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HomeMy WebLinkAboutmaroon.crk.bridge.cost.sharingFIRST READING ON DRAFT RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PIKTIN COUNTY, COLORADO AUTHORIZING THE BOARD TO ENER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE COLOARDO DEPARTMENT OF TRANSPORTATION (Maroon Creek Bridge Cost Sharing) AGENDA ITEM SUMMARY REGULAR MEET1NG DATE: January 12, 2005 AGENDA ITEM TITLE: STAFF RESPONSIBLE: Maroon Creek Bridge Cost Sharing Bud Eylar Brian Pettet DESCRIPTION OF ISSUE: On December 21, 2004 the Board provided direction to draft an Intergovernmemal Agreement (IGA) with CDOT that outlines the proposed cost sharing agreement for replacement of the Maroon Creek Bridge (see attached). The County is committing to provide up to $900,000 to CDOT for the Bridge's construction. In addition, as directed by the Board, any revenue received from the sale of the Bridge would be used to offset the $900,000 commitment from the State Highway 82 Use Tax fund balance. The financial accounting will be completed internal to the County after the Pedestrian Bridge is sold and does not need to be included in the attached IGA with CDOT. RECOMMENDED BOCC ACTION: Approve and sign the attached resolution. Sign the original Intergovernmental Agreement documents on file with the Clerk. Page 1 of 9 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING THE BOARD TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION Resolution No. #05- Recitals 1. The Board of County Commissioners of Pitkin County under the authority granted pursuant to C.R.S. § 29-1-201 and Article XIV, Section 10 of the Colorado Constitution is hereby entering into an Intergovernmental Agreement with the Colorado Department of Transportation, hereinafter referred to as the State. 2. The purpose of the Intergovernmental Agreement (IGA), attached as Exhibit A, is to set forth the respective responsibilities and obligations of the parties relating to the financial cost sharing agreement of the Maroon Creek Bridge Replacement Project. 3. The Board of County Commissioners has determined that it is in the best interest of the citizens of Pitkin County to enter into this Intergovernmental Agreement. NOW THEREFORE, BE IS RESOLVED, by the Board of County Commissioners that is does hereby approve the Intergovernmental Agreement between Pitkin County and the Colorado Department of Transportation and authorizes the Chair to sign an Intergovernmental in substantially the form attached as Exhibit A, as approved by the County Attorney. INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING ON THE 12th DAY OF January, 2005. NOTICE OF PUBLIC HEAKING PUBLISHED IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE 16th DAY OF January, 2005. APPROVED UPON SECOND READING ON THE 26th DAY OF January, 2005. PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE ASPEN TIMES WEEKLY ON THE 64 of February, 2005. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jeanette Jones Deputy Clerk Patti Kay Clapper Chairperson Date: Recommended for Approval: Hilary F. Smith County Manager Brian Pettet Director of Public Works Page 2 of 9 (Local $CDOTWRK) PROJECT Maroon Creek Bridge, C 0821-075 (15155) Pitkin County/Region 3/(NSO) Rev 10/03 05 HA3 00029 CMS ID 05-090 CONTRACT THiS CONTRACT made this __ day of. 20__, by and between the State of Colorado for the use and benefit of the Colorado Depamnent of Transportation hereinalter referred to as the State and PITKIN COUNTY, COLORADO, 76 Service Center Road, Aspen, CO, 81611, FEIN 846000794, hereinat%r referred to as the "Contractor" or the "Local Agency." RECITALS 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 project and Local Agency costs in Fund Number 400, Appropriation Code 010, Organization Number 9991, Program 2000, Function 3301, Object 2312 IN Phase C, Reporting Category 3110, Contract Encumbrance Number 15155, (Contract Encumbrance Amount: $0.00). 2. Required approval, clearance and coordination have been accomplished from and with appropriate agencies. 3. Pursuant to 43-2-104.5 C.R.S. as amended, the State may contract with Local Agencies to provide maintenance and construction of highways that are part of the state (or local agency) highway system. 4. CDOT anticipates a project for the replacement of the Maroon Creek Bridge and by the date of execution of this con~'act, the Local Agency and/or the State has completed and submitted a preliminary version of CDOT form g463 describing the general nature of the Work. 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 g463, as it may be revised. 5. The Local Agency has made funds available for project Maroon Creek Bridge, C 0821-075 (15155), which shall consist of a contribution toward the cost of construction for the Maroon Creek Bridge replacement project, referred to as the "Project" or the "Work." Such Work will be performed in Pitkin County, Colorado, specifically described in Exhibit A. 6. The Local Agency has funds available and desires to provide a contribution of up to $900,000.00 toward the cost of the work. 7. CDOT has estimated the total cost of the work and the Local Agency is prepared to provide its conlribution toward the cost of the work, as evidenced by un appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, which expressly authorizes the Local Agency to enter into this contract and to expend its funds for the work under the project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. 8. 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. 9. The parties hereto desire to agree upon the division of responsibilities with regard to the project. THE PARTIES NOW AGREE THAT: Section 1. Scope of Work Page 3 of 9 The Project or the Work under this contract shall consist of construction for the replacement of the Maroon Creek Bridge, in Pitkin County, 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: 2. 3. 4. This contract Exhibit A (Scope of Work) Exhibit C (Contract Modification Tools) 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 A. CDOT has estimated the total cost of the work and the Local Agency is prepared to provide a contribution toward the cost of the work, as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the Local Agency, which expressly authorizes the Local Agency to enter into this contract and to expend its funds for the project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. B. CDOT has estimated the total cost the work to be $11,400,000, which is to be funded as follows: a. Local Agency Funds $ 900,000.00 b. CDOT funds from project 15155 $10,500,000.00 Total Funds: $11,400,000.00 C. If the total cost of the performance of the work exceeds $11,400,000.00, the State shall cover all such excess costs, lfthe total cost of the performance of the work is less than $11,400,000.00, then the amount of the Local Agency's contribution shall be decreased first, then State dollars, if applicable, will be further decreased to adjust the project budget to such actual costs. D. The maximum amount payable by the Local Agency under this contract shall be $900,000.00, unless such amount is increased by an appropriate written modification to this contract executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this contract, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. E. The parties hereto agree that this contract is contingent upon all funds designated for the project herein being made available from state sources, as applicable. Should these sources fail to provide necessary funds as agreed upon herein, the contract may be terminated by either party, provided that any party terminating its interest and obligations herein shall not be relieved of any obligations which existed prior to the effective date of such termination or which may occur as a result of such termination. Page 4 of 9 Section 5. Project Payment Provisions A. The Local Agency will reimburse the State for incurred costs relative to the project following the Local Agency's review and approval of such charges, subject to the terms and conditions of this contract. B. If the Local Agency is to be billed for CDOT incurred costs, the billing procedure shall be as follows: Upon receipt of each bill fi.om the State, the Local Agency will remit to the State the amount billed no later than 60 days atter receipt of each bill. Should the Local Agency fail to pay moneys due the State within 60 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 apportionment 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). If the Local Agency fails to make timely payment to the State as required by this section (within 60 days al~er the date of each bill), the Local Agency shall pay interest to the State at a rate of one percent per month on the amount of the payment which was not made in a timely manner, until the billing is paid in full. The interest shall accrue for the period from the required payment date to the date on which payment is made. C. The State will prepare and submit to the Local Agency, no more than monthly, charges for costs incurred relative to the project. The State's invoices shall include a description of the amounts of services performed, the dates of performance and the amounts and description of reimbursable expenses. The invoices will be prepared in accordance with the State's standard policies, procedures and standardized billing format. Section 6. State and Local Agency Commitments The Local Agency Contract Adminislration Checklist in Exhibit D 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 D. A. Construction If the Work includes construction, the responsible party shall perform the construction in accordance with the approved design plans. 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. If the State is the responsible party: it shall appoint a qualified professional engineer, licensed in the State of Colorado, as the State Agency Project Engineer (SAPE), to perform that administration. The SAPE shall administer the project in accordance with this contract, the requirements of the construction contract and applicable State procedures. Page 5 of 9 if bids are to be let for the construction of the project, the State shall, in conjunction with the Local Agency, advertise the call for bids and upon concurrence by the Local Agency will award the construction contract(s) to the low responsive, responsible bidder(s). (1) in advertising and awarding the bid for the construction of a federal-aid project, the State 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 State/contractor shall incorporate Form 1273 (Exhibit H) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefore, as required by 23 CFR 633.102(e). Section 7. Environmental Obligations The State 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 8. Record Keeping The State shall maintain a complete file of all records, documents, communications, and other written materials, which pertain to the costs incurred under this contract. The State 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 State shall make such materials available for inspection at all reasonable times and shall permit duly authorized agents and employees of the Local Agency and FHWA to inspect the project and to inspect, review and audit the project records. Section 9. 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 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 fi.om 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, Page 6 of 9 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 fimds 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 ail 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 10.. Legal Authority The Local Agency warrants 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 tawf~lly 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 11. Representatives and Notice The State will provide liaison with the Local Agency through the State's Region Director, Region 3, 222 South Sixth Street, Room 317, Grand Junction, Colorado 81501-2769, (970) 248- 7225. 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 3 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. If to State: Karen Rowe, PE CDOT Region 3 Resident Engineer 202 Centennial Street Glenwood Springs, CO 81601 (970) 945-8187 If to the Local Agency: Brian Pettet Director of Public Works Pitkin County 76 Service Center Road Aspen, Colorado (970) 920-5392 Section 12 Successors 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 13. 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 Page 7 of 9 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 14. 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 hereafier 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 hereafier amended and the risk management statutes, §§ 24-30-1501, et seq., C.R.S., as now or hereafier amended.. Section 15. Severability 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. Section 16. 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. Section 17. 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 18. 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 19. 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 20. Funding Letters Page 8 of 9 The State may allocate more or less funds available on this contract using a Funding Letter substantially equivalent to Exhibit C 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 21. 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 Local Agency 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 Local Agency shall be afforded an oppommity to be heard and to offer evidence in support of its appeal. Pending f'mal decision of a dispute hereunder, the Local Agency 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 fmal 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 £mal the decision of any administrative official, representative, or board on a question of law. Page 9 of 9 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: PITKIN COUNTY Legal Name of Contracting Entity 846000582 Social Security Number or FEIN STATE OF COLORADO: BILL OWENS GOVERNOR By For Executive Director Department of Transportation Signature of Authorized Officer Print Name & Title of Authorized Officer CORPORATIONS: (A corporate seal or attestation is required.) Attest (Seal) By (Corporate Secretary or Equivalent, or Town/City/County Clerk) Effective: April 1, 2004 Page 10 of 9 Exhibit C Exhibit C - Page 11 of 1