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
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APPROVED: iR-t
PRESI ENT OF CITY COUNCIL
ATTESTED BY:
CITY CLERK
PASSED AND APPROVED February 23, 2004
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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.
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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)
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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
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