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HomeMy WebLinkAbout7905RESOLUTION NO. 7905 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND THE COLORADO DEPARTMENT OF TRANSPORTATION, RELATING TO THE EL PUEBLO ARCHAEOLOGICAL SITE INVESTIGATION PROJECT AND AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PUEBLO, COLORADO, that: SECTION 1 An agreement dated June 24, 1996, between the City of Pueblo, a Municipal Corporation, and Colorado Department of Transportation, a copy of which is attached hereto and on file at the office of the City Clerk, having been approved as to form by the City Attorney, is hereby approved. SECTION 2 The President of the City Council is hereby authorized to execute and deliver said Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest same. SECTION 3 This resolution shall become effective upon final passage. INTRODUCED: JUNE 24, 1996 BY: Cathy Garcia COUNCIL PERSON APPROVED: / J P IDENT OF CITY COUNCIL ATTEST: CITY LERK STE M086 -020 (11122) Routing Number 96 HA2 01005 "El Pueblo" Archaeological Site Investigation City of Pueblo - Region 2 (TDR) CONTRACT /� THIS CONTRACT, made this Oac�day of UI% 19 `7(0 by and between the State of Colorado for the use afid benefit of THE COLORADO DEPARTMENT OF TRANSPORTATION, hereinafter referred to as "CDOT" or "the State ", and the CITY OF PUEBLO, 211 East D Street, Pueblo, CO 81003, (FEIN 84000615), hereinafter referred to as "the Local Agency" or "the Contractor ", WHEREAS, authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a suffi- cient unencumbered balance thereof remains available for payment of project and Local Agency costs in Fund Number 400, Appropriation Code 010, Contract Encumbrance Number 11122 (Contract Encumbrance Amount $140,000.00); and WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, pursuant to Title I, Part A, Section 1007 (c) of the Intermodal Surface Transportation Efficiency Act of 1991, certain Federal funds have been and will in the future be, allocated for the "provision of facilities for pedestrians and bicycles, acquisition of scenic easements and scenic or historic sites, scenic or historic highway programs, landscaping and other scenic beautification, historic preservation, rehabilitation and operation of historic transportation buildings, structures or facilities (including historic railroad facilities and canals), preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails), control and removal of outdoor advertising, archaeological planning and research, and mitigation of water pollution due to highway runoff. "; and WHEREAS Federal -aid funds have been made available for a project, identified as the El Pueblo Archaeological Site Investiga- tion for archaeological investigation, testing and preservation of -I- the historic El Pueblo site in the City of Pueblo, Colorado, such project activity being hereinafter referred to as the work; and WHEREAS, the Local Agency has submitted initial design data (D.O.H. Form 463) , dated 12/5/95, to the State setting forth therein preliminary details, information and estimates of cost of this work, which data has been approved by the State; and WHEREAS, the matching ratio for this Federal -aid project is 80% Federal -aid funds to 20% Local Agency funds, it being under- stood that such ratio applies only to such costs as are eligible for Federal participation, it being further understood that all non - participating costs are borne by the Local Agency at 100 %; and WHEREAS, the Local Agency has estimated the total cost of the work and is prepared to provide its share of the cost as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, a copy of which is attached hereto and made a part hereof; and WHEREAS, said ordinance or resolution also establishes the authority under which the Local Agency enters into this contract; and WHEREAS, this contract is executed by the State under authority of Sections 24 -92 -101, et seq., 29 -1 -203, 43 -1 -110, 43 -1 -116, 43- 2- 101(4)(c) and 43 -2 -144, C.R.S., as amended; and WHEREAS, the parties hereto desire to agree upon the division of responsibilities with regard to this project; and WHEREAS, the Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily complete portions of the work; and WHEREAS, the State certifies that such work can be more advantageously performed by the Local Agency. NOW, THEREFORE, it is hereby agreed that: I. DESCRIPTION OF THE PROJECT "The project" or "the work" under this contract shall consist of activities associated with the archaeological -2- investigation, testing and preservation of the historic "El Pueblo" site in the City of Pueblo, Colorado . II. COST OF THE PROJECT A. The Local Agency has estimated the total cost of the investigation, testing and preservation of the El Pueblo site to be $140,000.00 which is to be funded as follows: a. Federal participating funds (80% of $140,000) $112,000 b. Local Agency share: (1) Local Agency parti- cipating funds (20% of $140,000) $28,000 (2) The Local Agency non- participating funds $0 Subtotal (Local Agency share) $28,000 Total Funds $140,000 B. The matching ratio for this Federal -aid project is 80% Federal -aid funds to 20% Local Agency funds, it being understood that such ratio applies only to such costs as are eligible for Federal participation, it being further understood that all non - participating costs are borne by the Local Agency at 100 %. The performance of the work shall be at no cost to the State. If the total actual cost of performance of the work exceeds $140,000, and additional Federal funds are made available for the project, the Local Agency shall pay 20% of all such costs eligible for Federal participation and 100% of all non - participating costs. If the total actual cost of performance of the work is less than $140,000, then the amounts of Local Agency and Federal -aid funds will be decreased in accordance with the funding ratio described herein. -3- C. Any eligible Administrative, and Preliminary Engineering expenditures shall not be reimbursed to the Local Agency but shall be credited towards the Local Agency's share of the Federal Participating Funds during construction of the project. D. The maximum amount payable to the Local Agency under this contract shall be $112,000 (100% of the Federal funds) unless such amount is increased by a written supplemental contract. E. It is understood and agreed by the parties hereto that the total cost of the work stated hereinbefore is the best estimate available based on the design data as approved at the time of execution of this contract, and that such cost is subject to revisions agreeable to the parties prior to bid and award of any contract for the work. F. The parties hereto agree that this contract is contingent upon all funds designated for the project herein being made available from Federal and Local Agency sources. Should these sources, either Federal or Local Agency, fail to provide necessary funds as agreed upon herein, the contract may be terminated by either party. Any party terminating its interest and obligations herein shall not be relieved of any financial obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. III. STATE COMMITMENTS A. The State will provide liaison with the Local Agency through the State's Project Manager, Richard Annand, located at CDOT, Region 2, 905 Eire Ave., P. O. Box 536, Pueblo, Colorado 81002. Said Project Manager will also be responsible for coordinating the State's activities under this contract. Said Manager will also issue a -4- "Notice to Proceed" to the Local Agency for commencement of the work. B. The State will reimburse the Local Agency for the Federal -aid share of the project charges following the State's review and approval of such charges. Charges incurred by the Local Agency prior to the date of FHWA authorization for the project will not be charged to the project. C. The State will review any construction plans, special provisions and estimates related to the work and will cause the Local Agency to make those changes necessary to assure compliance with State and FHWA requirements. The Local Agency will afford the State ample opportunity to review the construction plans, special provisions and estimates, as changed and said plans shall be considered final when approved and accepted by the parties hereto. The final plans are incorporated herein by this reference. D. In the event all or part of the construction work is to be contracted, the State will establish appropriate Disadvantaged Business Enterprise (DBE) goals for the construction contract(s). E. The State will perform a final project inspection prior to project acceptance as a Quality Control activity. When all project work has been satisfactorily completed, the State will sign the FHWA form 1446C. IV. LOCAL AGENCY COMMITMENTS A. The Local Agency will prepare and submit to the State monthly charges for costs incurred relative to the project. The Local Agency will prepare project charges in accordance with the State's standard policies, proce- dures, and standardized billing format attached hereto and made a part hereof. Charges incurred by the Local -5- Agency prior to the date of FHWA authorization of the project will not be charged to the project. B. The Local Agency shall maintain all books, documents, papers, accounting records and other evidence pertaining to costs incurred and to make such materials available for inspection at all reasonable times during the contract period and for 3 years from the date of final payment to the Local Agency. Copies of such records shall be furnished by the Local Agency if requested. C. The Local Agency will maintain and operate any improve- ments constructed under this contract, at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and will make ample provision for such maintenance each year. Such mainte- nance and operations shall be in accordance with all applicable statutes and ordinances, and regulations promulgated thereunder, which define the Local Agency's obligation to maintain such improvements. The State and FHWA will make periodic inspections of the project to verify that such improvements are being adequately maintained. D. The Local Agency will comply with the applicable provi- sions of the State's approved Action Plan, including all Federal directives contained therein by reference. E. The Local Agency may enter into a contract with a consultant to do all or any portion of the proposed work. In the event that Federal -aid funds provided herein are to participate in the cost of work to be done by a consultant, the contract shall comply with applicable requirements of Federal Aid Policy Guide (FAPG) . The contract with the consultant shall be preceded by an acceptable proposal and may not be executed or awarded until the selection of the consultant and terms of the contract shall have been approved by the State and the 0 Federal Highway Administration (FHWA). All changes in the contract shall be by written supplemental agreement and must have prior approval of the State and FHWA. As soon as the contract with the consultant has been awarded, one copy of the executed contract shall be submitted to the State. Any supplemental agreements shall be similarly submitted. Any consultant billings shall comply with the State's standardized consultant billing format. Examples of the billing formats for the various methods of contract payment are attached hereto and made a part hereof. F. The Local Agency will be responsible to perform acquisition and relocation assistance that may be necessary for the project, as required by Section 24 -56 -101, et seq., C.R.S. However, if the State determines that such performance by the Local Agency will jeopardize or is jeopardizing distribution of federal assistance funds, or that action by the State is necessary to comply with federal policy or procedures, then the State, in its discretion, may perform the acquisition and relocation assistance itself or may supervise and direct the Local Agency in the performance of such acquisition and assistance. Prior to taking such action, the State will provide written notice to the Local Agency of the basis of such determination or action and will meet with the Local Agency to discuss possible remedial measures. Prior to this project being advertised for bids, the Local Agency will certify in writing to the State that all right of way has been acquired in accordance with the applicable State and Federal regulations, or that no additional right of way is required. G. The Local Agency will be responsible for obtaining the proper clearance or approval from any utility company -7- which may become involved in this project, by separate agreement between the Local Agency and the utility, if necessary. Prior to this project being advertised for bids, the Local Agency will certify in writing to the State that all such clearances have been obtained. H. In the event the project involves modification of a railroad company's facilities at a railroad grade crossing whereby the work is to be accomplished by railroad company forces, the Local Agency shall make application to the Public Utilities Commission requesting its order providing for the installation of the proposed improvements. The Local Agency shall also establish contact with the railroad company involved for the purpose of: 1. Executing an agreement setting out what work is to be accomplished and the location(s) thereof, and that the costs of the improvement shall be eligible for Federal participation. 2. Obtaining the railroad's detailed estimate of the cost of the work. 3. Establishing future maintenance responsibilities for the proposed installation. 4. Prescribing future use or dispositions of the proposed improvements in the event of abandonment or elimination of the grade crossing. 5. Establishing future repair and /or replacement responsibilities in the event of accidental de- struction or damage to the installation. I. In the event that the project involves the hiring of a construction contractor the Local Agency in conjunction with the State will advertise the call for bids, and upon concurrence by the State award the construction contract(s) to the lowest responsible bidder(s) . The Local Agency shall have the option to accept or reject 11.11 the proposal of the low bidder for work on which competitive bids have been received. The Local Agency must declare the acceptance or rejection at the award conference or within 3 working days after said bids are publicly opened, whichever occurs later. If the bid is rejected, costs incurred by the State in project development will not be eligible for participation by the FHWA and must be reimbursed to the State by the Local Agency. Following award of the construction contract(s), no further revisions in design data or cost estimate shall be made except by agreement in writing between the parties. By indicating its concurrence in such award, the Local Agency acting by or through its duly authorized representatives, agrees to provide additional funds if required to complete the work under this project if no additional Federal -aid funds will be made available for the project. The total amount of such additional required funds will be determined at the time of final billing as provided herein. K. In the event of any construction on the project the Local Agency shall appoint a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE). Such administration shall consist of project inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing, and inspection activities; preparing and approving pay estimates; preparing, approving, and securing the funding for contract modification orders (CMOs) and minor contract revisions (MCRs); processing contractor claims; and, meeting the Quality Control (QC) requirements of the FHWA /State stewardship program. K. The LAPE shall administer the project in accordance with this agreement, the requirements of the construction U contract, and State procedures. The LAPE may be an employee of the Local Agency or a consultant. In such event, notwithstanding Section 12 -25 -103, C.R.S., as amended, the LAPE shall be in responsible charge of the construction of the project as provided in Section 12 -25- 102 C.R.S. as amended. V. GENERAL PROVISIONS A. Notwithstanding any consents or approvals given by the State for project plans, the State will not be liable or responsible in any manner for the structural design, details or construction of any major structures that may be designed within the work of this contract. B. In the event that all or part of the work is to be accomplished by Local Agency force account labor rather than contract, the Local Agency will insure that all work is accomplished in accordance with the pertinent State specifications as well as FAPG, Title 23, Chapter I, Sub- chapter B, Part 635, Sub -part B, Force Account Construction. Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and the FHWA in advance of the work, as provided for in FAPG, Title 23, Chapter I, Sub- chapter B, Part 635, Sub -part B, Section 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the work to be performed. It may be agreed to participate in the work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with Federal Procurement Regulations Part 1 -15. Rental rates for publicly owned equipment will be determined in accordance with Section 109.04 of the State's "Standard Specifications for Road Kill and Bridge Construction ". All force account work shall have prior approval of the FHWA and shall not be initiated until the State has issued a written notice to proceed. The Local Agency shall, during all phases of the work, permit duly authorized agents and employees of the State and the FHWA to inspect the project and to inspect, review and audit the project records. C. The State shall have the authority to suspend the construction of the work wholly or in part, by giving written notice thereof to the Local Agency, due to the failure of the Local Agency or its construction contractor to correct project conditions which are unsafe for the workmen or for the traveling public, or for failure to carry out provisions of this contract or the construction contract, or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the work, or for any other condition or reason deemed by the State to be in the public interest. D. Upon execution of this contract the State is authorized, in its discretion, to perform any necessary administra- tive support services pursuant to this contract. These services may be performed prior to and in preparation for any conditions or requirements of this contract, including prior FHWA approval of project work. The Local Agency understands and agrees that the State may perform such services, and that payment for such services shall be at no cost to the State but shall be as provided herein. At the request of the Local Agency, the State shall also provide other assistance pursuant to this contract as may be agreed in writing. In the event that Federal -aid project funds remain available for payment, the Local Agency understands and agrees the costs of any such services and assistance shall be paid to the State -11- from project funds at the applicable rate. However, in the event that such funding is not made available or is withdrawn for this contract, or if the Local Agency terminates this contract prior to project approval or completion for any reason, then all actual incurred costs of such services and assistance provided by the State shall be the sole expense of the Local Agency. The Local Agency shall pay the State for all such costs within 30 days of receipt of written notice from the State requesting same. E. This contract may be terminated as follows: (a) Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely and proper manner, its obligations under this contract, or if the Local Agency shall violate any of the covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to terminate this contract for cause by giving written notice to the Local Agency of such termination and specifying the effective date thereof, at least five (5) days before the effective date of such termination. In that event that the contract is terminated for cause the Local Agency shall reimburse the State the entire amount paid to the Local Agency for the project in a lump sum payment made within thirty (30) days of the termination. Notwithstanding above, the Local Agency shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the contract by the Local Agency. If after such termination it is determined, for any reason, that the Local Agency was not in default, or that the Local Agency's action /inaction was excusable, such termination shall be treated as a termination for conve- nience, and the rights and obligations of the parties -12- shall be the same as if the contract had been terminated for convenience, as described herein. (b) Termination for Convenience. The State may terminate this contract at any time the State determines that the purposes of the distribution of funds under the contract would no longer be served by completion of the project. The State shall effect such termination by giving written notice of termination to the Local Agency and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. (c) Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local Agency is to be paid, reimbursed, or otherwise compensated with funds which are available to the State for the purposes of contracting for the project provided for herein, and therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims to compensation arising under this contract are contingent upon availability of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may immediately terminate or amend this contract. F. Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and attachments hereto which may require continued performance or compliance beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. G. This contract is subject to such modifications as may be required by changes in federal or State law, or their implementing regulations. Any such required modification -13- shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law. H. To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon subsequent breach. I. This contract is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. J. Except as herein otherwise provided, this contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. K. The Local Agency represents and warrants that it currently has no interest, and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of the Local Agency's obligations under this contract. The Local -14- Agency's further covenants that, in the performance of this contract, it will not employ any person or firm having any such known interests. L. The Local Agency shall at all times during the execution of this contract strictly adhere to, and comply with, all applicable federal and State laws, and their implementing regulations, as they currently exist and may hereafter be amended, which are incorporated herein by this reference as terms and conditions of this contract. Such requirements include Title 49, Code of Federal Regulations, Part 18 ( "the Common Rule ") , specifically 49 C.F.R. 18.36 regarding procurement and 49 C.F.R. 18.36(i) regarding required contract provisions. Such requirements also include: 18.36(1)(2) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement (all contracts in excess of $10,000.00); 18.36(1)(4) Compliance with the Copeland "Anti- Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 C.F.R. part 3) (all contracts and subgrants for construction or repair); 18.36(1)(5) Compliance with the Davis -Bacon Act (40 U.S.C. 276a to a -7) as supplemented by Department of Labor regulations (29 C.F.R. part 5) (Construction contracts in excess of $2,000.00 awarded by grantees and subgrantees when required by federal grant program legislation); 18.36(i)(6) Compliance with sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -330) as supplemented by Department of Labor regula- tions (29 C.F.R. part 5) (Constructions contracts awarded by grantees and subgrantees in excess of $2,000.00, and -15- in excess of $2,500.00 for other contracts which involve the employment of mechanics or laborers); 18.36(1)(12) Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 C.F.R. part 15) (Contracts, subcontracts, and subgrants of amounts in excess of $100,000.00); 18.36(1)(13) Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163). Further, the Local Agency shall include the language of this paragraph verbatim in any subcontract(s) for the work, in order to comply with 18.36(1) and to ensure subcontract compliance with applicable federal require- ments. M. This contract shall become "effective" only upon the date it is executed by the State Controller, or designee. The term of this contract shall begin on the date first written above and shall continue through the completion and final acceptance of this project by the State, FHWA and Local Agency. N. During the performance of all work under this contract, the parties hereto agree to comply with Title VI, of the Civil Rights Act of 1964, the salient points of which are shown in the Non - discrimination Provisions attached hereto and made a part hereof. 0. The Special Provisions, Attachment L0, CDOT's Nondiscrimination Provisions, and Appendix B attached hereto are hereby made a part of this contract. P. If a conflict occurs between the provisions of this contract proper and the attachments hereto, the priority -16- to be used to resolve such a conflict shall be as follows: 1. The Special Provisions and attachments enumerated in Section V, paragraph 0, above; and 2. This contract proper. Administration Checklists. Q. Except as herein otherwise provided, this contract shall inure to the benefit of and be binding upon the parties, their successors, and assigns. R. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract, and all rights of action relating to such enforcement, shall be strictly reserved to the parties hereto, and nothing contained in this contract shall give or allow any such claim or right of action by any other or third person on such contract. It is the express intention of the parties that any person or entity other than the parties receiving services or benefits under this contract be deemed to be an incidental beneficiary only. S. The Local Agency assures and guarantees that it possesses the legal authority to enter into this contract. The Local Agency warrants that it has taken all actions required by its procedures, by -laws, and /or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Local Agency to its terms. The person (s) executing this contract on behalf of the Local Agency warrants that they have full authorization to execute this contract. -17- IN WITNESS WHEREOF, the parties hereto have executed this contract on the day and year first above written. ATTEST: STATE OF COLORADO ROY ROMER, GOVERNOR ' r i BY / i! r ,� i.Y By Chief Clerk ecutive Director EPARTMENT OF TRANSPORTATION ATTEST: BY _1I A - C.�5� Title CLIFFORD W. HALL State Controller By CITY OF PUEBLO, COLORADO BY r Title L51 t1� 0� - "u �Zun Federal Employer Identification Number: 846000615 APPROVED: GALE A. NORTON Attorney General B ?'��A B. YAN ssistant A ney General Civil Litigation Section