HomeMy WebLinkAbout2014-047-06/03/2014-APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR REIMBURS RESOLUTION 2014-047
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH
THE COLORADO DEPARTMENT OF TRANSPORTATION FOR
REIMBURSEMENT OF WETLANDS MITIGATION COSTS
WHEREAS, the Colorado Department of Transportation (CDOT) is constructing four road
improvement projects.that impact a total of 1.02 acres of wetlands within the City of Fort
Collins; and
WHEREAS, the impacted areas are located along State Highway 14 at the Cache la Poudre
River Bridge, on U.S. Highway 287 at the Laporte roundabout, along U.S. 287 at the State
Highway 1/Laporte bypass, and at the U.S. 287/State Highway 392 Intersection; and
WHEREAS, the U.S. Army Corps of Engineers (Corps) requires mitigation for impacts to
jurisdictional wetlands under the Clean Water Act, which mitigation often takes the form of
payment by a developer into a wetlands bank, which in turn creates or restores wetlands within
the same ecoregion as the impacts; and
WHEREAS, in April 2014, CDOT contacted the City's Natural Areas Department in the
interest of directly mitigating the local wetland impacts of the CDOT projects; and
WHEREAS, at the time of CDOT's inquiry, the City was nearing completion of work on the
North Shields Ponds and McMurry floodplain restoration projects; and
WHEREAS, the wetlands mitigation aspects of the City work on these projects provided the
level of ecoregional wetland mitigation the Corps had required of CDOT; and
WHEREAS, in lieu of CDOT paying a third party to create additional local wetlands, CDOT
proposed an agreement to reimburse the City for a portion of the costs incurred on the two City
projects, in the same amount the Corps was requiring CDOT to pay to mitigate the wetlands
CDOT had impacted; and
WHEREAS, under the agreement, CDOT will reimburse the City for $99,450 of the costs
and work performed on the North Shields Ponds and McMurry floodplain restoration projects;
and
WHEREAS, Section 16 of Article II of the City Charter provides that the City Council may,
by resolution, enter into contracts with other governmental bodies to furnish governmental
services or to enter into cooperative or joint activities with other governmental bodies; and
WHEREAS, the Council has determined that the proposed agreement with CDOT to
reimburse the City for a portion of the costs incurred in the North Shields Ponds and McMurry
floodplain restoration projects, the form of which is attached hereto as Exhibit "A" and
incorporated herein by this reference (the "Agreement") is in the best interest of the City.
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NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that the City Council hereby approves the Agreement in substantially the form
attached hereto as Exhibit "A", with such additional terms and conditions as the City Manager,
in consultation with the City Attorney, determines to be necessary and appropriate to protect the
interests of the City or effectuate the purpose of this Resolution, and authorizes the Mayor to
enter into the Agreement on behalf of the City.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 3rd
day of June, A.D. 2014.
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EXHIBIT A
(State $LAWRK)
PROJECT C M455-1 14, (19912) 14 HA4 65032
REGION 4 (rp) 471000365
CONTRACT
THIS CONTRACT,executed this dayof 20 by and between the State of
Colorado for the use and benefit of the Colorado Department of Transportation,hereinafter referred to
as the"State"or"CDOT",and the City of Fort Collins, P.O. Box 580,Fort Collins,Colorado,80522,
CDOT Vendor#: 2000003,hereinafter referred to as the"Local Agency","City"or"Contractor",and
the State and the Local Agency together shall be referred to as the"Parties."
RECITALS
I. 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, Function 3402, GL Acct. 4511000010, WBS Element
19912.10.40, (Contract Encumbrance Amount: $99,450.00).
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.The Local Agency has requested that State funds be made available through CDOT project C M455-
114, 19912,which shall consist of CDOT contributing(the Contribution)to the City's ongoing POUdre
River ecological restoration initiative to compensate for,wetland impacts (the Project)that will result
from CDOT projects located within,or adjacent to;and thereby affecting the natural areas of the City of
Ft. Collins,.as described in Exhibit A.
5. The State has funds available and desires to contribute$99,450.00 toward the Project.
6. The Local Agency desires to comply with all state and other applicable requirements, including
the State's general administration ofthe work through this contract, in order to obtain state funds for
the Project.
7. The Local Agency is prepared to accept the Contribution, 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 complete the
work under the Project. A copy of this ordinance or resolution is attached hereto and incorporated
herein as Exhibit B.
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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 Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily
complete some,or all, of the Project.
10. The Local Agency can more advantageously perform the work for the Project.
THE PARTIES NOW AGREE THAT:
Section 1. Scope of Work
CDOT shall provide the Contribution to the City's ongoing Poudre River ecological restoration
initiative to compensate for wetland impacts that will result from CDOT projects located within, or
adjacent to, and thereby affecting the natural areas of the City of Ft. Collins. The responsibilities of
each agency with regards to the Project are 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 26 of this contract
2. This contract
3. Exhibit A (Scope of Work)
4. 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. The Local Agency is prepared to accept the state funding for a portion of the Project, 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 complete the work under the Project. A copy of this ordinance or resolution is
attached hereto and incorporated herein as Exhibit B.
B. The Local Agency has agreed upon the sum of$99;450.00 of state funds for the Contribution.
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C. The maximum amount payable to the Local Agency under this contract shall be$99,450.00,
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
monetary value of the work stated herembefore is the best estimate available, based on the 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.
D. 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 the source of funding 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.
Section 5. Project Payment Provisions
A. The State will reimburse the Local Agency for incurred costs relative to the project following
the State's review and approval of such charges, subject to the terms and conditions of this
Contract. Provided however, that charges incurred by the Local Agency prior to the date this
contract is executed by the State Controller will not be charged by the Local Agency to the project,
and will not be reimbursed by the State.
B. 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 Section 4. To be
eligible for reimbursement, costs by the Local Agency shall be:
I. in accordance with the provisions of Section 4 and with the terns and conditions of this
contract;
2. necessary for the accomplishment of the Work;
3. reasonable in the 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 after the effective date of this contract;
6. satisfactorily documented-
C. The Local Agency shall establish and maintain a proper accounting system in accordance
with generally accepted accounting standards(a separate set ofaccounts,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.
I. 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 wi II be
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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.
D. If the Local Agency is to be billed for CDOT incurred costs,the billing procedure shall be as
follows:
I. Upon receipt of each bill from the State,the Local Agency will remit to the State the amount
billed no later than 60 days after 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).
2. If the Local Agency fails to make timely payment to the State as required by this section
(within 60 days after the date of each bill),the Local Agency shall pay interest to the State at a rate of
one percent per month on the amount of the payment which was not made in a timely manner, until
the billing is paid in full. The interest shall accrue for the period from the required payment date to
the date on which payment is made.
E. The Local Agency will prepare and submit to the State, no more than monthly, charges.for
costs incurred relative to the project. The Local Agency's invoices shall include a description of the
amounts of services performed, the dates of performance and the amounts and description of
reimbursable expenses. The invoices will be prepared in accordance with the State's standard
policies, procedures and standardized billing format to be supplied by the State-
F. To be eligible for payment, billings must be received within 60 days after the period for
which payment is being requested and final billings on this contract must be received by the State
within 60 days after the end of the contract term.
I. 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 49 C.F.R. 18 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
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The Scope of Work (Exhibit A) describes the details of the project and Contribution.
A. Reserved(Design)
B. Reserved (Construction)
Section 7. Reserved (ROW Acquisition and Relocation)
Section 8. Reserved (Utilities)
Section 9. Reserved (Railroads)
Section 10. Reserved (Environmental Obligations)
The Local Agency shall perform all work in accordance with the requirements of the current federal
and state environmental regulations.
Section 11. Maintenance Obligations
CDOT will be responsible for ensuring the success of the portion of the restoration designated as
the "CDOT Mitigation Area". CDOT will monitor the-CDOT Mitigation Area" until the site is
deemed successful and sustainable by the USACE (typically 3 to 5 years). CDOT shall be
financially responsible for all remedial costs in the event that the designated CDOT mitigation area
fails to meet the USACE approved success criteria. The City of Fort Collins shall allow CDOT to
perfonn remedial measures are necessary to achieve the USACE approved success criteria for
wetland mitigation establishment.
Section 12. Record Keeping
The Local Agency shall maintain a complete file ofall 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 three(3)years after the date oftermination ofthis
contract or final payment hereunder, whichever is later, or for such further period as may
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 FH WA to inspect the work under the Project and to inspect, review and
audit the Project records.
Section 13. Termination Provisions
This contract may be terminated as follows:
A. Termination for Convenience. The State may terminate this contract at any time the State
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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 ofthe
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 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 14. 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 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 15. Representatives and Notice
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The State will provide liaison with the Local Agency through the State's Region Director, Region
4, 1420 2nd Street, Greeley, Colorado 80631. 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 4 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: If to the Local Agency:
Patrick Hickey Rick Bachand
Project Manager Natural Areas Department
CDOT Region 4 1745 Hoffman Mill Road
1420 2"d Street P.O. Box 580
Greeley, Colorado 80631 Fort Collins, Colorado 80521
(970) 350-2170 (970) 416-2183
Section 16. 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 17. 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 18. 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 otherprovisions 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 19. Severability
To the extent that this contract may be executed and performance of the obligations of the
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parties maybe accomplished within the intent of the contract,the terms of this contract are severable,
and should any tern 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 20. 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 tern, provision or requirement.
Section 21. 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 22. Survival of Contract Terms
Notwithstanding anything herein to the contrary, the parties understand and agree that all
terns and conditions of this contract and the exhibits and attachments hereto which may require
continued performance, compliance or effect beyogd 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 23. 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 24. 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 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 opportunity to be heard and to offer
evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency
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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.
Section 25. Statewide Contract Management System
If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either
on the Effective Date or at anytime thereafter, this §25 applies. Contractor agrees to be
governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-601, §24-
103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state contracts
and inclusion of contract performance information in a statewide contract management system.
Contractor's performance shall be subject to Evaluation and Review in accordance with the terms
and conditions of this Contract, State law, including CRS §24-103.5-101, and State Fiscal Rules,
Policies and Guidance. Evaluation and Review of Contractor's performance shall be part of the
normal contract administration process and Contractor's performance will be systematically
recorded in the statewide Contract Management System. Areas of Evaluation and Review shall
include, but shall not be limited to quality, cost and timeliness. Collection of information relevant
to the performance of Contractor's obligations under this Contract shall be determined by the
specific requirements of such obligations and shall include factors tailored to match the
requirements of Contractor's obligations. Such performance information shall be entered into the
statewide Contract Management System at intervals established herein and a final Evaluation, .
Review and Rating shall be rendered within 30 days of the end of the Contract term. Contractor
shall be notified following each performance Evaluation and Review, and shall address or correct
any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that Contractor demonstrated a
gross failure to meet the performance measures established hereunder, the Executive Director of
the Colorado Department of Personnel and Administration (Executive Director), upon request by
the Department of Transportaion , and showing of good cause, may debar Contractor and prohibit
Contractor from bidding on future contracts. Contractor may contest the final Evaluation, Review
and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of
the evaluation (CRS §24-105-102(6)), or(b) under CRS §24-105-102(6), exercising the
debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may
result in the reversal of the debarment and reinstatement of Contractor, by the Executive
Director, upon showing of good cause.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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Section 26. SPECIAL PROVISIONS
The Special Provisions apply to all contracts except where noted in italics.
1. CONTROLLER'S APPROVAL.CBS§24-30-202(1).'This contract shall not be,valid until it has been approved by the Colorado State Controller or designee.
2. FUND AVAILABILITY.CBS§24-30-202(5.5).Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose
. being appropriated,budgeted,and otherwise made available.
J. GOVERNMENTAI-IMMtiNITY.No wan or condition of this contract shall be construed or interpreted as a waiver,express or implied,of any of the immunities,
rights,benefits,protections,or other provisions,of the Colorado Governmental Immunity Act,CRS§24-10-101 at seq.,or the Federal Tort Claims Act,28 U.S.C.
§§I346(b)and 2671 et seq.,as applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR.Contractor shall perform its duties hereunder as an independent contractor and not as an employee.Neither Contractor nor any
agent cis employee of Contractor shall be deemed to be an agent or employee of the State.Contractor and its employees and agents are not entitled to unemployment
insurance or workers compensation benefits through the Slate and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or
emnpluyees.Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third
party.Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract.Contractor shall nut have
authorization,express or implied,to bind the State to any agreement,liability or understanding,except as expressly set forth herein.Contractor shall(a)provide and keep
in force workers'compensation and unemployment compensation insurance in the amounts required by law,(h)provide proof thereof when requested by the State,and(c)
be solely responsible for its acts and those of its employees and agents.
5. COMPLIANCE WITH LAW.Contractor shall strictly comply with all applicable federal and State laws,rules,and regulations in effector hereafter established,
including,without limitation,laws applicable to discrimination and unfair employment practices.
6. CHOICE OF LAW.Colorado law,and rates and regulations issued pursuant thereto,shall be applied in the interpretation,execution,and enforcement of this
contract.Any provision included or incorporated herein by reference which conflicts with said taws,rules,and regulations shall be null and void.Any provision
incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action
at law,whether by way of complaint,defense,or otherwise.Any provision rendered null mid void by the operation of this provision shall not invalidate the remainder of
this contract,to the extent capable of execution.
7. BINDING ARIII'FRATION PROHIBITED.The State.1 Colorado does not agree to binding arbitration by any extra-,judicial body or person..Any provision to the
contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION.Governor's EzceuNve Order D 002 00.State or other public funds payable under this contract shall not be used for the
acquisition,operation,or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions.Contractor hereby certifies and
warrants that,during the tern of this contract and any extensions,Contractor has and shall maintain in place appropriate systems and controls to prevent such improper
use of public funds.If the State determines that Contractor is in violation of this provision,the State may exercise my remedy available at law or in equity m under this
contract,including,without limitation,immediate ternination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.
9. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST.CRS§§24-18-201 and 24-50-507.The signatories aver that to their knowledge,no
employee of the State has any personal or beneficial interest whatsoever in the service or phxrfa rty described in this contract.Contractor has no interest and shall not
acquire any interest,direct or indirect.that would conflict in any manner or degree with the perfommnce of Contractor's services and Contractor shall nut employ any
person having such known interests. .
10. VENDOR OFFSL'T CRS§§24-30-262(1)and 24-30-202.4.[Nor Applicable to inrergovernrueatal agreements],Subject to CRS§24-30-202.4(3S),the State
Controller mar wal hold payment under the State's vendor offset enterneld system for debts owed to State agencies for:(a)unpaid child,suppoil debts or child support
orrearages;(b)unpaid balances of tat;accrued interest,or other charges specified or CRS§39-21-101,el seq.;(e)unpaid loans due to the Student Loan Division of die
Depar'linear of Higher Education;(d)amounts required to be paid to the Unemployment Compensation Fund;and(e)other unpaid debts owing to the Stale as a resull of
final agency determination or judicial action. -
IL PUBLIC CONTRACTS FORSERVICE.S.CRS§8-17-5-101,fVotApplicableto agreements relating to the offer,issuance,or sale ofsemrrilies,imrslment adrdsny
services or fmrd management services,sponsored projects,ialergovernmental agreements,orinfinmation iechnolokT services orpmducts and.semices]Contractorreriifics,
warrants,and agrees that it does not knowingly employ or cormact will?an illegal alien who will perform war knottier this contract and will confirm the employment eligibility
of all employees who are newly hired for employment in the United States to perform work tinder this contract through participation in the E-Verify Pmgam or the
Department program established pursuant to CRS§8-17.5-102(5)(c),Contractor shall not knowingly employ or contract with an illegal alien to perform work under they
contract of enter into a contract with a sirbeoatroctor rharfcils to certib to Contractor that the subcontractor shall not Anowingly employ or contract with an illegal alien to
perform wok under this contract.Contractor(a)shall not use I,VerityProgram or Department program In to undertakepre-employmentsereening ofjob applicants
while this contract is being performed, (b)shall notes the subcontractor and the contracting Stale agency within three days if Contractor has actual knowledge that a
subcontractor is ernplol4ng or contracting with an illegal alien for work under this contract,or)shall terminate the subcontract fa subcont aclordoes not stop employing or
contracting with the illegal alien within three days ofrecinung the notice,and(d)shall comply with reasonable requests made In the course ofan investigation,undertaken
pmstmiv to CRS§8-17.5-1020),by the Colorado Department of Labor and Employment.IfCona anon Pat ocipates in the Departmentpr ogram,Conn actor shall deliver to the
contracting State agency,Institution of llighto Education orpolitecal subdivision a written,notarized afinnation,'firming d?nr Contractor has ermnirted the legal warkstohrs
ofsuch employee,and shall comply with all ofthe other requirements'of dte Deparmient program.IfContracmrfails to comply with an},requireivent ofthis prmision or CRS
§8-1 ZS-101 et seq., the contracting State agency, institution of higher education or political sribdivision may terminate this contract for breach and, fro terminated,
Contractor shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAI.PERSONS.CRS§24-76.5-101.Contractor,if natural person eighteen(18)years of age or older,hereby
swears and affirms tinder penalty of perjury that he or she(a)is a citizen or otherwise lawfully present in the United States pursuant to federal law,(b)shall comply
with the provisions of CRS§24-76.5-101 et seq.,and(c)has produced one forth of identification required by CRS§24-76.5-103 prior to the effective date of this
contact
Revised 1-1-09
Page 10 of 10
SIGNATURE PAGE
Agreement Routing Number 14 HA4
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf
and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY STATE OF COLORADO
City of Fort Collins, Colorado John W. Hickenlooper, GOVERNOR
By Colorado Department of Transportation
Name of Authorized Individual Donald E. Hunt, Executive Director
Title:
Official Title of Authorized Individual
By: Scott McDaniel, P.E., Acting Chief Engineer
Date:
'Signature
Date:
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS§24-30-202 requires the State Controller to approve all State Agreements.This Agreement is not valid until signed and
dated below by the State Controller or delegate.The Local Agency is not authorized to begin performance until such time. If
The Local Agency begins performing prior thereto,the State of Colorado is not obligated to pay The Local Agency for such
_performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:
Colorado Department of Transportation
Date:
Page I I of 10
Exhibit A
SCOPE OF WORK
CDOT Wetland Mitigation
Collaboration Agreement with the City of Fort Collins Natural Areas Department
The Colorado Department of Transportation (CDOT) is required to mitigate wetland impacts per Section
404 of the Clean Water Act, FHWA/CDOT policy, and City of Fort Collins (City)Ordinance, the following
Scope of Work has been developed in coordination with the City for the mutual benefit of both
government entities.
The Local Agency has requested that State funds be made available for CDOT project C M455-114, 19912,
which shall consist of CDOT contributing to the City's ongoing Poudre River ecological restoration initiative
to compensate for wetland impacts that will result from CDOT projects located within, or adjacent to,and
thereby affecting the natural areas of the City of Ft. Collins. CDOT's portion of the ecological restoration
effort,described in Exhibit A, is herein referred to as the work.
Whereas, CDOT impacted or will be impacting wetlands within, or adjacent to, and thereby affecting the
natural areas of the City of Ft. Collins. The wetlands impacted by CDOT amounts to 1.02 acres.The
calculated offsetting cost of these impacts is $99, 450.00. To compensate for CDOT wetland impacts CDOT
has created and funded a project to contribute to Ft. Collins wetland restoration work.This funding will
supplement funding for the City's ongoing Poudre River restoration initiative.The project number is
C M455-114, Sub Account 19912.
Whereas,the four projects, listed in the table below, will have unavoidable impacts to wetland areas and
are located within, or adjacent to,and thereby affecting the natural areas of the City of Ft. Collins.
CDOT Project Perm.Wetland Mitigation
Project Name Project sub- Advertisement Impacts(ac Cost paid to
Account# date .) City*
SH 14 Poudre Bridge 18085 9/12/2013 0.38 $ 37,050
US 287 Laporte Roundabout 17035 shelf fall 2013 0.47 $ 45,82S
US 287 SH 1 to Laporte Bypass 12372 NA 0.07 $ 6,825
US 287/SH 392 Intersection 18800 4/3/2014 0.10 $ 9,750
TOTAL 1.02 $ 99,450
'Mitigation Cost($97,500/ac of impact)is based on the value of regional wetland bank credits($65,000/acre)in
secondary service area(x 1.5).
Whereas, the Colorado Department of Transportation (CDOT) is committed to mitigate a total of for 1.02
acres (44,431 square feet) of permanent wetland impacts associated with the four projects.
Exhibit A, Page 1 of 3
Exhibit A
Whereas,the City has an interest in preserving and enhancing the ecological integrity of the City owned
Natural Areas and currently has plans for several large ecological restoration projects.
Thereby, CDOT will fulfill its wetland mitigation obligations by providing funding to the Fort Collins Natural
Areas Department for the purpose of wetland creation. CDOT will provide funding assistance for the
scheduled "McMurry Phase 2 Floodplain and Wetland Restoration Project" and/or the"Sterling Wetland
Restoration Project' in an amount that is equivalent to the purchase price of wetland mitigation bank
credits.
1. Exhibits
"Exhibit Al" Project Maps and Design Plans
II. Colorado Department of Transportation Responsibilities
1. CDOT shall provide reimbursement for eligible costs to the City of Fort Collins. The quantity of
funds provided to the City of Fort Collins for this purpose is not intended to cover the complete
costs, nor does is it directly tie to a specified project element. The total payment provided will be
based on a comparable sum that would otherwise be paid to an offsite wetland mitigation bank for
the purpose of meeting compensatory wetland mitigation obligations per requirements under
Section 404 of the Army Corps of Engineers(USACE). Due to the fact that the project is located
outside of the primary service areas of all available mitigation banks, the cost of mitigation credits
are increased by a factor of 1.5 as required by the USACE. At the time of this agreement the rate
paid by CDOT for wetland credits is approximately$65,000 per acre. This rate shall be used as the
basis for determining the total payment. The total area of permanent impacts for the four
transportation projects is 1.02 acre. Therefore,the total payment to the City of Fort Collins will be
$99,450(1.02 ac.x$65,000 x 1.5).
2. CDOT R4 wetland scientist will review the wetland construction plans as they are being developed
to ensure that the project design will provide the habitat types and quantity necessary to*meet
permit obligations.
3. Upon completion of the project the CDOT designated mitigation area shall be field located by
CDOT and Natural Areas staff with a GPS unit. An "as-built" map will be developed by CDOT for the
purpose of site monitoring and compliance reporting,which will be completed by CDOT staff.
4. CDOT will be responsible for ensuring the success of the portion of the restoration designated as
the "CDOT Mitigation Area". CDOT will monitor the "CDOT Mitigation Area" until the site is deemed
successful and sustainable by the USACE (typically 3 to 5 years).
S. CDOT shall be financially responsible for all remedial costs in the event that the designated CDOT
mitigation area fails to meet the USACE approved success criteria.
Exhibit A, Page 2 of 3
Exhibit A
III. City of Fort Collins Responsibilities
1. The City has planned and will construct riparian wetlands at McMurry Natural Area and at the .
Sterling portion of North Shields Pond Natural Area beginning in the fall of 2013 and completing both
projects by summer 2014.
2. The funds provided by CDOT to the City Natural Areas Department may only be used for
reimbursement of costs incurred for construction of the project. Construction, for the purpose of
this agreement, includes grading,topsoil placement, native plant material and seed,and costs
associated with installation of such material. These funds are prohibited for use in planning, design
or administrative costs.
3. Upon completion of the restoration project, the City will allow CDOT to delineate a 1.02 acre area
of created wetland to be designated as the "CDOT Mitigation Area". This area may not be used again
in the future as mitigation of other ecological impacts.
4. The City will provide CDOT with the opportunity to review and comment on preliminary design
plans to ensure that the project design will provide the habitat types and quantity necessary to meet
permit obligations.
S. Due to the nature of this property lying within a major river floodway and floodplain, and its
designed intent to be flooded during a 2—5 year flood event, the City is not responsible to
reconstruct wetland should flooding event(s) modify the nature or extent of the mitigated area.
The City will grant CDOT access to the site for the purpose of annual monitoring and if remedial
work is necessary to meet mitigation success standards, then CDOT and the City will work together
to develop a remedial plan.
Exhibit A, Page 3 of 3
Exhibit B
LOCAL AGENCY
ORDINANCE
or
RESOLUTION