HomeMy WebLinkAboutJoint Use and Maintenance Agrmt - Decorative Lettering South Bend US 31 By Pass & Michigan Street – INDOT
ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR MURRAY L. MILLER
1316 COUNTY-CITY BUILDING
227 W. JEFFERSON BOULEVARD
SOUTH BEND, INDIANA 46601-1830
PHONE 574/ 235-9251
FAX 574/ 235-9171
CITY OF SOUTH BEND JAMES MUELLER, MAYOR
BOARD OF PUBLIC WORKS
July 27, 2021
Andrew Borden, Project Manager INDOT LaPorte District
315 E. Boyd Blvd.
LaPorte, IN 46350
ABorden1@indot.IN.gov
Chief Legal Counsel and Deputy Commissioner
Indiana Department of Transportation
100 North Senate Ave, IGCN 758
Indianapolis, IN 46204
Brett Sauter, Vice President of Structures
8725 W. Higgins Road, Suite 600
Chicago, IL 60631
bsauter@ciorba.com
RE: Joint Use and Maintenance Agreement
To Whom It May Concern:
At its July 27, 2021 meeting, the Board of Public Works approved the above referenced
agreement to install decorative letting spelling “SOUTH BEND” on the US 31 Bypass over
Michigan Street, Project No. 120-008, in the amount of $23,552.
Kindly sign and return the fully executed copy of this agreement electronically to
lhensley@southbendin.gov for our internal records.
Sincerely,
/s/ Laura Hensley/Acting
Anne Fuchs, Clerk
Enclosures
AF/lh
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INTER-OFFICE MEMORANDUM
DEPARTMENT OF PUBLIC WORKS
DIVISION OF ENGINEERING
TO: Anne Fuchs, Clerk
Board of Public Works
FROM: Zach Hurst, Project Engineer
SUBJECT: Joint Use and Maintenance Agreement with INDOT
Southern Gateway Bridge Beautification Project
DATE: 7/1/2021
The enclosed agreement with the Indiana Department of Transportation outlines an agreement
between the City and INDOT for INDOT to install decorative lettering spelling ‘SOUTH BEND’
on their upcoming bridge replacement project carrying the US 31 ByPass over Michigan Street:
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The above photos show a location map and rendering of the project, respectively.
The City will pay INDOT $23,552 for this work, as outlined in the agreement.
**Per INDOT’s request, the signature sheet of the JUMA requires blue ink signatures.**
Please contact me with any questions (3057)
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JOINT USE AND MAINTENANCE AGREEMENT
Between
THE INDIANA DEPARTMENT OF TRANSPORTATION
And
CITY OF SOUTH BEND, INDIANA
Concerning
BRIDGE ENHANCEMENTS
This Joint Use and Maintenance Agreement (“Agreement”) is made by and between the State of
Indiana, acting by and through the Indiana Department of Transportation (hereinafter referred to
as “INDOT”), and the City of South Bend, Indiana (hereinafter referred to as the “CITY”), and
jointly referred to as the “Parties,” is executed pursuant to the terms and conditions set forth herein
and shall be effective as of the date of approval by the Office of the Indiana Attorney General. In
consideration of those mutual undertakings and covenants, the Parties agree as follows:
RECITALS
WHEREAS, INDOT is replacing the bridge on US 20 over US 31 (the “Bridge”) under
Des. No. 1701538/Contract No. B-40600 in South Bend, Indiana (the “Project”); and
WHEREAS, the CITY has requested to add aesthetic appeal to the Bridge in the form of
a gateway sign into the CITY (hereinafter referred to as “Bridge Enhancements”), which are
described in Exhibit A, attached hereto and incorporated herein by reference; and
WHEREAS, it is of mutual interest and benefit to install the Bridge Enhancements during
the Project, and the Parties desire to delineate certain installation and maintenance costs and
responsibilities related to the Bridge Enhancements; and
WHEREAS, the CITY has agreed to be solely responsible for all costs associated with the
installation and maintenance of the Bridge Enhancements; and
WHEREAS, the installation and maintenance will occur within the state-owned or
controlled right-of-way, under the jurisdiction of INDOT, as shown in Exhibit A; and
WHEREAS, it is of mutual interest for INDOT and the CITY to cooperate in providing
highway improvements for the convenience and safety to the public;
NOW THEREFORE, the Parties to this Agreement hereby agree to the following terms
and conditions.
ARTICLE I. PURPOSE AND TERM
1.1 Recitals. The Recitals recorded above are incorporated by reference into this Agreement.
All captions, section headings, paragraph titles and similar items are provided for the purpose of
reference and convenience and are not intended to be inclusive, definitive or to affect the
interpretation of this Agreement.
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1.2 Purpose. The purpose of this Agreement is to delineate installation and maintenance
responsibilities and the costs associated with said installation and maintenance of the Bridge
Enhancements. The CITY understands and agrees that if and when the Bridge Enhancements
conflict with the operation, maintenance, regulation, construction or reconstruction of any part of
the state-owned or controlled right of way or any other state highway facility, the Bridge
Enhancements shall be altered or removed entirely to accommodate use of INDOT highway right-
of-way for state highway purposes, at no cost to INDOT.
1.3 Term. This Agreement shall be effective as of the date approved by the Office of the
Attorney General and shall continue in full force and effect as long as the Bridge Enhancements
remain in place.
1.4 Temporary Joint Use of Right-of-Way. Subject to the terms and conditions of this
Agreement, INDOT grants permission to the CITY, its employees and its contractors to enter upon
the state-owned or controlled right of way, as identified in Exhibit A (the “Right-of-Way”), for
the sole and exclusive purposes of inspecting, maintaining, operating and repairing the Bridge
Enhancements. The CITY shall notify INDOT of its intent of entering on to the Right-of-Way
whenever doing so could affect flow of traffic or the safety of the traveling public on US 20 or US
31 at least ten (10) business days before commencing any such work. This includes even minor or
routine maintenance and repair activities if traffic on US 20 or US 31 may be affected. Pursuant
to applicable state and federal law, for highway and limited access facilities, INDOT must grant
written permission for each entry into the Right-of-Way, which must be based on specific traffic
control and/or worker safety plans. Accordingly, as a condition precedent to giving effective
notice, the CITY shall provide to INDOT all such traffic control and worker safety plans and other
information as INDOT shall request or require in connection with granting such permission. The
CITY shall not enter upon the Right-of-Way until the CITY has received written approval from
INDOT, which shall not be unreasonably withheld, to enter upon the Right-of-Way. INDOT shall
only be required to approve the CITY’s request to enter upon the Right-of-Way if the CITY’s
request is consistent with all applicable federal and state laws and this Agreement.
1.5 No Interest in the Land. The parties understand that this Agreement does not: (1) grant
any interest or other rights in the land, either temporarily or permanently; or (2) establish a shared-
use facility which would require replacement if INDOT has a need to use the affected property for
highway purposes in the future.
ARTICLE II. CITY’S RESPONSIBILITIES
2.1 Funding.
A. The CITY has agreed to be responsible for the construction, maintenance and costs of
the Bridge Enhancements for the beautification and improvement to the aesthetic appeal
of the neighborhood, as shown in Exhibit A. The CITY be responsible for all costs of
the Bridge Enhancements, including all costs of change orders, cost increases, and cost
overruns.
B. The CITY shall pay the full estimated cost of the Bridge Enhancements (as shown on
Exhibit A) to INDOT no later than thirty (30) days prior to letting of the Project, which
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is currently scheduled for August 10, 2021. Should the CITY fail to do so, INDOT
may, in its sole discretion, elect to let the Project without including the Bridge
Enhancements work items.
C. After the final Project audit is approved by INDOT, the CITY shall, within forty-five
(45) days after receipt of INDOT’s bill, make final payment to INDOT for all unpaid
costs of the Bridge Enhancements, or INDOT shall, within forty-five (45) days after
approval of the audit, refund any overpayment to the CITY.
2.2 On an annual basis, but no later than March 31st of each year, the CITY shall submit a
maintenance plan to the LaPorte District Permit Manager for approval prior to commencement of
any maintenance activities within the Right-of-Way. The maintenance plan shall identify the types
of maintenance activities to be completed and an estimated schedule of when these activities will
occur. All painting of the Bridge Enhancements shall be performed by a contractor prequalified
by INDOT. The LaPorte District Permit Manager shall promptly notify the CITY of any concerns
or deficiencies in the plan. The CITY shall conduct all maintenance work in accordance with all
applicable federal and state laws as well as INDOT standards, policies and procedures promulgated
by INDOT relative to this Agreement.
2.3 In accordance with Section 2.2 of this Agreement, the CITY shall notify INDOT and
submit a Maintenance of Traffic (MOT) plan thirty (30) days prior to any maintenance activities
if such activities require lane closures or traffic restrictions on US 20 or US 31.
2.4 Any use of the Right-of-Way permitted by this Agreement remains secondary to the
interest of INDOT to use the Right-of-Way for highway or other transportation purposes. The
CITY agrees that it shall surrender the Right-of-Way upon which the Bridge Enhancements are
located, whether in part or in its entirety, if, in INDOT’s discretion, the Right-of-Way or any
portion thereof, is required for future expansion, modification, or maintenance of US 20 or US 31.
The CITY understands and agrees that it shall not be entitled to any damages or any other
compensation in the event that INDOT requires complete or partial removal of the Bridge
Enhancements for any reason. Except in cases of emergency (i.e., eminent threat of harm to the
traveling public), INDOT will provide ninety (90) days written notice to the CITY that the Bridge
Enhancements must be removed or modified. If the Bridge Enhancements are not removed or
modified to INDOT’s satisfaction within ninety (90 ) days of issuance of notice under this Section,
INDOT may remove the Bridge Enhancements and bill the CITY for costs of removal.
2.5 When performing work required hereunder, the CITY shall at all times adhere to the traffic
control measures found in the most recent version of the Manual on Uniform Traffic Control
Devices, as then-currently adopted by INDOT.
2.6 The CITY’s maintenance activities performed shall not create any adverse impact or
interfere with the safety and travel of the motoring public.
2.7 The CITY shall not erect any signs, sculptures, or structures within the Right-of-Way
without the prior approval of INDOT.
2.8 The CITY shall be responsible for the CITY’s improvements within the Right-of-Way. To
the extent permitted by law, the CITY shall indemnify and hold INDOT harmless for any claims
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arising out of the above-said items within the Right-of-Way. This is in addition to representations
provided under Section 4.22 of this Agreement. This section of this Agreement shall survive
termination of this Agreement.
2.9 If the CITY wishes to install or make any additional improvements within the Right-of-
Way, prior to making any additions, the CITY shall submit a design plan to INDOT’s LaPorte
District for review and approval.
2.10 Prior to making any additional improvements within the Right-of-Way, the CITY shall
apply for a right-of-way permit for all improvements by the CITY (or other parties contracted by
the CITY) within the Right-of-Way. This Agreement, in no way, binds INDOT to the issuance of
any permit to the CITY. However, INDOT agrees, in good faith, to review the CITY’s application,
and if appropriate, issue a permit to the CITY.
2.11 In the event that INDOT determines, in its sole reasonable discretion, that the CITY is not
adequately maintaining the Bridge Enhancements, or for any other justified reason (i.e., safety
concerns for the motoring public, change in policy, requirement for compliance with federal law
or other federal mandate, etc.), INDOT may order the CITY to remove or modify the Bridge
Enhancements at the CITY’s expense. Except in cases of emergency (i.e., threat of harm to the
traveling public), INDOT will provide ninety (90) days written notice to the CITY that the Bridge
Enhancements must be removed or modified. If the Bridge Enhancements are not removed or
modified to INDOT’s satisfaction within ninety (90) days of issuance of notice under this Section,
INDOT may remove the Bridge Enhancements and bill the CITY for costs of removal.
2.12 The CITY shall pay all the fees for any utility services serving the Bridge Enhancements.
Any separately metered utilities shall be billed directly to the CITY, and INDOT shall have no
obligation with respect thereto.
ARTICLE III. INDOT’S RESPONSIBILITIES
3.1 INDOT shall have approval authority for the CITY’s installation and maintenance plans of
the Bridge Enhancements and for any improvements within the Right-of-Way. Such review and
approval shall be completed in a reasonable period of time.
3.2 INDOT may inspect the Bridge Enhancements at any time. INDOT will perform a final
inspection of the Bridge Enhancements and any improvements and shall notify the CITY of any
deficiencies.
3.3 Under no circumstances shall INDOT be responsible for any cost of construction,
maintenance, operation, regulation or removal of the Bridge Enhancements or their improvements.
3.4 In the event the CITY fails to timely complete any necessary repairs, inspection, or
maintenance to the Bridge Enhancements or remediate any damage caused in whole or in part by
the Bridge Enhancements, in the interest of the safety of the motoring public, INDOT may
complete any necessary repairs and invoice the CITY for the total cost of the repair. The CITY
shall pay each invoice within thirty (30) days of issuance of the invoice. The CITY’s failure to pay
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any invoice received from INDOT may result in removal of the Bridge Enhancements from the
Right-of-Way.
ARTICLE IV. GENERAL PROVISIONS
4.1 Access to Records. The CITY shall maintain all books, documents, papers, correspondence,
accounting records and other evidence pertaining to the cost incurred under this Agreement, and shall
make such materials available at their respective offices at all reasonable times during the period of
this Agreement and for ten (10) years from the date of final payment under the terms of this
Agreement, for inspection or audit by INDOT, or its authorized representative, and copies thereof
shall be furnished free of charge, if requested by INDOT. The CITY agrees that, upon request
by any Party or state or federal agency, INDOT may release or make available to the agency any
working papers from an audit performed by INDOT of the CITY in connection with this Agreement,
including any books, documents, papers, accounting records and other documentation which support
or form the basis for the audit conclusions and judgments.
4.2 Assignment; Successors. The CITY binds their successors and assignees to all the terms
and conditions of this Agreement. Except as otherwise specifically provided herein, the CITY shall
not assign or subcontract the whole or any part of this Agreement without INDOT’s prior written
consent.
4.3 Assignment of Antitrust Claims. As part of the consideration for this Agreement, the CITY
assigns to the State all right, title and interest in and to any claims the CITY now has, or may acquire,
under state or federal antitrust laws relating to the products or services which are the subject of
this Agreement.
4.4 Audits. The CITY acknowledges that it may be required to submit to an audit of funds paid,
if any, through this Agreement. Any such audit shall be conducted in accordance with IC §5-11-
1, et seq., and audit guidelines specified by the State.
4.5 Authority to Bind the CITY. The signatory for the CITY represents that he/she has been
duly authorized to execute this Agreement on behalf of the CITY and has obtained all necessary
or applicable approvals to make this Agreement fully binding upon the CITY when his/her
signature is affixed and accepted by the State.
4.6 Changes in Work. [OMITTED – NOT APPLICABLE.]
4.7 Certification for Federal-Aid Contracts Lobbying Activities. The CITY certifies, by
signing and submitting this Agreement, to the best of its knowledge and belief that the CITY has
complied with Section 1352, Title 31, U.S. Code, and specifically, that:
A. No federal appropriated funds have been paid or will be paid, by or on behalf of the
CITY, to any person for influencing or attempting to influence an officer or employee of
any federal agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of any federal
agreements, the making of any federal grant, the making of any federal loan, the entering
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into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any federal agreement, grant, loan, or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any federal
agency, a Member of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with such federal agreement, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
C. The CITY also agrees by signing this Agreement that it shall require that the language
of this certification be included in all contractor agreements including lower tier
subcontracts, which exceed $100,000, and that all such sub recipients shall certify and
disclose accordingly. Any person who fails to sign or file this required certification shall
be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
failure.
4.8 Compliance with Laws.
A. The CITY shall comply with all applicable federal, state, and town laws, rules,
regulations, and ordinances, and all provisions required thereby to be included herein
are hereby incorporated by reference. The enactment or modification of any applicable
state or federal statute or the promulgation of rules or regulations thereunder after
execution of this Agreement shall be reviewed by the State and the CITY to determine
whether the provisions of this Agreement require formal modification.
B. The CITY and its agents shall abide by all ethical requirements that apply to persons
who have a business relationship with the State as set forth in IC §4-2-6, et seq., IC §4-
2-7, et seq. and the regulations promulgated thereunder. If the CITY has knowledge,
or would have acquired knowledge with reasonable inquiry, that a state officer,
employee, or special state appointee, as those terms are defined in IC 4-2-6-1, has
a financial interest in the Agreement, the CITY shall ensure compliance with the
disclosure requirements in IC 4-2-6-10.5 prior to the execution of this contract. If
the CITY is not familiar with these ethical requirements, the CITY should refer any
questions to the Indiana State Ethics Commission, or visit the Inspector General’s
website at http://www.in.gov/ig/. If the CITY or its agents violate any applicable ethical
standards, the State may, in its sole discretion, terminate this Agreement
immediately upon notice to the CITY. In addition, the CITY may be subject to penalties
under IC §§4-2-6, 4-2-7, 35-44.1-1-4, and under any other applicable laws.
C. [OMITTED – NOT APPLICABLE.]
D. [OMITTED – NOT APPLICABLE.]
E. [OMITTED – NOT APPLICABLE.]
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F. The CITY warrants that the CITY and its contractors shall obtain and maintain required
permits, licenses, registrations, and approvals, and shall comply with all health, safety,
and environmental statutes, rules, or regulations in the performance of work activities
under this Agreement. Failure to do so may be deemed a material breach of this
Agreement and grounds for immediate termination and denial of further work with the
State.
G. [OMITTED – NOT APPLICABLE.]
H. As required by IC §5-22-3-7:
1. The CITY and any principals of the CITY certify that:
(A) the CITY, except for de minimis and nonsystematic violations, has not violated
the terms of:
(i) IC §24-4.7 [Telephone Solicitation of Consumers];
(ii) IC §24-5-12 [Telephone Solicitations]; or
(iii)IC §24-5-14 [Regulation of Automatic Dialing Machines]; in the previous
three hundred sixty-five (365) days, even if IC §24-4.7 is preempted by
federal law; and
(B) The CITY will not violate the terms of IC §24-4.7 for the duration of the
Agreement, even if IC §24-4.7 is preempted by federal law.
2. The CITY and any principals of the CITY certify that an affiliate or principal of the
CITY and any agent acting on behalf of the CITY or on behalf of an affiliate or
principal of the CITY, except for de minimis and nonsystematic violations,
(A) has not violated the terms of IC §24-4.7 in the previous three hundred sixty-five
(365) days, even if IC §24-4.7 is preempted by federal law; and
(B) will not violate the terms of IC §24-4.7 for the duration of the Agreement, even
if IC §24-4.7 is preempted by federal law.
4.9 Condition of Payment. [OMITTED – NOT APPLICABLE.]
4.10 Confidentiality of State Information. [OMITTED – NOT APPLICABLE.]
4.11 Continuity of Services. [OMITTED – NOT APPLICABLE.]
4.12 Debarment and Suspension.
A. The CITY certifies by entering into this Agreement that neither it nor its principals nor
any of its contractors are presently debarred, suspended, proposed for debarment,
declared ineligible or voluntarily excluded from entering into this Agreement by any
federal agency or by any department, agency or political subdivision of the State of
Indiana. The term “principal” for purposes of this Agreement means an officer,
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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 CITY.
B. The CITY certifies that it has verified the state and federal suspension and debarment
status for all contractors receiving funds under this Agreement and shall be solely
responsible for any recoupment, penalties or costs that might arise from use of a
suspended or debarred contractor. The CITY shall immediately notify INDOT if any
contractor becomes debarred or suspended, and shall, at INDOT’s request, take all steps
required by INDOT to terminate its contractual relationship with the contractor for work
to be performed under this Agreement.
4.13 Default by State. [OMITTED – NOT APPLICABLE.]
4.14 Disputes. [OMITTED – NOT APPLICABLE.]
4.15 Drug-Free Workplace Certification. As required by Executive Order No. 90-5 dated April
12, 1990, issued by the Governor of Indiana, the CITY hereby covenants and agrees to make a
good faith effort to provide and maintain a drug-free workplace. The CITY will give written notice
to the State within ten (10) days after receiving actual notice that the CITY, or an employee of the
CITY, in the State of Indiana, has been convicted of a criminal drug violation occurring in the
workplace. False certification or violation of this certification may result in sanctions including,
but not limited to, suspension of contract payments, termination of this Agreement and/or
debarment of contracting opportunities with the State for up to three (3) years.
In addition to the provisions of the above paragraph, if the total amount set forth in this Agreement
is in excess of $25,000.00, the CITY certifies and agrees that it will provide a drug-free workplace
by:
A. Publishing and providing to all of its employees a statement notifying them that the
unlawful manufacture, distribution, dispensing, possession or use of a controlled
substance is prohibited in the CITY’s workplace, and specifying the actions that will
be taken against employees for violations of such prohibition;
B. Establishing a drug-free awareness program to inform its employees of (1) the dangers
of drug abuse in the workplace; (2) the CITY's policy of maintaining a drug-free
workplace; any available drug counseling, rehabilitation and employee assistance
programs; and (4) the penalties that may be imposed upon an employee for drug abuse
violations occurring in the workplace;
C. Notifying all employees in the statement required by subparagraph (A) above that as a
condition of continued employment, the employee will (1) abide by the terms of the
statement; and (2) notify the CITY of any criminal drug statute conviction for a violation
occurring in the workplace no later than five (5) days after such conviction;
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D. Notifying the State in writing within ten (10) days after receiving notice from an
employee under subdivision (C)(2) above, or otherwise receiving actual notice of such
conviction;
E. Within thirty (30) days after receiving notice under subdivision (C)(2) above of a
conviction, imposing the following sanctions or remedial measures on any employee
who is convicted of drug abuse violations occurring in the workplace: (1) taking
appropriate personnel action against the employee, up to and including termination; or
(2) requiring such employee to satisfactorily participate in a drug abuse assistance or
rehabilitation program approved for such purposes by a federal, state or city health, law
enforcement, or other appropriate agency; and
F. Making a good faith effort to maintain a drug-free workplace through the
implementation of subparagraphs (A) through (E) above.
4.16 Employment Eligibility Verification. The CITY affirms under the penalties of perjury that
it does not knowingly employ an unauthorized alien. The CITY further agrees that:
A. The CITY shall enroll in and verify the work eligibility status of all its newly hired
employees through the E-Verify program as defined in IC 22-5-1.7-3. The CITY is not
required to participate should the E-Verify program cease to exist. Additionally, the CITY
is not required to participate if the CITY is self -employed and does not employee any
employees.
B. The CITY shall not knowingly employ or contract with an unauthorized alien. The CITY
shall not retain an employee or contract with a person that the CITY subsequently learns
is an unauthorized alien.
C. The CITY shall require its subcontractors, who perform work under this Agreement, to
certify to the CITY that the subcontractor does not knowingly employ or contract with
an unauthorized alien and that the subcontractor has enrolled and is participating in the
E-Verify program. The CITY agrees to maintain this certification throughout the
duration of the term of a contract with a subcontractor.
The State may terminate for default if the CITY fails to cure a breach of this provision no later than
thirty (30) days after being notified by the State.
4.17 Employment Option. [OMITTED – NOT APPLICABLE.]
4.18 Force Majeure. In the event that any Party is unable to perform any of its obligations under
this Agreement or to enjoy any of its benefits because of natural disaster or decrees of governmental
bodies not the fault of the affected Party (hereinafter referred to as a “Force Majeure Event”), the
Party who has been so affected shall immediately or as soon as is reasonably possible under the
circumstances give notice to the other Parties and shall do everything possible to resume
performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately
suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of
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the Force Majeure Event, the Party whose ability to perform has not been so affected may, by giving
written notice, terminate this Agreement.
4.19 Funding Cancellation Clause. As required by Financial Management Circular 2007-1 and
IC 5-22-17-5, when the Director of the State Budget Agency makes a written determination that
funds are not appropriated or otherwise available to support continuation of the performance of
this Agreement, this Agreement shall be canceled. A determination by the Director of State Budget
Agency that funds are not appropriated or otherwise available to support continuation of
performance shall be final and conclusive.
4.20 Governing Law. This Agreement shall be governed, construed, and enforced in
accordance with the laws of the State of Indiana, without regard to its conflict of laws rules. Suit,
if any, must be brought in the State of Indiana.
4.21 HIPAA Compliance. [OMITTED – NOT APPLICABLE.]
4.22 Indemnification. The CITY agrees to indemnify, defend, exculpate and hold harmless the
State of Indiana, INDOT, and their officials and employees from any liability due to loss, damage,
injuries, or other causalities of whatever kind, to the person or property of anyone arising out of,
or resulting from the performance of this Agreement or the work connected therewith, or from the
installation, existence, use, maintenance, condition, repairs, alteration or removal of any equipment
or material, to the extent such liability is caused by the negligence of the CITY, including any
claims arising out the Worker's Compensation Act or any other law, ordinance, order or decree.
INDOT shall not provide indemnification to the CITY. The CITY agrees to pay all reasonable
expenses and attorney's fees incurred by or imposed on the State and INDOT in connection
herewith in the event that the CITY shall default under the provisions of this Section.
4.23 Independent Entity; Workers’ Compensation Insurance. The CITY is performing as an
independent entity under this Agreement. No part of this Agreement shall be construed to represent
the creation of an employment, agency, partnership, or joint venture agreement between the
Parties. 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, employees, or
subcontractors of the other Party. The CITY shall provide all necessary unemployment and
workers’ compensation insurance for the CITY’s employees and shall provide the State with a
Certificate of Insurance evidencing such coverage prior to starting work under this Agreement.
4.24 Information Technology Enterprise Architecture Requirements. [OMITTED – NOT
APPLICABLE.]
4.25 Insurance.
A. The Contractor and its subcontractors (if any) shall secure and keep in force during the
term of this Agreement the following insurance coverages (if applicable) covering the
Contractor for any and all claims of any nature which may in any manner arise out of
or result from Contractor’s performance under this Agreement:
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1. Commercial general liability, including contractual coverage, and products or
completed operations coverage (if applicable), with minimum liability limits not
less than $700,000 per person and $5,000,000 per occurrence unless additional
coverage is required by the State. The State is to be named as an additional insured
on a primary, non-contributory basis for any liability arising directly or indirectly
under or in connection with this Agreement.
2. Automobile liability for owned, non-owned and hired autos with minimum liability
limits not less than $700,000 per person and $5,000,000 per occurrence. The State
is to be named as an additional insured on a primary, non-contributory basis.
3. Errors and Omissions liability with minimum liability limits of $1,000,000 per
claim and in the aggregate. Coverage for the benefit of the State shall continue for
a period of two (2) years after the date of service provided under this Agreement.
4. Fiduciary liability if the Contractor is responsible for the management and oversight
of various employee benefit plans and programs such as pensions, profit-sharing
and savings, among others with limits no less than $700,000 per cause of action and
$5,000,000 in the aggregate.
5. Valuable Papers coverage, if applicable, with an Inland Marine Policy Insurance
with limits sufficient to pay for the re-creation and reconstruction of such records.
6. Surety or Fidelity Bond(s) if required by statute or by the agency.
7. Cyber Liability if requested by the State addressing risks associated with electronic
transmissions, the internet, networks, and informational assets, and having limits of
no less than $700,000 per occurrence and $5,000,000 in the aggregate.
The Contractor shall provide proof of such insurance coverage by tendering to the
undersigned State representative a certificate of insurance prior to the commencement of
this Agreement and proof of workers’ compensation coverage meeting all statutory
requirements of IC § 22-3-2. In addition, proof of an “all states endorsement” covering
claims occurring outside the State is required if any of the services provided under this
Agreement involve work outside of Indiana.
B. The Contractor’s insurance coverage must meet the following additional requirements:
1. The insurer must have a certificate of authority or other appropriate authorization
to operate in the state in which the policy was issued.
2. Any deductible or self-insured retention amount or other similar obligation under
the insurance policies shall be the sole obligation of the Contractor.
3. The State will be defended, indemnified, and held harmless to the full extent of any
coverage actually secured by the Contractor in excess of the minimum requirements
Page 12 of 20
set forth above. The duty to indemnify the State under this Agreement shall not be
limited by the insurance required in this Agreement.
4. The insurance required in this Agreement, through a policy or endorsement(s), shall
include a provision that the policy and endorsements may not be canceled or
modified without thirty (30) days’ prior written notice to the undersigned State
agency.
5. The Contractor waives and agrees to require their insurer to waive their rights of
subrogation against the State of Indiana.
C. Failure to provide insurance as required in this Agreement may be deemed a material
breach of contract entitling the State to immediately terminate this Agreement. The
Contractor shall furnish a certificate of insurance and all endorsements to the State
before the commencement of this Agreement.
4.26 Key Person(s). [OMITTED – NOT APPLICABLE.]
4.27 Licensing Standards. [OMITTED – NOT APPLICABLE.]
4.28 Merger & Modification. This Agreement constitutes the entire agreement between the
Parties. No understandings, agreements, or representations, oral or written, not specified within
this Agreement will be valid provisions of this Agreement. This Agreement may not be modified,
supplemented, or amended, except by written agreement signed by all necessary Parties.
4.29 Minority and Women’s Business Enterprises Compliance. [OMITTED - NOT
APPLICABLE.]
4.30 Non-Discrimination.
A. Pursuant to the Indiana Civil Rights Law, specifically including IC 22-9-1-10, and in
keeping with the purposes of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, and the Americans with Disabilities Act, the CITY covenants that it
shall not discriminate against any employee or applicant for employment relating to
this Agreement with respect to the hire, tenure, terms, conditions or privileges of
employment or any matter directly or indirectly related to employment, because of the
employee’s or applicant’s race, color, national origin, religion, sex, age, disability,
ancestry, status as a veteran, or any other characteristic protected by federal, state or
local law (“Protected Characteristics”). The CITY certifies compliance with applicable
federal laws, regulations and executive orders prohibiting discrimination based on the
Protected Characteristics in the provision of services. Breach of this paragraph may be
regarded as a material breach of this Agreement, but nothing in this paragraph shall be
construed to imply or establish an employment relationship between the State and any
applicant or employee of the CITY or any subcontractor.
Page 13 of 20
B. INDOT is a recipient of federal funds, and therefore, where applicable, the CITY and
any subcontractors shall comply with requisite affirmative action requirements,
including reporting, pursuant to 41 CFR Chapter 60, as amended, and Section 202 of
Executive Order 11246 as amended by Executive Order 13672.
The CITY agrees that if the CITY employs fifty (50) or more employees and does at
least $50,000.00 worth of business with the State and is not exempt, the CITY will
comply with the affirmative action reporting requirements of 41 CFR 60-1.7. The CITY
shall comply with Section 202 of executive order 11246, as amended, 41 CFR 60-250,
and 41 CFR 60-741, as amended, which are incorporated herein by specific reference.
Breach of this covenant may be regarded as a material breach of contract.
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 nondiscrimination enforcement is broader than
the language of Title VI and encompasses other State and Federal protections.
INDOT’s nondiscrimination enforcement shall include the following additional
grounds: sex, sexual orientation, gender identity, ancestry, age, income status, religion,
disability, income status, limited English proficiency, or status as a veteran.)
C. During the performance of this Agreement, the CITY, for itself, its assignees, and
successors in interest (hereinafter referred to as the “CITY”) agrees to the following
assurances under Title VI of the Civil Rights Act of 1964:
1. Compliance with Regulations: The CITY shall comply with the regulations relative
to nondiscrimination in federally assisted programs of the Department of
Transportation, Title 49 CFR Part 21, as they may be amended from time to time
(hereinafter referred to as the Regulations), which are herein incorporated by
reference and made a part of this Agreement.
2. Nondiscrimination: The CITY, with regard to the work performed by it during the
Agreement, shall not discriminate on the grounds of race, color, sex, sexual
orientation, gender identity, national origin, religion, disability, ancestry, or status
as a veteran in the selection and retention of subcontractors, including procurements
of materials and leases of equipment. The CITY shall not participate either directly
or indirectly in the discrimination prohibited by section 21.5 of the Regulation,
including employment practices when the Agreement covers a program set forth in
Appendix B of the Regulations.
3. Solicitations for Subcontracts, Including Procurements of Materials and
Equipment: In all solicitations either by competitive bidding or negotiation made
by the CITY for work to be performed under a subcontract, including procurements
Page 14 of 20
of materials or leases of equipment, each potential subcontractor or supplier shall
be notified by the CITY of the CITY’s obligations under this Agreement, and the
regulations relative to nondiscrimination on the grounds of race, color, sex, sexual
orientation, gender identity, national origin, religion, disability, ancestry, income
status, limited English proficiency, or status as a veteran.
4. Information and Reports: The CITY shall provide all information and reports
required by the Regulations, or directives issued pursuant thereto, and shall permit
access to its books, records, accounts, other sources of information, and its facilities
as may be determined by the Indiana Department of Transportation and Federal
Highway Administration to be pertinent to ascertain compliance with such
Regulations, orders and instructions. Where any information required of a CITY is
in the exclusive possession of another who fails or refuses to furnish this
information, the CITY shall so certify to the Indiana Department of Transportation
or the Federal Highway Administration as appropriate and shall set forth what
efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of the CITY’s noncompliance with the
nondiscrimination provisions of this Agreement, the Indiana Department of
Transportation shall impose such contract sanctions as it or the Federal Highway
Administration may determine to be appropriate, including, but not limited to: (a)
withholding payments to the CITY under the Agreement until the CITY complies,
and/or (b) cancellation, termination or suspension of the Agreement, in whole or in
part.
6. Incorporation of Provisions: The CITY shall include the provisions of paragraphs
1 through 5 in every subcontract, including procurements of materials and leases of
equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
4.31 Notice to Parties. Whenever any notice, statement or other communication is required
under this Agreement, it shall be sent to the following addresses, unless otherwise
specifically advised:
A. For INDOT:
Andrew Borden, Project Manager
INDOT LaPorte District
315 E. Boyd Blvd.
LaPorte, IN 46350
Email: ABorden1@indot.IN.gov
219-851-4481
With Copy To:
Chief Legal Counsel and Deputy Commissioner
Indiana Department of Transportation
100 North Senate Avenue, IGCN 758
Indianapolis, IN 46204
Page 15 of 20
B. For CITY:
Zach Hurst, Project Engineer
227 W Jefferson Blvd, Room 1316
South Bend, IN 46601
Email: zhurst@southbendin.gov
574-235-5888
With Copies To:
Brett Sauter, Vice President of Structures
8725 W. Higgins Road, Suite 600
Chicago, IL 60631
Email: bsauter@ciorba.com
773-355-2936
4.32 Order of Precedence; Incorporation by Reference. [OMITTED - NOT
APPLICABLE.]
4.33 Ownership of Documents and Materials. [OMITTED – NOT APPLICABLE.]
4.34 Payments. [OMITTED – NOT APPLICABLE.]
4.35 Penalties, Interest and Attorney's Fees. INDOT will in good faith perform its required
obligations hereunder, and does not agree to pay any penalties, liquidated damages, interest, or
attorney's fees, except as required by Indiana law in part, IC §5-17-5, IC §34-54-8, and IC §34-13-1.
Notwithstanding the provisions contained in IC §5-17-5, any liability resulting from the State’s
failure to make prompt payment shall be based solely on the amount of funding originating from
the State and shall not be based on funding from federal or other sources.
4.36 Progress Reports. [OMITTED – NOT APPLICABLE.]
4.37 Public Record. The CITY acknowledges that the State will not treat this Agreement as
containing confidential information and will post this Agreement on its website as required by
Executive Order 05-07. Use by the public of the information contained in this Agreement shall not
be considered an act of the State.
4.38 Renewal Option. This Agreement may be renewed under the same terms and conditions,
subject to the approval of the Commissioner of the Department of Administration and the State
Budget Director in compliance with IC §5-22-17-4. The term of the renewed Agreement may not
be longer than the term of the original Agreement.
4.39 Severability. The invalidity of any section, subsection, clause, or provision of this
Agreement shall not affect the validity of the remaining sections, subsections, clauses, or provisions
of this Agreement.
Page 16 of 20
4.40 Status of Claims. The CITY shall be responsible for keeping INDOT currently advised as
to the status of any claims made for damages against the CITY resulting from services performed
under this Agreement.
4.41 Substantial Performance. This Agreement shall be deemed to be substantially
performed only when fully performed according to its terms and conditions and any written
amendments or supplements.
4.42 Taxes. The State is exempt from most state and CITY taxes and many federal taxes. The
State will not be responsible for any taxes levied on the CITY or its contractors as a result of this
Agreement.
4.43 Termination for Convenience. This Agreement may be terminated, in whole or in part,
by INDOT whenever, for any reason, INDOT determines that such termination is in its best
interest. Termination shall be affected by delivery to the CITY of a Termination Notice at least
thirty (30) days prior to the termination effective date, specifying the extent to which performance
of services under such termination becomes effective.
4.44 Termination for Default. [OMITTED – NOT APPLICABLE.]
4.45 Travel. [OMITTED – NOT APPLICABLE.]
4.46 Indiana Veteran’s Business Enterprise Compliance. [OMITTED – NOT
APPLICABLE.]
4.47 Waiver of Rights. No right conferred on either party under this Agreement shall be deemed
waived, and no breach of this Agreement excused, unless such waiver is in writing and signed by
the party claimed to have waived such right. Neither the State’s review, approval or acceptance of,
nor payment for, the work performed under this Agreement shall be construed to operate as a waiver
of any rights under this Agreement or of any cause of action arising out of the performance of this
Agreement, and the CITY shall be and remain liable to the State in accordance with applicable law
for all damages to the State caused by the CITY’s negligent performance of any of the services
furnished under this Agreement.
4.48 Work Standards. [OMITTED – NOT APPLICABLE.]
4.49 State Boilerplate Affirmation Clause. I swear or affirm under the penalties of perjury
that I have not altered, modified, changed or deleted the State’s standard contract clauses (as
contained in the 2021 OAG/ IDOA Professional Services Contract Manual or the 2021 SCM
Template) in any way except as follows: None.
THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK
Page 19 of 20
STATE OF INDIANA
Indiana Department of Transportation
Recommended for approval by:
__________________________________
Matthew Deitchley
LaPorte District Deputy Commissioner
Date: ______________________________
Executed By:
__________________________________ (FOR)
Joseph McGuinness, Commissioner
Date: ______________________________
Page 20 of 20
APPROVALS
STATE OF INDIANA
Budget Agency
By: (FOR)
Zachary Q. Jackson, Director
Date:
STATE OF INDIANA
Department of Administration
By: (FOR)
Lesley A. Crane, Commissioner
Date:
Approved as to Form and Legality:
Office of the Attorney General
By: (FOR)
Theodore E. Rokita
Attorney General
Date:
6FRSHRI:RUN
Wz/d Dη /d D hE/d dKd>hE/dWZ/ dKd>K^d
3$,1767((/%5,'*(3$57,$/%5,'*(126287+%(1'/2*2 /6
5$,/,1*&21&5(7()7)250/,1(5 /)7 34 9,350
19,350
,1)/$7,21 <56#&203281'('$118$//< /6 1,13
&217,1*(1&< ,1&/8'(6,1)/$7,21 /6 3,072
23,552
$HVWKHWLF&RVW5DWLR SHU64)7
1RWHV
7KHSUHVHQWHGXQLWFRVWVDUHEDVHGRQ20$1XQLWSULFHV,QIODWLRQLVDFFRXQWHGIRURYHUD\HDUWLPHOLQHDWFRPSRXQGHGDQQXDOO\
7KH6XEWRWDO&RVWDQG7RWDO&RVWVDUHURXQGHGWRWKHQHDUHVW
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)RUP/LQHURQH[WHULRU1RUWKDQG6RXWK5DLOLQJOHWWHULQJRQ6RXWK5DLOLQJRQO\
3DLQW)RUP/LQHU/HWWHULQJ6RXWK5DLOLQJRQO\
7RWDO&RVW
6XEWRWDO&RVW
%5,'*(5(3/$&(0(17$(67+(7,&(67,0$7(
1 ?352-? ?&RQWUDFW'RFXPHQWV?%ULGJH$HVWKHWLFV?67*(VWIRU%ULGJH6HUYLFHV$HVWKHWLFV5HY[OV[
([KLELW$
South Bend shall be responsible for the payment and maintenance of the appended beautification
additions to the bridge railing asset during its lifetime of service. These items shall include the formed
concrete lettering, as shown in the supporting plan image. Line 0071 Item 706-09959 Railing Concrete
FT Form Liner. Estimated at an installed 34.00 LFT at a cost of $275.00 per LFT for an approximate total
of $9,350.00.
The City of South Bend shall also be responsible for the payment of the painting of the steel components
of the bridge. The items as shown in the estimate are Line 0049 Item 619-51859 Paint Steel Bridge BR
No 020-71-10278. Estimated at an installed 1.00 LS at a cost of $10,000.00 for an approximate total of
$10,000.00.
80
" = 1'-0"4
1Scale:
RAILING DETAILS
Concrete Bridge Railing Type FT
118'-6" Out-to-Out
NORTH ELEVATION - EXTERIOR SIDE
" = 1'-0"4
1Scale:
SOUTH ELEVATION - EXTERIOR SIDE
Concrete Bridge Railing Type FT
118'-6" Out-to-Out
Unique Special Provision.
per "Surface Seal, Decorative Stain, Railing"
lettering with form liner. Stain letters
2'-3" tall by 2" thick formed concrete
S20 S25
SOUTH BEND
NOTES
* Non-Participating Items to be paid for by the City of South Bend.
AS NOTED
42'-5"
33'-7" Lettering Form Liner
42'-5"
Decorative Stain, Railing Unique Special Provisions.
Concrete FT Formliner and Surface Seal,
For Aesthetic Railing Details, see Railing,3.
Drawing E 702-CJTA-01.
For Construction Joint Type A, see Standard2.
".4
3All chamfered edges shall be 1.
RAILINGBRIDGE
MATERIALS OFBILL
BARS REINFORCINGEPOXY-COATED
MARK &SIZE BARS OFNO. IN.) - (FTLENGTH (LB)WEIGHT
#8E 48 43'-0''5511
#8Total 5511
#7E 48 42'-6''4170
#7Total 4170
570E 712 5'-6''4084
571E 1424 3'-9''5570
#5Total 9654
4) x Lbs (862 TFT Type Transition Railing fromTotal 3448
Bars Reinforcing Epoxy-CoatedTotal 22783
MISCELLANEOUS
FT TypeRailing Lft474.0
DelineatorsBarrier Each20
TFT Type Transition Railing BridgeConcrete Each4
SFT) (5270 SealSurface LS1
Liner Form FT Concrete*Railing, Lft34
Railing Stain, Decorative Seal,*Surface LS1
101
DESIGN ENGINEER DATE
DESIGNED:
CHECKED:
DRAWN:
CHECKED:
CONTRACT
DESIGNATION
SHEETS
of
PROJECT
BRIDGE FILESCALE
1701538
1701538
N:\PROJ\0020966.01\Design\Structural\CAD\0020966.01_24_RailingDetails.dgn
DEPARTMENT OF TRANSPORTATION
INDIANA
Plot:File:
MLK
BWS
SAK
MLK
DRAWING
of
B-40600
FOR APPROVAL
RECOMMENDED CONSTRUCTIONNOT FOR
DATE REVISION
P 844.271.5923 | www.ciorba.com
619 Franklin St, Ste 205, Michigan City, IN 46360
020-71-10278 06/25/2111:51AM
06/25/21
06/25/21 06/25/21
06/25/21
06/25/21
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date 07/01/2021
Name Zach Hurst Department DPW
BPW Date 07/27/2021 Phone Extension 3057
Review and Approval Required Prior to Submittal to Board
Diversity Compliance
and Inclusion Officer Officer Name
BPW Attorney Attorney Name Clara McDaniels
Dept. Attorney Attorney Name
Purchasing
Check the Appropriate Item Type – Required for All Submissions
Professional Services Agreement Contract Proposal
Open Market Contract Amendment/Addendum Special Purchase, QPA
Bid Opening Bid Award Req. to Advertise Title Sheet
Quote Opening Quote Award Reject Bids/Quotes
Proposal Opening C/O & PCA No. PCA
Chg. Order, No. Traffic Control Resolution
Other: Joint Use and
Maintenance Agreement
Ease./Encroach
Required Information
Company or Vendor Name Indiana Department of Transportation
New Vendor Yes If Yes, Approved by Purchasing
No
MBE/WBE Contractor MBE
WBE Completed E-Verify Form Attached Yes
No
Project Name Southern Gateway Bridge Beautification Project
Project Number 120-008
Funding Source South Side DA TIF
Account No. PR-00010350
Amount $23,552
Terms of Contract Lump Sum
Purpose/Description City to pay INDOT to provide aesthetic SOUTH BEND lettering on new
bridge carrying Michigan St. over the By-Pass
For Change Orders Only
Amount of Increase
Decrease
$
($ )
Previous Amount $
Current Percent of Change:
Increase
Decrease
%
( %)
New Amount $
Total Percent of Change:
Increase
Decrease
%
( %)
Time Extension Amount:
New Completion Date: