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ORDINANCE NO. 6434
AN ORDINANCE APPROVING A CONTRACT, PROJECT NO. STM M086 -026
(12593) BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND THE
COLORADO DEPARTMENT OF TRANSPORTATION, AND AUTHORIZING
THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME.
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO,
COLORADO that:
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The contract between the City of Pueblo, a Municipal Corporation, and the
Colorado Department of Transportation concerning the fabrication and
installation of STREET NAME SIGNS and associated stop and yield signs at
approximately 1,000 locations in the City of Pueblo (Project STM M086 -026) is
hereby approved.
SECTION 2.
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.
SFCTInN 3
This ordinance shall become effective immediately upon passage and
approval.
INTRODUCED April 26. 1999 '
BY: Rich Golenda
Councilperson
APPROVED: I�--
President of the Council
ATTEST:
MEMORANDUM
DEPARTMENT OF TRANSPORTATION
Center for Procurement Services 07'
4201 E. Arkansas Avenue
Denver, Colorado 80222 p �
(303) 757 -9236
DATE: JUNE 3 1999
TO: CITY OF PUEBLO
Re: Contract for VARIOUS INTERSECTIONS IN PUEBLO
Please find enclosed your copy or original)'pf the referenced contract.
NOTE: WORK SHALL NOT COMMENCE UNTIL A WRITTEN NOTICE TO PROCEED
HAS BEEN ISSUED BY THE COLORADO DEPARTMENT OF TRANSPORTATION
REPRESENTATIVE.
Copies /original of this contract have been distributed this date to the following:
■ CDOT Files
■ Business /Headquarters Staff Manager
■ Vendor /Government agency
■ CDOT Representative
Sincerely,
Jo Palma
Procurement Services
(303) 757 -9236
STM M086 -026 (12593)
Various intersections in Pueblo
City of Pueblo, R -2 (CEM)
99 HA2 00057
CONTRACT
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THIS CONTRACT, made this - day of , u n , 19 5 5 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 12593, (Contract Encumbrance Amount: $474,000.00).
2. Required approval, clearance and coordination has been accomplished from and with
appropriate agencies.
3. Pursuant to Title I, Subtitle A, Section 1108 of the Transportation Equity Act for the 21 st
Century of 1998 (T -21) 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.
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
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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, STM M086 -026 for replacement of
Stop/Yield signs and street name signs at approximately 1,000 intersections in the City of Pueblo
Colorado as more specifically described in Exhibit A (the Form #463 and/or a "Scope of Work "),
hereinafter referred to as "the project" or "the work ". Since none of the intersections involve a
State Highway, the State is not obligated to provide funding for the work under Section 43 -2 -135
(1) (i) C.R.S.
6. The matching ratio for this federal -aid project is 82.79% federal -aid funds to 17.21% 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 through
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.
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;
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construction; construction administration by local agency; right -of -way; utilities; etc.); and, also,
2) program projects with specific differences in those basic work elements (e g , 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.
H. PROJECT DESCRIPTION
1. "The project" or "the Work" under this contract shall consist of the Local Agency
replacing Stop/Yield signs and street name signs at approximately 1,000 intersections, hereinafter
referred to as "the project" or "the Work" in the City of Pueblo, 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. Since none of the intersections involve a State Highway, the
State is not obligated to provide funding for the work under Section 43 -2 -135 (1) (i) C.R.S.
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
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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 $474,000.00 which is to
be funded as follows:
a. Federal participating funds:
(82.79% of $474,000.00) $392,425.00
b. Local Agency participating share:
(17.21 % of $474,000.00) $ 81,575.00
Total Funds:
H. 111 11
B. The matching ratio for the federal participating funds for this project is 82.79%
federal -aid funds (CFDA #20 2050) to 17.21% Local Agency funds, it being understood that
such ratio applies only to the $474,000.00 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 $474,000.00, and additional federal funds are
made available for the project, the Local Agency shall pay 17.21% 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 $474,000.00, 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
$392,425.00, 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.
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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 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
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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
Mr. David Miller
If to the Local Agency
Mr. Dan Centra
CDOT Region 2
905 Erie Avenue
Pueblo, CO 81002
(719) 546 -5404
City of Pueblo
P.O. Box 1427
Pueblo, CO 81002 -1427
(719) 545 -5840
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.
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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);
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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 91 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.
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B. CONSTRUCTION.
If "the Work" includes construction, the party 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 (CMOs) 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.)
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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 project.)
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
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 ACOUISITION/RELOCATION.
If "the Work" includes right of way acquisition and/or relocation, the party that is responsible
under Section IV (either the Local Agency or the State) for the right of way acquisition and/or
relocation shall comply with the following requirements, as applicable:
1. prepare right -of -way plans that comply with Chapter 2 of the CDOT Right of Way
Manual and Federal-Aid Policy Guide (FAPG) Chapter 1, Subchapter G, Part 630
Subpart B Attachment. The Local Agency will be responsible for right of way plans
changes that are necessary to assure compliance with State and FHWA requirements.
2. be responsible for the plans being accurate and complete.
3. if the Local Agency is the responsible party, it shall perform its project right of way
responsibilities in accordance with the CDOT Right of Way Manual, subject to the
following conditions for compliance with 23 CFR 710 and 23 CFR 712:
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a. submit final right of way plans to CDOT and obtain CDOT approval
thereof before starting appraisals for right of way acquisition.
b. not perform appraisal review of parcels valued over $2,500. Such
appraisal review will be the State's responsibility.
C. negotiation activities will be authorized by CDOT subsequent to appraisal
review.
d. submit all administrative settlements proposed by the Local Agency to
CDOT, and obtain CDOT approval thereof, before executing the purchase
agreement.
4. perform appraisal and acquisition for the project, as required by Section 24 -56 -101, et
seq., C.R.S. However, if the State determines that such performance by the Local Agency
will jeopardize or is jeopardizing distribution of federal assistance funds, or that action by
the State is necessary to comply with federal policy or procedures, then the State, in its
discretion, may perform the acquisition and relocation assistance itself or may supervise
and direct the Local Agency in the performance of such acquisition and assistance. Prior
to taking such action, the State will provide written notice to the Local Agency of the
basis for such determination or action and will meet with the Local Agency to discuss
possible remedial measures. Prior to this project being advertised for bids, the Local
Agency will certify in writing to the State that all right of way has been acquired in
accordance with the applicable State and Federal regulations, or that no additional right of
way is required. The "Check Points for Federal Participation in Right of Way
Acquisition and Relocation" is attached hereto and made a part hereof.
(IF NO RIGHT OF WAY IS ANTICIPATED, USE THE FOLLOWING PARAGRAPH IN
PLACE OF 1 -4 ABOVE)
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
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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 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.
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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 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.
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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.
(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
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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.
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.
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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 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.
16
IN WITNESS WHEREOF, the parties hereto have executed this contract the day
and year first above written.
ATTEST:
By
Chief Clerk
ARTHUR L. BARNHART
State Controller
ATTEST: (SEAL)
B
Title City Clerk
STATE OF COLORADO
BILL OWENS, GOVERNOR
By Lk
Z "� ecutive Di lector
DEPARTMENT OF TRANSPORTATION
APPROVED:
KEN SALAZAR
Attorney General
By
4w
BARRYB.RYAN
Assistant Attorney General
Civil Litigation Section
CITY UEBLO, COL ADO
l�
By
Title President of City Cou
Federal Employer Identification
Number: 846000615