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HomeMy WebLinkAbout8464RESOLUTION NO. 8464 A RESOLUTION APPROVING A CONTRACT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE STATE DEPARTMENT OF TRANSPORTATION, STATE OF COLORADO, FOR PUEBLO SIGNALS, VARIOUS LOCATIONS (SHE M086 -025). ,,.* BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. The contract between the City of Pueblo, a Municipal Corporation, and the Colorado Department of Transportation concerning Pueblo Signals, various locations, Project (SHE M086 -025) is hereby approved. SECTION 2. The contract provides for $560,971 in Federal Transportation Funds and requires a local match of $62,330 plus $18,699 in indirect costs for a total project cost of $642,000. (Account No. 002- 1997 - 100 -000 -040 -1104) SECTION 3. The President of the City Council is hereby authorized to execute this contract for and on behalf of the City, - and the City Clerk is authorized and directed to attest same and affix the Seal of the City thereto. Introduced July 27, 1998 By John Verna Councilperson APPRO Presiders of the Cit Coun i ATTEST: :._ MTV_.. F�0 /�I i • I �UIJIIL hiVtH Hf�Klyi>atK TITLE High visibility red light traffic signal project (SHE M086 -025). DEPARTMENT: Department of Transportation DATE: July 27 , 1998 ISSUE: The City of Pueblo submitted a grant request for Federal Hazard Elimination funds to the Colorado Department of Transportation. These requests compete with others from the entire state of Colorado. They are awarded based upon project effectiveness in reducing accidents and a cost benefit analysis. This particular project will help to minimize the occurrence of 'red-light running" by allowing for brighter, more target effective traffic signal heads. The signal heads are to be installed at 62 key intersections. Red LED signals heads will be used and as a secondary benefit, electrical usage for the red indications will be reduced by approximately 83 %. FINANCIAL IMPACT This is an Intermodal Surface Transportation Efficiency Act (ISTEA) project which provides for 90% Federal funds and a local match requirement of 10% plus 3% indirect costs. The contract amount is $642,000 with Federal participation at $560,971, the City match at $62,330 and indirect costs at $18,699. RECOMMENDATION Approval of the resolution. SHE M086 -025, 12274 Signals - Various Locations in Pueblo REGION 2 /(LEW) CONTRACT 98 HA2 01094 THIS CONTRACT, made this _27-4 day ofc� , 19 98 by and between the State of Colorado for the use and benefit of THE COLORADO DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the State or CDOT, and the CITY OF PUEBLO, STATE of COLORADO, P.O. BOX 1427, PUEBLO, CO 81002 - 14227, FEIN # 846000615, hereinafter referred to as the Local Agency, or the contractor. FACTUAL RECITALS. 1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment of project and Local Agency costs in Fund Number 400, Appropriation Code 010, Organization Number 9991, Program 2000, Function 3301, Object 2312 1P, Phase C, Reporting Category 2250, Contract Encumbrance Number 12274 (Contract Fncumbrance Amount: $622,000.00). 2. Required approval, clearance and coordination has been accomplished from and with appropriate agencies. 3. Pursuant to Title I, Part A, Section 1007 of the Intermodal Surface Transportation Efficiency Act of 1991 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as "the federal provisions "), certain Federal funds have been and will in the future be, allocated for highway projects requested by Local Agencies and eligible under the Surface Transportation Program that has been proposed by the State and approved by the Federal Highway Administration (FHWA), hereinafter referred to as the program. -1- 4. Pursuant to § 43 -1 -223, C.R.S. and to applicable portions of the federal provisions, the State is responsible for the general administration and supervision of performance of projects in the program, including the administration of federal funds for a program project performed by a local agency under a contract with the State. 4.5 The Local Agency has requested that a certain local highway project be funded as part of the program, and by the date of execution of this contract the Local Agency (and/or the State) has completed and submitted a preliminary version of CDOT form #463 describing the general nature of that project work. The Local Agency understands that, before the project work is actually started, the description of the project work in that CDOT form #463 will likely be revised as a result of design changes made by CDOT, in conjunction and coordination with the Local Agency, in its internal review process. The Local Agency desires to agree to perform the project work as described in the Form #463, as it may be revised in that Process. 5. Federal -aid funds have been made available for project, SHE M086 -025 for traffic signal equipment upgrades at 62 intersections within the City of Pueblo as more specifically described in Exhibit A (the Form #463 and/or a "Scope of Work "), in, Pueblo, Colorado, hereinafter referred to as "the project" or "the work ". 6. The matching ratio for this federal -aid project is 90% federal -aid funds to 10% 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 shall be borne by the Local Agency at 100 %. 7. The Local Agency desires to comply with the federal provisions and other applicable requirements, including the State's general administration and supervision of the project thru this contract, in order to obtain federal funds for the project. 8. The Local Agency has estimated the total cost of the Work and is prepared to provide its match share of the cost, as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, which expressly authorizes the Local Agency to enter into this contract and to expend its match share of the Work. 9. This contract is executed under the authority of Sections 29 -1 -203, 43 -1 -110, 43 -1 -116, 43- 2- 101(4)(c) and 43 -2 -144, C.R.S., as amended, and the Local Agency ordinance /resolution. -2- 10. The parties hereto desire to agree upon the division of responsibilities with regard to the project. 11. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily complete some or all of the Work. 12. The State certifies that such work can be more advantageously performed by the Local Agency. NOW, THEREFORE, it is hereby agreed that: I. STANDARD FORM CONTRACT This is a standard form contract that is designed to efficiently contract for and administer 2 types of program projects: 1) program projects which include the same basic work elements (design; construction; construction administration by local agency; right -of -way; utilities; etc.); and, also, 2) program projects with specific differences in those basic work elements (ems, a specific project may include design but no construction, or it may include design and construction but the State will do the construction administration, etc.) The form contract accommodates both types of projects by using qualifying language to condition the application of particular contract requirements, based on whether specific work elements are included in the project. For instance, where the contract provides ... "If the Work includes engineering/design services, the Local Agency shall perform the following requirements ... ", the Local Agency need perform those requirements only if engineering/design services are expressly included in the project, as defined in the Scope of Work. (Conversely, notwithstanding that language is in the contract, the Local Agency can ignore those "requirements" if engineering /design services are NOT expressly included in the Scope of Work.) The Local Agency shall interpret such qualifying language in that manner. By using such language, the form contract can apply to both the general and the specific types of projects, thus making it easier to administer and saving the State and the Local Agency time and expense. II. PROJECT DESCRIPTION 1. "The project" or "the Work" under this contract shall consist of traffic signal equipment upgrades at 62 intersections, hereinafter referred to as "the project" or "the Work" in Pueblo, -3- Colorado, as more specifically described in Exhibit A, attached hereto and made a part hereof (the Form #463 and/or a "Scope of Work ") as it may be revised by the parties in the design review process before the project work is actually started. III. INCORPORATION BY REFERENCE All federal and state statutes, regulations, specifications, administration checklists, directives, procedures, documents, and publications that are specifically identified and/or referenced in this contract, together with all exhibits and attachments and addenda to this contract, are incorporated herein by this reference as terms and conditions of this contract as though fully set forth. IV. WORK RESPONSIBILITY The Local Agency shall be responsible to perform (all design and /or right -of -way and /or utility and/or construction and /or construction administration tasks required to complete) the Work, and the Local Agency shall comply with all applicable terms and conditions of this contract in performing the Work, including those process and task responsibilities addressed in the Pre - Construction and Construction Administration Checklists attached hereto and made a part hereof. The responsible party shall perform all such tasks in accordance with applicable requirements and standards, including those in this contract and in applicable law. V. PROJECT FUNDING PROVISIONS A. The Local Agency has estimated the total cost the Work to be $642,000.00 which is to be funded as follows: a. Federal participating funds: (90% of $623,301.00) $560,971.00 b. Local Agency participating share: (10% of $623,301.00) $ 62,330.00 Total Funds: $623,301.00 -4- B. The matching ratio for the federal participating funds for this project is 90% federal -aid funds to 10% Local Agency funds, it being understood that such ratio applies only to the $623,301.00 that is eligible for federal participation, it being further understood that all non - participating costs are borne by the Local Agency at 100 %. If the total actual cost of performance of the Work exceeds $623,301.00, and additional federal funds are made available for the project, the Local Agency shall pay 10% of all such costs eligible for federal participation and 100% of all nonparticipating costs; if additional federal funds are not made available, the local agency shall pay all such excess costs. If the total actual cost of performance of the Work is less than $623,301.00.00, then the amounts of Local Agency and federal -aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C. The maximum amount payable to the Local Agency under this contract shall be $560,971.00, unless such amount is increased by an appropriate written modification to this contract executed before any increased cost is incurred. 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 (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. The parties hereto agree that this contract is contingent upon all funds designated for the project herein being made available from federal and/or state and/or Local Agency sources, as applicable. 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, provided that any party terminating its interest and obligations herein shall not be relieved of any obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. VI. PROJECT PAYMENT PROVISIONS A. 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, subject to the terms and conditions of this contract. Provided, however, that charges incurred by the Local Agency prior to the date of FHWA -5- authorization for the project and prior to the date this contract is executed by the State Controller or his designee will not be charged by the Local Agency to the project, and will not be reimbursed by the State, absent specific FHWA and/or State Controller approval thereof. B. Upon execution of this contract the State is authorized, in its discretion, to perform any necessary administrative 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 in Section V.A. 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 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. C. If the Local Agency is to be billed for CDOT incurred direct costs, the billing procedure shall be as follows: 1. Upon receipt of each bill from the State, the Local Agency will remit to the State the amount billed no later than 45 days after receipt of each bill. Should the Local Agency fail to pay moneys due the State within 45 days of demand or within such other period as may be agreed between the parties hereto, the Local Agency agrees that at the request of the State, the State Treasurer may withhold an equal amount from future apportionments due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to the State. Interim funds, until the State is reimbursed, shall be payable from the State Highway Supplementary Fund (400). 2. If the Local Agency fails to make timely payment to the State as required by this section (within 45 days after the date of each bill), the Local Agency shall pay interest to the State at a rate of one percent per month on the amount of the payment which was not made in a timely manner, until the billing is paid in full. The interest shall accrue for the period from the required payment date to the date on which payment is made. D. 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, procedures, and standardized billing format attached hereto and made a part hereof. VII. STATE COMMITMENTS A. The State will provide liaison with the Local Agency through the State's Region Director, Region 2, 905 Erie Avenue, Pueblo, Colorado 81002 (719) -546 -5452. Said Region Director will also be responsible for coordinating the State's activities under this contract. Said Region Director will also issue a "Notice to Proceed" to the Local Agency for commencement of the Work. All communication relating to the day -to -day activities for the work shall be exchanged between representatives of the State's Transportation Region 2 and the Local Agency. Until changed by notice in writing, all such notices and correspondence shall be addressed as follows: If to State: David Miller CDOT Region 2 905 Erie Avenue Pueblo, CO 81002 (719) 546 -5404 If to the Local Agency: B. The State will reimburse the Local Agency for the federal -aid share of the project charges, as provided in Section VI(A). C. If the Work includes construction, the State, at its discretion, will review construction plans, special provisions and estimates and will cause the Local Agency to make those changes therein that the State determines are necessary to assure compliance with State and FHWA requirements. -7- D. 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 1212. VIII. LOCAL AGENCY COMMITMENTS A. DESIGN. If "the Work" includes preliminary design, or final design (a.k.a. "construction plans "), or design work sheets, or special provisions and estimates (collectively referred to as "the Plans "), the party that is responsible under Section IV (either the Local Agency or the State) for the Plans \design shall comply with the following requirements, as applicable: 1. perform or provide the Plans, to the extent required by the nature of the Work. 2. prepare final design ( "construction plans ") in accord with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual. 3. prepare special provisions and estimates in accord with the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction. 4. include details of any required detours in the Plans, in order to prevent any interference of the construction work and to protect the traveling public. 5. stamp the Plans produced by a Colorado Registered Professional Engineer. 6. if the Local Agency is the responsible party, it shall afford the State ample opportunity to review the Plans and make any changes in the Plans as directed by the State to comply with FHWA requirements. 7. provide final assembly of the Plans and contract documents. 8. be responsible for the Plans being accurate and complete. 9. if the Local Agency is the responsible party, it may enter into a contract with a consultant to do all or any portion of the Plans and/or of construction administration. Provided, however, that if federal -aid funds are to participate in the cost of such work to be done by a consultant, the Local Agency shall ensure that its procurement of that consultant contract (and the performance /provision of the Plans under that contract) complies with all applicable requirements of Title 23, Code of Federal Regulations (CFR), Part 172, (concerning the Administration of Engineering and Design Related Service Contracts), and with any procedures implementing those requirements as provided by the State. Those requirements and procedures include, without limitation: a) the Local Agency /Contractor shall submit any design consultant subcontract to CDOT for approval prior to its execution by the Local Agency /Contractor, as required by section 172.5 (d); b) 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 by the Local Agency, one copy of the executed contract shall be submitted to the State. Any amendments to such contract shall be similarly submitted; c) all consultant billings under that contract 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; d) the Local Agency /Contractor shall also use the CDOT procedures as described in Attachment #1 to administer that design consultant subcontract, to comply with sections 172.5(b) and (d); e) to expedite any CDOT approval, the Local Agency /Contractor's attorney, or other authorized representative, may also submit a letter to CDOT certifying Local Agency /Contractor compliance with those CDOT Attachment #1 procedures and with the requirements of sections 172.5(b) and (d). f) the Local Agency shall ensure that its consultant contract contains the following language verbatim 1) "The design work under this contract shall be compatible with the requirements of a separate contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third party beneficiary of this contract for that purpose." 2) "Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project." 3) "The consultant shall review the construction contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, "Standard Specifications for Road and Bridge Construction ", in connection with this work." 10. Following award of the construction contract(s) for the project, no further changes shall be made in the Plans except by agreement in writing between the parties. The Plans shall be considered final when approved and accepted by the parties hereto, and when final they shall be deemed incorporated herein. B. CONSTRUCTION. If "the Work" includes construction, the parry that is responsible under Section IV (either the Local Agency or the State) for the construction/construction administration shall comply with the following requirements, as applicable: 1. administer the construction in accord with the project's Pre - construction and Contract Administration Checklists. Such administration shall include 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 (CMS) and minor contract revisions (MCRs); processing contractor claims; construction supervision; and, meeting the Quality Control (QC) requirements of the FHWA/State stewardship program, all as more fully described in the project's Pre - construction and Contract Administration Checklists. 2. if the Local Agency is the responsible party, it shall appoint a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform that administration. The LAPE shall administer the project in accordance with this agreement, the requirements of the construction contract, and applicable State procedures. The LAPE may be an employee of the Local Agency or may be a consultant. If the LAPE is an employee of the Local Agency, 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), notwithstanding any exception described in Section 12 -25 -103, C.R.S., as amended. 3. if the Local Agency is the responsible party, and if bids are to be let for the construction of the project, the Local Agency shall (in conjunction with the State) advertise the call for bids and (upon concurrence by the State) award the construction contract(s) to the low responsive, responsible bidder(s). a) In advertising and awarding the bid for the construction of a federal -aid project, the Local Agency shall comply with applicable requirements of 23 U.S.C. § 112 and 23 C.F.R. § § 633 and 635. Those requirements include, without limitation, that the Local Agency /Contractor shall physically incorporate the entire "Form 1273" (which, if relevant to this contract, is attached) verbatim into any subcontract(s) for those services as terms and conditions thereof, as required by 23 CFR 633.102(e). b) The Local Agency has the option to accept or reject 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.) c) By indicating its concurrence in such award at the award conference, the Local Agency acting by or through its duly authorized representatives, agrees to provide additional funds, subject to their availability and appropriation for that purpose, if required to complete the Work under this project if no additional federal -aid funds will be made available for the proj ect.) 4. In the event that all or part of the construction work is to be accomplished by Local Agency personnel (i.e., by "force account "), rather than by a contractor pursuant to a contract with the Local Agency, the Local Agency will insure that all such force account work is accomplished in accordance with the pertinent State specifications and requirements and with 23 C.F.R. Part 635, Subpart B, "Force Account Construction ". a) Such 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 -11- provided for in Section 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. b) An alternative to (a) is that the Local Agency may agree 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 Acquisition Regulations (FAR), 48 C.F.R. Part 31. c) Rental rates for publicly owned equipment will be determined in accordance with Section 109.04 of the State's "Standard Specifications for Road and Bridge Construction ". d) All force account work shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. C. ROW ACQUISITION /RELOCATION. If acquisition and relocation assistance is required for the project, the Local Agency will be responsible to perform the acquisition and relocation assistance, as required by Sections 24 -56 -101, et seq., C.R.S. 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. D. UTILITIES. The Local Agency will be responsible for obtaining the proper clearance or approval from any utility company 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. E. RAILROADS. 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 timely application to the State Public Utilities Commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the work without compliance. The Local Agency shall also establish contact with the railroad company involved for -12- the purpose of complying with applicable provisions of 23 Code of Federal Regulations 646, Subpart B, concerning federal -aid projects involving railroad facilities, including: 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 destruction or damage to the installation. F. ENVIRONMENTAL. In its performance of the Work, the Local Agency shall comply with the applicable provisions of the State's approved Action Plan concerning federal environmental requirements, including all federal directives contained therein by reference. Copies of the applicable provisions may be requested from the Office of Environmental Services, Colorado Department of Transportation, 4201 E. Arkansas Avenue, Rm. 284, Denver Co 80222. G. RECORD KEEPING. 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. 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. H. MAINTENANCE. The Local Agency will maintain and operate the improvements 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 maintenance 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 -13- and FHWA will make periodic inspections of the project to verify that such improvements are being adequately maintained. I. FEDERAL REQUIREMENTS. The Local Agency /Contractor 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. The contractor shall also require compliance with these statutes and regulations in subgrant agreements permitted under this contract. A listing of some of the federal and state laws that may be applicable, depending on the Local Agency /Contractor work responsibilities under this contract, are described in ADDENDUM A. J. DBE REQUIREMENTS "If the Local Agency desires to use its own DBE Program to implement and administer the DBE provisions of Title 49 CFR Part 23 under this contract, it must submit a copy of its program's requirements to CDOT for review and approval before the execution of this contract. If the Local Agency uses it's program for this contract, the Local Agency shall be solely responsible to defend that DBE Program and its use of that Program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility and certification, adequate legal and factual bases for DBE goals, and good faith efforts. CDOT approval (if any) of the Local Agency's DBE Program does not waive or modify the sole responsibility of the Local Agency for its use as described above." K. LOCAL AGENCY FUNDS The Local Agency shall provide its match share and indirect cost funds for the work as outlined in Section V.B. IX. GENERAL PROVISIONS A. Notwithstanding any consents or approvals given by the State for the Plans, the State will not be liable or responsible in any manner for the structural design, details or construction of any major structures that are designed within the Work of this contract. -14- B. If the Work involves construction, the State shall have the authority to suspend 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 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. C. 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 its intent to terminate and at least ten (10) days opportunity to cure the default or show cause why termination is otherwise not appropriate. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Local Agency under this contract shall, at the option of the State, become its property, and the Local Agency shall be entitled to received just and equitable compensation for any services and supplies delivered and accepted. The Local Agency shall be obligated to return any payment advanced under the provisions of this contract. 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 convenience, and the rights and obligations of the parties 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. -15- (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 federal and/or State 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. D. 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. E. 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 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 specifically provided otherwise herein, 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. F. 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. G. 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. -16- H. 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. I. 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 Agency's further covenants that, in the performance of this contract, it will not employ any person or firm having any such known interests. J. 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. K. The Special Provisions, Attachment LO (Certification for Federal -Aid Contracts), and Appendix B (DBE requirements) attached hereto are hereby made a part of this contract. The Local Agency shall comply with all applicable terms and conditions of such attachments. L. If a conflict occurs between the provisions of this contract proper and the attachments hereto, the priority to be used to resolve such a conflict shall be as follows: 1. The Special Provisions and the attachments enumerated in Section VI, paragraph K, above; and 2. This contract proper; 3. Other contract attachments and exhibits, in their respective order. M. 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. N. 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 -17- 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. O. The Local Agency and the State may use one or all of the Contract Modification Tools contained in ADDENDUM B, in order to more expeditiously change and amend the terms of this contract, if such use is warranted by the circumstances as described and authorized therein. IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first above written. STATE OF COLORADO ATTEST: ROY ROMER, GOVERNOR By By Chief Clerk /Executive Director DEPARTMENT OF TRANSPORTATION APPROVED: CLIFFORD W. HALL GALE A. NORTON State Controller Attorney General B Y Y BARRY B. RYA ATTEST. (SEAL) By Title City Clerk Assistant Attorney General Civil Litigation Section CITY OF PUEBLO, COLORADO By Title President of City Coun 1 Federal Employer Identification Number: 846000615 -19- P111P IAI I I! 1 l A ILIA 1 !II II1, ATTACHMENT #1 THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172 and 23 CFR 172(d) state that, "When federal - aid highway funds participate in the contract a local shall use the same procedures as used by the State to administer contracts ... ". Therefore, local agencies must comply with this CFR requirement and the following state procedures when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services ". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and Colorado Revised Statute (C.R.S.) 24 -30 -1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172.5(b)(1 -6)]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short -hand guide to CDOT procedures that a local agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting local agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24 -30 -1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24 -30 -1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The request for consultant services should include the scope of work, the evaluation factors and their relative importance, the method of payment, and the goal of ten percent (10 %) Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5. The analysis and selection of the consultants should be done in accordance with C.R.S. 24 -30 -1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre - qualified prime consultants and their team. It also shows which criteria are used to short -list and to make a final selection. The short -list is based on the following evaluation factors: a. Qualifications, b. Approach to the project, -20- C. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, C. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. Under 24 -30 -1401, cost shall not be considered as a factor in the evaluation of professional consultant services. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre - negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursement for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six (6) to fifteen (15) percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the project to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of project, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. 8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kept at least three (3) years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three (3) years after the case has been settled. The C.R.S. 24 -30 -1401 through 24 -30 -1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the eight (8) steps just discussed. -21-