HomeMy Public PortalAbout053-2005 - City/County Utility ReimbursCITY/COUNTY UTILITY REIMBURSEMENT AGREEMENT
Agreement Amount $43,710
Agreement Type
Work Description Relocation of
approximately 100' of 16" water main
Des No. 0088830
Project No. STP-9989 ( )
Road Reid Parkway
County Wayne
THIS AGREEMENT, made and entered into this % 4,104' day of�
20 , by and between Indiana American Water Company Inc.
(hereinafter referred to as the "Utility"), and City of Richmond Indiana
acting by and through its appropriate elected official, (hereinafter referred to as the "Local Public
Agency").
WITNESSETH:
WHEREAS, the Local Public Agency desires to improve and/or maintain the condition
of the above referenced road and has determined that the construction designated by the above
project number (hereinafter referred to as the "project") is necessary for the improvement and/or
maintenance of the roadway;
WHEREAS, the State of Indiana, through the Indiana Department of Transportation,
(hereinafter referred to as "State") has agreed to recommend approval of this project to the
Federal Highway Administration for construction with funds apportioned to the State under Title
23, United States Code and Acts amendatory thereof and supplementary thereto;
WHEREAS, the State will advertise for bids for construction of the project, award the
contract, supervise the construction of the project and act as liaison agent for the Local Public
Agency with the Federal Highway Administration;
WHEREAS, the project will require certain adjustments, removals, alterations and/or
relocations of the existing facilities of the Utility will have to be made as shown on the plan
marked Exhibit "A", & attached hereto and incorporated by reference;
WHEREAS, it is necessary for the parties hereto to comply with the applicable terms and
provisions of the Federal -Aid Policy Guide (hereinafter called the Policy Guide), dated
December 9, 1991, and 23 CFR 645 Subpart A, incorporated by reference, in order to receive
reimbursement for the costs of the adjustments, removals, alterations and/or relocations of the
existing facilities of the Utility;
Contract No. 53-20Q5
Page 1 of 8
WHEREAS, it is in the best interests of the Utility and the Local Public Agency, for the
Utility to make the necessary adjustments, removals, alterations and/or relocations of its existing
facilities as shown on Exhibit "A" with the Utility's regular construction and maintenance forces,
or by a contractor paid under a contract let by the Utility.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE
MUTUAL AGREEMENTS AND COVENANT HEREIN CONTAINED (THE
ADEQUACY OF WHICH CONSIDERATIONS AS TO EACH OF THE
PARTIES TO THIS AGREEMENT IS HEREBY MUTUALLY
ACKNOWLEDGED), AND OTHER GOOD AND VALUABLE
CONSIDERATIONS, THE RECEIPT OF WHICH IS HEREBY
ACKNOWL.EDGED AND INTENDING TO BE LEGALLY BOUND, THE
PARTIES HEREBY COVENANT AND AGREE AS FOLLOWS:
SECTION I - DESCRIPTION OF WORK AND ITEMIZED COST ESTIMATE
The Utility shall make the necessary adjustments, removals, alterations and/or relocations
to its existing facilities in the following manner: [Circle (1) and/or (2)]
(1) With its regular construction or maintenance crew and personnel at its standard
schedule of wages and working hours.
a
By an approved contractor as set forth in 23 CFR 645.109, 645.111 and/or 645.115.
The preliminary itemized cost estimate for this project is set forth in attached Exhibit
"B", incorporated by reference, and prepared in accordance with 23 CFR 645.113.
Exhibit `B" shall include an itemized estimate of all anticipated costs, including but not
limited to, materials, labor, equipment costs, preliminary and construction engineering costs,
administrative costs, eligible property costs, and or contracted services. Each item shall be shown
as a `per unit' cost. Professional services cannot be listed as a percentage of the total cost.
SECTION II - WORK COMMENCEMENT
The Utility shall not start work on the adjustments, removals, alterations and/or
relocations covered by this agreement until written authorization has been given the Utility by
the Local Public Agency or until a satisfactory starting date has been established with the Local
Public Agency's project coordinator.
SECTION III - SUBORDINATION OF RIGHTS
The existing facilities (are) (are not) located on public right-of-way. If such facilities are
located on property, other than public right-of-way, and the Utility either has an easement
thereon or a continuing right to maintain the facilities in that location, the Utility, for and in
consideration of this agreement, shall subordinate the Utility's rights to those of the Local Public
Page 2 of 8
Agency in the highway right-of-way prior to final payment by executing an individual
subordination agreement.
SECTION IV - MATERIAL ALTERATIONS DUE TO CHANGED AND UNFORESEEN
CIRCUMSTANCES
The Utility shall modify its facilities in accordance with the plans, specifications, and
estimates shown in Exhibits "A" and "B". No work shall be performed by the Utility beyond the
scope contemplated by Exhibits "A" and `B" without prior written authorization by the Local
Public Agency.
In the event there are changes in the scope of work, extra work, or major change in the
planned work covered by the approved agreement, plans, and estimate the Utility shall inform
the Local Public Agency as soon as practical upon discovery. The Utility shall also notify the
Local Public Agency of any material alterations due to unforeseen circumstances as soon as
practical upon discovery. Such notification shall consist of a letter, telephone call, or other
electronic communication confirmed by letter to the address of the Local Public Agency listed on
Page 1 of this agreement.
Notification shall include sufficient information to indicate the nature of the changed or
unforeseen Circumstances, the location of the changed or unforeseen circumstances, and the
impact of the changed or unforeseen circumstances upon the Utility's relocation efforts, cost of
the relocation, the time necessary to complete the relocation, and the extent of relocation.
SECTION V - STANDARD PAYMENT METHOD/PROGRESS BILLING
The Utility may, once the Utility has accumulated $1,000.00 of expenses, submit one
request for payment per calendar month for work covered by this agreement. The utility shall
attach an itemization of costs incurred with each request for payment. This itemization of costs
shall appear in the same form and manner as the preliminary estimate as shown on Exhibit `B".
The Local Public Agency will reimburse the utility for any item of worth or expense involved if
performed at the written direction of the Local Public Agency. The Utility will be reimbursed for
its actual costs of the work described in Exhibit "A" upon presentation of itemized bills to the
Local Public Agency from the Utility.
Progress payments made by the Local Public Agency to the Utility shall not exceed
ninety-seven percent (97%) of the estimated cost of the completed work. Reimbursement for
progress billings shall be paid within sixty (60) days of receipt.
Partial payment shall not abrogate the Local Public Agency's or the State's right to
dispute in good faith the Utility's claim for compensation. Such good faith disputes shall be
resolved upon presentation of the Utility's final request for payment and the resolution of any
audit performed in accordance with Section IX of this agreement.
Page 3 of 8
SECTION VI - LUMP SUM PAYMENT METHOD
The Utility may elect to petition the Local Public Agency for payment of its expenses by
Lump Sum. Such petition shall include Exhibits "A" and "B" along with a detailed explanation
requesting payment by lump sum and showing how all individuals will be best served by this
payment method.
The Local Public Agency may make payment to the utility by lump sum if the total cost
for the adjustments, removals, alterations, and/or relocations do not exceed $25,000.00. Lump
sum payments in excess of $25,000 will be made only if in the best interests of the public in
accordance with 23 CFR 645.113(f) and approved by the Federal Highway Administration.
If a lump sum payment is approved, the Utility shall submit one request for payment no
later than ninety (90) days after the work is completed. No amount in excess of the agreed
amount in Exhibit `B" shall be reimbursed.
SECTION VII - FINAL BILL
The Utility shall present its final itemized bill accompanied by an itemized cumulative
invoice within ninety (90) days of completion of its work. All documents required to substantiate
any claims for payment shall be submitted with this final itemized bill. Such supporting
documentation shall include, but shall not be limited to, copies of material invoices, time sheets,
vendor and/or contractor invoices and other such documents as may be deemed by the State to
support such invoice.
Upon receipt of a final bill, the Utility shall be reimbursed for such items of project work,
expense and retainage within ninety (90) days after the resolution and issuance of any audit
performed in accordance with Section IX.
SECTION VIII — RECORDS
The Utility accounts and the accounts and records of any contractor or subcontractor
involved in carrying out the proposed work shall be kept in such manner that they may be readily
audited and actual costs determined, and sueh accounts shall be available for audit by auditors of
the State, the Federal Highway Administration, and/or the Local Public Agency for a period of
not less than three (3) years from the date final payment has been received by the Utility in
accordance with 23 CFR 645.117.
Upon completion of the Utility's work, the Indiana Department of Transportation's
Division of Accounting and Control may audit the Utility's records to determine the cost of
relocation. Such audit shall be in accordance with generally accepted auditing standards and the
appropriate cost principles as set forth in 48 CFR Part 31.
If the audit resolution shows that the Utility has been overpaid, the Local Public Agency
shall bill the Utility for such overpayment and provide supporting documentation. The Utility
Page 4of8
shall pay the Local Public Agency within thirty-five (35) days after receipt of such bill and the
Local Public Agency shall remit the Federal share to the State.
SECTION IX - DISCRIMINATION
Pursuant to IC 22-9-1-10, the Utility, its Contractor and subcontractors, if any, shall not
discriminate against any employee or applicant for employment, to be employed in the
performance of this contract, with respect to hire, tenure, terms, conditions or privileges of
employment or any matter directly or indirectly related to employment, because of race, color,
religion, sex, disability, national origin or ancestry. Breach of this covenant may be regarded as a
material breach of contract.
The Utility shall comply with the Regulations relative to Nondiscrimination in federally -
assisted programs of the Department of Transportation Title 49, code of Federal Regulations,
Part 21, as they may be amended from time to time, incorporated by reference.
SECTION X - GENERAL LIABILITY PROVISIONS
The Utility for itself, its employees, agents and representatives, shall indemnify, protect
and save harmless the Indiana Department of Transportation, the State of Indiana, and the Local
Public Agency from and against any and all legal liabilities and other expenses, claims, costs,
losses, suits or judgments for damages, or injuries to or death of persons or damage to or
destruction of property (hereafter "claim"), arising out of intentional tortious acts or whether due
in whole or in part to the negligent acts or omissions of the Utility, its employees or agents or
contractors, in relation to or in connection with any work performed or to be performed pursuant
to this agreement, provided however, that where said Department of Transportation and/or the
Local Public Agency has been found liable by a court, tribunal or governing body entitled to
make such a determination for intentional tortious acts and/or negligence with respect to the
occurrence or occurrences giving rise to the claim, the Utility shall have no duty to indemnify,
protect, or save harmless either the Department of Transportation, the State, or the Local Public
Agency.
SECTION XI - INCORPORATION OF THE UTILITY POLICY GUIDE
The Policy Guide .forms an essential part of this agreement, and the terms or provisions of
this agreement in no way abrogate or supersede the terms or provisions set forth in said Policy
Guide.
SECTION XII - PENALTIES/INTEREST/ATTORNEY'S FEES
The Local Public Agency will in good faith perform its required obligations hereunder
and does not agree to pay any penalties, liquidated damages, interest, and/or attorney's fees,
except as required by Indiana law, in part, IC 5-1 7-5-1 etseq.
Page 5of8
SECTION XIII - GOVERNING LAWS
This contract shall be construed in accordance with and governed by the laws of the State
of Indiana and suit, if any, must be brought in the State of Indiana.
SECTION XIV - BINDING UPON SUCCESSORS OR ASSIGNS
This agreement shall be binding upon the parties and their successors and assigns.
SECTION XV - NON -COLLUSION AFFIDAVIT
The Utility shall execute a Non -Collusion Affidavit, notarized with a seal, which is
attached hereto and incorporated by reference. If the Utility is a governmental entity, the
execution of a Non -Collusion affidavit shall not be required.
SECTION XVI - MAINTAINING A DRUG -FREE WORKPLACE
(A) The Utility and its subcontractors, if any, covenant and agree to make a good faith
effort to provide and maintain during the term of this agreement a drug -free workplace, and that
written notice will be given to the contracting Local Public Agency and the Indiana Department
of Administration within ten (10) days after receiving actual notice that an employee of the
Utility has been convicted of a criminal drug violation occurring in the Utility's workplace.
(B) In addition to the provisions of paragraph (A) above, if the total contract amount set
forth in this agreement is in excess of $25,000.00, the Utility and its subcontractors, if any,
hereby further agree that this agreement is expressly subject to the terms, conditions and
representations contained in the Drug -Free Workplace certification executed by the Utility in
conjunction with this agreement and which is appended as an attachment hereto.
(C) It is further expressly agreed that the failure of the Utility and its subcontractors, if
any, to in good faith comply with the terms of paragraph (A) above, or falsifying or otherwise
violating the terms of the certification referenced in paragraph (B) above, shall constitute a
material breach of this agreement, and shall entitle the State and the Local Public Agency to
impose sanctions against the Utility and its subcontractors, if any, including, but not limited to,
suspension of contract payments, termination of this agreement and/or debarment of the Utility
and its subcontractors, if any, from doing business with the State and the Local Public Agency
for up to three (3) years.
Page 6of8
IN WITNESS HEREOF, the parties hereto separately and severally have caused this instrument to
be executed in their respective names by and through their duly authorized officers.
THE UTILITY:
Indiana -American Water Co., Inc.
(Utility Name)
y, ,/
(Signature of fficer)
Alan J. DeBoy
(Officer's Name, Printed or Typed)
Director, Engineering (Central Region)_)
(Officer's Position)
State of Indiana
ATTEST:
(Secretary of Utilityity�ture)
Sharon J. Keeney
(Secretary's Name, Printed or Typed)
Business Process Supervisor/
Assistant Secretary, IN
ACKNOWLEDGEMENT
County of Johnson SS:
Before me, the undersigned Notary Public in and for said County and State, personally appeared
Alan J. DeBoy, Director -Engineering 6 Sharon J. Keeney, Business Process Suprvr.
(Names and offices of signers of Utility)
Indiana -American Water Company, Inc.
(Name of Utility)
and acknowledged the execution of the foregoing contract on this 12tlday of November ,
2004 Witness my hand and seal the said Last day.
My Commission Expires &t �... " 1<4 A.
Decemhhr 15, 2009 (Sigghature)
Rj
Marilyn Kay Ratliff
(Seal) (Printed or Typed) (Notary Public)
Page 7 of 8
FOR:
(Name of Vb6al Public Agency)
BY:
(Typed or Printed Name)
(Typed or Printed Name)
)-� 2��X "'jo -Q'Z�4
M L<'L/� Jo jS u0 d
(Typed or Printed Name)
ATTEST:
(Typed or Printed Name)
ACKNOWLEDGEMENT
State of Indiana, County of Y—A-&Y � SS:
Before me, the undersigned Notary Public in and for said County and State, personally appeared
and acknowledged the execution of the foregoing contract on this-4ay of ,
204�. Witness my hand and seal the said Last day.
My Commission Expires , %;w
ignature)
(Seal) (Printed or Typed) (Notary Public)
Page 8 of 8
;n
NON -COLLUSION AFFIDAVIT
State Form 4391
STATE OF INDIANA
SS:
COUNTY OF Johnson
The undersigned, being duly swom on oath says, that he is the contracting party, or that he is the representative, agent,
member, or officer of the contracting party, that he has not, nor has any other member, employee, representative, agent or officer of the
firm, company, corporation or partnership represented by him, directly or indirectly, entered into or offered to enter into any
combination, collusion or agreement to receive or pay, and that he has not received or paid, any sum of money or other consideration
for the execution of the annexed contract other than that which appears upon the face of the contract.
Signature
Printed Name
Alan J. DeBoy
Title
Director, Engineering — Central Region
Company
Indiana—AmeriZan Water Company, Inc.
Before me, a Notary Public in and for said County and State personally appeared Alan J. DeBoy
who acknowledged the truth of the statements in the foregoing affidavit on this 12th day of November 2(04
Residence Commission Expiration Date Notary's Name (Print orType)
Henry I December 15, 2009 Marilyn Ray Ratliff
STATE OF INDIANA
DRUG -FREE WORKPLACE CERTIFICATION
Pursuant to Executive Order No. 90-5, April 12, 1990, issued by Governor Evan Bayh, the Indiana Department of
Administration requires the inclusion of this certification in all Contracts with and grants from the State of Indiana in
excess of $25,000.00. No award of a contract or grant shall be made, and no contract, purchase order or agreement, the
total amount of which exceeds $25,000.00, shall be valid unless and until this certification has been fully executed by the
Utility and attached to the contract or agreement as part of the contract documents. False certification or violation of the
certification may result in sanctions including, but not limited to, suspension of contract payments, termination of the
contract or agreement and/or debarment of contracting opportunities with the State for up to three (3) years.
The Utility certifies and agrees that it will provide a drug -free workplace by:
(a) Publishing and providing to all of its employees a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the Utility's
workplace and specifying the actions that will be taken against employees for violations of such prohibitions;
and
(b) Establishing a drug -free awareness program to inform employees about (1) the dangers of drug abuse in the
workplace; (2) the Utility's policy of maintaining a drug -free workplace; (3) any available drug counseling,
rehabilitation, and employee assistance programs; and (4) the penalties that may be imposed upon an
employee for drug abuse violations occurring in the workplace;
(c) Notifying all employees in the statement required by subparagraph (a) above that as a condition of continued
employment the employee will (1) abide by the terms of the statement; and (2) notify the employer of any
criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after
such conviction;
(d) Notifying in writing the Indiana Department of Transportation and the Indiana Department of Administration
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) take appropriate personnel action against the employee, up to and including
termination; or (2) require such employee to satisfactorily participate in a drug abuse assistance or
rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or
other appropriate agency; and
(f) Making a good faith effort to maintain a drug free workplace through the implementation of subparagraphs (a)
through (e) above.
The undersigned affirms, under the penalties for perjury, that he or she is authorized to execute this certification on
behalf of the designated organization.
Indiana —American Water Company, Inc.
Printed Name of Organization
g& 4�
Signature of Autherized Rep sentative
Alan J. DeBoy, Director —Engineering
Printed Name and Title (Central Region)
STP-9g890 Loo88830
Project No./Des. No.
11/12/04
Date