HomeMy WebLinkAbout10722RESOLUTION NO. 10722
A RESOLUTION APPROVING A GRANT CONTRACT BETWEEN THE CITY OF PUEBLO, A
MUNICIPAL CORPORATION, AND THE COLORADO DEPARTMENT OF TRANSPORTATION
RELATING TO THE ARKANSAS RIVER TRAIL RECONSTRUCTION PROJECT, PHASE 2 AND
AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME
WHEREAS, the City of Pueblo has received a $350,000 grant from the Colorado
Department of Transportation 'Transportation Enhancement Program" for the Arkansas River Trail
Reconstruction Project (No. STE M086 -046), subject to the execution of a grant contract; and
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
A Contract between the City of Pueblo, a Municipal Corporation, and the Colorado
Department of Transportation for the Arkansas River Trail Reconstruction Project, Phase 2,
Contract No. STE M086 -046, a copy of which is attached hereto having been approved as to form
by the City Attorney, is hereby approved.
SECTION 2
The President of City Council is hereby authorized to execute and deliver said contract in
the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall
affix the seal of the City thereto and attest the same.
SECTION 3
Funding for the project will be $350,000 from the Colorado Department of Transportation; $87,500
from the Arkansas River Corridor Legacy Project (Project Numbers AL0201 and AL0202), and the
total construction cost is estimated at $437,500.
INTRODUCED May 8, 2006
BY Randy Thurston
Councilperson
APPROVED:
President of City Council
ATTESTED BY:
CITY CLERK
. - a 10722-
1
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # )`7
DATE: MAY 8, 2006
DEPARTMENT: COMMUNITY DEVELOPMENT /JIM MUNCH
PLANNING DEPARTMENT /JIM MUNCH
TITLE
A RESOLUTION APPROVING A GRANT CONTRACT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND THE COLORADO DEPARTMENT OF
TRANSPORTATION RELATING TO THE ARKANSAS RIVER TRAIL
RECONSTRUCTION PROJECT, PHASE 2 AND AUTHORIZING THE PRESIDENT OF
COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve the attached contract between the City of Pueblo and
the Colorado Department of Transportation relating to the Arkansas River Trail
Reconstruction Project, Phase 2 (Project No. STE M086 -046), and authorize the
President of Council to execute the contract?
Approval of Resolution.
The City of Pueblo will be committing to complete Phase 2 of the Arkansas River Trail
Reconstruction Project. The City has received a $350,000 grant from the Colorado
Department of Transportation 'Transportation Enhancement Program" for the upgrade
and reconstruction of the Arkansas River Trail along sections of the river between Dutch
Clark Stadium and Santa Fe Avenue. The project is the second phase of the upgrade
and replacement of the 25 -year old trail along the Arkansas River. The project includes
the reconstruction of one mile of the river trail with 7 -inch thick concrete to allow for
sanitary sewer and stormwater maintenance equipment to utilize the trail, as well as the
construction of a vehicle access road for handicapped parking and a loading/unloading
area for watercraft using the Arkansas River and the City's Kayak Park. A parking
trailhead areas will be along Pearl Street will be upgraded as part of the project. The
Planning Department has submitted an additional grant request to CDOT in April, 2006
for funding the reconstruction of the remaining 1 % -miles of the river trail.
The estimated budget for the Arkansas River Trail, Phase 2 upgrade and reconstruction
is included in the Capital Improvement Fund for the Arkansas River Corridor Legacy
Project. The sources of the project funds are as follows:
$350,000 Colorado Department of Transportation TE21 Funds
$ 87,500 City of Pueblo's Cash Match (Arkansas River Legacy Project -
$437,500 TOTAL COST
FINANCIAL IMPACT
This project is included within the Capital Improvement Fund for the Arkansas River
Corridor Legacy Project (AL0201 and AL0202) that has been previously approved in
Ordinance 6805. The City will also be required to pay for the construction of the project
initially from City funds and following completion of the project be reimbursed the grant
funds from CDOT. City must maintain the trails during its useful life. The City is already
maintaining this section of the river trail and following the reconstruction of the trail
maintenance expenses are projected to remain the same.
LEGACY PROJECT RECAP
Project
Sources of Funds
Project
Reimbursement
Arkansas River Habitat
Great Outdoors Colorado
$1,528,000
Improvements
City — General Funds
$ 234,000
Pueblo County
$ 200,000
Rocky Mountain Steel
$ 50,000
Trout Unlimited
$ 10,000
Sub -total
$2,022,000
Greenway & Nature Center
Great Outdoors Colorado
$ 170,000
1. Environmental Ed. Area
City — General Funds
$ 55,000
2. EE Plaza Landscaping
Pueblo County
$ 35,000
3. Raptor Center Cage
Board of Water Works
$ 132,000
Packard Foundation
$ 50,000
Nature Center
$ 50,000
Sub -total $ 492,000
River Trail Replacement — CDOT- Enhancement
$
150,000
Phase 1 Great Outdoors Colorado
$
122,000
Board of Water Works
$
91,000
CDBG Funds
$
53,566
Pueblo County
$
90,000
City — General Funds
$
10,000
Sub -total $ 516,566
Pueblo Zoo — River Otter Great Outdoors Colorado $ 175,000
City — General Funds $ 45,000
Pueblo County $ 30,000
Pueblo Zoological Society $ 109,000
Sub -total $ 359,000
Total Funding Received to $3,389,566
date for Legacy Project
Remaining Funds to be Source
credited to the Legacy Project
Real Estate Donation Credits for Colorado State Parks
Habitat Project (to be certified by City -owned Property
the Army Corps of Engineers) Pueblo Conservancy Dist.
Rocky Mountain Steel Mills
Sub -total
Salt Cedar Removal Credit Colorado Division of Wildlife
River Trail Replacement —
Phase 2
CDOT- Enhancement
City — General Funds **
Sub -total
Total Remaining Funds to be
credited to the Legacy Project
Amount
124,000
316,000
156,000
3,435
599,435
23,000
350,000
56,000
405,000
$1,028,435
Note: * Funds included in enhancement grant contract from CDOT
* Funds budgeted and appropriated in Ark Legacy Project, but have not been
transferred into River Trail Project account from General Fund
(FMLAWRK) Rev 10/03
PROJECT STE M086-046,(15533) 06 HA2 00033
REGION 2 (MR) CMS ID 06 -116
TRANSPORTATION ENHANCEMENT CONTRACT
THIS CONTRACT made this � da of 200�by and between the State of
Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as
the State and the CITY OF PUEBLO, 211 East D Street, Pueblo, Colorado, 81003, FEIN: 84- 6000615,
hereinafter referred to as the "Contractor" or the "Local Agency."
RECITALS
1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available
and a sufficient uncommitted balance thereof remains available for payment ofproject and Local Agency
costs in Fund Number 400, Appropriation Code 010, Organization Number 9991, Program 2000,
Function 3301, Object 2311 IP, Phase C, Reporting Category 2250, Contract Encumbrance Number
15533, (Contract Encumbrance Amount: $437,500.00).
2. Required approval, clearance and coordination have been accomplished from and with appropriate
agencies.
3. Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21 ' Century" of
1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users" of 2005 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 maybe amended, (collectively referred to
hereinafter as the "Federal Provisions "), certain federal funds have been and will in the future be
allocated for transportation projects requested by Local Agencies and eligible under the Surface
Transportation Improvement Program that has been proposed by the State and approved by the Federal
Highway Administration ( "FHWA "), hereinafter referred to as the "Program."
4. Pursuant to § 1007(a) of TEA -21, at 23 U.S.C. § 133(d)(2), certain Surface Transportation project
funds are made available only for eligible "Transportation Enhancement Activities ", as defined in § 23
U. S.C. § 101(a), and this contract provides for the performance by the Local Agency of a project for an
eligible Transportation Enhancement Activity.
5. 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 fora Program project performed by a Local Agency under a
contract with the State.
6. The Local Agency has requested that a certain local transportation 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
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and submitted a preliminary version of CDOT form #463 describing the general nature ofthe Work. The
Local Agency understands that, before the Work begins, form #463 may be revised as a result of design
changes made by CDOT, in coordination with the Local Agency, in its internal review process. The
Local Agency desires to perform the Work described in form #463, as it may be revised.
7. Federal -aid funds have been made available for project STE M086 -046 (15533), which shall consist
of improvements to the Arkansas River Trail, west of I -25, from 4"' Street to the Railroad Bridge,
including concrete pavement, referred to as the "Project" or the "Work." Such Work will be performed
in the City of Pueblo, Colorado, specifically described in Exhibit A.
8. 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 shall be borne by the Local Agency at 100 %.
9. 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 through this contract, in order
to obtain federal funds.
10. 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/resolution or other authority letter which expressly
authorizes the Local Agency the authority to enter into this contract and to expend its match share of the
Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B.
11. This contract is executed under the authority of §§ 29 -1 -203, 43 -1 -110; 43-1-116,43-2-101(4)(c)
and 43 -2 -144, C.R.S. and Exhibit B.
12. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily
complete some or all of the Work.
13. The Local Agency can more advantageously perform the Work.
THE PARTIES NOW AGREE THAT:
Section 1. Scope of Work
The Project or the Work under this contract shall consist of improvements to the Arkansas River
Trail, west of I -25, from 4 Street to the Railroad Bridge, including concrete pavement, in the City of
Pueblo, Colorado, as more specifically described in Exhibit A.
Section 2. Order of Precedence
In the event of conflicts or inconsistencies between this contract and its exhibits, such conflicts or
inconsistencies shall be resolved by reference to the documents in the following order of priority:
Page 2 of 18
1. Special Provisions contained in section 29 of this contract
2. This contract
3. Exhibit A (Scope of Work)
4. Exhibit C (Funding Provisions)
5. Exhibit D (Certification for Federal -Aid Contracts)
6. Exhibit E (DBE Requirements)
7. Exhibit F (Contract Modification Tools)
8. Other Exhibits in descending order of their attachment.
Section 3. Term
This contract shall be effective upon approval of the State Controller or designee, or on the
date made, whichever is later. The term of this contract shall continue through the completion and
final acceptance of the Project by the State, FHWA and the Local Agency.
Section 4. Project Funding Provisions
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/resolution or other authority letter which
expressly authorizes the Local Agency the authority to enter into this contract and to expend its match
share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit
B.
The funding provisions for the Project are attached hereto as Exhibit C. The Local Agency
shall provide its share of the funds for the Project as outlined in Exhibit C.
Section 5. Transportation Enhancement Advance Payment Provisions
The advance payment provisions described herein shall apply only to a percentage of the construction
work portion of an enhancement project, as described below. Payment for all other work portions of
the Project, including for the design work, shall be on a reimbursement basis, as described below.
A. Pursuant to FHWA's approval under 23 U.S.C. § 133(e)(3)(B), the State will provide an
advance payment up to a maximum percentage of the total amount for the construction portion
of transportation enhancement project activities, in accord with the following procedures.
1. the State will provide advance payment to the Local Agency of 70% of the federal
funds budgeted and available for the construction of this transportation enhancement
project, in accord with 23 U.S.C. § 133(e)(3)(B and as described herein.
2. the Local Agency shall submit the following to the State representative identified in
section VII, after execution of this Contract:
a) a financial statement for the construction of the project; and
b) an invoice for advance payment of 70% of the federal funds budgeted and
available for the construction of the project.
3. After receipt of such statement and invoice, the State will issue a warrant to the Local
Agency in the amount of the approved advance payment of construction project funds,
subject however to the prior performance of the following: A) the satisfactory
Page 3 of 18
a
C.
completion of the design of the project; B) the State approving the Local Agency's
construction contract; and C) the State issuing to the Local Agency a Notice To
Proceed with the construction of the project.
4. the advanced funds shall be used by the local agency only for the performance of the
construction work of the project. Upon receipt of the notice to proceed from the State,
the Local Agency shall proceed expeditiously to start the construction work and
prosecute it diligently to completion. If for any reason the local agency does not start
the construction work within 120 days of receipt of the notice to proceed, or if the
Local Agency starts the construction work but discontinues or abandons performance
before completion, the Local Agency shall remit to the State all federal funds
reimbursed or advanced by the State for the project not later than 30 days after the
120th day, or after the date the Local Agency discontinues /abandons performance, as
applicable.
5. When the Project construction work is completed, the Local Agency shall submit to
the State all required paperwork for that construction work, together with a final
statement of costs for that construction work and a billing for the remaining 30% of
the federal funds budgeted and available for the Project construction work. The State
shall not reimburse the Local Agency the remaining 30% of the construction work
costs until the State has reviewed the billings and has inspected the completed project
construction work, subject to the terms and conditions of this contract.
Except as provided in A. above, the State will reimburse the Local Agency for the federal -aid
share of the project design, and other work following the State's review and approval of such
charges, subject to the terms and conditions of this contract. The Local Agency will prepare
and submit to the State monthly charges for costs incurred relative to the design, and work
portions of the project. Provided, however, that charges incurred by the Local Agency prior to
the date of FHWA 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.
The State will reimburse the Local Agency's reasonable, allocable, allowable costs of
performance of the Work, not exceeding the maximum total amount described in Exhibit C.
The applicable principles described in Title 49, Code of Federal Regulations, Part 18 (the
"Common Rule "), Subpart C ( "Financial Administration "), including 49 C.F.R. 18.22, shall
govern the allowability and allocability of costs under this contract. The Local Agency shall
comply with all such principles. To be eligible for reimbursement, costs by the Local Agency
shall be:
1. in accordance with the provisions of Exhibit C and with the terms and conditions of
the contract.
2. necessary for accomplishment of the Work.
3. reasonable in amount for the goods and services provided.
4. actual net cost to the Local Agency (i.e., the price paid minus any refunds, rebates, or
other items of value received by the Local Agency that have the effect of reducing the
cost actually incurred).
5. incurred for Work performed subsequent to the effective date of this contract.
6. satisfactorily documented.
Page 4 of 18
D. The Local Agency shall establish and maintain a proper accounting system in accordance with
generally accepted accounting standards (a separate set of accounts, or as a separate and
integral part of its current accounting scheme) to assure that project funds are expended and
costs accounted for in a manner consistent with this contract and project objectives.
1. All allowable costs charged to the project, including any approved services contributed
by the Local Agency or others, shall be supported by properly executed payrolls, time
records, invoices, contracts or vouchers evidencing in detail the nature of the charges.
2. Any check or order drawn up by the Local Agency, including any item which is or will
be chargeable against the project account shall be drawn up only in accordance with a
properly signed voucher then on file in the office of the Local Agency, which will
detail the purpose for which said check or order is drawn. All checks, payrolls,
invoices, contracts, vouchers, orders or other accounting documents shall be clearly
identified, readily accessible, and to the extent feasible, kept separate and apart from
all other such documents.
E. 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 Exhibit C. 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.
F. 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.
G. The Local Agency will prepare and submit to the State monthly charges for costs incurred
relative to the project. The Local Agency's invoices shall include a description of the amounts
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of services performed, the dates of performance and the amounts and description of
reimbursable expenses. The invoices will be prepared in accordance with the State's standard
policies, procedures, and standardized billing format to be supplied by the State.
H. To be considered for payment, billings for payment pursuant to this contract must be received
within 60 days after the period for which payment is being requested and final billings on the
contract must be received by the State within 60 days after the end of the contract term.
1. Payments pursuant to this contract shall be made as earned, in whole or in part, from
available funds, encumbered for the purchase of the described services. The liability
of the State, at any time, for such payments shall be limited to the amount remaining of
such encumbered funds.
2. In the event this contract is terminated, final payment to the Local Agency may be
withheld at the discretion of the State until completion of final audit.
3. Incorrect payments to the Local Agency due to omission, error, fraud, or defalcation
shall be recovered from the Local Agency by deduction from subsequent payment
under this contract or other contracts between the State and Local Agency, or by the
State as a debt due to the State.
4. Any costs incurred by the Local Agency that are not allowable under the Common
Rule shall be reimbursed by the Local Agency, or offset against current obligations
due by the State to the Local Agency, at the State's election.
Section 6. State and Local Agency Cornmitments
The Local Agency Contract Administration Checklist in Exhibit G describes the Work to be
performed and assigns responsibility of that Work to either the Local Agency or the State. The
"Responsible Party" referred to in this contract means the Responsible Party as identified in the Local
Agency Contract Administration Checklist in Exhibit G.
A. Design [if applicable]
1. If the Work includes preliminary design or final design (the "Construction Plans "), or
design work sheets, or special provisions and estimates (collectively referred to as the "Plans "), the
responsible party shall comply with the following requirements, as applicable:
a. perform or provide the Plans, to the extent required by the nature of the Work.
b. 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 or other standard, such as the Uniform Building
Code, as approved by CDOT.
C. prepare special provisions and estimates in accord with the State's Roadway
and Bridge Design Manuals and Standard Specifications for Road and Bridge
Construction or Local Agency specifications if approved by CDOT.
d. 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.
e. stamp the Plans produced by a Colorado Registered Professional Engineer.
Page 6 of 18
f. provide final assembly of Plans and contract documents.
g. be responsible for the Plans being accurate and complete.
h. make no further changes in the Plans following the award of the construction
contract 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.
2. If the Local Agency is the responsible party:
a. The local agency shall comply with the requirements of the Americans With
Disabilities Act (ADA), and applicable federal regulations and standards as
contained in the document "ADA Accessibility Requirements in CDOT
Transportation Projects ".
b. It shall afford the State ample opportunity to review the Plans and make any
changes in the Plans that are directed by the State to comply with FHWA
requirements.
C. 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 involved in the cost of such work to be done by a
consultant, that consultant contract (and the performance /provision of the
Plans under the contract) must comply with all applicable requirements of 23
CFR Part 172 and with any procedures implementing those requirements as
provided by the State, including those in Exhibit H attached hereto. If the
Local Agency does enter into a contract with a consultant for the Work:
(1) it shall submit a certification that procurement of any design consultant
contract complied with the requirements of 23 CFR 172.5(d) prior to entering
into contract. The State shall either approve or deny such procurement. If
denied, the Local Agency may not enter into the contract.
(2) it shall ensure that all changes in the consultant contract have prior
approval by the State and FHWA. Such changes in the contract shall be by
written supplement agreement. 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 also be
submitted.
(3) it shall require that all consultant billings under that contract shall
comply with the State's standardized billing format. Examples of the billing
formats are available from the CDOT Agreements Office.
(4) it (or its consultant) shall use the CDOT procedures described in
Exhibit H to administer that design consultant subcontract, to comply with 23
CFR 172.5(b) and (d).
(5) it may expedite any CDOT approval of its procurement process and/or
consultant contract by submitting a letter to CDOT from the certifying Local
Agency's attorney /authorized representative certifying compliance with
Exhibit H and 23 CFR 172.5(b)and (d).
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(6) it shall ensure that its consultant contract complies with the
requirements of 49 CFR 18.36(1) and contains the following language
verbatim:
(a) "The design work under this contract shall be compatible with
the requirements of the 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."
(b) "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."
(c) "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."
d. The State, in its discretion, will review construction plans, special provisions
and estimates and will cause the Local Agency to make changes therein that
the State determines are necessary to assure compliance with State and FHWA
requirements.
B. Construction [if applicable]
1. If the Work includes construction, the responsible party shall perform the construction
in accordance with the approved design plans and/or administer the construction all in
accord with the Local Agency Contract Administration Checklist. 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 and minor
contract revisions; processing contractor claims; construction supervision; and meeting
the Quality Control requirements of the FHWA/CDOT Stewardship Agreement, as
described in the Local Agency Contract Administration Checklist.
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 contractor to correct project conditions which are unsafe for workers 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.
Page 8 of 18
3. If the Local Agency is the responsible party:
a. 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
contract, the requirements of the construction contract and applicable State
procedures.
b. if bids are to be let for the construction of the project, it shall advertise the call
for bids upon approval by the State and award the construction contract(s) to
the low responsible bidder(s) upon approval by the State.
(1) in advertising and awarding the bid for the construction of a federal -aid
project, the Local Agency shall comply with applicable requirements of
23 USC § 112 and 23 CFR Parts 633 and 635 and C.R.S. § 24 -92 -101
et seq. Those requirements include, without limitation, that the Local
Agency /contractor shall incorporate Form 1273 (Exhibit I) in its
entirety verbatim into any subcontract(s) for those services as terms
and conditions therefore, as required by 23 CFR 633.102(e).
(2) the Local Agency has the option to accept or reject the proposal of the
apparent low bidder for work on which competitive bids have been
received. The Local Agency must declare the acceptance or rejection
within 3 working days after said bids are publicly opened.
(3) by indicating its concurrence in such award, 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 project.
This paragraph also applies to projects advertised and awarded by the
State.
C. If all or part of the construction work is to be accomplished by Local Agency
personnel (i.e. by force account), rather than by a competitive bidding process,
the Local Agency will ensure that all such force account work is accomplished
in accordance with the pertinent State specifications and requirements with 23
CFR 635, Subpart B, Force Account Construction.
(1) Such work will normally be based upon estimated quantities and firm
unit prices agreed to between the Local Agency, the State and FHWA
in advance of the Work, as provided for in 23 CFR 635.204(c). Such
agreed unit prices shall constitute a commitment as to the value of the
Work to be performed.
(2) An alternative to the above 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
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evaluated for compliance with 48 CFR Part 31.
(3) Rental rates for publicly owned equipment will be determined in
accordance with the State's Standard Specifications for Road and
Bridge Construction § 109.04.
(4) 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.
D. State's obligations
The State will perform a final project inspection prior to project acceptance as a
Quality Control /Assurance activity. When all Work has been satisfactorily completed,
the State will sign the FHWA Form 1212.
2. 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 by or are the responsibility of
the Local Agency as identified in the Local Agency Contract Administration Checklist,
Exhibit G, within the Work of this contract.
Section 7. ROW Acquisition and Relocation
Prior to this project being advertised for bids, the Responsible Party 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.
Any acquisition/relocation activities must comply with all federal and state statutes,
regulations, CDOT policies and procedures, 49 CFR Part 24, the government wide Uniform Act
regulation, the FHWA Project Development Guide and CDOT's Right of Way Operations Manual.
Allocation of Responsibilities can be as follows:
Federal participation in right of way acquisition (3111 charges), relocation (3109
charges) activities, if any, and right of way incidentals (expenses incidental to
acquisition/relocation of right of way — 3114 charges);
Federal participation in right of way acquisition (3111 charges), relocation (3109
charges) but no participation in incidental expenses (3114 charges); or
No federal participation in right of way acquisition (311 charges) and relocation
activities (3109 expenses).
Regardless of the option selected above, the State retains oversight responsibilities. The
Local Agency's and the State's responsibilities for each option is specifically set forth in CDOT's
Right of Way Operation Manual. The manual is located at
http://www.dot.state.co.us/DevelopProjects/DesignSupport
Page 10 of 18
Section 8. Utilities
If necessary, the Responsible Party will be responsible for obtaining the proper clearance or
approval from any utility company which may become involved in this Project. Prior to this Project
being advertised for bids, the Responsible Party will certify in writing to the State that all such
clearances have been obtained.
Section 9. Railroads
In the event the Project involves modification of a railroad company's facilities whereby the
Work is to be accomplished by railroad company forces, the Responsible Party shall make timely
application to the 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
Responsible Party shall also establish contact with the railroad company involved for the purpose of
complying with applicable provisions of 23 CFR 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. Proscribing future use or dispositions of the proposed improvements in the event of
abandonment or elimination of a grade crossing.
5. Establishing future repair and/or replacement responsibilities in the event of accidental
destruction or damage to the installation.
Section 10. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current
federal and state environmental regulations including the National Environmental Policy Act of 1969
(NEPA) as applicable.
Section 11. Maintenance Obligations
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.
The Local Agency will make proper provisions for such maintenance obligations each year. Such
maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances
and regulations which define the Local Agency's obligations to maintain such improvements. The
State and FHWA will make periodic inspections of the project to verify that such improvements are
being adequately maintained.
Page 11 of 18
Section 12. Federal Requirements
The Local Agency and/or their contractor shall at all rimes 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. The contractor shall also require
compliance with these statutes and regulations in sub -grant agreements permitted under this contract.
A listing of certain federal and state laws that may be applicable are described in Exhibit J.
Section 13. Record Keeping
The Local Agency shall maintain a complete file of all records, documents, communications,
and other written materials which pertain to the costs incurred under this contract. The Local Agency
shall maintain such records for a period of three (3) years after the date of termination of this contract
or final payment hereunder, whichever is later, or for such further period as may be necessary to
resolve any matters which may be pending. The Local Agency shall make such materials available for
inspection at all reasonable times and shall permit duly authorized agents and employees of the State
and FHWA to inspect the project and to inspect, review and audit the project records.
Section 14. Termination Provisions
This contract may be terminated as follows:
A. Termination for Convenience. The State may terminate this contract at any time the State
determines that the purposes of the distribution of moneys 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.
B. 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 receive just and equitable compensation for any services and supplies delivered and
accepted. The Local Agency shall be obligated to return any payments advanced under the provisions
of this contract.
Notwithstanding the 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, and the
State may withhold payment to the Local Agency for the purposes of mitigating its damages until such
time as the exact amount of damages due to the State from the Local Agency is determined.
Page 12 of 18
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.
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.
Section 15. Legal Authority
The Local Agency warrants that it possesses the legal authority to enter into this contract and 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 such person(s) has full authorization to execute this contract.
Section 16. Representatives and Notice
The State will provide liaison with the Local Agency through the State's Region Director, Region
2, 905 Erie Avenue, Pueblo, Colorado 81001. Said Region Director will also be responsible for
coordinating the State's activities under this contract and will also issue a "Notice to Proceed" to the
Local Agency for commencement of the Work. All communications 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. All communication, notices, and correspondence shall be addressed
to the individuals identified below. Either party may from time to time designate in writing new or
substitute representatives.
If to State:
David L. Miller, Project Manager
CDOT Region 2
905 Erie Avenue
Pueblo, Colorado 81001
719 -546 -5404
If to the Local Agency:
Scott Hobson, Project Manager
City of Pueblo
211 East D Street
Pueblo, Colorado 81003
719 -553 -2244
Section 17. Successors
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.
Page 13 of 18
Section 18. Third Party Beneficiaries
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 State and
the Local Agency. Nothing contained in this contract shall give or allow any claim or right of action
whatsoever by any other third person. It is the express intention of the State and the Local Agency
that any such person or entity, other than the State or the Local Agency receiving services or benefits
under this contract shall be deemed an incidental beneficiary only.
Section 19. Governmental Immunity
Notwithstanding any other provision of this contract to the contrary, no term or condition of
this contract shall be construed or interpreted as a waiver, express or implied, of any of the
immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity
Act, § 24 -10 -101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree that
liability for claims for injuries to persons or property arising out of negligence of the State of
Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and
limited by the provisions of § 24 -10 -101, et seq., C.R.S., as now or hereafter amended and the risk
management statutes, §§ 24 -30 -1501, et seq., C.R.S., as now or hereafter amended.
Section 20. Severability
To the extent that this contract may be executed and performance of the obligations of the
parties maybe 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.
Section 21. Waiver
The waiver of any breach of a term, provision, or requirement of this contract shall not be
construed or deemed as a waiver of any subsequent breach of such term, provision, or requirement, or
of any other term, provision or requirement.
Section 22. Entire Understanding
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 writing
executed and approved pursuant to the State Fiscal Rules.
Section 23. Survival of Contract Terms
Notwithstanding anything herein to the contrary, the parties understand and agree that all terms
and conditions of this contract and the exhibits and attachments hereto which may require continued
Page 14 of 18
performance, compliance or effect 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.
Section 24. Modification and Amendment
This contract is subject to such modifications as maybe 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 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.
Section 25. Funding Letters
The State may allocate more or less funds available on this contract using a Funding Letter
substantially equivalent to Exhibit F and bearing the approval of the State Controller or his designee.
The funding letter shall not be deemed valid until it shall have been approved by the State Controller
or his designee.
Section 26. Disadvantaged Business Enterprise (DBE)
The Local Agency will comply with all requirements of Exhibit E and the Local Agency
Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local
Agency desires to use its own DBE program to implement and administer the DBE provisions of 49
CFR Part 26 under this contract, it must submit a copy of its program's requirements to the State for
review and approval before the execution of this contract. If the Local Agency uses its 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 requirements
and certification, adequate legal and factual bases for DBE goals and good faith efforts. State
approval (if provided) 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.
Section 27. Disputes
Except as otherwise provided in this contract, any dispute concerning a question of fact arising
under this contract which is not disposed of by agreement will be decided by the Chief Engineer of the
Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless,
within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency
mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of the
Department of Transportation. In connection with any appeal proceeding under this clause, the Local
Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal.
Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the
Page 15 of 18
performance of the contract in accordance with the Chief Engineer's decision. The decision of the
Executive Director or his duly authorized representative for the determination of such appeals will be
final and conclusive and serve as final agency action. This dispute clause does not preclude
consideration of questions of law in connection with decisions provided for herein. Nothing in this
contract, however, shall be construed as making final the decision of any administrative official,
representative, or board on a question of law.
Section 28. Single Audit Act Amendment
All state and local government and non -profit organization Sub - Grantees receiving more than
$500,000 from all funding sources, that are defined as federal financial assistance for Single Audit Act
Amendment purposes, shall comply with the audit requirements of OMB Circular A -133 (Audits of
States, Local Governments and Non- Profit Organizations) see also, 49 CFR 18.20 through 18.26. The
Single Audit Act Amendment requirements that apply to Sub - Grantees receiving federal funds are as
follows:
a) If the Sub - Grantee expends less than $500,000 in Federal funds (all federal sources, not just
Highway funds) in its fiscal year then this requirement does not apply.
b) If the Sub - Grantee expends more than $500,000 in Federal funds, but only received federal
Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific
audit shall be performed. This audit will examine the "financial" procedures and processes for this
program area.
c) If the Sub - Grantee expends more than $500,000 in Federal funds, and the Federal funds are
from multiple sources (FTA, HUD, NP S, etc.) then the Single Audit Act applies, which is an audit
on the entire organization/entity.
d) Single Audit can only be conducted by an independent CPA, not by an auditor on staff.
e) An audit is an allowable direct or indirect cost.
Page 16 of 18
Section 29.
(For Use Only with Inter - Governmental Contracts)
1. CONTROLLER'S APPROVAL. CRS 24 -30 -202 (1)
This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may
designate.
2. FUND AVAILABILITY. CRS 24 -30 -202 (5.5)
Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated
budgeted, and otherwise made available.
3. INDEMNIFICATION
To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the Stale against any and all claims, damages, liability
and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees,
agents, subcontractors, or assignees pursuant to the terms of this contract.
No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24- 10-101 at seq. or the Federal Tort claims Act,
28 U.S.C. 2671 at seq. as applicable, as now or hereafter amended.
4. INDEPENDENT CONTRACTOR. 4 CCR 801 -2
THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE.
NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN
AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME
TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES
THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE
CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE
SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY
AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND
KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BYTHE STATE)AND
UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR
THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS.
5. NON - DISCRIMINATION.
The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair
employment practices.
.[1114reTyAiYFI
The laws of the Stale of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and
enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any
extra- judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing
contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall
be valid or enforceable or available in any action at law whether byway of complaint, defense, or otherwise. Any provision rendered null and void
by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution.
At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and
regulations that have been or may hereafter be established.
7. SOFTWARE PIRACY PROHIBITION Governors Executive Order D 002 00
No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in
violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the tens of this Contractand
any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State
determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this
Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or
applicable licensing restrictions.
8. EMPLOYEE FINANCIAL INTEREST. CRS 24 -18 -201 & CRS 24 -50 -507
The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the
service or property described herein.
Effective Date: August 1, 2005
Page 17 of 18
CONTRACTOR:
CITY OF PUEBLO
Legal Name of Contracting Entity
84- 6000615
Social Security N er or FEIN
Signature of Authorized Officer
STATE OF COLORADO:
BILL OWENS, GOVERNOR
By Cel Ha -
Executive ctor
Departme o Transportation
LEGAL REVIEW:
JOHN W. SLITHERS
ATTORNEY GENERAL
M i�n0.�I OGG �ict1 ! ' D
- tasidetM off- C r y Count -r?
Print Name & Title of Authori ed Officer
CORPORATIONS:
(A corporate attestation is required.)
i
� l
B
Attest (Seal) By
(Corporht Secretary or Equivalent, or Town /City/Count; Clerk) (Place corporate seal here, if available)
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24 -30 -202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller,
or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is
signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for
the goods and /or services provided.
Effective Date: August 1, 2005
Page 18 of 18
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
STATE CONTROLLER: