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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 ~ ~•~r.;xl+fF 1V ~#l~rzrt ~ t y4 _ Diagonal Hvry 19 Pa Project limits r• ?I,?~ Iris Avenue r ` - , . _ ,,,r- i 7 . - : , - l lV Y 1 ~yL O S _ k III«~_h , A~r J r/ 'r.l ~,.I a> - { {t 1 rM ~~1~j+ • per lag now r ~ e III .el~;.•.`~~~:.~.~ 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 c Dept. Head Signature_ +~l r+oc1 4"(( ) '07- t NOTE; Originating Department: Identify with a check mark all areas docurnel needs to be routed. Purchasing - - ~I1,~ CLLUUI1A t.'Lx~+ 1 1 T,1 r. Budget IJV?3T 1~.~ 'ULL~J lS: il~1.1+~t ~J~ fJ'i3~ Ir✓ Sales Tax U" ! f 1t1yt.i 111. Ll G~)L/ 1. CAO , 1 49 f 1 ! lilnikI.Q ` F 111 c -City Manager l c t'yLl. e Central Records hntraweb.ci.boulder.co.uS/COlitract'ri-ackin r/ServJet/COlltroller S114112 01 1