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HomeMy WebLinkAbout07109ORDINANCE NO. 7109 AN ORDINANCE APPROVING A TRANSPORTATION ENHANCEMENT CONTRACT, STE -M086- 042 (14726) BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, AND BUDGETING AND APPROPRIATING FUNDS RECEIVED IN THE AMOUNT OF $100,000 AND TRANSFER LOCAL MATCH IN THE AMOUNT OF $25,000 FROM PROJECT CP0317 TO NEW PROJECT DT0401, UNION AVENUE STREETSCAPE WHEREAS, State of Colorado, Department of Transportation, has offered funds through Contract STE -M086 -042 - Union Avenue Streetscape Project; BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1: The Contract between Pueblo, a Municipal Corporation, and the State of Colorado, for the use and benefit of the State Department of Transportation for Transportation Enhancement Project STE M086 -042 (14726) (hereinafter referred to as the "Contract'), a copy of which is on file in the office of the City Clerk, having been approved as to form by the City Attorney, is hereby approved. SECTION 2: Funds in the amount of $100,000 are hereby budgeted and appropriated for the Union Avenue Streetscape Project. Expenditures for the Union Avenue Streetscape Project are authorized from Project No. CP0317. INTRODUCED February 9. 2004 BY Michael Occhiato Councilperson f� APPROVED: iR-t PRESI ENT OF CITY COUNCIL ATTESTED BY: CITY CLERK PASSED AND APPROVED February 23, 2004 '4&_ -#'rnog a m Background Paper for Proposed ORDINANCE AGENDA ITEM 04 DATE: February 9, 2004 DEPARTMENT: COMMUNITY DEVELOPMENT /JIM MUNCH PLANNING DEPARTMENT /CATHY GREEN TITLE AN ORDINANCE APPROVING A TRANSPORTATION ENHANCEMENT CONTRACT, STE -MO86 -042 (14726) BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AUTHORIZING THE PRESIDENT OF CITY COUNCILTO EXECUTE SAME, AND BUDGETING AND APPROPRIATING FUNDS RECEIVED IN THE AMOUNT OF $100,000 AND TRANSFER LOCAL MATCH IN THE AMOUNT OF $25,000 FROM PROJECT CP0317 TO NEW PROJECT DT0401, UNION AVENUE STREETSCAPE ISSUE Should City Council approve a Transportation Enhancement Contract between the Colorado Department of Transportation and the City of Pueblo, authorize the President of City Council to execute same, budget and appropriate the grant funds in the amount of $100,000 and transfer the match in the amount of $25,000 from CP0317 to a new Capital Project No. DT0401, the Union Avenue Streetscape Project? Adoption of Ordinance BACKGROUND The City of Pueblo has been awarded a Transportation Enhancement Grant from the Colorado Department of Transportation for the Union Avenue Streetscape Project. The streetscape project will landscape the right of way adjacent to the new roadway improvements east of the public library and on North Union Avenue between 1 st Street and Grand Avenue. The project budget is $125,000 of which $100,000 is from the CDOT Enhancement Grant and $25,000 as the local match is from the Library Roadway Improvements Project CP0317. $84,000 was budgeted in CP0317 in anticipation of the TE -21 grant match as per Resolution # 7012. The total of $125,000 shall be appropriated and budgeted for a new Capital Project No. DT0401, Union Avenue Streetscape Project. Funds in the amount of $268,000 were awarded to the City of Pueblo per Agreement with the Colorado Historical Society for improvements of the right of way on Union Avenue and site improvements surrounding the El Pueblo Museum, per Resolution No. 7012. Colorado Historical Society Funds were setup in the following Project Numbers: Library Roadway Improvements (TE -21 Grant Match) CP0317 $ 84,000 Library Rotor Project (Small Urban Fund Grant Match) GP0318 $149,573 EL Pueblo Site Improvements EL0101 34,427 $268,000 The Planning and Public Works Departments will administer the design and construction, which is anticipated to start in May 2004. FINANCIAL IMPACT Funds shall be made available and set up in Capital Project No. DT0401 in the amount of $125,000. Design and construction administration shall be performed in- house. Maintenance funds for the project have not been allocated. The annual estimated contracted maintenance cost for the project is $2,500. It is estimated that $1,785 is required upon completion of the project in June for the remaining year maintenance cost. The General Fund is the only available funding source. (FMLAWRK) PROJECT STE M086-042,(14726) REGION 2 /(NSO) Rev 10/03 04HA200037 CMS ID 04 -126 TRANSPORTATION ENHANCEMENT CONTRACT THIS CONTRACT made thisp day of 200Y , by and between the State of Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as the State and CITY OF PUEBLO, 211 D Street, Pueblo, CO 81003, FEIN: 846000615, hereinafter referred to as the "Contractor" or the "Local Agency." 14XQVk_ K 1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient uncommitted balance thereof remains available for payment of proj ect 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 2140, Contract Encumbrance Number 14726, (Contract Encumbrance Amount: $125,000.00). 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 s ` 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 transportation projects requested by Local Agencies and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ( "FHWA'), hereinafter referred to as the "Program." 4. Pursuant to § 1007(a) of TEA -21, at 23 U.S.C. § 133(d)(2), certain Surface Transportation Project funds are made available only for eligible "Transportation Enhancement Activities ", as defined in § 23 U.S.C. § 101(a), and this contract provides for the performance by the Local Agency of a project for an eligible Transportation Enhancement Activity. 5. P ursuan t 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 transportation project be funded as part of the Program, and by the date of execution of this contract, the Local Agency and/or the State has completed and submitted a preliminary version of CDOT form #463 describing the general nature of the Work. Page 1 of 18 c The Local Agency understands that, before the Work begins, form #463 may be revised as a result of design changes made by CDOT, in coordination with the Local Agency, in its internal review process. The Local Agency desires to perform the Work described in form #463, as it may be revised. 7. Federal -aid funds have been made available for project STE M086 -042 (14726), which shall consist of construction for streetscaping along Union Avenue, referred to as the "Project" or the "Work." Such Work will be performed in Pueblo, Colorado, specifically described in Exhibit A. 8. The matching ratio for this federal aid project is 80% federal-aid funds to 20% Local Agency funds, it being understood that such ratio applies only to such costs as are eligible for federal participation, it being further understood that all non - participating costs shall be borne by the Local Agency at 100 %. 9. The Local Agency desires to comply with the Federal Provisions and other applicable requirements, including the State's general administration and supervision of the Project through this contract, in order to obtain federal funds. 10. The Local Agency has estimated the total cost of the Work and is prepared to provide its match share of the cost, as evidenced by an appropriate ordinancehesolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this contract and to expend its match share of the Work. A copy of such ordinancelresolution or authority letter is attached hereto as Exhibit B. 11. This contract is executed under the authority of §§ 29-1-203,43-1-110; 43-1-116,43-2-101(4)(c) and 43 -2 -144, C.R.S. and Exhibit B. 12. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily complete some or all of the Work. 13. The Local Agency can more advantageously perform the Work. THE PAR'T'IES NOW AGREE THAT: Section 1. Scope of Work The Project or the Work under this contract shall consist of construction for streetscaping along Union Avenue, in Pueblo, Colorado, as more specifically described in Exhibit A. Section 2. Order of Precedence In the event of conflicts or inconsistencies between this contract and its exhibits, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: 1. Special Provisions contained in section 28 of this contract 2. This contract 3. Exhibit A (Scope of Work) Page 2 of 18 r � 4. Exhibit C (Funding Provisions) 5. Exhibit D (Certification for Federal -Aid Contracts) 6. Exhibit E (DBE Requirements) 7. Exhibit F (Contract Modification Tools) 8. Other Exhibits in descending order of their attachment. Section 3. Term This contract shall be effective upon approval of the State Controller or designee, or on the date made, whichever is later. The term of this contract shall continue through the completion and final acceptance of the Project by the State, FHWA and the Local Agency. Section 4. Project Funding Provisions The Local Agency has estimated the total cost of the Work and is prepared to provide its match share of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this contract and to expend its match share of the Work. A copy of such ordinancetresolution or authority letter is attached hereto as Exhibit B. The funding provisions for the Project are attached hereto as Exhibit C. The Local Agency shall provide its share of the funds for the Project as outlined in Exhibit C. Section 5. Transportation Enhancement Advance Payment Provisions The advance payment provisions described herein shall apply only to a percentage of the construction work portion of an enhancement project, as described below. Payment for all other work portions of the Project, including for the design work, shall be on a reimbursement basis, as described below. A. Pursuant to FHWA's approval under 23 U.S.C. § 133(e)(3)(13), 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 ekecution 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 Page 3 of 18 + 4 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 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. Page 4 of 18 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 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 maybe 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 proj ect approval or completion for any reason, then all actual incurred costs of such services and assistance provided by the State shall be the sole expense of the Local Agency. F. If the Local Agency is to be billed for CDOT incurred direct costs, the billing procedure shall be as follows: 1. Upon receipt of each bill from the State, the Local Agency will remit to the State the amount billed no later than 45 days after receipt of each bill. Should the Local Agency fail to pay moneys due the State within 45 days of demand or within such other period as may be agreed between the parties hereto, the Local Agency agrees that at the request of the State, the State Treasurer may withhold an equal amount from future apportionments due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to the State. Interim funds, until the State is reimbursed, shall be payable from the State Highway Supplementary Fund (400). 2. If the Local Agency fails to make timely payment to the State as required by this section (within 45 days after the date of each bill), the Local Agency shall pay interest to the State at a rate of one percent per month on the amount of the payment which was not made in a timely manner, until the billing is paid in full. The interest Page 5of18 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 ofthe 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 apart 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. Section 6. State and Local Agency Commitments The Local Agency Contract Administration Checklist in Exhibit G describes the Work to be performed and assigns responsibility of that Work to either the Local Agency or the State. The "Responsible Party" referred to in this contract means the Responsible Party as identified in the Local Agency Contract Administration Checklist in Exhibit G. A. Design [if applicable] 1. If the Work includes preliminary design or final design (the "Construction Plans'), or design work sheets, or special provisions and estimates (collectively referred to as the "Plans'), the responsible party shall comply with the following requirements, as applicable: a. perform or provide the Plans, to the extent required by the nature of the Work. b. prepare final design (Construction Plans) in accord with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by CDOT. C. prepare special provisions and estimates in accord with the State's Roadway Page 6of18 and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by CDOT. d. include details of any required detours in the Plans, in order to prevent any interference of the construction work and to protect the traveling public. e. stamp the Plans produced by a Colorado Registered Professional Engineer. f, provide final assembly of Plans and contract documents. g. be responsible for the Plans being accurate and complete. h. make no further changes in the Plans following the award of the construction contract except by agreement in writing between the parties. The Plans shall be considered final when approved and accepted by the parties hereto, and when final they shall be deemed incorporated herein. 2. If the Local Agency is the responsible party: a. The local agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document "ADA Accessibility Requirements in CDOT Transportation Projects ". b. It shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements. C. It may enter into a contract with a consultant to do all or any portion of the Plans and/or of construction administration. Provided, however, that if federal -aid funds are involved in the cost of such work to be done by a consultant, that consultant contract (and the performance/provision of the Plans under the contract) must comply with all applicable requirements of 23 CFR Part 172 and with any procedures implementing those requirements as provided by the State, including those in Attachment #1 (Exhibit H) attached hereto. If the Local Agency does enter into a contract with a consultant for the Work: (1) it shall submit a certification that procurement of any design consultant contract complied with the requirements of 23 CFR 172.5(d) prior to entering into contract. The State shall either approve or deny such procurement. If denied, the Local Agency may not enter into the contract. (2) it shall ensure that all changes in the consultant contract have prior approval by the State and FHWA. Such changes in the contract shall be by written supplement agreement. As soon as the contract with the consultant has been awarded by the Local Agency, one copy of the executed contract shall be submitted to the State. Any amendments to such contract shall also be submitted. (3) it shall require that all consultant billings under that contract shall comply with the State's standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. (4) it (or its consultant) shall use the CDOT procedures described in Page 7 of 18 Attachment 1 [change] to administer that design consultant subcontract, to comply with 23 CFR 172.5(b) and (d). (5) it may expedite any CDOT approval of its procurement process and/or consultant contract by submitting a letter to CDOT from the certifying Local Agency's attorney /authorized representative certifying compliance with Attachment 1 [change] and 23 CFR 172.5(b)and (d). (6) it shall ensure that its consultant contract complies with the requirements of 49 CFR 18.36(1) and contains the following language verbatim: (a) "The design work under this contract shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third party beneficiary of this contract for that purpose." (b) "Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project." (c) "The consultant shall review the construction contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard SSRecifications for Road and Bridge Construction, in connection with this work." d. The State, in its discretion, will review construction plans, special provisions and estimates and will cause the Local Agency to make changes therein that the State determines are necessary to assure compliance with State and FHWA requirements. B. Construction [if applicable] 1. If the Work includes construction, the responsible party shall perform the construction in accordance with the approved design plans and/or administer the construction all in accord with the Local Agency Contract Administration Checklist. Such administration shall include project inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing contractor claims; construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract Administration Checklist. 2. The State shall have the authority to suspend the Work, wholly or in part, by giving Page 8of18 written notice thereof to the Local Agency, due to the failure of the Local Agency or its contractor to correct project conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. 3. If the Local Agency is the responsible party: a. it shall appoint a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform that administration. The LAPE shall administer the project in accordance with this contract, the requirements of the construction contract and applicable State procedures. b. if bids are to be let for the construction of the project, it shall advertise the call for bids upon approval by the State and award the construction contract(s) to the low responsible bidder(s) upon approval by the State. (1) in advertising and awarding the bid for the construction of a federal - aid project, the Local Agency shall comply with applicable requirements of 23 USC § 112 and 23 CFR Parts 633 and 635 and C.R.S. § 24 -92 -101 et seq. Those requirements include, without limitation, that the Local Agency /contractor shall incorporate Form 1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefore, as required by 23 CFR 633.102(e). (2) the Local Agency has the option to accept or reject the proposal of the apparent low bidder for work on which competitive bids have been received. The Local Agency must declare the acceptance or rejection within 3 working days after said bids are publicly opened. (3) by indicating its concurrence in such award, the Local Agency, acting by or through its duly authorized representatives, agrees to provide additional funds, subject to their availability and appropriation for that purpose, if required to complete the Work under this proj ect if no additional federal -aid funds will be made available for the project. This paragraph also applies to projects advertised and awarded by the State. C, If all or part of the construction work is to be accomplished by Local Agency personnel (i.e. by force account), rather than by a competitive bidding process, the Local Agency will ensure that all such force account work is accomplished in accordance with the pertinent State specifications and requirements with 23 CFR 635, Subpart B, Force Account Construction. (1) Such work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA Page 9 of 18 in advance of the Work, as provided for in 23 CFR 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (2) An alternative to the above is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 CFR Part 31. (3) Rental rates for publicly owned equipment will be determined in accordance with the State's Standard Specifications for Road and Bridge Construction § 109.04. (4) All force account work shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. D. State's obligations The State will perform a final project inspection prior to project acceptance as a Quality Control/Assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. 2. Notwithstanding any consents or approvals given by the State for the Plans, the State will not be liable or responsible in any manner for the structural design, details or construction of any major structures that are designed by or are the responsibility of the Local Agency as identified in the Local Agency Contract Administration Checklist, Exhibit G, within the Work of this contract. Section 7. ROW Acquisition and Relocation Prior to this project being advertised for bids, the Responsible Party will certify in writing to the State that all right of way has been acquired in accordance with the applicable State and federal regulations, or that no additional right of way is required. Any acquisition/relocation activities must comply with all federal and state statutes, regulations, CDOT policies and procedures, 49 CFR Part 24, the government wide Uniform Act regulation, the FHWA Project Development Guide and CDOT's Right of Way Operations Manual. Allocation of Responsibilities can be as follows: Federal participation in right of way acquisition (3111 charges), relocation (3109 charges) activities, if any, and right of way incidentals (expenses incidental to acquisition/relocation of right of way — 3114 charges); Federal participation in right of way acquisition (3111 charges), relocation (3109 charges) but no participation in incidental expenses (3114 charges); or No federal participation in right of way acquisition (311 charges) and relocation Page 10 of 18 activities (3109 expenses). Regardless of the option selected above, the State retains oversight responsibilities. The Local Agency's and the State's responsibilities for each option is specifically set forth in CDOT's Right of Way Operation Manual. The manual is located at h"://www.dot.state.co.us/Develo2Proiects/DesignSLipt)o - Section 8. Utilities If necessary, the Responsible Party will be responsible for obtaining the proper clearance or approval from any utility company which may become involved in this Project. Prior to this Project being advertised for bids, the Responsible Party will certify in writing to the State that all such clearances have been obtained. Section 9. Railroads In the event the Project involves modification of a railroad company's facilities whereby the Work is to be accomplished by railroad company forces, the Responsible Party shall make timely application to the Public Utilities Commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the Work without compliance. The Responsible Party shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 CFR 646, subpart B, concerning federal -aid projects involving railroad facilities, including: 1. Executing an agreement setting out what work is to be accomplished and the location(s) thereof, and that the costs of the improvement shall be eligible for federal participation. 2. Obtaining the railroad's detailed estimate of the cost of the Work. 3. Establishing future maintenance responsibilities for the proposed installation. 4. Proscribing future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. 5. Establishing future repair and/or replacement responsibilities in the event of accidental destruction or damage to the installation. Section 10. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. Section 11. Maintenance Obligations The Local Agency will maintain and operate the improvements constructed under this contract which are not located on the state highway system, at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA. The Local Agency will make proper Page 11 of 18 provisions for such maintenance obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations which define the Local Agency's obligations to maintain such improvements. The State and FHWA will make periodic inspections of the project to verify that such improvements are being adequately maintained. Maintenance for improvements located on the state highway system will be performed by the State or by separate contract. Section 12. Federal Requirements The Local Agency and/or their 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. The contractor shall also require compliance with these statutes and regulations in subgrant agreements permitted under this contract. A listing of certain federal and state laws that may be applicable are described in Exhibit J. Section 13. Record Keeping The Local Agency shall maintain a complete file of all records, documents, communications, and other written materials which pertain to the costs incurred under this contract. The Local Agency shall maintain such records for a period of six (6) years after the date of termination of this contract or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pending. The Local Agency shall make such materials available for inspection at all reasonable times and shall permit duly authorized agents and employees of the State and FHWA to inspect the project and to inspect, review and audit the project records. Section 14. Termination Provisions This contract may be terminated as follows: A. Termination for Convenience. The State may terminate this contract at any time the State determines that the purposes of the distribution of moneys under the contract would no longer be served by completion of the project. The State shall effect such termination by giving written notice of termination to the Local Agency and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. B. Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely and proper manner, its obligations under this contract, or if the Local Agency shall violate any of the covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to terminate this contract for cause by giving written notice to the Local Agency of its intent to terminate and at least ten (10) days opportunity to cure the default or show cause why termination is otherwise not appropriate. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models. Photographs and reports or other material prepared by the Local Agency under this contract shall, at the option of the State, become its property, and the Local Page 12 of 18 L Agency shall be entitled to receive just and equitable compensation for any services and supplies delivered and accepted. The Local Agency shall be obligated to return any payments advanced under the provisions of this contract. Notwithstanding the above, the Local Agency shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the contract by the Local Agency, and the State may withhold payment to the Local Agency for the purposes of mitigating its damages until such time as the exact amount of damages due to the State from the Local Agency is determined. If after such termination it is determined, for any reason, that the Local Agency was not in default or that the Local Agency's action/inaction was excusable, such termination shall be treated as a termination for convenience, and the rights and obligations of the parties shall be the same as if the contract had been terminated for convenience, as described herein. C. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local Agency is to be paid, reimbursed, or otherwise compensated with federal and/or State funds which are available to the State for the purposes of contracting for the Project provided for herein, and therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims to compensation arising under this contract are contingent upon availability of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may immediately terminate or amend this contract. Section 15. Legal Authority The Local Agency wan that it possesses the legal authority to enter into this contract and that it has taken all actions required by its procedures, by -laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency warrants that such person(s) has full authorization to execute this contract. Section 16. Representatives and Notice The State will provide liaison with the Local Agency through the State's Region Director, Region 2, 905 Erie Avenue, Pueblo, CO 81001, (719) 546 -5452. Said Region Director will also be responsible for coordinating the State's activities under this contract and will also issue a "Notice to Proceed" to the Local Agency for commencement of the Work. All communications relating to the day -to -day activities for the work shall be exchanged between representatives of the State's Transportation Region 2 and the Local Agency. All communication, notices, and correspondence shall be addressed to the individuals identified below. Either party may from time to time designate in writing new or substitute representatives. Page 13 of 18 If to State: David Miller Resident Engineer CDOT Region 2 905 Erie Avenue Pueblo, CO 81001 (719) 546 -5404 Section 17. Successors If to the Local Agency: Bill Swick Project Manager City of Pueblo 211 D Street Pueblo, Colorado 81003 (719) 543 -6006 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. Section 18. Third Party Beneficiaries It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights of action relating to such enforcement, shall be strictly reserved to the State and the Local Agency. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the State and the Local Agency that any such person or entity, other than the State or the Local Agency receiving services or benefits under this contract shall be deemed an incidental beneficiary only. Section 19. Governmental Immunity Notwithstanding any other provision of this contract to the contrary, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, § 24-10 -101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of § 24 -10 -101, et seq., C.R.S., as now or hereafter amended and the risk management statutes, §§ 24 -30 -1501, et seq., C.R.S., as now or hereafter amended. Section 20. Severability To the extent that this contract may be executed and performance of the obligations of the parties maybe accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. Section 21. Waiver The waiver of any breach of a term, provision, or requirement of this contract shall not be construed or deemed as a waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision or requirement. Page 14 of 18 Section 22. Entire Understanding This contract is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a writing executed and approved pursuant to the State Fiscal Rules. Section 23. Survival of Contract Terms Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and the exhibits and attachments hereto which may require continued performance, compliance or effect beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. Section 24. Modification and Amendment This contract is subject to such modifications as 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 provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law. Section 25. Funding Letters The State may allocate more or less funds available on this contract using a Funding Letter substantially equivalent to Exhibit F and bearing the approval of the State Controller or his designee. The funding letter shall not be deemed valid until it shall have been approved by the State Controller or his designee. Section 26. Disadvantaged Business Enterprise (DBE) The Local Agency will comply with all requirements of Exhibit E and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 CFR Part 26 under this contract, it must submit a copy of its program's requirements to the State for review and approval before the execution of this contract. If the Local Agency uses its program for this contract, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for its use as described above. Page 15 of 18 Section 27. Disputes Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement will be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the consultant mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of the Department of Transportation. In connection with any appeal proceeding under this clause, the consultant shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the consultant shall proceed diligently with the performance of the contract in accordance with the Chief Engineer's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals will be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this contract, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. Page 16 of 18 Section 28. SPECIAL PROVISIONS ( For Use Only with Inter - Governmental Contracts) 1. CONTROLLER'S APPROVAL. CRS 24-30 -202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24- 30-202 (5.5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. INDEMNIFICATION. To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24 -10 -101 et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. 4. INDEPENDENT CONTRACTOR. 4 CCR 801 -2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER As AN INDEPENDENT CONTRACTORAND NOT AS ANLMPL.OYEE. NHITTIF.RTHECONTRACTORNOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT To no CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLE.ss THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS ExPRESSLYSETFORTHHEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OFSUCHLNSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 5. NON - DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. 7. Software Piracy Prohibition Governor's Executive Order No State or other public funds payable under this Contract shall be used for the acquisition, operation or maintenance of computer software In violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such Improper use of public funds. If the State determines that the Contractor Is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. 8. EMPLOYEE FINANCIAL INTEREST. CRS 24-18 -201 & CRS 24- 50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Page 17 of 18 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: City of Pueblo Legal Name of Contracting Entity 846000615 Social Security Number or FEIN Signature Authorized Officer Randy Thurston, President Print Name & Title of Authorized Officer Pueblo City Council CORPORATIONS: (A corporate attestation is required.) STATE OF COLORADO: BILL OWENS, GOVENOR By C'n S -n w C—.' --- For Execu ' Director DepartmeitV Transportation LEGAL REVIEW: KEN SALAZA14 ATTORNEY GENERAL B Tracy L. ' ella Attest (Seal) By (Corpora ecretary or Equivalent, or Town/City/County Clerk) (Place corporate seal here, if available.) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24 -30.202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed It The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER Arthur L. Barnhart f / 0 Page 18 of 18