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HomeMy WebLinkAboutC06-310Highway Maintenance Rev 10/03 Eagle County Low Voltage Lighting System an I-70 06 HA3 00062 REGION 3((MR) CMS ID 06-107 CONTRACT THIS CONTRACT made this ~ day of 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 and EAGLE COUNTY, 500 Broadway, PO Box 854, Eagle, Colorado 81631, FEIN: 84-b000762, hereinafter referred to as the "Contractor" or the "Local Agency." RECITALS 1. WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and 2. WHEREAS, CDOT and Eagle County have planned an installation of a low voltage lighting system in an existing concrete box culvert under Interstate 70 at Mile Post 132.665 and anticipate maintenance services for the lighting system; and 3. WHEREAS, Eagle County has requested permission for the low voltage lighting system to be installed in the existing concrete box culvert under Interstate 70 at Mile Post 132.665 under Access Permit No. 304163; and 4. WHEREAS, Section 43-2-102 and 103, C.R.S. require the State to maintain state highways (including where such highways extend through a city or incorporated town}, and §§ 43-2-135 describes certain specific responsibilities of the State and affected local entities (respectively) with respect to state highways that are also part of a local street system; and 5. WHEREAS, the Parties desire that that the County accept responsibility far such maintenance, hereinafter referred to as "the Work"; and 6. WHEREAS, CDOT owns the Right-of--Way as well as certain property as shown on the map as Exhibit A, hereinafter referred to as the "Eagle County Low Voltage Lighting System on Interstate 70"; and 7. WHEREAS, Eagle County recognizes that CDOT must retain the superior right to use it's State's Right-of--Way for highway purposes; and 8. WHEREAS, CDOT desires to periodically review the maintenance performed on the low voltage lighting system at Most Post 132.665 to insure the integrity of the State's Right-of--Way in the project area, pursuant to the terms of this contract; and 1 fi,. 9. WHEREAS, this contract is executed by the State under authority of Sections §§ 24-1- 203, 43-1-106, 43-2-103, 43-2-104, and 43-2-144 C.R.S., as amended; and 10. WHEREAS, this contract is executed by the County under the authority of an appropriate resolution duly passed and adopted by the authorized representatives of the County, which also establishes the authority under which the County enters into this contract and is attached hereto as Exhibit B; and 11. WHEREAS, the County is adequately staffed and suitably equipped to undertake and satisfactorily carry out the maintenance responsibilities under this contract. THE PARTIES NOW AGREE THAT: Section 1. Scope of Work The Contractor shall perform all maintenance services for the low voltage lighting system installed in the existing concrete box culvert under Interstate 70 at Mile Post 132.665 described herein, located within the State's Right-of--Way, as detailed in Exhibit A. Such services and highways are further detailed in Section 5. 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 22 of this contract 2. This contract 3. Exhibit A {Scope of Work) 4. Exhibit C (Contract Modification Tools} 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 be for a term of FIVE (5) years. Provided, however, that the State's financial obligation for each subsequent, consecutive fiscal year of that term after the first fiscal year shall be subject to and contingent upon fiends for each subsequent year being appropriated, budgeted, and otherwise made available. 2 Section 4. Maintenance Obligations A. The Local Agency shall perform the "highway maintenance services" for the certain State Highway System segments described herein. Such services and highways are detailed in Section 1 and Exhibit A. B. As used herein the term "maintenance services" shall mean only those maintenance services normally performed by the State to comply with its responsibility under §§ 43-2-102 and 43-2-135, C.R.S., as described in the State's then current "Maintenance Management Information Manual," as amended, which is incorporated herein by this reference. The Local Agency shall obtain a copy of that Manual from the State before it performs any maintenance services under this contract. ("Maintenance services" do not include reconstruction of portions of the highways destroyed by major disasters, fires, floods, or Acts of God. Provided, however, that the Local Agency shall give the State immediate notice of the existence of any such conditions on the highways.) 1. Maintenance services to be performed by the Local Agency for the highways under this contract shall include (without limitation) the following services: a. Warning the State's representative of any "dangerous condition," as that term is defined in §§24-10-103(1}, C.R.S., as amended, andlor repairing that condition. b. Inspecting the lighting device at least weekly and notifying the State's Region Transportation Director as soon as the Local Agency has notice of any State Highway signing and regulatory devices in need of repair. 2. All electrical maintenance will be performance by an electrician licensed in the State of Colorado. C. The Local Agency shall perform all maintenance services on an annual basis. The Local Agency's performance of such services shall comply with the same standards that are currently used by the State for the State's performance of such services, for similar type devices with similar use, in that year, as determined by the State. The State's Region Transportation Director, or his representative, shall determine the then current applicable maintenance standards for the maintenance services. Any standardsldirections provided by the State's representative to the Local Agency concerning the maintenance services shall be in writing. The Local Agency shall contact the State Region office and obtain those standards before the Local Agency performs such services. D. The Local Agency shall perform the maintenance and repair services on the lighting system to keep it operational, at the County's own cost and expense, during the useful life of the lighting system, in a satisfactory manner and in accordance with the terms of this Contract. Eagle County will make proper provisions for such maintenance obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances, regulations and obligations. The State reserves the right to determine the proper quantity and quality of the maintenance services performed by the Local Agency, as well as the adequacy of such services, under this Contract. The State will notify the Local Agency in 3 writing of any deficiency in the maintenance services. The Local Agency shall commence corrective action within 24 hours of receiving actual or constructive notice of such deficiency: a) from the State; b) from its own observation; or c) by any other means. In the event the Local Agency, for any reason, does not or cannot correct the deficiency within 24 hours, the State reserves the right to correct the deficiency and to deduct the actual cast of such work from the subsequent payments to the Local Agency, or to bill the Local Agency for such work. Section 5. Record Keeping Each Party shall maintain a complete file of all records, documents, communications, and other written materials, which pertain to the costs incurred under this contract. CDOT shall maintain such records for a period of three (3) years after the termination date 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. Both Parties shall make such materials available for inspection at all reasonable times and shall permit duly authorized agents and employees of CDOT, Eagle County, and FHVVA to inspect the project and to inspect, review and audit the project records. Section 6. Termination Provisions Either of the parties shall have the right to terminate this agreement by giving the other party sixty days written notice. If notice is given, the agreement will terminate at the end of sixty days, and the liabilities of the parties hereunder for further performance of the terms of the agreement shall thereupon cease, but the parties shall not be released from duty to perform up-to- date of termination. Upon termination CDOT shall have the right to remove the lighting system from the project location within ninety days of the written termination. Section 7. 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, ancUor 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 8. Representatives and Notice The State will provide liaison with. the Local Agency through the State's Region Director, Region 3, 222 South 6`h Street, Grand Junction, Colorado 81501. 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 ar substitute representatives. 4 If to State: Sim Nall, Traffic Engineer CDOT Region 3 222 South 6th Street Grand Junction, Colorado 81501 970-248-7213 Section 9. Successors If to the Local Agency: Helen Migchelbrink, Engineer Eagle County 500 Broadway, PO Box 850 Eagle, Colorado 81613 970-328-8600 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 10. 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 11. Governmental Immunity Notwithstanding any other provision of this contract to the contrary, no term or condition of this contract shall be construed ar interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of § 24-10-101, et seq., C.R.S., as now or hereafter amended and the risk management statutes, §§ 24-30-1501, et seq., C.R.S., as now or hereafter amended. Section 12. Severability To the extent that this contract maybe 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 13. Waiver The waiver of any breach of a term, provision, or requirement of this contract shall not be 5 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 14. 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 novatian, 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 15. 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 16. Modification and Amendment A. 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. B. Either party may suggest renegotiation of the terms of this Contract, provided that the Contract shall not be subject to renegotiation more often than annually, and that neither party shall be required to renegotiate. If the parties agree to change the provisions of this Contract, the renegotiated terms shall not be effective until this Contract is amended/modified accordingly in writing. Any such proposed renegotiation shall not be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved by the State Controller or his delegate. Section 17. Change Orders and Option Letters A. Bilateral changes within the general scope of the Contract, as defined in Section 1 above, maybe executed using the change order letter process described in this paragraph and a form substantially equivalent to the sample change order letter attached as Exhibit C, for any of the fallowing reasons. 1. Where the agreed changes to the specifications result in an adjustment to the price, delivery schedule, or time of performance. 2. Where the agreed changes result in no adjustment to the price, delivery schedule, or time of performance. The change order shall contain a mutual release of claims for adjustment of price, schedules, or time of performance. 3. Where the changes to the contract are priced based on the unit prices to be paid for the goods andlor services established in the contract. 4. Where the changes to the contract are priced based on established catalog generally extended to the public. Other bilateral modifications not within the terms of this paragraph must be executed by formal amendment to the contract, approved in accordance with state law. B. The State may increase the quantity of goods/services described in Exhibit A at the unit prices established in the contract. The State may exercise the option by written notice to the contractor within 30 days before the option begins in a form substantially equivalent to Exhibit D (Option Letter). Delivery/performance of the goods/service shall continue at the same rate and under the same terms as established in the contract. C. The State may also unilaterally increase/decrease the maximum amount payable under this contract based upon the unit prices established in the contract and the schedule of services required, as set by the state. The State may exercise the option by providing a fully executed option to the contractor, in a form substantially equivalent to Exhibit D, immediately upon signature of the State Controller or his delegate. Performance of the service shall continue at the same rate and under the same terms as established in the contract. Section 18. 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 34 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 opportunity to be heard and to offer evidence in support of its appeal. Pending final 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 far 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 19. Does not supersede other agreements This Contract is not intended to supersede or affect in any way any other agreement (if any) that is currently in effect between the State and the Contractor for other "maintenance services" on State Highway rights-of--way within the jurisdiction of the Contractor. Also, the 7 Contractor shall also continue to perform, at its own expense, all such activities/duties (if any) on such State Highway rights-of=-ways that the Contractor is required by applicable law to perform. Section 20. Subcontractors The Contractor may subcontract for any part of the performance required under this Contract, subject to the Contractor first obtaining approval from the State for any particular subcontractor. The State understands that the Contractor may intend to perform some or all of the services required under this Contract through a subcontractor. The Contractor agrees not to assign rights or delegate duties under this contract [or subcontract any part of the performance required under the contract] without the express, written consent of the State [which shall not he unreasonably withheld1. Except as herein otherwise provided, this agreement shall inure to the benefit of and be binding only upon the parties hereto and their respective successors and assigns. 8 Section 21. SPECIAL PRaViSIONS fFor Use Only with Inter-Governmental Contracts) CONTROLLER'S APPROVAL. CRS 24-30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Finanaal obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. INDEMNIFICATION To the extent authorized by law, the contractor shalt indemnify, save, and hold harmless the State against any and all claims, damages, liability and court awards inGuding costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24-10-101 et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION {AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arb[tration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shat) be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state taws, rules, and regulations that have been or may hereafter be established. SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at taw or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 & CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Effective Date: August 1, 2005 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: EAGLE COUNTY Legal Name of Contracting Entity 846000762 Social Security N F Signature of Authoriz fficer By STATE OF COLORADO: BILL OWENS, GOVERNOR Executive Director Department of Transportation LEGAL REVIEW: JOHN W.SUTHERS ATTORNEY GENERAL Print Name & Title of Auth zed fficer CORPORATIONS: (A corporate attestation is required.) Attest (Seal) (Corporate Secretary ~~• ~ ___..~..-mot corporate seal here, if available) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: LESLIE M. SHENEFELT BY. Date Effective Date: o ~~ 10 August 1, 2005 EXHIBIT A I~ZAP OF MAI~~TTANENCE A~;EA 11 a SALE 5o i :~o~ '~fi~"stt 1 inch =50 ft. ~ ~o - ...~, '~ `~~..~ \ EXlSttNG CONCRETE e~~`'~ ~ ~ / ~ DOSTWG ~a ~ ~ WING WAU.S SSG ~ .. r~EXrs>~G .~ - ~ ENTRANCE T S~rTai lI~LE (1326 2~ '"'_" ---_ -_ ~~-~ 6&24 - F`R OI~TTAGE ROAD Exrsrnvc rr`rAU. x 'i214?aE CONC. BOX CULVERT USED AS ACCESS TUNNET. UNDER ____ t~Gl~rWAY 6124 AND - - _____ _____ _____ _____ ~ ~ - ~-TERSTATE lU I-~o ~~~sT.~oU~v~) - - I-70 (EASTBOUND) ~ - - - - X ~asnN____c r~xc~ x __________ x - x ~~ ~ ~R~~~ yorovgcrArc p,~N©, -,-.~. ---- ocAnoN + °D - -----r - ~-~- - -~-- ~ o ;~ EXiST~NG DRAINA{~ (NfFT _ \ ~ / '• do WSCtrARGE PIPE ~/ REMAINS UNCFrANGED -{- ~'-- X S7lNG ROAD 18` EXISTING PAVEMENT EDGE QAS7tNG FENCE AND raP of RNER aANK MPR.OVElVIEI~TTS PROXIMATE TO BOX CULVERT PROJECT: ~ILOAM SPRINGS WA.Y ACCESS PERMIT EAGLE COL7NTY C O L O R A D O DATE SHEET o9/?o/os C.5 SCALE: AS SHOWN FXNIRIT o EXHIBIT B F;ESOLUTION 13 AGREEMENT ESTABLISHING THE OBLIGATIONS OF SILOAM SPRINGS HOMEOWNER'S ASSOCIATION REGARDING THE INSTALLATION AND MAINTENANCE OF LIGHTING FACILITIES FOR THE EXISTING BOX CULVERT ACCESS FOR SILOAM SPRINGS PLANNED UNIT DEVELOPMENT RECITALS THIS AGREEMENT is made and entered into thi$ ~ _ day of ,~,, ~ a , 2006, by Eagle County, by and through its Board of County Commissioners ("County") and Siloam Springs 1-Iomeowner's Association, a Colorado Not for Profit Association. ("Siloam Springs HOA"). Collectively these entities are also referred to as the "Parties." Whereas, Siloam Springs PUD has its access to the public road system through the box culvert under Interstate 70, approximately located at I-70 Mile Marker 132.618, and; Whereas, Siloam Springs PUD has submitted a State Highway Access Permit to CDOT, as Permit #30163, and; Whereas, County has, by Resolution 2005-053, Approval of the Zone Change and Preliminary Plan for the Siloam Springs Planned Unit Development ("PUD"}, required that lighting in the box culvert be implemented, and; Whereas, CDOT has informed County that it cannot enter into a contractual relationship with Siloam Springs HOA for the installation and maintenance of lighting in the box culvert, and; Whereas, the Colorado Department of Transportation ("CDOT") is requiring County, to have in place Highway Maintenance Contract ("CDOT Contract")between CDOT and County, to execute said installation and maintenance of lighting in the box culvert, as attached hereto as Exhibit "A", and; Whereas, Mr. Richard Mayne, applicant for Siloam Springs PUD, has requested County to enter into an Intergovernmental Agreement with CDOT far the installation and maintenance of said lighting, per a letter dated November 10, 2005, and; V6'hereas, County and Siloam Springs HOA acknowledge and agree that all work and financial responsibilities set forth in said CDOT Contract shall be assumed and borne by Siloam Springs HOA. AGREEMENT Now, Therefore, in consideration of the covenants and mutual agreements contained herein, and for other good and valuable consideration, the Parties hereto agree as follows: ~..-, ~ _. l . Siloam Springs HOA shall perform all work and responsibilities, including financial responsibilities, required of County as set forth in that Agreement between County and CDOT Contract in a farm similar to the attached Exhibit "A." 2. Siloam Springs HOA shall indemnify and save harmless County, its officers, agents and employees from any and all claims, damages, suits, costs, expense including reasonable attorney's fees, liability, actions, penalties or proceedings of any kind or nature whatsoever, or by anyone whomsoever, in any way resulting from, or arising out of, directly or indirectly, Siloam Springs HOA performance or nonperformance of County's responsibilities set forth in the CDOT Contract. 3. The Parties agree that, except as expressly stated herein, all terms and provisions of other development agreements between County and Siloam Springs HOA shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. 4. The Parties agree that this Agreement maybe enforced in law or in equity for specific performance, injunctive, or other appropriate relief, including damages, as maybe available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement each Party commits itself to perform pursuant to these terms contained herein. 5. This Agreement shall be governed and construed in accordance with the State of Colorado. Venue for any action arising out of any dispute hereunder shall be in the appropriate court in the County of Eagle, State of Colorado. 6. This Agreement and the rights and obligations created hereby shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. ~. This Agreement maybe amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by the Parties hereto. This Agreement represents the full and complete understanding of Parties, and supersedes any prior agreements, discussions, negotiations, representations or understandings of Parties with respect to the subject matter contained herein. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed and be effective as of the day and year first above written. ATTEST: ATTEST: `_ A BY: Clerk to the Bdard SILOAM SPRINGS HOMEOWNER'S BOARD OF COUNTY COMMISSIONER FOR EAGLE COUNTY, STATE OF COLORADO ,--'ice %~ F3Y; _ -~' Peter F. Runyon, Chairmr EXHIBIT A CDOT CONTRACT EXHIBIT C: SAMPLE BILATERAL CHANGE ORDER LETTER Date: State Fiscal Year: Bilateral Change Order Letter No. In accordance with Paragraph of contract routing number , [your agency code here ] ,between the State of Colorado Department of or Higher Ed Institution [your agency name here ] { division) and [Contractor's Name Here j covering the period of [July 1, 20 through June 30, 20 ]the undersigned agree that the supplieslservices affected by this change letter are modified as follows: ServiceslSupplies Exhibit ,Schedule of Equipment for Maintenance or Schedule of Delivery, is amended by adding ,serial numbers and Price/Cost The parties agree that the changes made herein are "no cost" changes and shall not be the basis for claims for adjustment to [price] [cost ceiling], delivery schedule, or other terms or conditions of the contract. The parties waive and release each other from any claims or demands for adjustment to the contract, including but not limited to price, cost, and schedule, whether based on costs of changed work or direct or indirect impacts on unchanged work. Controller approval of this "no cost" change is not required. contractor initials. Agency initials. [ Include this sentence: This change to the contract is intended to be effective as of , or on approval by the State Controller, whichever is later. ] Please sign, date, and return all copies of this letter on or before 20 APPROVALS: Contractor Name: State of Colorado: Bill Owens, Governor By: By: Date: Name Title Institution For the Executive Director/College President Colorado Department of or Higher Ed ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for goods andlor services provided. State Controller, Leslie M. Shenefelt By: Date: 15 EXHIBIT D: SAMPLE OPTION LETTER Date: State Fiscal Year: Option Letter No. SUBJECT: [Amount of goods/Level of service change] In accordance with Paragraph(s) of contract routing number , [your Agency code here ], between the State of Colorado Department of or Higher Ed Institution [your agency name here ], [ division], and [Add Contractor's name here) covering the period of [ 3uly 1, 20 through June 30, 20 , ]the state herby exercises the option for [an additional one year's performance period at the (cost) (price) specified in Paragraph .] and/or [increaseldecrease the amount of goodslservices at the same rate(s) as specified in ParagraphlSchedule/Exhibit .] The amount of funds available and encumbered in this contract is [ increased/decreased ] by [ $ amount of change] to a new total funds available of [ $ ] to satisfy serviceslgoods ordered under the contract for the current fiscal year [ FY 0 ]. The first sentence in Paragraph is hereby modified accordingly. The total contract value to include all previous amendments, option letters, etc. is [ $ ]. APPROVALS: State of Colorado: Bill Owens, Governor By: __ _ _ Date: [ Executive Director/College President ] Colorado Department of or Higher Ed Institution ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for goods and/or services provided. State Controller Leslie M. Shenefelt By: Date: 16 section 24. I SPECIAL PROVISIONS (For Use with Inter-Governmental Contracts) CONTROLLER'S APPROVAL. CRS 24-30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the curtent fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. INDEMNIFICATION. To the extent authorized by law, the Contrector shall indemnify, save, and hold harmless the State, its employees and agents, against any and all daims, damages, {lability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or Interpreted as a waiver, express or implied, of any of the immunities, rights, benefds, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, CRS 24-10-10t et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. 4. INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO 81ND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVtOE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL 8E SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 5. NON-0ISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contrect, whether or not incorporated herein by reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shat{ be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at taw whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have been or may hereafter be established. SOFTWARE PIRACY PROHIBITION Governor's Executive Orcler D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable Vicensing restrictions. 8. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 and CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. 9. ILLEGAL ALIENS -PUBLIC CONTRACTS FOR SERVICES. CRS 8-17.5-101 and 24-76.5-101 The Contractor certifies that the Contractor shall comply with the provisions of CRS 8-17.5-101 et seq. The Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontrector that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. The Contractor represents, warrants, and agrees that it (i) has verified that it does not employ any illegal aliens, through participation in the Basic Pilot Employment Verification Program administered by the Social Security Administration and Department of Homeland Security, and (ii) otherwise will comply with the requirements of CRS 8-17.5-102(2)(b). The Contractor shall comply wRh all reasonable requests made in the course of an investigation under CRS 8-17.5-102 by the Colorado Department of Labor and Employment. If the Contractor fails to comply with any requirement of this provision or CRS 8-17.5-101 et seq., the State may terminate this contract for breach and the Contractor shall be liable for actual and consequential damages to the State. A Contractor that operates as a sole proprietor hereby swears or affirms under penalty of perjury that the Contractor (i) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of CRS 24-76.5-101 et seq, and (iii) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Contract. Except where exempted by federal law and except as provided in CRS 24-76.5-103(3), a Contractor that receives federal or state funds urxler this contract must confine that any individual natural person eighteen years of age or older is lawfully present In the United States pursuant to CRS 24-76.5-103(4) if such individual applies for public benefits provided under this contract. Effective Date of Special Provisions: August 7, 2006