IGA; Urban Drainage and Flood Control District; Wonderland Creek drainage/flood improvements
AGREEMEN'T' REGARDING
FINAL DESIGN, RIGHT-OF-WAY ACQUISITION AND CONSTRUCTION
OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR
WONDERLAND CREEK FROM IRIS TO FOOTHILLS
CITY OF BOULDER
Agreement No. 11-02.17
THIS AGREEMENT, made this Z -4T74 day of Q v! ✓ ST , 2011, by and
between URBAN DRAINAGE AND FLOOD CONTROL DISTRICT (hereinafter called "DISTRICT")
and CITY AND CITY OF BOULDER (hereinafter called "CITY") and collectively known as
"PARTIES";
WITNESSETH:
WHEREAS, DISTRICT, in a policy statement previously adopted, (Resolution No. 14, Series of
1970 and Resolution No. 11, Series of 1973) expressed an intent to assist public bodies which have
heretofore enacted floodplain regulation measures; and
WHEREAS, PARTIES participated in a joint planning study titled "Four Mile Canyon Creek and
Wonderland Creek Major Drainageway Planning Phase A Report Alternatives Analysis" by Love &
Associates, Inc., dated May, 2007 (hereinafter called "PLAN"); and
WIIEREAS, PARTIES now desire to proceed with design and construction of drainage and flood
control improvements for Wonderland Creek, from Iris to Foothills (hereinafter called "PROJECT"); and
WHEREAS, DISTRICT has adopted at a public hearing a Five-Year Capital Iinprovemcnt
Program (Resolution No. 68, Series of 2010) for drainage and flood control facilities in which PROJECT
was included in the 2011 calendar year; and
WHEREAS, DISTRICThas heretofore adopted a Special Revenue Fund Budget for calendar year
2011 subsequent to public hearing (Resolution No. 52, Series of 2010) which includes funds for
PR0.11 iCT; and
WHEREAS, DISTRICT's Board of Directors has authorized DISTRICT financial participation for
PRO.I ECT (Resolution No. 19, Series of 2011); and
WHEREAS, the CITY Commissioners of CITY and the Board of Directors of DISTRICT have
authorized, by appropriation or resolution, all of PROJECT costs of the respective PARTIES.
NOW, THEREFORE, in consideration of the mutual promises contained herein, PARTIES hereto
agree as follows:
SCOPE OF AGREEMENT
This Agreement defines the responsibilities and financial conunitments of PAR'T'IES with respect
to PROJECT.
2. SCOPE OF PROJECT
A. Final Design. PROJECT shall include the final design of improvements in accordance with
the recommendations dcfrncd in PLAN. Specifically, the final design of facilities shall
extend from approximately Iris Avenue to Foothills Parkway, as shown on Exhibit A.
OFFICIAL CENTRAL RECORDS COPY
\dcm\agmtnt\1 n110217 1 20110804-6632
B. Right-of-Way Delineation and Acquisition. Right-of-way for the improvements as set forth
in the final design and an estimate of costs for acquisition shall be determined. Maps, parcel
descriptions and parcel plats shall also be prepared.
C. Construction. PROJECT shall include construction by CITY of the drainage and flood
control improvements as set forth in the final design including vegetation establishment.
3. PUBLIC NECESSITY
PARTIES agree that the work performed pursuant to this Agreement is necessary for the health,
safety, comfort, convenience, and welfare of all the people of the State, and is of particular benefit
to the inhabitants of DISTRICT and the property therein.
4. PROJECT COSTS AND ALLOCATION OF COSTS
A. PARTIES agree that for the purposes of this Agreement PROTECT costs shall consist of and
be limited to the following:
1. Final design services;
2. Delineation, description and acquisition of required rights-of-way/easements;
4. Construction of improvements;
3. Contingencies mutually agreeable to PARTIES.
B. It is understood that PROJECT costs as defined above are not to exceed $125,000 without
amendment to this Agreement.
PROJECT costs for the various elernents of the effort are estimated as follows:
ITEM AMOUNT
1. Final Design $100,000
2. Right-of-Way * -0-
2. Construction * -0-
3. Contingency 25,000
Grand Total $125,000
* It is anticipated that funds for construction and right-of-way shall be added to this
Agreement at a future date.
This breakdown of costs is for estimating purposes only. Costs may vary between the
various elements oCthe effort without amendment to this Agreement provided the total
expenditures do not exceed the maximum contribution by all PARTIES plus accrued
interest.
C. Based on total PROJECT costs, the maximum percent and dollar contribution by each party
shall be:
Percentage Maximum
Share Contribution
DISTRICT 50% $125,000
CITY 50% $125,000
TOTAL 100% $250,000
\dcm 3gnnnl\l1\110217 2
5. MANAGHMENT OF FINANCES
As set forth in DISTRICT policy (Resolution No. 11, Series of 1973, Resolution No. 49, Series of
1977, and Resolution No. 37, Series of 2009), the fiuiding of a local body's one-half share may
come from its own revenue sources or from funds received from state, federal or other sources of
funding without limitation and without prior Board approval.
The DISTRICT, upon presentation of a billing by the CITY for work accomplished, shall
remit within 30 days 50% of this billing to the CITY up to a maximum amount of
$125,000 plus interest accumulated on the DISTRICT's share of funds.
6. FINAL DESIGN
The contracting officers for PARTIES, as defined under Paragraph 13 of this Agreement, shall
select an engineer mutually agreeable to both PARTIES. CITY shall contract with selected
engineer and shall supervise and coordinate the final design including right-of-way delineation
subject to approval of the contracting officer for DISTRICT. Payment for final design shall be
made by CITY as the work progresses from the PROJECT fund established as set forth above.
Final design services shall consist of, but not be limited to, the following:
A. Preparation of a work plan schedule identifying the timing of major elements in the design;
B. Preparation of detailed construction plans and specifications;
C. Preparation of an estimate of probable construction costs of the work covered by the plans
and specifications;
D. Preparation of an appropriate constriction schedule.
CITY shall provide any written work product by the engineer to DISTRICT.
7. RIGHT-OF-WAY
CITY, with DISTRICT assistance, shall be responsible for acquiring, subject to approval of
DISTRICT, such land or interests in land needed to implement construction of the drainage and
flood control improvements as defined herein. The cost to be shared by PARTIES for right-of-way
acquisition may include relocation costs of existing occupants. Appraisal costs and costs
associated with condemnation (including outside legal costs) will also be considered a PROJECT
cost. Right-of-way acquisition by negotiation and / or the exercise of eminent domain shall be in
fill compliance with the laws of the State of Colorado. In addition, the right-of-way acquired shall
be in the name of CITY and the conveyancing document shall be promptly recorded in the records
of the Clerk and Recorder of CITY. CITY shall serve as the paying agency.
A. Coordination of Right-of=Way Acquisition. Cost sharing by PARTI I:S will be based on
supporting documentation such as formal appraisals, reasonable relocation cost settlements,
legal description of the property, and other information deemed appropriate to the
acquisition. Furthermore, cost sharing will be only for the properties, or portions thereof,
approved by PARTIES to be needed for the drainage and flood control portions of
PROJECT. Request for such approval shall include appraisals of property, legal description
of the property, and other information deemed appropriate to the acquisition by PARTIES to
\dcm\gmnnt\1 1\1 10217 3
this Agreement. CITY shall purchase the right-of-way only after receiving prior approval of
DISTRICT, and such purchases shall be made with PROJECT funds.
B. Payment for Right-of-Way Acquisition. Following purchase or receipt of executed
memorandum of agreement between CITY and property owner for the needed right-of-way
that commits the property owner to sell property to CITY at a price certain and on a date
certain, CITY shall so advise DISTRICT and request payment as provided above.
DISTRICT shall make payment within 30 days of receipt of request accompanied by the
information set forth above.
C. Ownership of Property and Limitation of Use. CITY shall own the property either in fee or
non-revocablc easement and shall be responsible for same. It is specifically understood that
the right-of-way is being used for drainage and flood control purposes. The properties upon
which PROJECT is constructed shall not be used for any purpose that will diminish or
preclude its use for drainage and flood control purposes. CITY may not dispose of or
change the use of the properties without approval of DISTRICT. If, in the future, CITY
disposes of any portion of or all of the properties acquired upon which PROJECT is
constructed pursuant to this Agreement; changes the use of any portion or all of the
properties upon which PROJECT is constructed pursuant to this Agreement; or modifies any
of the improvements located on any portion of the properties upon which PROJECT is
constructed pursuant to this Agreement; and CITY has not obtained the written approval of
DISTRICT Prior to such action, CITY shall take any and all action necessary to reverse said
unauthorized activity and return the properties and improvements thereon, acquired and
constructed pursuant to this Agreement, to the ownership and condition they were in.
immediately prior to the unauthorized activity at CITY's sole expense. In the event CITY
breaches the terms and provisions of this Paragraph 7.C and does not voluntarily cure as set
forth above, DISTRICT shall have the right to pursue a claim against CITY for specific
performance of this portion of the Agreement.
DISTRICT may, subsequent to the recording by CITY of any document transferring title or
another interest to property acquired pursuant to this Agreement to CITY, record a
memorandum of this Agreement. (Exhibit B), specifically a verbatim transcript of Paragraph
7.C. Ownership of Property and Limitation of Use except for this sub-paragraph which shall
not be contained in the memorandum. The memorandum shall reference by legal description
the property being acquired by CITY and shall be recorded in the records of the Clerk and
Recorder of Boulder County immediately following the recording of the document
transferring title or another interest to CITY. CITY authorizes the recording of that
memorandum and acknowledges that the samc is meant to encumber the property with its
restrictions.
WnAagnnnt\11 \110217 4
8. MANAGEMENT OF CONSTRUCTION
A. Costs. Construction costs shall consist of those costs as incurred by the lowest acceptable
bidder(s) including detour costs, licenses and permits, utility relocations, and construction
related engineering services as defined in Paragraph 4 of this Agreement.
B. Construction Management and Payment
1. CITY, with the assistance of DISTRICT, shall administer and coordinate the
construction-related work as provided herein.
2. CITY, with assistance and approval of DISTRICT, shall advertise for construction
bids; conduct a bid opening; prepare construction contract documents; and award
construction contract(s).
3. CITY shall require the contractor to provide adequate liability insurance that includes
DIS'T'RICT. The contractor shall be required to indemnify DISTRICT. Copies of the
insurance coverage shall be provided to DISTRICT.
4. CITY, with assistance of DISTRICT, shall coordinate field surveying; staking;
inspection; testing; acquisition of right-of-way; and engineering as required to
construct PROJECT. CITY, with assistance of DISTRICT, shall assure that
construction is perfonned in accordance with the construction contract documents
including approved plans and specifications and shall accurately record the quantities
and costs relative thereto. Copies of all inspection reports shall be furnished to
DISTRICT on a weekly basis. CITY shall retain an engineer to perform all or a part
of these duties.
5. CITY, with approval of DISTRICT, shall contract with and provide the services of the
design engineer for basic engineering construction services to include addendum
preparation; survey control points; explanatory sketches; revisions of contract plans;
shop drawing review; as-built plans; weekly inspection of work; and final inspection.
6. PARTIES shall have access to the site during construction at all tunes to observe the
progress of work and conformance to construction contract documents including plans
and specifications.
7. CITY shall review and approve contractor billings and send them to DISTRICT for
approval. CITY shall remit payment to contractor based on billings approved by
PART] H.S.
8. CITY, with assistance and written concurrence by DISTRICT, shall prepare and issue
all written change or work orders to the contract documents.
9. PARTIES shall jointly conduct a final inspection and accept or reject the completed
PROJECT in accordance with the contract documents.
10. CITY shall provide DISTRICT a set of reproducible "as-built" plans.
C. Construction Change Orders. In the event that it becomes necessary and advisable to change
the scope or detail of the work to be performed under the contract(s), such changes shall be
\dcmlagrmnt\1 1\1 10217 5
rejected or approved in writing by the contracting officers. No change orders shall be
approved that increase the costs beyond the funds available in the PROJECT fund, including
interest earned on those funds, unless and until the additional funds needed to pay for the
added costs are committed by all PARTIES.
9. MAINTENANCE
PART'lES agree that CITY shall own and be responsible for maintenance of the completed and
accepted PROJECT. PARTIES further agree that DISTRICT, at CITY's request, shall assist CITY
with the maintenance of all facilities constructed or modified by virtue of this Agreement to the
extent possible depending on availability of DISTRICT funds. Such maintenance assistance shall
be limited to drainage and food control features of PROJECT. Maintenance assistance may
include activities such as keeping flow areas free and clear of debris and silt, keeping culverts free
of debris and sediment, repairing drainage and flood control structures such as drop structures and
energy dissipaters, and clean-up measures after periods of heavy runoff. The specific nature of the
maintenance assistance shall be set forth in a memorandum of understanding from DISTRICT to
CITY, upon acceptance of DISTRICT's annual Maintenance Work Program.
DISTRICT shall have right-of-access to right-of-way and storm drainage improvements at all times
for observation of flood control facility conditions and for maintenance when funds are available.
10. FLOODPLAIN REGULATION
CITY agrees to regulate and control the floodplain of Wonderland Creek within CITY in the
manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a
minimum.
PARTIES understand and agree, however, that CITY cannot obligate itself by contract to exercise
its police powers. If CITY fails to regulate the floodplain of Wonderland Creek within CITY in the
manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a
minimum, DISTRICT may exercise its power to do so and CITY shall cooperate frilly.
11. TERM OF AGREEMENT
The term of this Agreement shall commence upon final execution by all PARTIES and shall
terminate three (3) years after the final payment is made to the construction contractor and the final
accounting of funds on deposit at DISTRICT is provided to all PARTIES pursuant to Paragraph 5
herein, except for Paragraph 10. FLOODPLAIN REGULATION, Paragraph 7.C. OWNERSHIP
OF PROPERTY AND LIMITATION OF USE, and Paragraph 9. MAINTENANCE, which shall
run in perpetuity.
12. LIABILITY
Each party hereto shall be responsible for any suits, demands, costs or actions at law resulting from
its own acts or omissions and may insure against such possibilities as appropriate.
13. CONTRACTING OFFICERS AND NOTICES
A. The contracting officer for CITY shall be the City Manager, Post Office Box 791, Boulder,
Colorado 80306.
\dcm\agnnnt\I1\1102I7 6
B. The contracting officer for DISTRICT shall be the Executive Director, 2480 West 26th
Avenue, Suite 156B, Denver, Colorado 80211.
C. Any notices, demands or other communications required or permitted to be given by any
provision of this Agreement shall be given in writing, delivered personally or sent by
registered mail, postage prepaid and return receipt requested, addressed to PARTIES at the
addresses set forth above or at such other address as either party may hereafter or from time
to time designate by written notice to the other party given when personally delivered or
mailed, and shall be considered received in the earlier of either the day on which such notice
is actually received by the party to whom it is addressed or the third day after such notice is
mailed.
D. The contracting officers for PARTIES each agree to designate and assign a PROJECT
representative to act on the behalf of said PARTIES in all matters related to PROJECT
undertaken pursuant to this Agreement. Each representative shall coordinate all
PROJECT-related issues between PARTIES, shall attend all progress meetings, and shall be
responsible for providing all available PROJECT-related file information to the engineer
upon request by DISTRICT or CITY. Said representatives shall have the authority for all
approvals, authorizations, notices or concurrences required under this Agreement or any
amendments or addenda to this Agreement.
14. AMENDMENTS
This Agreement contains all of the terms agreed upon by and among PARTIES. Any amendments
or modifications to this Agreement shall be in writing and executed by PARTIES hereto to be valid
and binding.
15. SEVERABILITY
If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a
court of competent jurisdiction or by operation of any applicable law, such invalid or unenforceable
clause or provision shall not affect the validity of the Agreement as a whole and all other clauses or
provisions shall be given full force and effect.
16. APPLICABLE LAWS
Tlmis Agreement shall be governed by and construed in accordance with the laws of the State of
Colorado. Venue for any and all legal actions regarding the transaction covered herein shall lie in
District Court in and for the CITY of Denver, State of Colorado.
17. ASSIGNABILITY
No party to this Agreement shall assign or transfer any of its rights or obligations hereunder
w ithout the prior written consent of the nonassigning party or parties to this Agreement.
IS. BINDING EFFECT
The provisions of this Agreement shall bind and shall inure to the bendit of PARTIES hereto and
to thew respective successors and permitted assigns.
\dcm\a,rmnt\ I 1 \1 10217
19. ENFORCEABILITY
PARTIES hereto agree and acknowledge that this Agreement may be enforced in law or in equity,
by decree of specific performance or damages, or such other legal or equitable relief as may be
available subject to the provisions of the laws of the State of Colorado.
20. TERMINATION OF AGREEMENT
This Agreement may be terminated upon thirty (30) day's written notice by any of PARTIES, but
only if there are no contingent, outstanding contracts. If there are contingent, outstanding
contracts, this Agreement may only be terminated upon mutual agreement of all PARTIES and
only upon the cancellation of all contingent, outstanding contracts. All costs associated with the
cancellation of the contingent contracts shall be shared between PARTIES in the same ratio(s) as
were their contributions and subject to the maximum amount of each party's contribution as set
forth herein.
21. EMPLOYMENT STATUS
This Agreement shall not change the employment status of any employees of PARTIES. No party
shall have the right to control or direct the activities of any employees of another related to this
Agreement.
22. PUBLIC RELA"LIONS
It shall be at CITY's sole discretion to initiate and to carry out any public relations program to
inform the residents in PROJECT area as to the purpose of PROJECT and what impact it may have
on them. Technical and final design recommendations shall be presented to the public by the
selected design engineer. In any event DISTRICT shall have no responsibility for a public
relations program, but shall assist CITY as needed and appropriate.
23. NO DISCRIMINATION IN EMPLOYMENT
In connection with the performance of work under this Agreement, PARTIES agree not to refuse to
hire, discharge, promote or demote, or to discriminate in matters of compensation against any
person otherwise qualified because of race, color, ancestry, creed, religion, national origin, gender,
age, military status, sexual orientation, marital status, or physical or mental disability and further
agree to insert the foregoing provision in all subcontracts hereunder.
24. APPROPRIATIONS
Notwithstanding any other tern, condition, or provision herein, each and every obligation of CITY
and/or DISTRICT stated in this Agreement is subject to the requirement of a prior appropriation of
funds therefore by the appropriate governing body of CITY and/or DISTRICT.
25. NO THIRD PARTY BENEFICIARIES
It is expressly understood and agreed that enforcement of the terms and conditions of this
Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to
PARTIES, and nothing contained in this Agreement shall give or allow any such claim or right of
action by any other or third person on such Agreement. It is the express intention of PARTIES that
\dcm\agj not\11\110217 9
any person or party other than any one of PARTIES receiving services or benefits under this
Agreement shall be deemed to be an incidental beneficiary only.
26. ILLEGAL ALIENS
PARTIES agree that any public contract for services executed as a result of this intergovernmental
agreement shall prohibit the employment of illegal aliens in compliance with §8-17.5-101 C.R.S. et
seq. The following language shall be included in any contract for public services: "The Consultant
or Contractor shall not and by signing this Agreement certifies that it does not knowingly employ
or contract with an illegal alien to perform work under this Agreement. Consultant or Contractor
shall not enter into a subcontract with a subcontractor that fails to certify to the Consultant or
Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to
perform, work under this public contract for services. Consultant or Contractor affirms that they
have verified through participation in the Colorado Employment Verification program established
pursuant to 8-17.5-102 (5)(c) C.R.S. or the Electronic Employment Verification Program
administered jointly by the United States Department of Homeland Security and the Social Security
Administration that Consultant or Contractor does not employ i llegal aliens. Consultant or
Contractor is prohibited from using these procedures to un4'itake pre-employment screening of job
applicants while the public contract for services is being p r.tornied.
In the event that the Consultant or Contractor obtains actaaal,knoVl -dg; Glr at a subcontractor
performing work under this Agreement knowingly emplis or rontracrs tivitlt an illegal alien, the
Consultant or Contractor shall be required to:
A. Notify the subcontractor and PARTIES within three daysthat (17e 3611SUltanA or Contractor
has actual knowledge that the subcontractor is employing or contracting with an illegal alien;
and
B. Tcrminate the subcontract with the subcontractor if within three days of receiving the notice
required the Subcontractor does not stop employing or contracting with the illegal alien;
except that the Consultant or Contractor shall not terminate the contrast wick the
Subcontractor if during such three days the Subcontractor pre ides ilfforh i )s ) eslnhlish
that the subcontractor has not knowingly employed or contract~*,ith and !4' 1 lien.
~ i
Consultant or Contractor is required under this Agreement to comply with any reasona )le request
by the Colorado Department of Labor and Employment (DEPARTMENT) made in the course of
an investigation the DEPARTMENT is undertaking pursuant to its legal authority.
Violation of this section of this Agreement shall constitute a breach of this Agreement and may
result in termination by PARTIES. Consultant or Contractor shall be liable to PARTIES for actual
and consequential damages to PARTIES resulting from such breach pursuant to §8-17.5-101(3)
C.R.S. PARTIES shall also report any such breach to the Office of the Secretary of State.
Consultant or Contractor acknowledges that the DEPARTMENT may investigate whether
Consultant or Contractor is complying with the provision of the Agreement. '['his may include on-
site inspections and the review of documentation that proves the citizenship of any person
\dcm\a,-min[\] 1\110?17 9
performing work under this Agreement and any other reasonable steps necessary to determine
compliance with the provisions of this section."
27. GOVERNMENTAL IMMUNITIES
PARTIES hereto intend that nothing herein shall be deemed or construed as a waiver by either
party of any rights, limitations, or protections afforded to them under the Colorado Governmental
Immunity Act (Section 24-10-1-1, C.R.S., et seq.) as now or hereafter amended or otherwise
available at law or equity.
28. INTENT OF AGREEMENT
Except as otherwise stated herein, this Agreement is intended to describe the rights and
responsibilities of and between PARTIES, and is not intended to and shall not be deemed to confer
rights upon any person or entities not named as PARTIES, nor to limit in any way the powers and
responsibilities of CI'T'Y, DISTRICT or any other entity not a party hereto.
WHEREFORE, PARTIES hereto have caused this instrument to be executed by properly
authorized signatories as of the date and year first above written.
'Fto URBAN DRAINAGE AND
op FLOOD CONTROL, DISTRICT
0 .
(SEAL) e A I ° By
AT"1'ES'f : '•CQIOAP~q• Title Executive Director
1 Gkta.~~ Date^ ;~7 /-kp/
CITY OT' T30ULDFR
(SEAL) . . J . .•,1l
AWer Tithe City Manager
Datc C*Afllc
Director ol'Finance and Record
APPROVED AS TO FORM:
City Attorpcy's ffT ice
~dem'agnmit111\110217 10
AG K f_? LMENT REGARDING
FINAL DESIGN, RIGHT-OF-WAY ACQUISITION AND CONSTRUCTION
OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR
WONDERLAND CREEK FROM IRIS TO FOOTHILLS
CITY OF BOULDER
Ab -ecmcnt No. 11-02.17
Exhibit A
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Contract Tracking > Thank You Page I of I
STANDARD r)~ T] I
Contract Routing Cover Sheet AV) 1)
Please print and attach to your document
You can view the status of your contract using the Contract Track:nci Status Page.
Routing Number 20110804-6632
Originating Dept Public Works
Contact Person Laurel Olsen-Horen Phone Number 303-441-3203
Project Manager / Contract Kurt Bauer E-mail bauerk@bouldercolorado.gov
Administrator
Counter Parties Urban Drainage and Flood Control District
Contract Title / Type IGA for Wonderland Creek
Number
Description Agreement regarding final design, right-of-way acquisition and construction of drainage and flood
control improvcPlents for Wonderta-ml Creek from Iris to Foothills Parkwa
Special Instructions Laurel Olsen-Horen, make sure to pdf the final executed copy of the contract once it is returned to
us and prior to sending to Central records. Please keep a copy of the routing form with the copies
of the contracts.
Amount 125,000 Expense Type INCOMING
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NOTE; Originating Department: Identify with a check mark all areas docurnel needs to be routed.
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hntraweb.ci.boulder.co.uS/COlitract'ri-ackin r/ServJet/COlltroller S114112 01 1