this Contract may require or allow access to data, materials, and information containing Social Security numbers and maintained by the LPA in its computer system or other records. In addition to the covenant made above in this section and pursuant to 10 IAC 5-3-1(4), the CONSULTANT and the LPA agree to comply with the provisions of IC 4-1-10 and IC 4-1-11. If any Social Security number(s) is/are disclosed by the CONSULTANT, the CONSULTANT agrees to pay the cost of the notice of disclosure of a breach of the security of the system in addition to any other claims and expenses for which it is liable under the terms of this Contract. 10. Delays and Extensions. The CONSULTANT agrees that no charges or claim for damages shall be made by it for any minor delays from any cause whatsoever during the progress of any portion of the Services specified in this Contract. Such delays, if any, shall be compensated for by an extension of time for such period as may be determined by the LPA subject to the CONSULTANTS approval, it being understood, however, that permitting the CONSULTANT to proceed to complete any services, or any part of them after the date to which the time of completion may have been extended, shall in no way operate as a waiver on the part of the LPA of any of its rights herein. In the event of substantial delays or extensions, or change of any kind, not caused by the CONSULTANT, which causes a material change in scope, character or complexity of work the CONSULTANT is to perform under this Contract, the LPA at its sole discretion shall determine any adjustments in compensation and in the schedule for completion of the Services. CONSULTANT must notify the LPA in writing of a material change in the work immediately after the CONSULTANT first recognizes the material change. 11, DBE Requirements, A. Notice is hereby given to the CONSULTANT and any SUB -CONSULTANT, and both agree, that failure to carry out the requirements set forth in 49 CFR Sec. 26.13(b) shall constitute a breach of this Contract and, after notification and failure to promptly cure such breach, may result in termination of this Contract or such remedy as INDOT deems appropriate. The referenced section requires the following assurance to be included in all subsequent contracts between the CONSULTANT and any SUB -CONSULTANT: The CONSULTANT, sub recipient or SUB -CONSULTANT shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy, as INDOT, as the recipient, deems appropriate. B. The CONSULTANT shall make good faith efforts to achieve the DBE percentage goal that may be included as part of this Contract with the approved DBE SUB -CONSULTANTS identified on its Affirmative Action Certification submitted with its Letter of Interest, or with approved amendments. Any changes to a DBE firm listed in the Affirmative Action Certification must be requested in writing and receive prior approval by the LPA and INDOT's Economic Opportunity Division Director. After this Contract is completed and if a DBE SUB - CONSULTANT has performed services thereon, the CONSULTANT must complete, and return, a Disadvantaged Business Enterprise Utilization Affidavit ("DBE-3 Form") to INDOT's S Version 6-8-2017 Economic Opportunity Division Director. The DBE-3 Form requires certification by the CONSULTANT AND DBE SUB -CONSULTANT that the committed contract amounts have been paid and received. 12. Non -Discrimination. A. Pursuant to I.C. 22-9-1-10, the Civil Rights Act of 1964, and the Americans with Disabilities Act, the CONSULTANT 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 matter 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 orders prohibiting discrimination in the provision of services based on race, color, national origin, age, sex, disability or status as a veteran. B The CONSULTANT understands that the LPA is a recipient of federal fiords. Pursuant to that understanding, the CONSULTANT agrees that if the CONSULTANT employs fifty (50) or more employees and does at least $50,000,00 worth of business with the State and is not exempt, the CONSULTANT will comply with the affirmative action reporting requirements of 41 CFR 60- 1.7. The CONSULTANT 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. It is the policy of INDOT to assure full compliance with Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act and Section 504 of the Vocational Rehabilitation Act and related statutes and regulations in all programs and activities. Title VI and related statutes require that no person in the United States shall on the grounds of race, color or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (INDOT's Title VI enforcement shall include the following additional grounds: sex, ancestry, age, income status, religion and disability.) C. The CONSULTANT shall not discriminate in its selection and retention of contractors, including without limitation, those services retained for, or incidental to, construction, planning, research, engineering, property management, and fee contracts and other commitments with persons for services and expenses incidental to the acquisitions of right-of-way. D. The CONSULTANT shall not modify the Project in such a manner as to require, on the basis of race, color or national origin, the relocation of any persons. (INDOT's Title VI enforcement will include the following additional grounds; sex, ancestry, age, income status, religion and disability). E. The CONSULTANT shall not modify the Project in such a manner as to deny reasonable access to and use thereof to any persons on the basis of race, color or national origin. (INDOT's Title VI enforcement will include the following additional grounds; sex, ancestry, age, income status, religion and disability.) F. The CONSULTANT shall neither allow discrimination by contractors in their selection and retention of subcontractors, leasors and/or material suppliers, nor allow discrimination by their subcontractors in their selection of subcontractors, leasors or material suppliers, who participate in construction, right-of-way clearance and related projects. Version 6-8-2017 G. The CONSULTANT shall take appropriate actions to correct any deficiency determined by itself and/or the Federal Highway Administration ("FHWA") within a reasonable time period, not to exceed ninety (90) days, in order to implement Title VI compliance in accordance with INDOT's assurances and guidelines. H. During the performance of this Contract, the CONSULTANT, for itself, its assignees and successors in interest (hereinafter referred to as the "CONSULTANT") agrees as follows: (1) Compliance with Regulations: The CONSULTANT shall comply with the Regulation relative to nondiscrimination in Federally -assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be arnended frorn time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract. (2) Nondiscrimination: The CONSULTANT, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for SUBCONSULTANTS, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the CONSULTANT for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential SUBCONSULTANT or supplier shall be notified by the CONSULTANT of the CONSULTANT'S obligations under this Contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: The CONSULTANT 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 LPA or INDOT to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information the CONSULTANT shall so certify to the LPA, or INDOT as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the CONSULTANT'S noncompliance with the nondiscrimination provisions of this contract, the LPA shall impose such contract sanctions as it or INDOT may determine to be appropriate, including, but not limited to: (a) withholding of payments to the CONSULTANT under the Contract until the CONSULTANT complies, and/or (b) cancellation, termination or suspension of the Contract, in whole or in part. (6) Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. Version 6-8-2017 The CONSULTANT shall take such action with respect to any SUBCONSULTANT procurement as the LPA or INDOT may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that, in the event a CONSULTANT becomes involved in, or is threatened with, litigation with a SUBCONSULTANT or supplier as a result of such direction, the CONSULTANT may request the LPA to enter into such litigation to protect the interests of the LPA, and, in addition, the CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States. 13. Dishes. A. Should any disputes arise with respect to this Contract, the CONSULTANT and the LPA agree to act promptly and in good faith to resolve such disputes in accordance with this Section 13. Time is of the essence in the resolution of disputes. B, The CONSULTANT agrees that the existence of a dispute notwithstanding, it will continue without delay to carry out all of its responsibilities under this Contract that are not affected by the dispute. Should the CONSULTANT fail to continue to perform its responsibilities regarding all non -disputed work, without delay, any additional costs (including reasonable attorneys' fees and expenses) incurred by the LPA or the CONSULTANT as a result of such failure to proceed shall be borne by the CONSULTANT. C. If a party to this Contract is not satisfied with the progress toward resolving a dispute, the party must notify the other party of this dissatisfaction in writing. Upon written notice, the parties have ten (10) business days, unless the parties mutually agree in writing to extend this period, following the written notification to resolve the dispute. If the dispute is not resolved within ten (10) business days, a dissatisfied party may submit the dispute in writing to initiate negotiations to resolve the dispute. The LPA may withhold payments on disputed items pending resolution of the dispute. 14. Drug -Free Workplace Certification. A. The CONSULTANT 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 LPA within ten (10) days after receiving actual notice that an employee of the CONSULTANT in the State of Indiana has been convicted of a criminal drug violation occurring in the CONSULTANT's workplace. False certification or violation of the certification may result in sanctions including, but not limited to, suspension of Contract payments, termination of this Contract and/or debarment of contracting opportunities with the LPA. B. The CONSULTANT certifies and agrees that it will provide a drug-fi•ee workplace by: 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 CONSULTANT's workplace and specifying the actions that will be taken against employees for violations of such prohibition; ii. Establishing a drug -free awareness program to inform its employees of (1) the dangers of dating abuse in the workplace; (2) the CONSULTANT'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; Version 6-8-2017 iii. Notifying all employees in the statement required by subparagraph 14.B.i above that as a condition of continued employment, the employee will (1) abide by the terms of the statement; and (2) notify the CONSULTANT of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; iv. Notifying in writing the LPA within ten (10) days after receiving notice from an employee under subdivision 14.B.iii(2) above, or otherwise receiving actual notice of such conviction; V. Within thirty (30) days after receiving notice under subdivision 14.B.iii(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 ding abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; and vi. Making a good faith effort to maintain a drug -free workplace through the implementation of subparagraphs 14.B.i. through 14.B.v. above. 15. Employm_ _ent Eligibility Verification. The CONSULTANT affirms under the penalties of perjury that he/she/it does not knowingly employ an unauthorized alien. The CONSULTANT shall enroll in and verify the work eligibility status of all his/her/its newly hired employees through the E-Verify program as defined in IC 22-5-1.7-3. The CONSULTANT is not required to participate should the E-Verify program cease to exist. Additionally, the CONSULTANT is not required to participate if the CONSULTANT is self-employed and does not employ any employees. The CONSULTANT shall not knowingly employ or contract with an unauthorized alien. The CONSULTANT shall not retain an employee or contract with a person that the CONSULTANT subsequently learns is an unauthorized alien. The CONSULTANT shall require his/her/its subcontractors, who perform work under this Contract, to certify to the CONSULTANT that the SUB -CONSULTANT does not knowingly employ or contract with an unauthorized alien and that the SUB -CONSULTANT has enrolled and is participating in the E-Verify program. The CONSULTANT agrees to maintain this certification throughout the duration of the term of a contract with a SUB -CONSULTANT. The LPA may terminate for default if the CONSULTANT fails to cure a breach of this provision no later than thirty (30) days after being notified by the LPA. 16. Force Majeure. In the event that either party is unable to perform any of its obligations under this Contract or to enjoy any of its benefits because of fire, natural disaster, acts of God, acts of war, terrorism, civil disorders, decrees of governmental bodies, strikes, lockouts, labor or supply disruptions or similar causes beyond the reasonable control of the affected party (hereinafter referred to as a Force Majeure Event), the party who has been so affected shall immediately give written notice to the other party of the occurrence of the Force Majeure Event (with a description in reasonable detail of the circumstances causing such Event) and shall do everything reasonably possible to resume performance. Upon receipt of such written notice, all obligations under this Contract shall be immediately suspended for as long as such Force Majeure Event continues and provided that the affected party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. If the period of nonperformance exceeds thirty (30) days from the receipt of written notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice, terminate this Contract. 9 Version 6-8-2017 17. Governim! Laws. This Contract 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. The CONSULTANT consents to the jurisdiction of and to venue in any court of competent jurisdiction in the State of Indiana. 18. Liability. If the CONSULTANT or any of its SUB -CONSULTANTS fail to comply with any federal requirement which results in the LPA's repayment of federal funds to INDOT the CONSULTANT shall be responsible to the LPA, for repayment of such costs to the extent such costs are caused by the CONSULTANT and/or its SUB -CONSULTANTS. 19. Indemnification. The CONSULTANT agrees to indemnify the LPA, and their agents, officials, and employees, and to hold each of them harmless, from claims and suits including court costs, attorney's fees, and other expenses caused by any negligent act, error or omission of, or by any recklessness or willful misconduct by, the CONSULTANT and/or its SUB -CONSULTANTS, if any, under this Contract, provided that if the CONSULTANT is a "contractor" within the meaning of I.C. 8-3-2-12.5, this indemnity obligation shall be limited by and interpreted in accordance with I.C. 8-23-2-12-5. The LPA shall not provide such indemnification to the CONSULTANT. 20. Independent Contractor. Both parties hereto, in the performance of this Contract, shall act in an individual capacity and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purposes whatsoever. Neither party will assume liability for any injury (including death) to any persons, or damage to any property, arising out of the acts or omissions of the agents or employees of the other party. The CONSULTANT shall be responsible for providing all necessary unemployment and workers' compensation insurance for its employees. 21. Insurance - Liability for DamaEes. A. The CONSULTANT shall be responsible for the accuracy of the Services performed under this Contract and shall promptly make necessary revisions or corrections resulting from its negligence, errors or omissions without any additional compensation from the LPA. Acceptance of the Services by the LPA shall not relieve the CONSULTANT of responsibility for subsequent correction of its negligent act, error or omission or for clarification of ambiguities. The CONSULTANT shall have no liability for the errors or deficiencies in designs, drawings, specifications or other services furnished to the CONSULTANT by the LPA on which the Consultant has reasonably relied, provided that the foregoing shall not relieve the CONSULTANT from any liability from the CONSULTANT'S failure to fulfill its obligations under this Contract, to exercise its professional responsibilities to the LPA, or to notify the LPA of any errors or deficiencies which the CONSULTANT knew or should have known existed. B. During construction or any phase of work performed by others based on Services provided by the CONSULTANT, the CONSULTANT shall confer with the LPA when necessary for the purpose of interpreting the information, and/or to correct any negligent act, error or omission. The CONSULTANT shall prepare any plans or data needed to correct the negligent act, error or omission without additional compensation, even though final payment may have been received by the CONSULTANT. The CONSULTANT shall give immediate attention to these changes for a minimum of delay to the project. C. The CONSULTANT shall be responsible for damages including but not limited to direct and indirect damages incurred by the LPA as a result of any negligent act, error or omission of the CONSULTANT, and for the LPA's losses or costs to repair or remedy construction. Acceptance of the Services by the LPA shall not relieve the CONSULTANT of responsibility for subsequent correction. 10 Version 6-8-2017 D. The CONSULTANT shall be required to maintain in full force and effect, insurance as described below from the date of the first authorization to proceed until the LPA's acceptance of the work product. The CONSULTANT shall list both the LPA and 1NDOT as insureds on any policies. The CONSULTANT must obtain insurance written by insurance companies authorized to transact business in the State of Indiana and licensed by the Department of Insurance as either admitted or non -admitted insurers. E. The LPA, its officers and employees assume no responsibility for the adequacy of limits and coverage in the event of any claims against the CONSULTANT, its officers, employees, sub - consultants or any agent of any of them, and the obligations of indemnification in Section 19 herein shall survive the exhaustion of limits of coverage and discontinuance of coverage beyond the term specified, to the fullest extent of the law. F. The CONSULTANT shall furnish a certificate of insurance and all endorsements to the LPA prior to the commencement of this Contract. Any deductible or self -insured retention amount or other similar obligation under the insurance policies shall be the sole obligation of the CONSULTANT. Failure to provide insurance as required in this Contract is a material breach of Contract entitling the LPA to immediately terminate this Contract. Professional Liability Insurance The CONSULTANT must obtain and carry professional liability insurance as follows: For 1NDOT Prequalification Work Types 1.1, 12.2-12.6 the CONSULTANTS shall provide not less than $250,000.00 professional liability insurance per claim and $250.000.00 aggregate for all claims for negligent performance. For Work Types 2.2, 3.1,3.2,4.1,4.2,5.5,5.8,5.11,6.1,7.1,8.1,8.2,9.1,9.2, 10.1-10.4, 11.1,I3.1, 14.1--- 14.5, the CONSULTANTS shall carry professional liability insurance in an amount not less than $1,000,000.00 per claim and $1,000,000.00 aggregate for all claims for negligent performance. The CONSULTANT shall maintain the coverage for a period ending two (2) years after substantial completion of construction. 1I. Commercial General Liability Insurance The CONSULTANT must obtain and carry Commercial 1 General liability insurance as follows: For INDOT Prequalification Work Types 2.1, 6.1, 7.1, 8.1, 8.2, 9.1, 9.2, 10.1 - 10.4, 11.1, 13.1, 14.1 - 14.5, the CONSULTANT shall cant' $1,000,000,00 per occurrence, $2,000,000,00 general aggregate. Coverage shall be on an occurrence form, and include contractual liability. The policy shall be amended to include the following extensions of coverage: Exclusions relating to the use of explosives, collapse, and underground damage to property shall be removed. 2. The policy shall provide thirty (30) days notice of cancellation to LPA. The CONSULTANT shall name the LPA as an additional insured. 111. Automobile Liability The CONSULTANT shall obtain automobile liability insurance covering all owned, ]eased, borrowed, rented, or non -owned autos used by employees or others on behalf of the CONSULTANT for the conduct of the CONSULTANT's business, for an amount not less than $1,000,000.00 Combined Single Limit for Bodily Injury and Property Damage. The term "automobile" shall include private passenger autos, trucks, and similar type vehicles licensed for use on public highways. The policy shall be amended to include the following extensions of coverage: Version 6-8-2017 1. Contractual Liability coverage shall be included. 2. The policy shall provide thirty (30) days notice of cancellation to the LPA. 3. The CONSULTANT shall name the LPA as an additional insured. IV. Watercraft Liability (When Applicable) When necessary to use watercraft for the performance of the CONSULTANT's Services under the terms of this Contract, either by the CONSULTANT, or any SUB -CONSULTANT, the CONSULTANT or SUB -CONSULTANT operating the watercraft shall carry watercraft liability insurance in the amount of $1,000,000 Combined Single Limit for Bodily Injury and Property Damage, including Protection & Indemnity where applicable. Coverage shall apply to owned, non - owned, and hired watercraft. If the maritime laws apply to any work to be performed by the CONSULTANT under the terms of the agreement, the following coverage shall be provided: a. United States Longshoremen & Harbor workers b. Maritime Coverage - Jones Act The policy shall provide thirty (30) days notice of cancellation to the LPA. 4. The CONSULTANT or SUB -CONSULTANT shall name the LPA as an additional insured, V. Aircraft Liability (When Applicable) When necessary to use aircraft for the performance of the CONSULTANT's Services under the terms of this Contract, either by the CONSULTANT or SUB - CONSULTANT, the CONSULTANT or SUB -CONSULTANT operating the aircraft shall carry aircraft liability insurance in the amount of $5,000,000 Combined Single Limit for Bodily Injury and Property Damage, including Passenger Liability. Coverage shall apply to owned, non -owned and hired aircraft. The policy shall provide thirty (30) days notice of cancellation to the LPA, The CONSULTANT or SUB -CONSULTANT shall name the LPA as an additional insured. 22. Merger and Modification. This Contract constitutes the entire agreement between the parties. No understandings, agreements or representations, oral or written, not specified within this Contract will be valid provisions of this Contact. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by all necessary parties. 23. Notice to Parties: Any notice, request, consent or communication (collectively a "Notice") under this Agreement shall be effective only if it is in writing and (a) personally delivered; (b) sent by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by a nationally recognized overnight delivery service, with delivery confirmed and costs of delivery being prepaid, addressed as follows: 12 Version 6-8-2017 Notices to the LPA shall be sent to: City of South Bend Attention: Kara Boyles, PhD, P.E. 1316 County -City Building 227 West Jefferson Blvd. South Bend, Indiana 46601 Notices to the CONSULTANT shall be sent to: DLZ Indiana LLC Attention: Mr. Gary K. Fisk, P.E. 2211. E. Jefferson Boulevard South Bend, Indiana 46615 DLZ Corporation Attention: Legal Department and 6121 Huntley Columbus, Ohio 43229 or to such other address or addresses as shall be furnished in writing by any party to the other party. Unless the sending party has actual knowledge that a Notice was not received by the intended recipient, a Notice shall be deemed to have been given as of the date (i) when personally delivered; (ii) three (3) days after the date deposited with the United States mail properly addressed; or (iii) the next day when delivered during business hours to overnight delivery service, properly addressed and prior to such delivery service's cut off time for next day delivery. The parties acknowledge that notices delivered by facsimile or by email shall not be effective. 24, Order of Precedence;_ Incorporation by Reference. Any inconsistency or ambiguity in this Contract shall be resolved by giving precedence in the following order: (1) This Contract and attachments, (2) RFP document, (3) the CONSULTANT's response to the RFP document, and (4) attachments prepared by the CONSULTANT, All of the foregoing are incorporated fully by reference. 25. Ownership of Documents and Materials. All documents, records, programs, data, film, tape, articles, memoranda, and other materials not developed or licensed by the CONSULTANT prior to execution of this Contract, but specifically developed under this Contract shall be considered "work for hire" and the CONSULTANT assigns and transfers any ownership claim to the LPA and all such materials ("Work Product) will be the property of the LPA. The CONSULTANT agrees to execute and deliver such assignments or other documents as may be requested by the LPA. Use of these materials, other than related to contract performance by the CONSULTANT, without the LPA's prior written consent, is prohibited. During the performance of this Contract, the CONSULTANT shall be responsible for any loss of or damage to any of the Work Product developed for or supplied by INDOT and used to develop or assist in the Services provided herein while any such Work Product is in the possession or control of the CONSULTANT. Any loss or damage thereto shall be restored at the CONSULTANT's expense. The CONSULTANT shall provide the LPA full, immediate, and unrestricted access to the Work Product during the term of this Contract. The CONSULTANT represents, to the best of its knowledge and belief after diligent inquiry and other than as disclosed in writing prior to or contemporaneously with the execution of this Contract by the CONSULTANT, that the Work Product does not infringe upon or misappropriate the intellectual property or other rights of any third party. The CONSULTANT shall not be liable for the use of its deliverables described in Appendix "A" on other projects without the express written consent of the CONSULTANT or as provided in Appendix "A". The LPA acknowledges that it has no claims to any copyrights not transferred to INDOT under this paragraph. 26. Payments. All payments shall be made in arrears and in conformance with the LPA's fiscal policies and procedures. 27. Penalties, Interest and Attorney's Fees. The LPA will in good faith perform its required obligations hereunder, and does not agree to pay any penalties, liquidated damages, interest, or attorney'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. 13 Version 6-5-2017 28. Pollution Control Requirements. If this Contract is for $100,000 or more, the CONSULTANT: Stipulates that any facility to be utilized in performance under or to benefit from this Contract is not listed on the Environmental 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; 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; and iii. Stipulates that, as a condition of federal aid pursuant to this Contract, it shall notify INDOT and the Federal Highway Administration of the receipt of any knowledge 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. 29. Severability. The invalidity of any section, subsection, clause or provision of this Contract shall not affect the validity of the remaining sections, subsections, clauses or provisions of this Contract. 30. Status of Claims. The CONSULTANT shall give prompt written notice to the LPA any claims made for damages against the CONSULTANT resulting from Services performed under this Contract and shall be responsible for keeping the LPA currently advised as to the status of such claims. The CONSULTANT shall send notice of claims related to work under this Contract to: City of South Bend, Attention: Kara Boyles, PhD, PE, I316 County -City Building, 227 West Jefferson Blvd., South Bend, Indiana 46601. 31. Sub -consultant Acknowledgement. The CONSULTANT agrees and represents and warrants to the LPA, that the CONSULTANT will obtain signed Sub -consultant Acknowledgement forms, from all SUB -CONSULTANTS providing Services under this Contract or to be compensated for Services through this Contract. The CONSULTANT agrees to provide signed originals of the Sub -consultant Acknowledgement form(s) to the LPA for approval prior to performance of the Services by any SUB - CONSULTANT. 32. Substantial Performance, This Contract shall be deemed to be substantially performed only when fully performed according to its terms and conditions and any modification or Amendment thereof. 33. Taxes, The LPA will not be responsible for any taxes levied on the CONSULTANT as a result of this Contract. 34. Termination for Convenience. A. The LPA may terminate, in whole or in part, whenever, for any reason, when the LPA determines that such termination is in its best interests. Termination or partial termination of Services shall be effected by delivery to the CONSULTANT of a Termination Notice at least fifteen (15) days prior to the termination effective date, specifying the extent to which performance of Services under such termination becomes effective. The CONSULTANT shall be compensated for Services properly rendered prior to the effective date of termination. The LPA will not be liable for Services performed after the effective date of termination. B. If the LPA terminates or partially terminates this Contract for any reason regardless of whether it is for convenience or for default, then and in such event, all data, reports, drawings, plans, sketches, sections and models, all specifications, estimates, measurements and data pertaining to the project, prepared under the terms or in fulfillment of this Contract, shall be delivered within ten (10) days to the LPA. In the event of the failure by the CONSULTANT to make such delivery upon demand, the CONSULTANT shall pay to the LPA any damage (including costs and reasonable attorneys' fees and expenses) it may sustain by reason thereof. 14 Version 6-8-2017 35. Termination for Default. A. With the provision of twenty (20) days written notice to the CONSULTANT, the LPA may terminate this Contract in whole or in part if (i) the CONSULTANT fails to: Correct or cure any breach of this Contract within such time, provided that if such cure is not reasonably achievable in such time, the CONSULTANT shall have up to ninety (90) days from such notice to effect such cure if the CONSULTANT promptly commences and diligently pursues such cure as soon as practicable; Deliver the supplies or perform the Services within the time specified in this Contract or any amendment or extension; Make progress so as to endanger performance of this Contract; or 4. Perform any of the other provisions of this Contract to be performed by the CONSULTANT; or (ii) if any representation or warranty of the CONSULTANT is untrue or inaccurate in any material respect at the time made or deemed to be made. B. If the LPA terminates this Contract in whole or in part, it may acquire, under the terms and in the manner the LPA considers appropriate, supplies or services similar to those terminated, and the CONSULTANT will be liable to the LPA for any excess costs for those supplies or services. However, the CONSULTANT shall continue the work not terminated. C. The LPA shall pay the contract price for completed supplies delivered and Services accepted. The CONSULTANT and the LPA shall agree on the amount of payment for manufactured materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes clause (see Section 13). The LPA may withhold from the agreed upon price for Services any sum the LPA determine necessary to protect the LPA against loss because of outstanding liens or claims of former lien holders. D. The rights and remedies of the LPA in this clause are in addition to any other rights and remedies provided by law or equity or under this Contract. E. Default by the LPA. If the CONSULTANT believes the LPA is in default of this Contract, it shall provide written notice immediately to the LPA describing such default. If the LPA fails to take steps to correct or cure any material breach of this Contract within sixty (60) days after receipt of such written notice, the CONSULTANT may cancel and terminate this Contract and institute the appropriate measures to collect monies due up to and including the date of termination, including reasonable attorney fees and expenses, provided that if such cure is not reasonably achievable in such time, the LPA shall have up to one hundred twenty (120) days from such notice to effect such cure if the LPA promptly commences and diligently pursues such cure as soon as practicable. The CONSULTANT shall be compensated for Services properly rendered prior to the effective date of such termination. The CONSULTANT agrees that it has no right of termination for non -material breaches by the LPA. 15 Version 6-8-2017 36. Waiver of Rights. No rights conferred on either party under this Contract shall be deemed waived, and no breach of this Contract excused, unless such waiver or excuse is approved in writing and signed by the party claimed to have waived such right. Neither the LPA's review, approval or acceptance of, nor payment for, the Services required under this Contract shall be construed to operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract, and the CONSULTANT shall be and remain liable to the LPA in accordance with applicable law for all damages to the LPA caused by the CONSULTANT's negligent performance of any of the Services furnished under this Contract. 37. Work Standards/Conflicts of Interest. The CONSULTANT shall understand and utilize all relevant MDOT standards including, but not limited to, the most current version of the Indiana Department of Transportation Design Manual, where applicable, and other appropriate materials and shall perform all Services in accordance with the standards of care, skill and diligence required in Appendix "A" or, if not set forth therein, ordinarily exercised by competent professionals doing work of a similar nature. 38. No Third-Parly Beneficiaries. This Agreement is solely for the benefit of the parties hereto. Other than the indemnity rights under this Contract, nothing contained in this Agreement is intended or shall be construed to confer upon any person or entity (other than the parties hereto) any rights, benefits or remedies of any kind or character whatsoever. 39. No Investment in Iran. As required by IC 5-22-16.5, the CONSULTANT certifies that the CONSULTANT is not engaged in investment activities in Iran. Providing false certification may result in the consequences listed in IC 5-22-16.5-14, including termination of this Contract and denial of future state contracts, as well as an imposition of a civil penalty. 40. Assienment of Antitrust Claims. The CONSULTANT assigns to the State all right, title and interest in and to any claims the CONSULTANT now has, or may acquire, under state or federal antitrust laws relating to the products or services which are the subject of this Contract. [Remainder of Page Intentionally Left Blank] 16 �cT — Version 6-8-201 "7 APPENDIX "A" SERVICES TO BE FURNISHED BY CONSULTANT: In fulfillment of this Contract, the CONSULTANT shall comply with the requirements of the appropriate regulations and requirements of the Indiana Department of Transportation and Federal Highway Administration. The CONSULTANT shall be responsible for performing the following activities: A. RIGHT OF WAY PROJECT MANAGEMENT AND SUPERVISION The CONSULTANT shall be responsible for administering, scheduling and coordinating activities necessary for the LPA to certify that the Right of Way has been acquired and is clear for construction letting. These responsibilities shall include: BASE SERVICES: a. Preparing the Land, Improvements, and Damages (LID) letter, ROW Assurance letter and the ROW Certification letter for signature by the LPA and INDOT submittal. b. Coordinating (one time only per parcel) with the ROW Engineer, Appraiser, Review Appraiser, Buyer(s) and obtaining signature from the LPA on the Statements of the Basis for Just Compensation. C. Perform QM/QC review of all documents for accuracy and compliance with the FHWA/INDOT requirements: Appraisal, Review Appraisal, Statements of the Basis for Just Compensation, Buying packets, affidavits, mortgage releases/waivers. d. Monitoring the progress of all parcels through the acquisition process. C. Preparing progress reports and tracking spreadsheet for the LPA. f. Preparing and performing QM/QC of Secured Parcel Checklist and submitting to INDOT, answering questions or concerns that INDOT may have of the parcel submittal. g. Preparing and providing justification of administrative settlement documentation. h. If initial offer is rejected, and/or a counteroffer is submitted, assisting the Appraiser, Review Appraiser, and/or Buyer to review the offer and determine its validity, and provide a recommendation to the LPA for acceptance or rejection. RIGHT OF WAY EARLY ASSESSMENT: a. The CONSULTANT shall provide Right of Way Early Assessment for each parcel to be acquired. Such activities may include development of probable right of way costs, determination of appraisal types, right of way evaluation for identification of land improvements, cost -to -cure items, severance damages and evaluation for possible reduction of project right of way impacts. B. APPRAISAL SERVICES The Worden Group 1021 S, Calhoun Street, Suite 3, Fort Wayne, Indiana 46802 a corporation incorporated in Indiana shall hereinafter be referred to as the Appraiser. and/or Vale Appraisal Group 404 East 86`' Avenue Merrillville Indiana 46410 a corporation incorporated in Indiana shall hereinafter be referred to as the Appraiser. 18 Version 6-8-2017 a. The Appraiser shall be a certified Appraiser in the State of Indiana and on INDOT's Approved Appraisers list. The same individual will be precluded from completing the Appraisal and Appraisal Review on the same parcel per INDOT standards. b. No work by the Appraiser shall be sublet, assigned or otherwise performed by anyone other than the Appraiser. C. The Appraiser shall examine the plans for this project and review in the field the various parcels assigned. d. The Appraiser shall give the owner of each parcel to be appraised the opportunity to accompany the Appraiser during the inspection of the parcel except for Appraisal activities excluded from this requirement in accordance with WDOT and FHWA procedures. e. The appraisals shall be sufficiently documented to meet the minimum standards set out in the Indiana Department of Transportation's Appraisal Manual as approved by the Federal Highway Administration. The Appraiser shall follow accepted principles and techniques in evaluation of real property in accordance with State Laws. Any appraisal that does not meet such requirements shall be further documented or re- appraised as the case may be without additional compensation to the Appraiser. f. The Appraiser shall document current sales data in the vicinity of the Project necessary to establish market value. Each comparable property shall be identified by photograph and shall be located on county or township maps which shall be included as part of the valuation. g. The Appraiser shall not give consideration to nor include in the appraisal any allowance for relocation assistance benefits, if applicable. h. When an entire property is to be acquired, the estimate of just compensation shall be the fair market value of the property. Where only a part of a property is to be acquired, the estimate of just compensation shall be that amount arrived at in accordance with the laws governing just compensation applicable to the acquiring agency, including those laws governing compensable and non-compensable items and the treatment of general and special benefits. For either whole or partial acquisitions, the appraisal report shall document what in the appraiser's judgment is a reasonable allocation of the "before value" to the various land, building and other improvement components. For partial acquisitions, the appraisal report shall further show a similar allocation of the "after value". i. In estimating market value for the acquisition of real property, appraisal reports shall, to the greatest extent practicable under state law, disregard any decrease or increase in the fair market value of the real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner. j. Documentation of estimates of value (either the before, the after, or the acquisition value), of damages, and/or of special benefits shall be by the most applicable and appropriate means available. If support for the after value by the usual methods of market or income data or indications from severance damage studies is not feasible, the Appraiser shall so state and explain why it is not feasible. In such instances, the Appraiser must then fully explain the reasoning for the after value estimate. k. The appraisal shall conform to statutory and judicial determinations regarding compensable and non-compensable items. 1. The Appraiser's report shall be in writing and contain, as a minimum, the following; (i) The purpose of the appraisal, definition of value to be estimated and the rights or interests being appraised. (ii) Identification of the property and its ownership, including at least a five year delineation of title. (iii) Statement of appropriate contingent and limiting conditions, if any. (iv) An adequate description of the neighborhood, the property, the portion of the property or interest therein being acquired, and the remainder(s) if any. ELF Version 6-8-2017 (v) Identified photographs of the subject property including area to be acquired and, if applicable, all principal above ground improvements or unusual features affecting the value of the property to be acquired or damaged. (vi) An identification or listing of the buildings, structures, and other improvements on the land as well as the fixtures which the Appraiser considered to be part of the real property to be acquired. (vii) The estimate of market value of the proposed acquisition. In the case of a partial acquisition, where appropriate, the Appraiser shall make a reasonable allocation of the estimate of market value for the real property to be acquired and for damages and/or special benefits to remaining real property. (viii) The date(s) on which and/or as of which, as appropriate, the market value is estimated. The date of value estimate must be the last day of inspection. (ix) The certification, signature, and date of signature of the Appraiser. (x) Other descriptive material (maps, charts, plans, photographs). (xi) The federal -aid project number and parcel identification. (xii) When required for compliance with Indiana Department of Transportation and Federal Highway Administration procedures, opportunity for the property owner to accompany the Appraiser during the observation of the property. M. Appraisal reports shall be prepared in ink or typewritten, dated and signed by the individual making the appraisal prior to being submitted to a Review Appraiser. n. Each appraisal report shall contain an appraiser's certification. A new certificate shall be prepared where there is a change in the appraisal report, which affects the estimate of market value or changes the date of valuation. An exception to including all requirements in each appraisal report is permitted where project data containing the same information has been developed to supplement the reports, In such instances, an appropriate reference to the information may be considered as equivalent to its inclusion in the appraisal report. o. The Appraiser agrees to furnish one original green copy and three copies of the appraisal report. P. The Appraiser agrees to testify in court on behalf of the LPA on any of the parcels described herein. q. All information contained in the appraisal report and all parts thereof are to be treated as a privileged communication. The Appraiser shall take all necessary steps to ensure that neither he/she nor any member of his/her staff or organization divulges any information concerning the report except to a duly authorized representative of the LPA, the Indiana Department of Transportation or to officials of the Federal Highway Administration, until authorized in writing by the LPA to reveal the communication to another designated party. C. APPRAISAL REVIEW SERVICES Rita Ann Gabriel & Associates, Inc. 110 W. Be!U St., Suite 1907, Fort Wayne, Indiana 46802 a corporation incorporated in Indiana shall hereinafter be referred to as the Review Appraiser. a. The Review Appraiser shall be a Certified Appraiser in the State of Indiana and designated as a Review Appraiser on INDOT's Approved Appraisers List. The same individual may prepare the Appraisal Problem Analysis and complete the Appraisal Review. b. The same individual will be precluded from completing the Appraisal and Appraisal Review on the same parcel per INDOT standards. C. The Appraisal Review shall not be sublet, assigned or otherwise performed by anyone other than the Review Appraiser. 20 Version 6-8-2017 d. The Review Appraiser shall examine the plans for this project and complete field inspections of the subject property and comparable properties contained in the appraisal report. e. The appraisal reviews shall be sufficiently documented to meet the minimum standards set out in the Indiana Department of Transportation's Appraisal Manual as approved by the Federal Highway Administration and shall be submitted on forms approved by the LPA and the Indiana Department of Transportation. The Review Appraiser shall follow accepted principles and techniques in completion of the appraisal review in accordance with applicable regulations. Any review appraisal that does not meet such requirements shall be further documented without additional compensation to the Review Appraiser. f. The Review Appraiser shall consider all pertinent value information that is available. g. The Review Appraiser shall document all estimates of just compensation. h. The Review Appraiser may at any time prior to settlement adjust his/her estimate of just compensation on the basis of additional value information. i. The Review Appraiser shall examine the appraisal reports for development of a determination as to whether the reports: (i) Are complete in accordance with the Indiana Department of Transportation's appraisal requirements. (ii) Follow accepted appraisal principles and techniques in the valuation of real property in accordance with existing state law. (iii) Contain or make reference to the information necessary to explain, substantiate, and thereby document the conclusions and estimates of value and/or just compensation contained therein. (iv) Include consideration of compensable items, damages and benefits, and exclude items considered non-compensable under state law. (v) Contain an identification or listing of the buildings, structures and other improvements on the land as well as the fixtures which the appraiser considered to be an impact to the market value of the real property to be acquired. (vi) Contain the estimate of just compensation for or resulting from the acquisition, and where appropriate, in the case of a partial acquisition, either in the report or in a separate statement, a reasonable allocation of the estimate of just compensation for the real property acquired and damages to remaining real property. j. Prior to finalizing his/her estimate of market value and just compensation, the Review Appraiser shall request and obtain corrections and/or revisions of the appraisal report in accordance with Indiana Department of Transportation's appraisal procedures. These shall be documented and retained in the parcel file. k. The Review Appraiser may supplement an appraisal report with correction of minor mathematical errors where such errors do not affect the final value conclusion. He/she may also supplement the appraisal file where the following factual data has been omitted: (i) Project and/or parcel number. (i i) Owner's and/or tenant's names. (iii) Parties to transaction, date of purchase and deed book reference on sale of subject property and comparables. (iv) Statement that there were no sales of subject property in the past five years. (v) Location, zoning, or present use of subject property or comparables. 1. The Review Appraiser shall initial and date his/her corrections and/or factual data supplements to an appraisal report. rn. The Review Appraiser shall place in the parcel file a signed and dated Certificate of Review Appraiser and Conclusion of Fair Market Value (Form REV 27): (i) The estimate of fair market value and just compensation including, where appropriate, the allocation of compensation for the real property acquired and for damages and/or special benefits to remaining real property, and an 21 Version 6-8-2017 identification or listing of the buildings, structures and other improvements on the land as well as the fixtures which he/she considered to be a part of the real property to be acquired, if such allocation or listing differs from that of the appraisal(s). (ii) That as a part of the Appraisal Review there was or was not field inspection of the parcel to be acquired and the comparable sales applicable thereto. If a field inspection was not made, he/she shall state the reason(s). (iii) That he/she has no direct or indirect present or contemplated future personal interest in such property or in any monetary benefit from its acquisition. (iv) That his/her estimate has been reached independently, without collaboration or direction, and is based on appraisals and other factual data. (v) His/her value estimate of items compensable under state law but not eligible for federal reimbursement, if any. (vi) Prepare a Statement of the Basis for Just Compensation for LPA approval. n. In estimating market value and just compensation of the acquisition of real property, the Review Appraiser shall, to the greatest extent practicable under state law, disregard any decrease or increase in the fair market value of the real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner. o. The Review Appraiser shall conform to statutory and judicial determinations regarding non-compensable items. P. The Review Appraiser agrees to testify in court on behalf of the LPA on any of the parcels described herein. q. All information contained in the Review Appraisal report and all parts thereof are to be treated as a privileged communication. The Review Appraiser shall take all necessary steps to ensure that neither he/she nor any member of his/her staff or organization divulges any information concerning the report except to a duly authorized representative of the LPA, the Indiana Department of Transportation or to officials of the federal Highway Administration, until authorized in writing by the LPA to reveal the communication to another designated party. D. BUYING SERVICES DLZ Indiana, LLC 2211 E. Jefferson Blvd., South Bend, Indiana 46615 a limited liability company registered in Indiana shall hereinafter be referred to as the Buyer. (and/or) Right of Way Jones, Inc. 1415 Directors Row Suite 6B Fort Wayne, Indiana 46808 a corporation incorporated in Indiana shall hereinafter be referred to as the Buyer. a. The Buyer shall be a licensed real estate broker in the State of Indiana and on INDOT's Approved Buyers list. b. No work by the Buyer shall be sublet, assigned or otherwise performed by anyone other than the Buyer. C. The Buyer shall make every reasonable effort to acquire expeditiously the parcels listed herein. d. The Buyer shall make a prompt offer to acquire each parcel for the full amount which has been established and approved as just compensation for the acquisition. The Uniform Land or Easement offer letter shall be given each parcel owner or sent by certified mail with return receipt requested. 22 Version 6-5-2017 h. k Upon initiation of buying, the Buyer shall provide the owner of real property to be acquired with a written statement of, and a summary of the basis for, the amount which has been established as just compensation for the proposed acquisition. The Buyer shall perform the services under this Agreement in compliance with the Indiana Department of Transportation's Buyers Procedure Manual in addition to the following regulations: (i) Make all reasonable efforts to personally contact each owner or his designated representative, explain the acquisition, and offer in writing the approved estimate of just compensation. When all efforts to make a personal contact have failed or in the event the property owner resides out of state, the owner may be contacted by certified or registered first class mail or other means appropriate to the situation. (ii) No later than the first contact where the offer is discussed, the Buyer shall provide the owner with the brochure "Acquisition; Acquiring Real Property for Federal and Federal -Aid Programs and Projects" describing the land acquisition process and the owner's rights, privileges and obligations. (iii) The owner of improvements located on land being acquired for Right of Way should be offered the option of retaining those improvements at a retention value determined by the CONSULTANT and approved by the LPA and Indiana Department of Transportation. (iv) A revised offer and summary statement of just compensation shall be provided the owner if: i. The extent of the taking is revised, or ii. The approved estimate of just compensation is revised by the Review Appraiser, The Buyer shall maintain adequate records to include a report for each parcel containing but not limited to: (i) The date, place, parties of interest contacted and summary of meeting. (ii) Offer made. (iii) Counter-offer or reasons offer was not accepted. (iv) The report must be signed and dated by the Buyer, and initialed by the persons contacted, or if persons contacted object to initial, the buyer documenting objections accordingly. The property owner may be given a copy of the report on each contact. When attempts to buy are successful, a signed statement is to be prepared by the Buyer to the effect that: (i) The written offer embodies all considerations agreed to by the property owner; (ii) The Buyer understands the acquired property is for use in connection with a federal -aid project; (iii) The Buyer has no direct or indirect present or contemplated future personal interest in the properly or in any monetary benefit from the acquisition of the property; and, (iv) The agreement was reached without coercion of any type. When attempts to buy are unsuccessful the Buyer shall record his/her recommendation for action for submittal to the LPA, (i) The recommendation shall consider administrative settlement, including amount of settlement and reasons for a settlement. (ii) Otherwise, a condemnation report shall be completed by the Buyer and submitted accordingly. All information contained in the appraisal shall be treated as confidential. The Buyer is to take all steps to ensure that he/she does not divulge any of this information to anyone other than a duly authorized representative of the LPA, Indiana Department of Transportation, or Federal Highway Administration unless authorized in writing by the LPA to reveal the information to another designated party. 23 Version 6-8-2017 APPENDIX "B" INFORMATION AND SERVICES TO BE FURNISHED BY THE LPA: The LPA shall ftimish the CONSULTANT with the following: Guarantee access to and make all provisions for the CONSULTANT to enter upon public and private lands as required for the CONSULTANT to perform the work under this Agreement. 2. Conveyance instruments which have been prepared and/or approved for each parcel by LPA legal counsel. 3. Recording of all transfer documents after the parcel is acquired by the Buyer. 4. Legal counsel for condemnation proceedings and for legal services in connection with the project. 5. The money and delivery for all payments due property owners and/or applicable property interests. 6. Partial mortgage release fees. 7. Copies of recorded documents and proof of payment. 8. Property Management (The remainder of this page intentionally left blank) 24 Version 6-8-201 i APPENDIX "C" SCHEDULE: No work under this Contract shall be performed by the CONSULTANT until the CONSULTANT receives a written notice to proceed from the LPA, All work by the CONSULTANT under this Contract shall be completed and delivered to the LPA for review and approval within approximately 240 days, in accordance with the projected schedule outlined below. Schedule will commence after notifications to proceed from the LPA and 1NDOT are issued, and is exclusive of the LPA review time. I. Appraisals Appraisals shall be completed within 45 calendar days after LPA issuance of Notice to Proceed, Review Appfaisals..atid Statements of the Basis for Just Compensation Review Appraisals and Statements of the Basis for Just Compensation shall be completed within 30 calendar days after receipt by the Review Appraiser of each appraisal from the Appraiser. The LPA shall be afforded 15 days following completion of Review Appraisals and Statements of the Basis for Just Compensation for review and approval. Negotiation Within 30 calendar days after receipt of Notice to Proceed with buying on each parcel, an offer will be made to the property owner. Approximately 120 additional calendar days are anticipated to complete the buying phase, unless the parcel proceeds to condemnation or if the owner rejects the initial offer. (The remainder of this page intentionally left blank.) 25 Version 6-8-2017 APPENDIX "D" A. AMOUNT OF COMPENSATION 1. The CONSULTANT shall receive as payment for the work performed under this Agreement the total fee not to exceed $30,590.00, unless a SUPPLEMENTAL AGREEMENT is approved in writing by the LPA. 2. The CONSULTANT will be paid for the work performed under Section A.1 of Appendix "A" of this Agreement a per parcel fee of $1,050.00 for Base Right of Way Project Management and Supervision and Section A.2 of Appendix "A" of this agreement a per parcel fee of $130.00 for Right of Way Early Assessment. 3, The CONSULTANT will be paid for the work performed under the applicable Sections B, C and D of Appendix "A" of this Agreement, except as provided for in Section 4 of this Appendix, in accordance with the following schedule: Description Cost Right of Way Early Assessment (7 @ $130.00/ea.)* $910.00 Appraisal Services (4 @ Est. $630,00, 3 @ Est. $1,785.00/ea.)* $7,875.00 Appraisal Review Services (4 @ Est. $370.00, 3 @ Est. $895.00/ea.)* $4,165.00 Buying Services (7 @ $1,470.00/each)* $10,290.00 Right of Way Acquisition Services Management (7 @ $1,050.00/each)*, Hourly Rate $7,350.00 Total Not -to -Exceed Fee $30,590.00 *Unit prices shown are estimates only. Actual amounts to be invoiced will be based on hourly rate and/or actual subconsultant's invoices, in accordance with actual services provided based on the approved INDOT rate schedule effective at the time of performance of services. 4. In consideration for condemnation proceedings described below the LPA agrees to Pay the Right of Way Manager, Appraiser, Review Appraiser, and Buyer on a daily basis (or on a pro rata basis for less than a day) the following sums: Right of Way Manager Appraiser Review Appraiser Buyer Pre -Trial Conference & Preparation $2,000.00 per day $1,000.00 per %2 day B. METHOD OF PAYMENT $1,200.00 per day $600.00 per'/z day $ 1,500.00 per day $750.00 per day $1,500.00 per day $750.00 per day Testimony in Court as Expert Witness $2,000.00 per day $1,000.00 per'/2 day $1,200.00 per day $600.00 per %2 day $1,500,00 per day $750.00 per %2 day $1,500,00 per day $750.00 per %2 day I. The CONSULTANT shall submit invoices to the LPA not more often than once per month during the progress of the work, for payment on account for the work completed. 2. For work performed under Appendix "A", the LPA agrees to pay the CONSULTANT for rendering such services as each item for each parcel is completed. 26 N F� M-21r,73"ll a 0 a