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HomeMy WebLinkAboutInterlocal Cooperative Agreement - Development of Real Property in Renewable Energy Drive Subdivision – INDOT  ELIZABETH A. MARADIK JOSEPH R. MOLNAR GARY A. GILOT JORDAN V. GATHERS 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 May 24, 2022 Mr. Steve McAvoy Chief Legal Counsel & Deputy Commissioner Indiana Dept. of Transportation Indiana Dept. of Transportation 100 N. Senate Ave., N758-Facilities Mgmt. 100 N. Senate Ave., N758-Legal Services Indianapolis, IN 46204 Indianapolis, IN 46204 SMcAvoy@indot.IN.gov NMendenhall@indot.in.gov RE: Interlocal Cooperative Agreement Dear Mr. McAvoy: At its May 24, 2022 meeting, the Board of Public Works approved the above referenced agreement for the development of real property in the Renewable Energy Drive Subdivision, Section One for its Connection to City’s Water Main. Enclosed please find the original of the agreement for your signature. Please sign and return the original agreement to lhensley@southbendin.gov. Please retain a copy for your records. If you have any further questions, please call this office at (574) 235-9251. Sincerely, /s/ Theresa Heffner Theresa Heffner, Clerk Enclosures TH/lh INTER-OFFICE MEMORANDUM Department of Law City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Theresa Heffner, Clara McDaniels FROM: Sandra Kennedy, Corporation Counsel SUBJECT: Interlocal Cooperative Agreement between the Indiana Department of Transportation and the City of South Bend Concerning Development of Real Property in Renewable Energy Drive Subdivision Section One (the “Agreement”) DATE: May 10, 2022 Members of the Board, Ms. Heffner, and Ms. McDaniels: INDOT has been in negotiations to acquire property for a new maintenance facility on Renewable Energy Drive from Martin Blad Farms, Inc., and, in order to effectuate the purchase, INDOT is required to enter into an Agreement to construct and connect to the City’s water main and construct a sidewalk. The attached Agreement was negotiated over the course of several months between the City’s Legal and Engineering Departments and INDOT, who has had to consult with the Indiana Department of Administration. In general, the terms are consistent with the City’s form of dedicated improvements agreement; modifications were necessary to conform with the State’s standard form of agreement. The key terms of the Agreement are: 1. It will only be effective if the purchase of the property is completed. 2. The State will pay the costs of preliminary engineering, design, construction, and inspection. 3. The City will review the plans to ensure compliance with the City’s standards. 4. The State will provide the City with $2,000 to hire an independent third-party engineer to review the plans, inspect, or test the improvements. 5. The City may inspect the project at any time, and the State will provide prior notice to the City of the following milestones: water main construction and water main taps. 6. The State will dedicate the improvements to the City after one (1) year, provided that no faults or defects are found. 7. The City and the State will cooperate with regard to the placement of the sidewalk. If this Agreement is acceptable and will be approved, please send the signed copy to: Nicolette Mendenhall Attorney Indiana Department of Transportation 100 North Senate Ave., N758 — Legal Services City of South Bend Department of Law Interlocal Cooperative Agreement – INDOT and COSB May 10, 2022 2 Indianapolis, IN 46204 Office: (317) 234-7597 Email: NMendenhall@indot.in.gov Page 1 of 16 INTERLOCAL COOPERATIVE AGREEMENT Between THE INDIANA DEPARTMENT OF TRANSPORTATION And CITY OF SOUTH BEND Concerning DEVELOPMENT OF REAL PROPERTY in RENEWABLE ENERGY DRIVE SUBDIVISION SECTION ONE This Interlocal Agreement (“Agreement”) is made by and between the State of Indiana (“State”), acting by and through the Indiana Department of Transportation (hereinafter referred to as “INDOT”), and the City of South Bend, Indiana, acting by and through its Board of Public Works (hereinafter referred to as the “CITY”), collectively 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 seeks to develop and construct a new maintenance facility for its Mishawaka region, which will also include a salt building and an equipment storage building (hereafter, “Mishawaka Unit Site”); and WHEREAS, INDOT has located real property in the CITY that INDOT has determined would be an ideal location for the Mishawaka Unit Site, based on the location of the Property, due to its access to state roads INDOT is responsible for maintaining, as well the available size of the property for sale; and WHEREAS, INDOT is seeking to purchase a portion of this real property (“Property”) pursuant to the terms and conditions outlined in the Real Estate Offer and Purchase Agreement (“Purchase Agreement”), attached as Exhibit 1 and incorporated by reference, from Martin Blad Farms, Inc. (“Seller”); a copy of the real estate description for the Property is attached to the Purchase Agreement as Exhibit A, incorporated by reference; and WHEREAS, INDOT seeks to complete all necessary development, design, engineering, construction, and other work needed to construct the Mishawaka Unit Site (the “Facility Project”) and has an interest in ensuring that it has the ability to oversee the professionals and contractors involved with the development of the Property to ensure that all services and work performed are to INDOT’s satisfaction; and WHEREAS, the Seller cannot proceed forward with the sale of the Property to INDOT unless the Property is subdivided from the Seller’s larger parcel, and under Indiana law, this subdivision approval comes from the CITY; and WHEREAS, INDOT seeks to enter into an agreement with the CITY regarding developments needed on the Property, which includes construction and connection of a water main system, as well as other specific improvements, to provide assurances needed for the CITY to approve a subdivision of the Property from the Seller’s larger parcel; and Page 2 of 16 WHEREAS, the Parties agree that it is in their mutual interest that Mishawaka Unit Site be located on the Property, for the convenience and safety of the traveling public, and that they seek to cooperate in the improvement of the Property, with its infrastructure and future improvements; and WHEREAS, it is in the mutual interest of the Parties to have a contract outlining the express terms of their agreements; and NOW THEREFORE, in consideration of the premises and the mutually dependent covenants herein contained, the PARTIES hereto agree as follows: ARTICLE I. PURPOSE, TERM, AND DEFINITIONS 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. 1.2. Purpose. The purpose of this Agreement is to define the respective roles and responsibilities of the PARTIES for the construction, installation, funding, and maintenance of the proposed improvements described within this Agreement. 1.3. Term. This Agreement shall be effective beginning on the date approved as to form and legality by the Office of the Indiana Attorney General (the "Effective Date"). This Agreement shall expire five (5) years after the Effective Date. Sections 2.3, 2.4, and 3.21 of this Agreement shall survive the expiration of this Agreement. 1.4. Termination. This Agreement shall terminate if the following occur: 1.4.1. If INDOT does not acquire the Property, due to the Purchase Agreement between the Seller and INDOT being terminated, this Agreement will be terminated as of the termination date of the Purchase Agreement. 1.4.2. Either party may terminate this Agreement in the event that a party commits a material breach of this Agreement and such breach is not cured within thirty (30) days of written notice to the breaching party. 1.5. “INDOT” or “State.” Within this Agreement, when referring to INDOT or the State, it shall be understood that this includes contractors and professionals hired by INDOT or the State to perform the services contemplated within this Agreement unless otherwise specified herein. 1.6. Scope of Work. The scope of development work contemplated in this Agreement include additions to the CITY’s existing water system to serve the Property, and construction of a sidewalk along public right-of-way. The water main work shall hereafter be referred to as the “Dedicated Improvements.” Page 3 of 16 ARTICLE II. DEVELOPMENT WORK 2.1. Dedicated Improvements. The State shall be responsible for the costs for preliminary engineering, design, construction, and inspection for extending the water main from Calvert Street to the southwest corner of the Property. The State will manage, administer, and inspect the work in accordance with applicable laws and specifications. 2.1.1. The State shall, prior to initiation of construction, provide a copy of the plans for the proposed improvements to the CITY Engineer, to ensure that the improvements conform to the CITY’s standards, and obtain the CITY’s prior authorization before beginning construction of the improvements. The CITY’s authorization shall not be unreasonably withheld. 2.1.2. The CITY grants permission to the State to enter onto the CITY’s property, as needed, to complete work authorized by the CITY pursuant to the terms outlined within this Agreement. 2.1.3. The State shall provide in its contract for the design and construction of the Dedicated Improvements an allowance of up to $2,000.00 that provides the CITY with an ability to hire, at the State’s cost, an independent third-party engineer of the CITY’s choosing for a review of the plans for the proposed improvements, for an inspection of the improvements, or for conducting tests of the improvements. 2.1.4. The State shall allow the CITY to inspect the water main extension improvements during construction to ensure conformance to the agreed standards, in particular with regard to area planning requirements, adequacy of design, and quality of construction. The State shall contact the CITY’s Engineering Department at least two (2) business days in advance to arrange for the attendance of a CITY inspector at key milestones throughout work. If the CITY does not respond within two (2) business days, the State shall proceed. Key milestones shall include but not be limited to: construction of the water main and water main taps. 2.1.5. The State shall ensure that all parts and labor must meet the standards and requirements stated in the contract documents, including the design specifications, as presented to and accepted by the CITY’s Engineering Department. The State shall provide copies of test reports or cut sheets on all materials supplied, including pressure testing reports, leakage testing reports, and bacteria testing reports, and other reports as requested. 2.1.6. The State shall provide the record drawings prepared by the State’s designer. 2.1.7. The State shall require that the consultants and/or contractors hired for the Facility Project, who shall be responsible for designing and constructing the Dedicated Improvements, comply with all applicable licensing standards, certification standards, accrediting standards and any other laws, rules or regulations governing services to be provided to the State, and in addition, execute responsibilities of Page 4 of 16 following and applying at all times the highest professional and technical guidelines and standards. The State shall require from its consultants and/or contractors that their subcontractors or subconsultants adhere to these same standards. The State shall retain the right to remove any individuals or subcontractors who fail to provide satisfactory results. 2.1.8. The State shall notify the CITY when the Facility Project is substantially completed; the CITY shall notify the State of any faults or defects it finds with the Dedicated Improvements no later than one (1) year after substantial completion of the Facilities Project. 2.1.9 If no faults or defects are found within one (1) year after substantial completion of the Facility Project, the CITY shall accept the Dedicated Improvements, and a completion affidavit (“Completion Affidavit”) shall be furnished to the State by the South Bend, Indiana Board of Public Works. If faults or defects are found, the Completion Affidavit shall be furnished immediately after the resolution of these faults and defects. 2.1.10. A breach of Section 2.1 of this Agreement, and its subparts, shall be treated as a material breach of this Agreement. 2.2. Permits. It will be the responsibility of the State’s contractors and consultants to obtain all permits associated with any work contemplated within this Agreement that will take place within CITY easements, CITY right-of-way, or on or to CITY property, including the water main, and to comply with all applicable laws. The contractors and consultants, in addition, shall notify the CITY of their intent of entering onto City owned right-of-way by first seeking a permit from the CITY and shall not conduct any activities that could impact traffic without first obtaining approval from the CITY of a maintenance of traffic plan that complies with the Indiana Manual on Uniform Traffic Control Devices. 2.3. Maintenance of Dedicated Improvements. After the CITY has accepted the Dedicated Improvements, through its issuance of the Completion Affidavit, the City shall be responsible for all maintenance associated with the Dedicated Improvements. The State shall be responsible for the maintenance of its lateral lines that connect to the Dedicated Improvements. 2.4 The Property. 2.4.1. The Parties agree that the CITY’s approval of the subdivision of the Property is contingent upon the INDOT’s execution of the terms of this Agreement, and if this Agreement is terminated under Section 1.4.1, that CITY can exercise its authority to revoke its subdivision approval or exercise other rights it has under Indiana law regarding any subdivision approval it provided to the Seller. 2.4.2. INDOT shall not be responsible for dedicating an easement to the CITY for the Dedicated Improvements; any easement (“Dedicated Easement”) needed by the CITY to the Dedicated Improvements shall be obtained by the CITY from the Seller during the subdivision process or prior to the subdivision process. INDOT shall install the Dedicated Improvements into any Dedicated Easement obtained by the Page 5 of 16 CITY; to the extent INDOT determines that Dedicated Improvements needs to be installed in a location other than the Dedicated Easement, INDOT shall obtain the CITY’s prior approval, and in addition, shall be responsible for revising the location of the Dedicated Easement so that records in the Office of the Recorder of St. Joseph County correctly reflect the location of the Dedicated Improvements as being in a dedicated easement in favor of the City. 2.4.3. Sidewalk. The State agrees to construct a sidewalk on the Property along the public right-of-way. The Parties agree to work amicably to determine the best location for a sidewalk; prior to initiation of construction, the State provide a copy of the plans portraying the proposed sidewalk to the City Engineer or her designee to ensure that the improvements will be in the location desired by the City and to ensure that the improvements shall conform to the CITY’s standards, and obtain the CITY’s prior approval before beginning construction of the improvements 2.5. System Development Charges. INDOT is authorized to connect into the sanitary sewer main and water main with a lateral line. Compensation to be paid by INDOT shall include: 2.5.1. Within sixty (60) days of INDOT obtaining approval of plans described in Section 2.1.1 of this Agreement or at the time of application for connection, INDOT shall pay to the CITY a system development charge in the total amount of Two Thousand Nine Hundred Sixteen Dollars ($2,916.00) for access to the City’s water and sewer sanitary systems set forth as Exhibit 2, attached and incorporated by reference. 2.5.2. The system development charge is INDOT’s capital contribution to the City’s water and sanitary sewer systems and is based on the estimated proportional share of INDOT’s use of the CITY’s water and sewer sanitary systems; if INDOT’s use exceeds the initial predicted level, INDOT may be required to provide an additional capital contribution. If the CITY determines an additional capital contribution is required, it shall provide any needed documentation INDOT requires to understand the charges, and the Parties will resolve by agreement the additional amount to be paid. ARTICLE III. GENERAL PROVISIONS 3.1. Access to Records. The Parties 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 the requesting party, or its authorized representative, and copies thereof shall be furnished free of charge, if requested by such party. Each party agrees that, upon request by a party or state or federal agency, a party may release or make available to a requesting state or federal agency any working papers from an audit performed 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. 3.2. Assignment; Successors. Each party binds its successors and assignees to all the terms and Page 6 of 16 conditions of this Agreement. Except as otherwise specifically provided herein, neither party shall assign or subcontract the whole or any part of this Agreement without the other party’s prior written consent. 3.3. 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. 3.4. Audits. Each party 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. 3.5. Authority. The signatory for each party represents that he/she has been duly authorized to execute this Agreement on behalf of said party and has obtained all necessary or applicable approvals to make this Agreement fully binding said party when his/her signature is affixed and accepted by the State. 3.6. Amendments. This Agreement may only be amended, supplemented or modified by a written document executed in the same manner as this Agreement. 3.7. Compliance with Laws. A. Each party shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances, and all provisions required thereby to be included herein are hereby incorporated by reference. The enactment 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. Each party 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 a party 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, then such party shall ensure compliance with the disclosure requirements in IC 4-2-6-10.5 prior to the execution of this Agreement. If a party is not familiar with these ethical requirements, such party should refer any questions to the Indiana State Ethics Commission or visit the Inspector General’s website at http://www.in.gov/ig/. If either party or its agents violate any applicable ethical standards, the non-violating party may, in its sole discretion, terminate this Agreement immediately upon notice to the violating party. In addition, the violating party 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.] Page 7 of 16 E. [OMITTED – NOT APPLICABLE.] F. The State warrants that it shall require that its contractors to obtain and maintain all 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. G. [OMITTED – NOT APPLICABLE.] H. As required by IC §5-22-3-7: 1. The parties each certify that: (A) the certifying party, 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 certifying party 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 parties each certify that an affiliate or principal of the certifying party and any agent acting on behalf of the certifying party or on behalf of an affiliate or principal of the certifying party, 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. 3.8. Condition of Payment. [OMITTED – NOT APPLICABLE.] 3.9. Confidentiality of State Information. [OMITTED – NOT APPLICABLE.] 3.10. Continuity of Services. [OMITTED – NOT APPLICABLE.] 3.11. Debarment and Suspension. A. Each party 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 Page 8 of 16 Indiana. The term “principal” for purposes of this Agreement 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 certifying party. B. [OMITTED – NOT APPLICABLE.] 3.12. Default by State. [OMITTED – NOT APPLICABLE.] 3.13. Disputes. A. Should any disputes arise with respect to this Agreement, the parties agree to act immediately to resolve such disputes. Time is of the essence in the resolution of disputes. B. The parties agree that, the existence of a dispute notwithstanding, it will continue without delay to carry out all of its responsibilities under this Agreement that are not affected by the dispute. Should the parties fail to continue to perform their respective responsibilities regarding all non-disputed work, without delay, any additional costs incurred by the State or the CITY as a result of such failure to proceed shall be borne by the party failing to fulfill its obligations hereunder, and such party shall make no claim against the other party for such costs. C. This paragraph shall not be construed to abrogate provisions of IC § 4-6-2-11 in situations where dispute resolution efforts lead to a compromise of claims in favor of the State as described in that statute. In particular, releases or settlement agreements involving releases of legal claims or potential legal claims of the State should be processed consistent with IC § 4-6-2-11, which requires approval of the Governor and Attorney General. 3.14. Drug-Free Workplace Certification. As required by Executive Order No. 90-5 dated April 12, 1990, issued by the Governor of Indiana, the parties hereby covenant and agree to make a good faith effort to provide and maintain a drug-free workplace. A party will give written notice to the other party within ten (10) days after receiving actual notice that the notifying party, or an employee of such party, 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. 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 notifying party 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 party’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 party’s policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation and employee assistance Page 9 of 16 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 party of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction; 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 local health, law enforcement, or other appropriate agency; and F. Making a good faith effort to maintain a drug-free workplace through the implementation of subparagraphs A. through E. above. 3.15. Employment Eligibility Verification. As required by IC §22-5-1.7, each party swears or affirms under the penalties of perjury that it does not knowingly employ an unauthorized alien. The certifying party further agrees that: A. It 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 certifying party is not required to participate should the E-Verify program cease to exist. B. It shall not knowingly employ or contract with an unauthorized alien. The certifying party shall not retain an employee or contract with a person that it subsequently learns is an unauthorized alien. C. It shall require its subcontractors, who perform work under this Agreement, to certify 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 certifying party agrees to maintain this certification throughout the duration of the term of a contract with a subcontractor. Either party may terminate for default if the certifying party fails to cure a breach of this provision no later than thirty (30) days after being notified. 3.16. Employment Option. [OMITTED – NOT APPLICABLE.] 3.17. 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 Page 10 of 16 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 party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement. 3.18. Funding Cancellation Clause. When the Director of the State Budget Agency makes a written determination that funds are not appropriated or otherwise available to support continuation of performance of this contract, the contract shall be canceled. A determination by the Director of the State Budget Agency that funds are not appropriated or otherwise available to support continuation of performance shall be final and conclusive. 3.19. Governing Laws. 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. 3.20. HIPAA Compliance. [OMITTED – NOT APPLICABLE.] 3.21. Hold Harmless. Each Party agrees to exculpate, defend, and hold harmless the other Party, and its 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 party, including any claims arising out the Worker's Compensation Act or any other law, ordinance, order or decree. This hold harmless shall not extend to any contractors hired by the PARTIES. The State, in its contract for designing and constructing the Dedicated Improvements, shall obtain indemnification from its contractor. 3.22. Independent Entity. Each party 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. 3.23. Indiana Veteran Owned Small Business Enterprise Compliance. [OMITTED – NOT APPLICABLE] 3.24. Information Technology Enterprise Architecture Requirements. [OMITTED – NOT APPLICABLE.] 3.25. Insurance. INDOT shall ensure that its contractors shall secure and keep in force during the term of this Agreement appropriate insurance coverage, in compliance with INDOT policies and standard specifications, covering the State and naming the CITY as an additional insured, for any and all claims of any nature which may in any manner arise out of or result form performance of work on the Dedicated Improvements contemplated under this Agreement. Page 11 of 16 3.26. Key Person(s). [OMITTED – NOT APPLICABLE.] 3.27. Licensing Standards. [OMITTED – NOT APPLICABLE.] 3.28. 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 the necessary parties. 3.29. Minority and Women’s Business Enterprises Compliance. [OMITTED - NOT APPLICABLE.] 3.30. Non-Discrimination. 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, each party 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”). Each party 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. 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. 3.31. 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: ATTN: Steve McAvoy Indiana Department of Transportation 100 North Senate Avenue, N758—Facilities Management Indianapolis, IN 46204 SMcAvoy@indot.IN.gov With Copy To: ATTN: Chief Legal Counsel and Deputy Commissioner Indiana Department of Transportation 100 North Senate Avenue, N758—Legal Services Indianapolis, IN 46204 B. For the CITY: Page 12 of 16 Kara Boyles, City Engineer City of South Bend County-City Building, 13th Floor N 227 West Jefferson Blvd. South Bend, Indiana 46601 With a copy to: Corporation Counsel City of South Bend County-City Building, 12th Floor N 227 West Jefferson Blvd. South Bend, Indiana 46601 3.32. Order of Precedence; Incorporation by Reference. [OMITTED – NOT APPLICABLE.] 3.33. Ownership of Documents and Materials. [OMITTED – NOT APPLICABLE.] 3.34. Payments. A. All payments to the CITY, if any, shall be made thirty-five (35) days in arrears in conformance with State fiscal policies and procedures and, as required by IC § 4-13-2- 14.8, the direct deposit by electronic funds transfer to the financial institution designated by the CITY in writing unless a specific waiver has been obtained from the Indiana Auditor of State. No payments will be made in advance of receipt of the goods or services that are the subject of this Agreement except as permitted by IC § 4-13-2-20. B. [Omitted-Not Applicable] 3.35. 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. 3.36. Progress Reports. [OMITTED – NOT APPLICABLE.] 3.37. 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. 3.38. 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. Page 13 of 16 3.39. 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. 3.40. 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. 3.41. 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. 3.42. Taxes. Neither party is to be responsible for any taxes levied on the other party or its contractors as a result of this Agreement. 3.43. 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. 3.44. Termination for Default. [OMITTED – NOT APPLICABLE.] 3.45. Travel. [OMITTED – NOT APPLICABLE.] 3.46. 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. 3.47. Work Standards. [OMITTED – NOT APPLICABLE.] 3.48. State Boilerplate Affirmation Clause. [OMITTED – NOT APPLICABLE.] THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK Page 14 of 16 Non-Collusion and Acceptance The undersigned attests, subject to the penalties for perjury, that the undersigned is the Party, or that the undersigned is the properly authorized representative, agent, member, or officer of the Party. Further, to the undersigned’s knowledge, neither the undersigned nor any other member, employee, representative, agent or officer of the Party, directly or indirectly, has entered into or been offered any sum of money or other consideration for the execution of this Agreement other than that which appears upon the face hereof. Furthermore, if the undersigned has knowledge 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 Party attests to compliance with the disclosure requirements in IC 4-2-6-10.5. In Witness Whereof, the PARTIES have, through their duly authorized representatives, entered into this Agreement. The PARTIES, having read and understood the foregoing terms of this Agreement, do by their respective signatures dated below agree to the terms thereof. Agreement to Use Electronic Signatures I agree, and it is my intent, to sign this Agreement by accessing State of Indiana Supplier Portal using the secure password assigned to me and by electronically submitting this Agreement to the State of Indiana. I understand that my signing and submitting this Agreement in this fashion is the legal equivalent of having placed my handwritten signature on the submitted Agreement and this affirmation. I understand and agree that by electronically signing and submitting this Agreement in this fashion I am affirming to the truth of the information contained therein. I understand that this Agreement will not become binding on the State until it has been approved by the Office of the Attorney General, which approvals will be posted on the Active Contracts Database: https://fs.gmis.in.gov/psp/guest/SUPPLIER/ERP/c/SOI_CUSTOM_APPS.SOI_PUBLIC_CNTRCTS.GBL May 24, 2022 Page 15 of 16 STATE OF INDIANA Indiana Department of Transportation Recommended for approval by: Matthew K. Deitchley LaPorte District Deputy Commissioner Date: Executed By: (FOR) Michael Smith, Commissioner Date: Prepared by: Nicolette Mendenhall, Attorney No. 27964-49 Indiana Department of Transportation Page 16 of 16 APPROVALS STATE OF INDIANA State Budget Agency ______________________________ (for) Zachary Q. Jackson, Director Date: _________________________ Department of Administration ______________________________ (for) Rebecca Holwerda, Commissioner Date: _________________________ Approved as to Form and Legality: _______________________________(for) Theodore E. Rokita, Attorney General Date: _________________________ BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 5/10/2022 Name Sandra Kennedy/Charlotte Brach Department Legal/Engineering BPW Date May 10, 2022 Phone Extension Ext. 9241 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 Sandra Kennedy 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: 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 Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Contract with INDOT for its connection to City’s water main. 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: