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HomeMy WebLinkAbout06823ORDINANCE NO. 6823 AN ORDINANCE APPROVING A GRANT CONTRACT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE COLORADO DEPARTMENT OF TRANSPORTATION RELATING TO THE USC TRAIL LINK PROJECT - PHASE I, AND AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME WHEREAS, the City of Pueblo has received a $160,000 grant from the Colorado Department of Transportation "Transportation Enhancement Program" for the University of Southern Colorado (USC) Trail Link Project (No. STE M086 -035), subject to the execution of a grant contract; and BE IT ORDAINED 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 USC Trail Link Project, Contract No. STE M086 -035, a copy of which is attached hereto having been approved as to form by the City Attorney, is hereby approved. SF,C'TION 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 $160,000 from the Colorado Department of Transportation; $20,000 from the University of Southern Colorado; $20,000 from the City of Pueblo (Project Number PL0003), and the total construction cost is estimated at $200,000. INTRODUCED: April 8, 2002 BY: Al Guru 1 e CO ILPERSON APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: C Y CLERK PASSED AND APPROVED: 4 -22 -2002 fr � (FMLAWRKENH) STE M086 -035 (13460) REGION 2 /(NSO) Rev 2/00 02 HA2 00092 CMS ID 02 -206 TRANSPORTATION ENHANCEMENT CONTRACT THIS CONTRACT, made this �� day of '^ N , 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 or CDOT, and the CITY OF PUEBLO, STATE of COLORADO, 211 D Street, Pueblo, CO 81003, 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 1 P, Phase C, Reporting Category 2140, Contract Encumbrance Number 13460, (Contract Encumbrance Amount: $200,000.00). 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 21st Century of 1998 (TEA -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 § 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 -1- 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 for a program project performed by a local agency under a contract with the State. 6. The Local Agency has requested that a certain local highway project be funded as part of the program as a Transportation Enhancement Activity, and the Local Agency Represents that the project is an eligible Transportation Enhancement Activity as defined in 23 U.S.C. § 101(a), and by the date of execution of this contract the Local Agency (and/or the State) has completed and submitted a preliminary version of CDOT form #463 describing the general nature of that project work. The Local Agency understands that, before the project work is actually started, the description of the project work in that CDOT form #463 will likely be revised as a result of design changes made by CDOT, in conjunction and coordination with the Local Agency, in its internal review process. The Local Agency desires to agree to perform the project work as described in the Form #463, as it may be revised in that Process. 7. Federal -aid funds have been made available for project STE M086 -035 for construction of a bicycle /pedestrian trail along the north side of State Highway 47 in Pueblo, Colorado, as more specifically described in Exhibit A (the Form #463 and/or a "Scope of Work ") and hereinafter referred to as "the project" or "the work ". 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 for the project. 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 or resolution duly passed and -2- 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. A copy of this ordinance or resolution is attached hereto and incorporated herein 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., as amended, and the Local Agency ordinance /resolution. 12. The parties hereto desire to agree upon the division of responsibilities with regard to the project. 13. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily complete some or all of the Work. 14. The State certifies that such work can be more advantageously performed by the Local Agency. NOW, THEREFORE, it is hereby agreed that: I. STANDARD FORM CONTRACT This is a standard form contract that is designed to efficiently contract for and administer 2 types of program projects: 1) program projects which include the same basic work elements (design; construction; construction administration by local agency; right -of -way; utilities; etc.); and, also, 2) program projects with specific differences in those basic work elements ( 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.) -3- 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 "The project" or "the Work" under this contract shall consist of construction of a bicycle /pedestrian trail along the north side of State Highway 47 in 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. III. INCORPORATION BY REFERENCE All federal and state statutes, regulations, specifications, administration checklists, directives, procedures, documents, and publications that are specifically identified and/or referenced in this contract, together with all exhibits and attachments and addenda to this contract, are incorporated herein by this reference as terms and conditions of this contract as though fully set forth. IV. WORK RESPONSIBILITY The Local Agency shall be responsible to perform all design and/or right -of -way and/or utility and/or construction and/or construction administration tasks required to complete the Work, and the Local Agency shall comply with all applicable terms and conditions of this contract in performing the Work, including those process and task responsibilities and standards as specifically indicated 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 The funding provisions for the project are attached hereto and incorporated herein as Exhibit C. -4- VI. 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 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 -5- 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. B. 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. C. 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. 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 -7- 1" 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: I . 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 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 attached hereto and made a part hereof as Exhibit D. 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. VII. STATE COMMITMENTS A . The State will provide liaison with the Local Agency through the State's Region Director, Region 2, 905 Erie Ave., 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 M the work shall be exchanged between representatives of the State's Transportation Region ' W 2 and the Local Agency. Until changed by notice in writing, all routine correspondence shall be addressed as follows: If to State: Mr. David L. Miller CDOT Region 2 905 Erie Avenue Pueblo, CO 81001 (719) 546 -5404 If to the Local Agency: Mr. Steven Meier City of Pueblo 211 D Street Pueblo, CO 81003 (719) 543 -6006 The State will advance /reimburse the Local Agency for the federal -aid share of the project charges, as provided in Exhibit 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. The State will perform a final project inspection prior to project acceptance as a Quality Control/Assurance activity. When all project work has been satisfactorily completed, the State will sign the FHWA form 1212. VIII. LOCAL AGENCY COMMITMENTS A. I. 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. -10- 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. provide final assembly of the Plans and contract documents. 7. be responsible for the Plans being accurate and complete. 8. 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. II. If the Local Agency is the responsible party: 1. 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. 2. 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, including those described in Attachment #1, which is incorporated herein by this reference. Those requirements and procedures include, without limitation: a) it shall (or its contractor shall) submit any consultant subcontract to CDOT for approval prior to its execution by the Local Agency /Contractor, as required by § 172.5 (d); -11- b) it shall ensure that all changes in the consultant 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) it shall require that 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 as Attachment 2; d) it shall (or its contractor shall) also use the CDOT procedures as described in Attachment #1 to administer that design consultant subcontract, to comply with § 172.5(b) and (d); e) it may expedite any CDOT approval of its procurement process and/or of its consultant contract by submitting a letter to CDOT from the Local Agency's attorney and/or authorized representative certifying compliance with those CDOT Attachment #1 procedures and with the requirements of § 172.5(b) and (d). f) it shall ensure that its consultant contract complies with the requirements of 49 CFR 18.36 (i) and contains the required provisions as well as the following language which shall be included 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." -12- 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." B. CONSTRUCTION. I. If "the Work" includes construction, the party that is responsible under Section for the construction/construction administration IV (either the Local Agency or the State) shall perform the construction in accordance with the approved design plans and/or administer the construction all in accord with the project's Pre - construction and Construction 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. H. If the Local Agency is the responsible party, it shall: 1. 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 § 12 -25 -102 C.R.S. as amended), notwithstanding any exception described in § 12 -25 -103, C.R.S., as amended. 2. 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 -13- State award the construction contract(s) to the low responsive, responsible bidder(s). a) In advertising and awarding the bid for the construction of a federal -aid project, the Local Agency shall comply with applicable requirements of 23 U.S.C. § 112 and 23 C.F.R. § § 633 and 635. Those requirements include, without limitation, that the Local Agency /Contractor shall physically incorporate the entire "Form 1273" (which, if relevant to this contract, is attached) verbatim into any subcontract(s) for those services as terms and conditions thereof, as required by 23 CFR 633.102(e). b) The Local Agency has the option to accept or reject the proposal of the low bidder for work on which competitive bids have been received. The Local Agency must declare the acceptance or rejection at the award conference or within 3 working days after said bids are publicly opened, whichever occurs later.) C) By indicating its concurrence in such award at the award conference, the Local Agency acting by or through its duly authorized representatives, agrees to provide additional funds, subject to their availability and appropriation for that purpose, if required to complete the Work under this project if no additional federal -aid funds will be made available for the project.) 3. 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 contractor pursuant to a contract with the Local Agency, the Local Agency will ensure 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 § 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 -14- 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 § 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 ACOUISTTION/RELOCATION. Prior to this project being advertised for bids, the Local Agency will certify in writing to the State that all right of way has been acquired in accordance with the applicable State and federal regulations, or that no additional right of way is required. D. UTILITIES. The Local Agency will be responsible for obtaining the proper clearance or approval from any utility company which may become involved in this project, by separate agreement between the Local Agency and the utility, if necessary. Prior to this project being advertised for bids, the Local Agency will certify in writing to the State that all such clearances have been obtained. E. RAILROADS. In the event the project involves modification of a railroad company's facilities at a railroad grade crossing whereby the Work is to be accomplished by railroad company forces, the Local Agency shall make timely application to the State Public Utilities Commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the work without compliance. The Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 Code of Federal Regulations 646, Subpart B, concerning federal -aid projects involving railroad facilities, including: -15- 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. The Local Agency shall perform all work in accord with the requirements of current federal and state environmental regulation, including the National Environmental Policy Act of 1969 (NEPA) as applicable. G. RECORD KEEPING. I. 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. II. The Local Agency shall, during all phases of the Work, permit duly authorized agents and employees of the State and the FHWA to inspect the project and to inspect, review and audit the project records. H. MAINTENANCE. The Local Agency will maintain and operate the improvements constructed under this contract, at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and will make ample provision for such maintenance each year. Such maintenance and operations shall be in accordance with all applicable statutes and ordinances, and regulations promulgated thereunder, which define the Local Agency's obligation to maintain such improvements. The State and FHWA will make periodic -16- 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 The Local Agency will comply with the requirements of Appendix B and the Construction Contract Administration Checklist regarding DBE requirements for the work, except 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 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 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 Exhibit C. -17- 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. 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: 1. 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. It shall be grounds for the State to terminate this M contract for cause, if after a period of two (2) years from the date of this contract, the Local Agency fails to substantially prosecute the work outlined in the contract. 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. 2. 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. 3. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local Agency is to be paid, reimbursed, or otherwise compensated with federal and/or State funds which are available to the State for the purposes of contracting for the project provided for herein, and therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims to compensation arising under this contract are contingent upon availability of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may immediately terminate or amend this contract. D. Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and attachments hereto which may require continued performance or compliance beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. E. This contract is subject to such modifications as may be required by changes in federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of -19- 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. K. The Special Provisions, Attachment LO (Certification for Federal -Aid Contracts), and Appendix B (DBE requirements) and Addendum B, Contract Modification Tools -20- 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 exhibits and attachments, in descending order of their attachment. 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. -21- IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first above written. ATTEST: By � 4r- Chief Clerk ARTHUR L. BARNHART State Controller ATTEST: (SEAL) STATE OF COLORADO BILL OWENS, GOVERNOR By xecutive Director A!Vo DEPARTMENT OF TRANSPORTATION By Pi Title: Clerk Typist APPROVED: p(cstant Attorney General vil Litigation Section CITY OF PUEBLO, COLORADO By Title: President of City Council Federal Employer Identification Number: 846000615 -22- KENSALAZAR Attorney General I. EXHIBIT C FUNDING PROVISIONS A. The Local Agency has estimated the total cost the Work to be $200,000.00, which is to be funded as follows: BUDGETED FUNDS a. Federal Funds $160,000.00 80% of Participating Costs b. Local A gency Matching Funds $ 40,000.00 20%1 of Participating Costs c. Local Agency Matching for CDOT- Incurred Non - Participating Costs $ 0.00 ( including Non-Participating Indirects TOTAL BUDGETED FUNDS $200,000.00 ESTIMATED CDOT- INCURRED COSTS a. Federal Share $ 0.00 80% oLParticipating Costs b. Local Share Local Agency Share of Participating Costs $0.00 — Participating Non - Participating Costs (Including Non- Indirects )(1 c $0.00 Estimated to be Billed to Local Agency $ 0.00 TOTAL ESTIMATED CDOT- INCURRED COSTS $ 0.00 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted 1 a $160,000.00 b. Less Estimated Federal Share of CDOT- Incurred Costs 2a $ 0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGEN $160,000.00 FOR CDOT ENCUMBRANCE PURPOSES Total Encumbrance Amount ($160,000.00 divided by 80% $200,000.00 Less ROW Acquisition 3111 $ 0.00 Net to be encumbered as follows: $200,000.00 Desi n 2312 1 P 1 3020$ 0.00 -34- Const 12312 1 P 1 33011$200,000.00 B. The matching ratio for the federal participating funds for this project is 80% federal -aid funds (CFDA #20 2050) to 20% Local Agency funds, it being understood that such ratio applies only to the $200,000.00 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 participating cost of performance of the Work exceeds $200,000.00, and additional federal funds are made available for the project, the Local Agency shall pay 20% of all such costs eligible for federal participation and 100% of all non - participating costs; if additional federal funds are not made available, the local agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $200,000.00, 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 $160,000.00, (For CDOT accounting purposes, the federal funds of $160,000.00 and local matching funds of $40,000.00 will be encumbered for a total encumbrance of $200,000.00), unless such amount is increased by an appropriate written modification to this contract executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this contract, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. The parties hereto agree that this contract is contingent upon all funds designated for the project herein being made available from federal and/or state and/or Local Agency sources, as applicable. Should these sources, either federal or Local Agency, fail to provide necessary funds as agreed upon herein, the contract may be terminated by either party, provided that any party terminating its interest and obligations herein shall not be relieved of any obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. -35-