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TC Res. No. 1997-27RESOLUTION NO. 97-27 A RESOLUTION AUTHORIZING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION RELATING TO THE TOWN'S ROUNDABOUTS PROJECT WHEREAS, the Town Council has heretofore authorized the construction of five roundabouts on Avon Road (State Highway 70 H), hereinafter referred to as "the work"; and WHEREAS, the Colorado Department of Transportation is willing to provide funding for contract administration (construction engineering) services for the work at a cost not to exceed $250,000.00, pursuant to contract; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: 1. A contract with the Colorado Department of Transportation to provide funding for contract administration for the work is hereby authorized pursuant to 5 43-2-144, C.R.S. and 5 29-1-203, C.R.S. 2. Funding of the Town's share of costs of the work and for contract administration costs is specifically authorized in connection with the contract. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Avon on the 8th day of April, 1997. TOWN OF AVON ATT ST: Town Cler By may', or v AVON ROAD (SH 70M ROUNDABOUTS Avon/Region 3 (TDR) CONTRACT 97 HA3 01039 THIS CONTRACT, made this day of , .1997, by and between the State of Colorado for the use and benefit of THE COLORADO DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the State or CDOT, and the TOWN OF AVON, P.O. Box D, Avon, CO 81620, FEIN: 840771088, hereinafter referred to as -the Local Agency or the Town, WHEREAS, authority exists in the law and funds have been budgeted, appropri- ated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment of project funds to the Local Agency in Fund Number Organization No. , Appropriation Code , Program , Function Object , Reporting Category Project Number (Contract Encum- brance Amount $00.00); and WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, the Town desires to construct at its own expense a series of five roundabouts on Avon Road (State Highway 70 H), hereinafter referred to as "the work"; and WHEREAS, the Town is willing to acquire at its own expense all rights of way necessary for the work and to take full responsibility for proper drainage and utility adjustments for the work; and WHEREAS, as a condition of the State's approval of its proposal for the work, the Town is also willing, upon completion of the first construction contract, to submit a formal request to the Colorado Transportation Commission to approve the Town's assumption of ownership of and full responsibility for maintenance for Avon Road; and WHEREAS, CDOT is willing to furnish design plan review, to coordinate FHWA review and to provide funding for contract administration (construction engineering) services for the work at a cost not to exceed $250,000.00; and -1- WHEREAS, CDOT funds for the project's contract administration are not available in CDOT's 1997 fiscal year budget; and WHEREAS, the Town is willing to advance the funds for contract administration to accelerate the projects completion; and WHEREAS, CDOT desires to repay the Town such funds, not to exceed $250,000.00, as the Town shall advance to pay for the cost of contract administration and CDOT shall seek authorization of such funding for the project in the 1998 fiscal year; and WHEREAS, the Town recognizes and accepts the fact that future CDOT repayment of funds which the Town advances for the costs of contract administration is contingent upon the availability and budgeting of such funds by the Transportation Commission for repayment and that the State shall have no obligation to repay such funds unless and until the funds are budgeted and made available by the Transportation Commission for that purpose; and WHEREAS, the Town's willingness to provide its share of the costs of the of the work, and to advance funds for contract administration costs is evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, a copy of which is attached hereto and made a part hereof; and WHEREAS, said ordinance or resolution also establishes the authority under which the Local Agency enters into this contract; and WHEREAS, this contract is executed by the State under authority of Sections 24- 43-1-106, 4371-110, 43-1-201 et seq., 43-2-104.5, and 43-2-144 C.R.S., as amended; and WHEREAS, the parties hereto now desire to agree upon the division of responsibilities for the work, and WHEREAS, the Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily carry out its responsibilities under this contract. NOW, THEREFORE, it is hereby agreed that L PROTECT OR WORK DESCRIPTION -2- 'The project" or "the work" under this contract shall consist of the construction by the Town of Avon of a series of five (5) roundabouts on Avon Road (State Highway 70 M, as well as the acquisition of all rights of way necessary for the construction and the establishment of proper drainage and utility adjustments for the construction. The five (5) roundabouts shall be at the intersections of Avon Road with (1) the I-70 westbound ramps, (2) the 1-70 eastbound -ramps, (3) Beaver Creek Blvd., (4) Benchmark Road and (5) U.S. Highway 6. II. STATE COMMITMENTS A. The State will provide liaison with the Local Agency through the State's Region Transportation Director, CDOT Region 3, 222 South 6th Street, # 317, Grand Junction, Colorado 81501, (970) 248-7225. Said Director will also be responsible for coordinating the State's activities under this contract. B. CDOT shall provide the Town with a prompt review of the Town's design plans for the roundabouts and shall coordinate the FHWA's review of the plans for the work. C. CDOT, contingent upon Transportation Commission approval, shall furnish 1998 fiscal year funding for repayment of. Town costs for contract administration (construction engineering) services for the work at an amount not to exceed $250,000.00. The obligation of CDOT to repay the Town for contract administra- tion costs advanced by the Town, up to the amount of $250,000.00, is expressly subject to the availability and budgeting of such funds in the 1998 fiscal year by the Transportation Commission, and the State shall have no obligation to repay the Town unless and until the Transportation Commission authorizes and budgets such funds. D. CDOT shall seek approval of 1998 fiscal year funding from the Transportation Commission for the cost, not to exceed $250,000.00, of the contract administration for the work. E. Upon satisfactory completion of the first roundabout construction contract CDOT shall support a formal request by the Town to the Colorado Transportation -3- Commission for the Town to assume ownership of'and maintenance responsibility for Avon Road. M. TOWN CONIM TI'MENTS A. The Town shall provide all funds necessary for the performance of the work, including any funds needed for contract administration that are in excess of CDOT's contribution, which shall not be in excess of $250,000.00. B. The Town shall advance the costs:of contract administration for the work up to the amount of $250,000.00, and shall not bill CDOT for repayment of such expenses until after the beginning of the State's 1998 fiscal year, i.e. after July 1, 1997. C. The Town shall acquire all rights of way necessary for the work and shall take full responsibility for ensuring proper site drainage and all utility adjustments needed for the work. D. The Town shall advertize and, subject to CDOT concurrence, shall award the construction contract for the work. E. The Town shall ensure that the construction contract for the work with its contractor(s) incorporates CDOT's Standard Specifications for Road and Bridge Construction as a standard for performance of the work. F. The Town shall submit its design plans for the work to CDOT and the FHWA for approval of compliance with geometric, structural and signing standards. G. The Town shall take full responsibility for maintenance and traffic control on Avon Road during construction of the work. H. Upon completion of the first construction contract (whether the full five roundabouts of a lesser number are constructed), the Town shall submit a formal request to the Colorado Transportation Commission proposing that ownership and full maintenance responsibility for Avon Road be transferred to the Town IV. GENERAL PROVISIONS -4- A. Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and attachments hereto which may require continued performance or compliance beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. B. 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. C. To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon subse- quent breach. D. This contract is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied, in a written contract executed and approved pursuant to the State Fiscal Rules. -5- E. This contract may be terminated as follows: (a) Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely and proper manner, its obligations under this contract, or if the Local Agency shall violate any of the covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to terminate this contract for cause by giving written notice to the Local Agency of such termination and specifying the effective date thereof, at least five (5) days before the effective date of such termination. In that event that the contract is terminated for cause the Local Agency shall reimburse the State the entire amount paid to the Local Agency for the project in a lump sum payment made within thirty (30) days of the termination. Notwithstanding above, the Local Agency shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the contract by the Local Agency. If after such termination it is determined, for any reason, that the Local Agency was not in default, or that the Local Agency's action/inaction was excusable, such termination shall be treated as a termination for conve- nience, and the rights and obligations of the parties shall be the same as if the contract had been terminated for convenience, as described herein. (b) Termination for Convenience. The State may terminate this contract at any time the State determines that the purposes of the distribution of funds or performance of State services under the contract would no longer be served by completion of the project The State shall effect such termination by giving written notice of termination to the Local Agency and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. (c) Termination Due to Loss of Funding. The parties hereto expressly, recognize that the Local Agency is to be paid, reimbursed, or otherwise compensated with funds which are available to the State for the purposes -6- 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. F. 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. G. This contract shall become "effective" only upon the date it is executed by the State Controller, or designee. The term of this contract shall begin on the date first written above and shall continue through the completion and final acceptance of the work by CDOT and the Local Agency. H. The State's Special Provisions are attached hereto are hereby made a part of this contract. For the purposes of the Special Provisions the Local Agency shall be referred to as the contractor. In the event of any conflict between the Special Provisions and the provisions of this contract the Special Provisions shall have priority. 1. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract, and all rights of action relating to such enforcement, shall be strictly reserved to the parties hereto, and ' nothing contained in this contract shall give or allow any such claim or right of action by any other or third person on such contract. It is the express intention of the parties that any person or entity other than the parties receiving services or benefits under this contract be deemed to be an incidental beneficiary only. J. The Local Agency assures and guarantees that it possesses the legal authority to enter into this contract. The Local Agency warrants that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned -7- signatory to execute this contract and to bind the Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency warrants that they have full authorization to execute this contract. -8- IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first above written ATTEST: By Chief Clerk STATE OF COLORADO ROY ROMER, GOVERNOR By Executive Director DEPARTNIENT OF TRANSPORTATION TOWN OF AVON, COLORADO Title Lk- Title Federal Employer Identification Number: 840771088 -9- ATTEST: (SEAL) SPECIAL PROVISIONS CONTROLLER'S APPROVAL 1. This contract shall not be deemed valid until it shall have been approved by the Controller of the State of Colorado or such assistant as he may designate. This provision is applicable to any contract involving the payment of money by the State. FUND AVAILABILITY 2. Financial obligations of the State of Colorado payable after the current fiscal year arc contingent upon funds for that purpose being appropriated. budgeted. and otherwise made available. BOND REQUIREMENT 3. If this contract involves the payment of more than fifty thousand dollars for the construction, erection. repair. maintenance, or improvement of any building. road. bridge. viaduct, tunnel. excavation or other public work for this Stage. the contractor shall, before entering upon the performance of any such work included in this contract, duly execute and deliver to the State official who will sign the contract, a good and sufficient bond or other acceptable surety to be approved by said official in a penal sum not less than one-half of the total amount payable by the terms of this contract. Such bond shall be duly executed by a qualified corporate surety conditioned upon the faithful performance of the contract and in addition. shall provide that if the contractor or his subcontractors fail to duly pay for any labor, materials. team hire. sustenance. provisions. provendor or other supplies used or consumed by such contractor or his subcontractor in performance of the work contracted tr he donc or fails to pay any person who %upplics rental machinery. tools, or equipment in the prosecution of the work the surety will pay the same in an amount not exceeding the sum specified in the bond. together with interest at the rate of eight per cent per annum. Unless such bond is executed. delivered and filed, no claim in favor of the contractor arising under such contract shall be audited, allowed or paid. A certified or cashier's check or a bank money order payable to the Treasure of the Sate of Colorado may be accepted in lieu of a bond. This provision is in compliance with CRS 39-26-106. INDEMNIFICATION 4. To the extent authorized by law. the contractor shall indemnify. save, and hold harmless the State. its employees and agents. 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. DISCRIMINATION AND AFFIRMATIVE ACTION 5. The contractor agrees to comply with the letter and spirit of the Colorado Amidisaimiaation Act of 1957, as amended, and other applicable law respecting discrimination and unfair employment practices (CRS 24-34-402). and as required by Executive Order. Equal Opportunity and Affirmative Action. dated April 16. 1975. Purstram thereto. the fallowing provisions shall be contained in all State contracts or sub-contracts. During the performance of this cour act. the contractor agrees as follows: (a) The contractor will not discriminate against any employee or applicant for employment because of race, creed. color. national origin. sex. marital status. religion. ancestry. mental or physical handicap. or age- The contactor will take affirmative action to insure that applicants are employed and that employees are treated during employment. without regard to the above mentioned characterisucs. Such action shall include, but not be limited to the following: employment upgrading, demotion, or tsander, tsauiurrent or recru mnent advernsings: layoffs or terminations: rates of pay or other forms of compensation. and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment. notices to be provided by the contracting officer setting forth provisions of this non-discrimination clause. (b) The contractor will. in all solicitations or advertisements for employees placed by or on behalf of the contractor. state that all qualified applicants will receive consideration for employment without regard to race. creed. color, national origin. sex. marital status, religion. ancestry. mental or physical handicap. or age. (c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, notice to be provided by the contracting officer. advising the labor union or workers' representative of the contractor's commitment under the Executive Order. Equal Opportunity and Affirmative Action, dated April 16. 1975, and of the rules. regulations, and relevant Orders of the Governor. (d) The contractor and labor unions will furnish all information and reports required by Executive Order. Equal Opportunity and Affirmative Action of April 16. 1975, and by the rules. regulations and Orders of the Governor. or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the office of the Governor or his designee for purposes of investigation to ascertain compliance with such rules. regulations and orders. (e) A labor organization will not exclude any individual otherwise qualified from full membership rights in such labor organization, or expel any such individual from membership in such labor organization or discriminate against any of its members in the full enjoyment of work opportunity because of race, creed. color. sex. national origin. or ancestry. (f) A labor organization. or the employees or members thereof will not aid. abet. incite. compel or coerce the doing of any act defined in this contract to be discriminatory or obstruct or prevent any person from complying with the provisions of this contract or any order issued thereunder, or attempt. either directly or indirectly, to commit any act defined in this contract to be discriminatory. Form 6-AC-02B Revised 1/93 393-33-01.1022 page. of 2 pages (g) In the event of the contractor's non-compliance with the non-discrimination clauses of this contract or with any of such rules. regulations. or orde this contract may be canceled. terminated or suspended in whole or in part and the contractor may be declared ineligible for further State contracts accordance with procedures. authorized in Executive Order. Equal Opportunity and Affirmative Action of April 16. 1975 and the rules. regulations. orders promulgated in accordance therewith. and such other sanctions as may be imposed and remedies as may be invoked as provided in Executive Ord Equal Opportunity and Affirmative Action of April 16. 1975. or by rulm regulations. or orders promulgated in accordance therewith. or as others' provided by law. (h) The contractor will include the provisions of paragraphs (a) through (h) in every sub-contract and subcontractor purchase order unless exempted rules. regulations. or orders issued pursuant to Executive Order. Equal Opportunity and Affirmative Action of April 16. 1975, so that such provisions a be binding upon each subcontractor or vendor. The contractor will take such action with respect to any sub-contracting or purchase order as the contracti agency may direct. as a means of enforcing such provisions. including sanctions for non-compliance. provided. however. that in the event the contrite becomes involved in. or is threatened with, litigation. with the subcontractor or vendor as a result of such direction by the contracting agency, the contrac may request the State of Colorado to enter into such litigation to protect the interest of the State of Colorado. "'RADO LABOR PREFERENCE ions of CRS 8.17-101 & 102 for preference of Colorado labor are applicable to this contract if public works within the State are undertaken hereunder t to whole or in part by State funds. b. A. - construction contract for a public project is to be awarded to a bidder. a resident bidder shall be allowed a preference against a non-resident bidder ft a tute nr feercign country equal to the preference given oc required by the state or foreign country in which the non-resident bidder is a resident. If it is determined the officer responsible tur awarding the bid that compliance with the ubsection uo may cuu,c denia: of federal funds which would otherwise be available or wo otherwise be inconsistent with requirements of Federal law, this subsection shall be suspended. but only to the extent necessary to prevent dental of the moneys o: eliminate the inconsistency with Federal requirements (CRS 8-19-101 and 102) GENERAL 7. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of 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 wt is otherwise in conflict with said laws. rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by mf.crq 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 eompla defence. or otherwise. Any provision •tendered null and void by the operation of this provision win not invalidate the remainder of this contract to the extent that contract is capable of execution. 8. 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 h been or may hereafter be established. 9. The signatories aver that they are familiar with CRS 18-8-301, CL seq.. (Bribery and Corrupt Influences) and CRS 18-8.401, et. seq.. (Abuse of Public Offi and that no violation of such proiisions is present. 10. The signatories aver that to their knowledge, no state employee has any personal or beneficial interest whatsoever in the service or property described herein 'WITNESS WHEREOF. the parties hereto have executed this Contract on the day rust above written. Contracto . (Full Legal Name) STATE OF COLORADO ROY ROMER, GO Pootion (Title) • Corporation:) •est (Seal) ~r co ATTORNEY G: By . r Form 6-AC-02C Revised 1193 39.-53-01-1030 ,Fetiory Clerk Secretary, or Equwalaa. TvwnAM7 By •s EXECLTivE DEPARTMENT OF APPROVALS CONTROLLER By Page ~2 _ which is the last of _ 7 pages