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HomeMy WebLinkAbout03/23/11 Board of Public Safety Special MeetingCITY OF SOUTH BEND LETTER OF TRANSMITTAL UNDER SEPARATE COVER THE FOLLOWING ITEMS SPECIFICATIONS THESE ARE TRAM 117 AS CHECKED BELOW: FOR APPROVAL APPROVED AS SUBMIT YSE q!OZR Y�OUR = APPROVED AS NOTED � AS UESTED , R UESTED RETURNED FOR CORRECTIONS FOR REVIEW AND COMMENT REMARK& ftE 4/c- F04.4-Y t RESUBMIT FOR APPROVAL RETURN CORRECTED PRINTS IN Version 6-i0-09 INDIANA DEPARTMENT OF TRANSPORTATION -LOCAL PUBLIC AGENCY PROJECT COORDINATION CONTRACT EIS 9 A249-10-320721 De& No. 0600462 NOTICE TO PARTIES Whenever any notice, statement or other communication is required under this Contract, it shall be sent to the following address, unless otherwise specifically advised. Local Programs Division Attention: LPA Manager 100 North Senate Avenue, Room N808 Indianapolis, Indiana 46204 B. Notices to INDOT regarding project management shall be sent to respective District Office: LaPorte District Office P.O. Box 429 LaPorte, IN 46352 C. Notices to the LPA shall be sent to: Mayor of South Bend 227 W. Jefferson Blvd., 14 Floor South Bend, IN 46601 uam� WHEREAS, LPA has applied to INDOT, and INDOT has approved the LPA's application to receive federal funds for the Project described in Attachment A, and WHEREAS, the PARTIES desire to contract on certain project description, scheduling, and funding allocation, and Page 1 of 11 a „ i C Certifleation for Federal-Aid Contracts Lobbving Activities. The LPA certifies, by signing and submitting this Contract, to the best of its knowledge and belief that the LPA has complied with Section 13 52, Title 3 1, U.S. Code, and specifically, that: V ersion 6- 10- 09 3. The LPA 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 5100,000, 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, D. Compliance with Laws. E. Disadvantqged Business Enterprise Promm. Notice is hereby given to the LPA o LPA Contractor that failure to carry out the requirements set forth in 49 CFR Se 26.13(b) shall constitute a breach of this Contract and, after notification, may result termination of this Contract 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 contracts between the LPA and any contractors, vendors or suppliers: As part of the LPAs equal opportunity affirmative action program, it is required that the LPA shall take positive affirmative actions and put forth good faith efforts to solicit proposals or bids from and to utilize disadvantaged business enterprise contractors, vendors or suppliers, F. Disputes, 1. Should any disputes arise with respect to this Contract, the LPA and INDOT agree to act immediately to resolve such disputes. Time is of the essence in the resolution of disputes. 2. The LPA agrees that, the existence of a dispute notwithstanding, it shall continue without delay to carry out all of its responsibilities under this Contract that are noi affected by the dispute, Should the LPA fail to continue to perform its responsibilities regarding all non-disputed work, without delay, any additional costs incurred by fNDOT or the LPA as a result • such failure to proceed shall be home by the LPA. 4. The parties agree to resolve such matters through submission of this dispute to the Commissioner of INDOT. The Commissioner shall reduce a decision to writing and mail Version 6-W-09 5. INDOT may withhold payments on disputed items pending resolution of the dispute. The unintentional nonpayment by INDOT to the LPA of one or more invoices not in dispute in accordance with the terms of this Contract will not be cause for LPA to terminate this Contract, and the LPA may bring suit to collect these amounts without following the disputes procedure contained herein. In addition to the provisions of the above paragraphs, if the total Contract amount set forth in this Contract is in excess of $25,000, LPA hereby further agrees that this Contract is expressly subject to the terms, conditions and representations of the following certification: I . Publishing and providing to all of its employees a Statement notifying their employees the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the LPA's workplace and specifying the actions that will be taken against employees for violations of such prohibition; and 2. Establishing a drug-free awareness program to inform their employees of (1) the dangers • drug abuse in the workplace; (2) the LPA's policy of maintaining a drug-free workplace; (3) any available drug, counseling, rehabilitation, and employee assistance programs; and (4) the penalties which may be imposed upon an employee for drug abuse violations occurring in the workplace, 3. Notifying all employees in the Statement required by subparagraph (1) above as a condition of continued employment the employee shall (1) abide by the terms of the Statement; and (2) notify the LPA of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; 4. Notifying in writing the State within ten (10) days after receiving notice from an employee under subdivision (3)(2) above, or otherwise receiving actual notice of such conviction; 6. Making a good faith effort to maintain a drug-free workplace through the implementation of subparagraphs (1) through (5) above. J. Governing Laws. This Contract shall be construed in accordance with and governed by the laws • the State • Indiana and suit, if any, must be brought in the State of Indiana. K. Indemnification. The LPA agrees to indemnify, defend, exculpate, and hold harmless the State of Indiana, INDOT, and their officials and employees from any claims and suits including court costs, attorneys Fees, and other expenses caused-by any act or omission of the LPA and/or its subcontractors in the performance of this Contract or any liability due to loss, damage, injuries, or other casualties of whatever kind, or by whomsoever caused, Page 7 of 11 Ism Merger & 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 Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by all necessary parties, M. Non-Discrimination. During the performance of this Contract, the LPA, for itself, its assignees and successors in interest (hereinafter referred to as the "LPA") agrees to the following assurances under Title VI of the Civil Rights Act • 1964: a. QQ_�Iian�cewith �Re u�lation�s: The LPA shall comply with the regulations relative • nondiscrimination in Federally-assisted programs • the Department • 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 • this Contract. b. Nondiscrimination: The LPA, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, sex, national f. Incorooration of Provisions: The LPA 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. Page 9 of 11 0. Penalties rest and Att2rn2X!j t� Interest _fM. INDOT 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, I.C. 5-17-5, I.C. 34- 54-8, and I.C. 34-13-1. P. Pollution Control RggRjEtMjBLs. If this Contract is for $100,000 or more, the LPA: L Stipulates 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; 2. Agrees to comply with all of the requirements of the Clean Air Act (including section 114) and the Federal Water Pollution Control Act (including section 308) and all regulations and guidelines issued there under; and 1 Stipulates, as a condition of federal aid pursuant to this Contract, it shall notify Iii DOT and the FERIA of the receipt of any advice indicating that a facility to be utilized in performance under or to benefit from this Contract is under consideration to be listed on the EPA List of Violating Facilities. The invalidity of any section, subsection, clause or provision of the Contract shall not affect the validity of the remaining sections, subsections, clauses or provisions of the Contract. R. Status of Claims, The LPA shall be responsible for keeping III DOT currently advised as to the status of any claims made for damages against the LPA resulting from services performed under this Contract. The LPA shall send notice of claims related to work under this Contract to: W MMI'-10 • MIRAV, Indianapolis, IN 46204-2249 yRIZA `a'ersion b -iv -vy Non - Collusion The undersigned attests, subject to the penalties for perjury, that that he /she is the LPA, or that he /she is the properly authorized representative, agent, member or officer of the LPA, that he /she has not, nor has any other member, employee, representative, agent or officer of the LPA, 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 surn of money or other consideration for the execution of this Contract other than that which appears upon the face of this Contract. In Witness Whereof, LPA and the State of Indiana have, through duly authorized representatives, entered into this Contract. The parties, having read and understand the forgoing terms of this Contract, do by their respective signatures dated below hereby agree to the terms thereof. CITY OF SOUTH BEND, INDIANA STATE OF INDIANA a a Department of 'Transportation a Recommended for approval bye ephen J. Lueck yor ATTEST: Job Ucord , City Clerl< Date: _ Gary blot, President I�911al -pks, Me ber � Carl Littrell, Member ATTEST: i da Martin, Clerk Date: 01 "z 1 1' This instrument prepared by: Stephen M. Dilk Date: 1/5/2010 Robert D. Cafes, Director Contract Administration Division Date: Michael W. Reed, Commissioner Date: Department of Administration Mark W. Everson, Commissioner Date: State Budget Agency Christopher A. Ruhl, Director Date: r Em M _ (FOR) Gregory F. Zoeller, Attorney General of Indiana Date: Page I I of I I ATTACHMENT A PROJECT DESCRIPTION Des. Igo.: 0600462 Program: Transportation Community System Preservation Location: Extension of W. Broadway (Cotter) from Prairie to Franklin (Studebaker Corridor) A general description of the Project is as follows: New road construction for extension of W. Broadway (Cotter) from Prairie to Franklin (Studebaker Corridor) Attachment A, Page I of 1 Version 6-10-09 ATTACHMENT B LPA'S RIGHTS AND DUTIES In addition to any other rights and duties required by Indiana or federal law, regulations, rules, policies or procedures, or described elsewhere in this Contract, the following are the LPA's rights and duties under this Contract for the Project. A. If the LPA wishes to contract with a consultant, contractor or other agent to complete work on the Project, LPA may: 1. use the "LPA-CONSULTANT Agreement", which is found at http://�y .in.go�rlindot /div /pro �govfind�ot/div/�roects/LPA Section/ and is incorporated by reference; or I; io III !I !1 1 1 5. The LPA agrees to complete all right-of-way acquisition, utility coordination and acquire the necessary permit(s) and submit documentation of such to INDOT. The utility coordination shall be in accordance with 105 IAC 13. Attachment B, Page I of 4 ,V ersion U'-iV'-V'9 6. At least sixty (60) calendar days prior to IN T's scheduled construction letting for the project, the LPA will submit to INDOT documentation of the LTA's fiscal body's resolution or other official action irrevocably committing the LPA to fund the LTA's cost of the Project as described in Attachment D. 7. If the LPA has failed to meet any of the requirements of sections 1, 2, 4. 5, or 6 above, INDOT will not let the construction project. If MDOT, and FHWA where necessary, approve LTA's submittals, INDOT shall schedule the Project for letting at the next reasonable date. & The LPA shall pay the cost as described in Attachment D within thirty (30) calendar days of MDOT's award of the construction contract, 10. The LPA shall also be responsible for all costs associated with additional provisions and/or expenses in excess of the federal funds allocated to the project, The LPA, in conjunction with FERIA (if applicable) and INDOT, shall review and approve all change orders, and such approvals shall not be unreasonably withheld. M B. If project inspection will be provided by the LTA's consultant: INDOT must approve, in writing, the consultant personnel prior to their assignment to the project. The LPA shall execute a contract with a consultant Attachment B, Page 2 of 4 12. The LPA shall submit reports to INDOT regarding the project's progress and the performance of work per INDOT standard reporting methods. 11 The LPA hereby agrees that all utilities which cross or otherwise occupy the right-of-way of said Project shall be regulated on a continuing basis by the LPA in accordance with INDOT's Utility Accommodation Policy (See http://www.in.gov/indot/files/UtilityProAccPolicy.pdf.). The LPA shall execute written use and occupancy contracts as defined in this Policy, 14. If FHWA or INDOT invokes sanctions per Section VI.D.2, or otherwise denies or withholds federal funds (hereinafter called a citation or cited funds) for any reason and for all or any part of the Project, the LPA agrees as follows: a. In the case of correctable noncompliance, the LPA shall make the corrections, to the satisfaction of FHWA and INDOT, in a reasonable amount of time. If the LPA fails to do so, paragraph 14.b and/or 14,c below, as applicable, shall apply. b. In case a citation for noncompliance is not correctable or if correctable and the LPA does not make any corrections, or if correctable and the LPA makes corrections that are not acceptable to FHWA and INDOT, or for whatever reason the FHWA citation continues in force beyond a reasonable amount of time, this paragraph shall apply and adjustments shall be made as follows: The LPA shall reimburse INDOT the total amount of all right-of-way costs that are subject to FHWA citation that have been paid by INDOT to the LPA. 1 If no right-of-way costs have as yet been paid by INDOT to the LPA or to others, INDOT will not pay any right-of-way claim or billing that is subject to FHWA citation, 3. The LPA agrees that it is not entitled to bill INDOT or to be reimbursed for any of its right-of-way liabilities or costs that are subject to any FHWA citation in force, c. If FHWA issues a citation denying or withholding all or any part of construction costs due to LPA noncompliance with right-of-way requirements, and construction work was or is in progress, the following shall apply: INDOT may elect to terminate, suspend, or continue construction work in accord with the provisions of the construction contract. INTDOT may elect to pay its obligations under the provisions of the construction contract, 3. In the case of correctable noncompliance, the LPA shall make the corrections in a reasonable amount of time to the satisfaction of FHWA and INGOT. d. In any case, the LPA shall reimburse INGOT' the total cost of the Project, not eligible for federal participation, Version 6-10-09 ATTACHMENT C Ili OT' RIGHTS AND DUTIES In addition to any other rights and duties required by Indiana or federal law or regulations or described elsewhere in this Contract, the following are INDOT's rights and duties under the Contract: 1. INDOT shall have full authority and access to inspect and approve all plans, specifications and special provisions for the Project regardless of when those plans, specifications, special provisions or other such Project documents were created. 4. If the LPA owes INDOT money which is more than 60 days past due, INDOT will not open the construction bids for the Project, 5. Not later than sixty (60) calendar days after receipt by INDOT of a certified copy of a resolution from the LPA's fiscal body authorizing the LPA to make payment to INDOT according to the terms of Attachment D, and fulfillment of all other pre-letting obligations of this contract, INDOT shall, in accordance with applicable laws and rules (including I.C. 8-23-9, LC 8-23-10, and 105 LAC. 11), conduct a scheduled letting. 6. Subject to the LPA's written approval, INDOT shall award the construction contract for the Project according to applicable laws and rules. 7. Not later than seven (7) calendar days after INDOT awards the construction contract described above, INDOT shall invoice the LPA for the LPA's share of the construction cost. Attachment C, Page 1 of 2 I I . After the final Project audit is approved by fNDOT, the LPA shall, within forty-five (45) days after receipt of IINDOT's bill, make final payment to IN T DOT pursuant to Attachment D or INDOT shall, within forty-five (45) days after approval of the audit, refund any Project overpayment to the LPA, Attachment C, Page 2 of 2 ATTACHMENT D PROJECT FUNDS 1. Project Costs. A. If the Program shown on Attachment A is Group I or Group 11, this contract is just for the one (1) phase checked below: Preliminary engineering or Right-of-way or Construction; otherwise this contract covers all phases. ma (2) If the Program shown on Attachment A is Group 1, Group 11, or Transportation Enhancement (receiving federal funds for all phases), federal funds made available to the LPA by INDOT, will be used to pay 80% of the eligible Project costs. The maximum amount of federal funds allocated to the Project is $ Attachment D, Page 1 of 3 UD to 20% of the final cost of the construction phase (construction and construction inspection) of the Project. The maximum amount of federal funds, including federal credits, allocated to the Project is $--, W (4) If the Program shown on Attachment A is Safety, Safe Routes to Schools, Forest Highway, National Historic Covered Bridge, Transportation Community System Preservation, or Demonstration, federal funds, made available to the LPA by INDOT, will be used to pay 100 % of the eligible Project costs. The X maximum amount of federal funds allocated to the Project is $ 500,000.0 C. The LPA understands and agrees that federal reimbursement for construction inspection and testing construction materials is limited to: (1) 17% of the final construction cost if the final construction cost is less than or equal to $500,000; or (2) 15% of the final construction cost if the final construction cost is greater than $500,000, E. Costs will be eligible for FHWA participation provided that the costs: (2) Are verifiable from INDOT's or the LPA's records- (3) Are necessary and reasonable for proper and efficient accomplishment of project objectives and meet the other criteria for allowable costs in the applicable cost principles cited in 49 CFR section 18.22; MINEM Ms' MI Attachment D, Page 2 of 3 V erS101 0 - I V_VY When INDOT awards and enters into a contract (i.e., construction, utility, and/or railroad) on behalf of the LPA, INDOT will invoice the 1 1 -PA for its share of the costs. The LPA shall pay the invoice within thirty (30) calendar days from date of DOT's billing, 2. The LPA understands time is of the essence regarding the Project timeline and costs and delays in payment may cause substantial time delays and/or increased costs for the Project. B. Other Costs: L In accordance with I.C. 8-23-2-14, the LPA shall pay INDOT the actual cost, less the amount eligible for Federal-aid reimbursement, for performing laboratory testing of materials. The cost of providing material testing is included in the maximum limitation number shown in section LC of Attachment D. 2. The LPA shall pay INDOT for expenses incurred in - performing the final audit less the amount eligible for Federal-aid reimbursement. 3. The LPA shall pay INDOT for expenses incurred in supervising the Project out of the maximum limitation shown in section LC of Attachment D. Ill. Repayment Provisions. Attachment D, Page 3 of 3