HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/20/2015 - ITEMS RELATING TO THE NORTH COLLEGE PEDESTRIAN MULAgenda Item 6
Item # 6 Page 1
AGENDA ITEM SUMMARY January 20, 2015
City Council
STAFF
Caleb Feaver, Civil Engineer I
Dean Klingner, Engineer & Capital Project Manager
Kyle Lambrecht, Civil Engineer
SUBJECT
Items Relating to the North College Pedestrian Multi-Use Path Project.
EXECUTIVE SUMMARY
A. Resolution 2015-007 Authorizing the Mayor to Execute an Intergovernmental Agreement with the Colorado
Department of Transportation for a Construction Grant in Support of the North College Pedestrian Multi-
Use Path Project.
B. First Reading of Ordinance No. 009, 2015, Appropriating Unanticipated Revenue in the Capital Projects
Fund for the North College Pedestrian Multi-Use Path Project, Authorizing the Transfer of Appropriations
from the Building on Basics Pedestrian Plan and American with Disabilities Improvements Project Into the
North College Pedestrian Multi-Use Path Project.
The purpose of this item is to authorize the Mayor to execute an Intergovernmental Agreement (IGA) with the
Colorado Department of Transportation (CDOT) and to appropriate federal grant and local funds into the North
College Pedestrian Multi-Use Path Project. This project will design and construct pedestrian amenities along
North College Avenue between the northern city limits and State Highway 1. The proposed actions will enable
initiation of the project.
Total project funds will be appropriated as follows:
Federal Grant Funds - $752,000
Local Matching Funds Previously Appropriated by Urban Renewal Authority (URA) - $125,000
Local Matching Funds to be Appropriated from Pedestrian Improvement Funds - $31,323
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution and Ordinance on First Reading.
BACKGROUND / DISCUSSION
North College Avenue, also known as US Highway 287, is a major thoroughfare for both the City of Fort Collins
and the Colorado Department of Transportation (CDOT). By 2016, the City will have rehabilitated the North
College corridor within the city limits through the addition of multimodal, roadway, urban design, and utility
improvements. CDOT is currently pursuing a project to improve the section of North College Avenue from
State Highway 1 to the LaPorte Bypass, including improving the intersection of US Highway 287 and the
LaPorte Bypass
Agenda Item 6
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As a result of City initiated improvements along the North College Corridor and CDOT’s project, a gap in
pedestrian infrastructure will exist along both sides of North College Avenue for approximately 1,000 feet. The
area of missing pedestrian infrastructure includes a crossing over the Larimer and Weld Canal. Bicyclists and
pedestrians are currently forced to merge with traffic in order to cross the canal on North College Avenue, a
designated truck route.
Initial pedestrian facility discussions began in 2010 as part of the North College Marketplace Development.
The City negotiated with the developer to provide $125,000 for the construction of a pedestrian bridge crossing
the Larimer and Weld Canal. The Urban Renewal Authority (URA) agreed to transfer the funds to the City
satisfying the development agreement between the City and the developer. This transfer was formalized as
part of URA Resolution No. 076.
In 2012, the City was awarded $752,000 of federal Congestion Mitigation and Air Quality (CMAQ) funds by the
North Front Range Metropolitan Planning Organization (NFRMPO) to initiate a project addressing the lack of
pedestrian facilities along North College Avenue between the city limits and State Highway 1. The City must
provide $156,323 of local matching funds. Local funds include the $125,000 payment from the URA and
$31,323 of Pedestrian Improvements funds. The overall project budget is $908,323.
Staff anticipates that the grant and matching funds will allow for the design, right-of-way acquisition, and
construction of multi-modal improvements along both sides of North College Avenue within the defined project
limits, including a pedestrian crossing over the Larimer and Weld Canal. The project will incorporate context-
sensitive design, striving to balance the needs of existing businesses while working to accommodate future
development. Staff anticipates opportunities for coordination with the short and long term access control plans
along the affected portion of US Highway 287.
This project will impact a state facility. Coordination with CDOT will be necessary to ensure a successful
project. The impacted section of US Highway 287 is outside of the city limits but inside the Growth
Management Area. Staff will coordinate with and seek input from Larimer County as the project progresses.
The CMAQ and the developer contribution funds are ineligible for use toward public art, as a public art use was
not listed in the project described in the CMAQ grant application nor in the agreement to secure the developer
contribution. Nevertheless, prior appropriations to the BOB Pedestrian & ADA Improvements Project in the
2015 budget included transfer of one percent for the Art in Public Places (APP) program. Because funds have
already been transferred and appropriated for APP purposes from the Pedestrian & ADA Improvements
Project contribution to the project, the proposed ordinance does not appropriate additional funds. Engineering
staff has agreed to coordinate with APP staff to incorporate appropriate public art into the project.
The design phase of this project is scheduled to begin in spring 2015. Construction is tentatively scheduled for
the summer-fall 2016.
Staff is currently pursuing an additional project which would provide roadway improvements along the same
section of North College Avenue as this pedestrian improvement project. Further items will be brought before
Council as the roadway project progresses.
FINANCIAL / ECONOMIC IMPACTS
The following is a summary of the funding available to design and construct pedestrian improvements along
North College Avenue between the northern city limits and State Highway 1:
Funds to be Appropriated per this Action
Federal Funds to be Appropriated
NFRMPO (CMAQ) Funds $752,000
Local Matching Funds to be
Appropriated
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NFRMPO Local Match $156,323
Total Budgeted Funds per IGA $908,323
Providing pedestrian infrastructure along this portion of North College Avenue will have potentially significant
positive impacts. Citizens residing north of the canal will have safer access via walking and bicycling to
businesses located along North College Avenue. Due to the presence of a mobile home park along the north
end of the project, it is likely that a significant number of residents depend on multi-modal transportation to
access these businesses, as well as services located south of the canal. Services south of the canal include
the Larimer County Food Bank and various health facilities.
ENVIRONMENTAL IMPACTS
The City was awarded a Congestion Mitigation and Air Quality (CMAQ) grant for this project for significant
predicted air quality benefits. The addition of dedicated multi-modal facilities will promote walking and
bicycling, resulting in predicted air quality improvements.
BOARD / COMMISSION RECOMMENDATION
The NFRMPO received a project overview and awarded the City grant funds to be applied to this project. Staff
will provide periodic updates and seek input from the Transportation Board as the project moves forward.
PUBLIC OUTREACH
Staff plans on conducting public outreach, including open houses, individual property owner meetings, and
regular updates to the North Fort Collins Business Association.
Staff has begun coordination with Larimer County staff. County staff was informed of the project scope. City
and County staff will continue to coordinate throughout the project.
ATTACHMENTS
1. Project Location Map (PDF)
2. URA Resolution No. 076 (PDF)
Larimer & Weld Canal
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Project Location Map
Printed: August 08, 2014
Path: S:\Engineering\Projects\Capital Projects\Maps\N College\Pedestrian path\AIS Location Map.mxd
Legend
³Limits 0 50 100 200 300 Feet City
Project Limits
ATTACHMENT 1
ATTACHMENT 2
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RESOLUTION 2015-007
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL
AGREEMENT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION
FOR A CONSTRUCTION GRANT IN SUPPORT OF THE NORTH COLLEGE
PEDESTRIAN MULTI-USE PATH PROJECT
WHEREAS, North College Avenue is a major thoroughfare for both the City and the
Colorado Department of Transportation (CDOT); and
WHEREAS, the City has rehabilitated the North College corridor within the City limits
and CDOT is currently pursuing a project to improve the section of North College Avenue from
State Highway 1 to the LaPorte Bypass; and
WHEREAS, as a result of the North College Corridor improvements, a gap in pedestrian
infrastructure will exist along both sides of North College Avenue for approximately 1,000 feet
including a crossing over the Larimer and Weld Canal; and
WHEREAS, with the North College Marketplace Development the City negotiated with
the developer to provide $125,000 for the construction of a pedestrian bridge crossing the
Larimer and Weld Canal and in 2014 the Urban Renewal Authority transferred these funds to the
City; and
WHEREAS, the City has been awarded $752,000 of federal Congestion Mitigation and
Air Quality funds by the North Front Range Metropolitan Planning Organization to initiate a
project addressing the lack of pedestrian facilities along North College Avenue between the City
limits and State Highway 1; and
WHEREAS, CDOT has presented to the City for execution a construction grant contract
in support of the North College Pedestrian Multi-Use Path Project (the “Project”), the total cost
of which project is anticipated to be $908,323 with the CDOT contribution under the grant
construction agreement in the amount of $752,000, and the balance of $156,323 to be funded
through local matching funds; and
WHEREAS, the City Council has received the favorable recommendation for the Project
from the North Front Range Metropolitan Planning Organization and the City’s Transportation
Board; and
WHEREAS, City staff has conducted extensive public outreach on the Project; and
WHEREAS, the City Council has determined that the execution of the construction grant
agreement with CDOT is in the best interests of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS that the Mayor is hereby authorized to enter into a grant construction
agreement with Colorado Department of Transportation in support of the North College
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Pedestrian Multi-Use Path Project attached hereto as Exhibit “A”, and incorporated herein by
this reference, with such changes to the form of said agreement as the City Manager, in
consultation with the City Attorney, determines to be necessary or appropriate to protect the
interests of the City provided that such changes are materially consistent with the terms and
conditions of this Resolution and the intended purpose of said agreement, with grant funds in the
sum of $752,000 and local matching funds in the sum of $156,323 for a total cost of $908,323
for the Project.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
20th day of January, A.D. 2015.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
(FMLAWRK) Rev. 7/8/09
Project: US287: Willox to SH 1 & Ped Bridge (AQC M455-
111) 19561
Routing #: 15 HA4 75629
Region: 04 (rh) SAP ID #: 471000624
STATE OF COLORADO
Department of Transportation
Agreement
with
City of Fort Collins
TABLE OF CONTENTS
1. PARTIES ................................................................................................................................................ 2
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY ................................................................... 2
3. RECITALS ............................................................................................................................................. 2
4. DEFINITIONS ........................................................................................................................................ 2
5. TERM AND EARLY TERMINATION ................................................................................................. 3
6. SCOPE OF WORK ................................................................................................................................. 3
7. OPTION LETTER MODIFICATION .................................................................................................... 7
8. PAYMENTS ........................................................................................................................................... 7
9. ACCOUNTING ...................................................................................................................................... 9
10. REPORTING - NOTIFICATION ........................................................................................................... 9
11. LOCAL AGENCY RECORDS ............................................................................................................ 10
12. CONFIDENTIAL INFORMATION-STATE RECORDS.................................................................... 11
13. CONFLICT OF INTEREST ................................................................................................................. 11
14. REPRESENTATIONS AND WARRANTIES ..................................................................................... 11
15. INSURANCE ........................................................................................................................................ 12
16. DEFAULT-BREACH ........................................................................................................................... 13
17. REMEDIES .......................................................................................................................................... 13
18. NOTICES and REPRESENTATIVES ................................................................................................. 15
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE ............................................. 15
20. GOVERNMENTAL IMMUNITY........................................................................................................ 15
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................... 16
22. FEDERAL REQUIREMENTS ............................................................................................................. 16
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) .................................................................... 16
24. DISPUTES ............................................................................................................................................ 16
25. GENERAL PROVISIONS ................................................................................................................... 17
26. COLORADO SPECIAL PROVISIONS ............................................................................................... 19
27. SIGNATURE PAGE ............................................................................................................................ 21
28. EXHIBIT A – SCOPE OF WORK
29. EXHIBIT B – LOCAL AGENCY RESOLUTION
30. EXHIBIT C – FUNDING PROVISIONS
31. EXHIBIT D – OPTION LETTER
32. EXHIBIT E – LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
33. EXHIBIT F – CERTIFICATION FOR FEDERAL-AID CONTRACTS
34. EXHIBIT G – DISADVANTAGED BUSINESS ENTERPRISE
35. EXHIBIT H – LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
36. EXHIBIT I – FEDERAL-AID CONTRACT PROVISIONS
37. EXHIBIT J – FEDERAL REQUIREMENTS
38. EXHIBIT K – SUPPLEMENTAL FEDERAL PROVISIONS
EXHIBIT A
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1. PARTIES
THIS AGREEMENT is entered into by and between City of Fort Collins (hereinafter called the “Local Agency”),
and the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the
“State” or “CDOT”).
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or their designee (hereinafter called the “Effective Date”). The State shall not be liable to pay or
reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses
incurred, or be bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, and Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a
sufficient unencumbered balance thereof remains available for payment and the required approval, clearance
and coordination have been accomplished from and with appropriate agencies.
i. Federal Authority
Pursuant to Title I, Subtitle A, Section 1108 of the “Transportation Equity Act for the 21st Century” of
1998 (TEA-21) and/or the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users” (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code
and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended,
(collectively referred to hereinafter as the “Federal Provisions”), certain federal funds have been and are
expected to continue to be allocated for transportation projects requested by the Local Agency and
eligible under the Surface Transportation Improvement Program that has been proposed by the State and
approved by the Federal Highway Administration (“FHWA”).
ii. State Authority
Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible
for the general administration and supervision of performance of projects in the Program, including the
administration of federal funds for a Program project performed by a Local Agency under a contract
with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116,
43-2-101(4)(c) and 43-2-104.5.
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other good and
valuable consideration are sufficient and adequate to support this Agreement.
C. Purpose
The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT’s
Stewardship Agreement with the FHWA.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits
or other attachments, are references to sections, subsections, exhibits or other attachments contained herein
or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Agreement or Contract
“Agreement” or “Contract” means this Agreement, its terms and conditions, attached exhibits, documents
incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits,
attachments or references that are incorporated pursuant to Colorado State Fiscal Rules and Policies.
B. Agreement Funds
“Agreement Funds” means funds payable by the State to Local Agency pursuant to this Agreement.
C. Budget
“Budget” means the budget for the Work described in Exhibit C.
D. Consultant and Contractor
“Consultant” means a professional engineer or designer hired by Local Agency to design the Work and
“Contractor” means the general construction contractor hired by Local Agency to construct the Work.
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E Evaluation
“Evaluation” means the process of examining the Local Agency’s Work and rating it based on criteria
established in §6 and Exhibits A and E.
F. Exhibits and Other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of
Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E
(Checklist), Exhibit F (Certification for Federal-Aid Funds), Exhibit G (Disadvantaged Business
Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal-Aid Contract Provisions), Exhibit J
(Federal Requirements) and Exhibit K (Supplemental Federal Provisions).
G. Goods
“Goods” means tangible material acquired, produced, or delivered by the Local Agency either separately or
in conjunction with the Services the Local Agency renders hereunder.
H. Oversight
“Oversight” means the term as it is defined in the Stewardship Agreement between CDOT and the Federal
Highway Administration (“FHWA”) and as it is defined in the Local Agency Manual.
I. Party or Parties
“Party” means the State or the Local Agency and “Parties” means both the State and the Local Agency
J. Work Budget
Work Budget means the budget described in Exhibit C.
K. Services
“Services” means the required services to be performed by the Local Agency pursuant to this Contract.
L. Work
“Work” means the tasks and activities the Local Agency is required to perform to fulfill its obligations under
this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods.
M. Work Product
“Work Product” means the tangible or intangible results of the Local Agency’s Work, including, but not
limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished
documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts.
5. TERM AND EARLY TERMINATION
The Parties’ respective performances under this Agreement shall commence on the Effective Date. This
Agreement shall terminate after five (5) years of state controllers signature in section 27, unless sooner terminated
or completed as demonstrated by final payment and final audit.
6. SCOPE OF WORK
A. Completion
The Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work
performed prior to the Effective Date or after final acceptance shall not be considered part of the Work.
B. Goods and Services
The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement
shall be accomplished using the Contract Funds and shall not increase the maximum amount payable
hereunder by the State.
C. Employees
All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered
the Local Agency’s, Consultants’, or Contractors’ employee(s) for all purposes and shall not be employees
of the State for any purpose.
D. State and Local Agency Commitments
i. Design
If the Work includes preliminary design or final design or design work sheets, or special provisions and
estimates (collectively referred to as the “Plans”), the Local Agency shall comply with and be responsible
for satisfying the following requirements:
a) Perform or provide the Plans to the extent required by the nature of the Work.
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b) Prepare final design in accordance with the requirements of the latest edition of the American
Association of State Highway Transportation Officials (AASHTO) manual or other standard, such
as the Uniform Building Code, as approved by the State.
c) Prepare provisions and estimates in accordance with the most current version of the State’s Roadway
and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local
Agency specifications if approved by the State.
d) Include details of any required detours in the Plans in order to prevent any interference of the
construction Work and to protect the traveling public.
e) Stamp the Plans produced by a Colorado Registered Professional Engineer.
f) Provide final assembly of Plans and all other necessary documents.
g) Be responsible for the Plans’ accuracy and completeness.
h) Make no further changes in the Plans following the award of the construction contract to contractor
unless agreed to in writing by the Parties. The Plans shall be considered final when approved in
writing by CDOT and when final they shall be incorporated herein.
ii. Local Agency Work
a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA),
and applicable federal regulations and standards as contained in the document “ADA Accessibility
Requirements in CDOT Transportation Projects”.
b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes
in the Plans that are directed by the State to comply with FHWA requirements.
c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans
and/or of construction administration. Provided, however, if federal-aid funds are involved in the
cost of such Work to be done by such Consultant, such Consultant contract (and the
performance/provision of the Plans under the contract) must comply with all applicable
requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as
provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with
a Consultant for the Work:
(1) Local Agency shall submit a certification that procurement of any Consultant contract complies
with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract,
subject to the State’s approval. If not approved by the State, the Local Agency shall not enter
into such Consultant contract.
(2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by
the State and FHWA and that they are in writing. Immediately after the Consultant contract has
been awarded, one copy of the executed Consultant contract and any amendments shall be
submitted to the State.
(3) Local Agency shall require that all billings under the Consultant contract comply with the
State’s standardized billing format. Examples of the billing formats are available from the
CDOT Agreements Office.
(4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the
CDOT procedures described in Exhibit H to administer the Consultant contract.
(5) Local Agency may expedite any CDOT approval of its procurement process and/or Consultant
contract by submitting a letter to CDOT from the Local Agency’s attorney/authorized
representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d).
(6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49
CFR 18.36(i) and contains the following language verbatim:
(a) The design work under this Agreement shall be compatible with the requirements of the
contract between the Local Agency and the State (which is incorporated herein by this
reference) for the design/construction of the project. The State is an intended third-party
beneficiary of this agreement for that purpose.
(b) Upon advertisement of the project work for construction, the consultant shall make
available services as requested by the State to assist the State in the evaluation of
construction and the resolution of construction problems that may arise during the
construction of the project.
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(c) The consultant shall review the Construction Contractor’s shop drawings for conformance
with the contract documents and compliance with the provisions of the State’s publication,
Standard Specifications for Road and Bridge Construction, in connection with this work.
(d) The State, in its sole discretion, may review construction plans, special provisions and
estimates and may require the Local Agency to make such changes therein as the State
determines necessary to comply with State and FHWA requirements.
iii. Construction
If the Work includes construction, the Local Agency shall perform the construction in accordance with
the approved design plans and/or administer the construction in accordance with Exhibit E. Such
administration shall include Work inspection and testing; approving sources of materials; performing
required plant and shop inspections; documentation of contract payments, testing and inspection
activities; preparing and approving pay estimates; preparing, approving and securing the funding for
contract modification orders and minor contract revisions; processing Construction Contractor claims;
construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT
Stewardship Agreement, as described in the Local Agency Contract Administration Checklist.
a) If the Local Agency is performing the Work, the State may, after providing written notice of the
reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the
failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or
for such periods as the State may deem necessary due to unsuitable weather, or for conditions
considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed
by the State to be in the public interest.
b) The Local Agency shall be responsible for the following:
(1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local
Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall
administer the Work in accordance with this Agreement, the requirements of the construction
contract and applicable State procedures.
(2) For the construction of the Work, advertising the call for bids upon approval by the State and
awarding the construction contract(s) to the low responsible bidder(s).
(a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall
comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635
and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that the
Local Agency and its Contractor shall incorporate Form 1273 (Exhibit I) in its entirety
verbatim into any subcontract(s) for those services as terms and conditions therefore, as
required by 23 C.F.R. 633.102(e).
(b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work
on which competitive bids have been received. The Local Agency must accept or reject
such bid within three (3) working days after they are publicly opened.
(c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject
to their availability and appropriation, necessary to complete the Work if no additional
federal-aid funds are available.
(3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the
State.
(4) If all or part of the Work is to be accomplished by the Local Agency’s personnel (i.e. by force
account) rather than by a competitive bidding process, the Local Agency shall perform such
work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635,
Subpart B, Force Account Construction.
(a) Such Work will normally be based upon estimated quantities and firm unit prices agreed
to between the Local Agency, the State and FHWA in advance of the Work, as provided
for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to
the value of the Work to be performed.
(b) An alternative to the preceding subsection is that the Local Agency may agree to participate
in the Work based on actual costs of labor, equipment rental, materials supplies and
supervision necessary to complete the Work. Where actual costs are used, eligibility of cost
items shall be evaluated for compliance with 48 C.F.R. Part 31.
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(c) If the State provides matching funds under this Agreement, rental rates for publicly owned
equipment shall be determined in accordance with the State’s Standard Specifications for
Road and Bridge Construction §109.04.
(d) All Work being paid under force account shall have prior approval of the State and/or
FHWA and shall not be initiated until the State has issued a written notice to proceed.
E. State’s Commitments
a) The State will perform a final project inspection of the Work as a quality control/assurance activity.
When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212.
b) Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable
or responsible in any manner for the structural design, details or construction of any major structures
designed by, or that are the responsibility of, the Local Agency as identified in the Local Agency Contract
Administration Checklist, Exhibit E.
F. ROW and Acquisition/Relocation
a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local
Agency shall immediately convey title to such right of way to CDOT after the Local Agency obtains
title.
b) Any acquisition/relocation activities shall comply with all applicable federal and state statutes and
regulations, including but not limited to the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 as amended and the Uniform Relocation Assistance and Real Property
Acquisition Policies for Federal and Federally Assisted Programs as amended (49 C.F.R. Part 24),
CDOT’s Right of Way Manual, and CDOT’s Policy and Procedural Directives.
c) The Parties’ respective compliance responsibilities depend on the level of federal participation; provided
however, that the State always retains Oversight responsibilities.
d) The Parties’ respective responsibilities under each level in CDOT’s Right of Way Manual (located at
http://www.dot.state.co.us/ROW_Manual/) and reimbursement for the levels will be under the following
categories:
(1) Right of way acquisition (3111) for federal participation and non-participation;
(2) Relocation activities, if applicable (3109);
(3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way
– 3114).
G. Utilities
If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any
utility company which may become involved in the Work. Prior to the Work being advertised for bids, the
Local Agency shall certify in writing to the State that all such clearances have been obtained.
a) Railroads
If the Work involves modification of a railroad company’s facilities and such modification will be
accomplished by the railroad company, the Local Agency shall make timely application to the Public
Utilities commission requesting its order providing for the installation of the proposed improvements
and not proceed with that part of the Work without compliance. The Local Agency shall also establish
contact with the railroad company involved for the purpose of complying with applicable provisions of
23 C.F.R. 646, subpart B, concerning federal-aid projects involving railroad facilities and:
b) Execute an agreement setting out what work is to be accomplished and the location(s) thereof, and which
costs shall be eligible for federal participation.
c) Obtain the railroad’s detailed estimate of the cost of the Work.
d) Establish future maintenance responsibilities for the proposed installation.
e) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or
elimination of a grade crossing.
f) Establish future repair and/or replacement responsibilities in the event of accidental destruction or
damage to the installation.
H. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current federal and
state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as
applicable.
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I. Maintenance Obligations
The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and
expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall
provide for such maintenance and operations obligations each year. Such maintenance and operations shall
be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining
such improvements. The State and FHWA may make periodic inspections to verify that such improvements
are being adequately maintained.
7. OPTION LETTER MODIFICATION
An option letter may be used to add a phase without increasing total budgeted funds, increase or decrease the
encumbrance amount as shown on Exhibit C, and/or transfer funds from one phase to another. Option letter
modification is limited to the specific scenarios listed below. The option letter shall not be deemed valid until
signed by the State Controller or an authorized delegate.
A. Option to add a phase and/or increase or decrease the total encumbrance amount.
The State may require the Local Agency to begin a phase that may include Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation
or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original Agreement,
with the total budgeted funds remaining the same. The State may simultaneously increase and/or decrease
the total encumbrance amount by replacing the original funding exhibit (Exhibit C) in the original Agreement
with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc). The State
may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days
before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State
exercises this option, the Agreement will be considered to include this option provision.
B. Option to transfer funds from one phase to another phase.
The State may require or permit the Local Agency to transfer funds from one phase (Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous) to another as a result of changes to state,
federal, and local match. The original funding exhibit (Exhibit C) in the original Agreement will be replaced
with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc.) and attached
to the option letter. The funds transferred from one phase to another are subject to the same terms and
conditions stated in the original Agreement with the total budgeted funds remaining the same. The State may
unilaterally exercise this option by providing a fully executed option to the Local Agency within thirty (30)
days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. Any
transfer of funds from one phase to another is limited to an aggregate maximum of 24.99% of the original
dollar amount of either phase affected by a transfer. A bilateral amendment is required for any transfer
exceeding 24.99% of the original dollar amount of the phase affected by the increase or decrease.
C. Option to do both Options A and B.
The State may require the Local Agency to add a phase as detailed in Exhibit A, and encumber and transfer
funds from one phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be
replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc.)
and attached to the option letter. The addition of a phase and encumbrance and transfer of funds are subject
to the same terms and conditions stated in the original Agreement with the total budgeted funds remaining
the same. The State may unilaterally exercise this option by providing a fully executed option to the Local
Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially
equivalent to Exhibit D.
8. PAYMENTS
The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the
methods set forth below:
A. Maximum Amount
The maximum amount payable is set forth in Exhibit C as determined by the State from available funds.
Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in
Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate
ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to
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enter into this Agreement and to expend its match share of the Work. A copy of such ordinance/resolution or
authority letter is attached hereto as Exhibit B.
B. Payment
i. Advance, Interim and Final Payments
Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules
and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall
initiate any payment requests by submitting invoices to the State in the form and manner, approved by
the State.
ii. Interest
The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents
performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by
the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not
to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on
unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State
separately for accrued interest on delinquent amounts. The billing shall reference the delinquent
payment, the number of days interest to be paid and the interest rate.
iii. Available Funds-Contingency-Termination
The State is prohibited by law from making commitments beyond the term of the State’s current fiscal
year. Therefore, the Local Agency’s compensation beyond the State’s current Fiscal Year is contingent
upon the continuing availability of State appropriations as provided in the Colorado Special Provisions.
The State’s performance hereunder is also contingent upon the continuing availability of federal funds.
Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract
and the State’s liability for such payments shall be limited to the amount remaining of such encumbered
funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this
Contract, the State may terminate this Contract immediately, in whole or in part, without further liability
in accordance with the provisions hereof.
iv. Erroneous Payments
At the State’s sole discretion, payments made to the Local Agency in error for any reason, including, but
not limited to overpayments or improper payments, and unexpended or excess funds received by the
Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under
this Contract or other contracts, Agreements or agreements between the State and the Local Agency or
by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to
any party other than the State.
C. Use of Funds
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funds
The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency shall
have raised the full amount of matching funds prior to the Effective Date and shall report to the State
regarding the status of such funds upon request. The Local Agency’s obligation to pay all or any part of any
matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the
purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local
Agency’s treasury. The Local Agency represents to the State that the amount designated “Local Agency
Matching Funds” in Exhibit C has been legally appropriated for the purpose of this Agreement by its
authorized representatives and paid into its treasury. The Local Agency does not by this Agreement
irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not
intended to create a multiple-fiscal year debt of the Local Agency. The Local Agency shall not pay or be
liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the
Local Agency’s laws or policies.
E. Reimbursement of Local Agency Costs
The State shall reimburse the Local Agency’s allowable costs, not exceeding the maximum total amount
described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R.
18.22 shall govern the State’s obligation to reimburse all costs incurred by the Local Agency and submitted
to the State for reimbursement hereunder, and the Local Agency shall comply with all such principles. The
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State shall reimburse the Local Agency for the federal-aid share of properly documented costs related to the
Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. However,
any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to
the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof.
Costs shall be:
i. Reasonable and Necessary
Reasonable and necessary to accomplish the Work and for the Goods and Services provided.
ii. Net Cost
Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local
Agency that reduce the cost actually incurred).
9. ACCOUNTING
The Local Agency shall establish and maintain accounting systems in accordance with generally accepted
accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting
scheme). Such accounting systems shall, at a minimum, provide as follows:
A. Local Agency Performing the Work
If Local Agency is performing the Work, all allowable costs, including any approved services contributed by
the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers,
and other applicable records.
B. Local Agency-Checks or Draws
Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers
detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting
documents shall be on file in the office of the Local Agency ,clearly identified, readily accessible, and to the
extent feasible, kept separate and apart from all other Work documents.
C. State-Administrative Services
The State may perform any necessary administrative support services required hereunder. The Local Agency
shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If
FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to
the Work being approved or completed, then all actual incurred costs of such services and assistance provided
by the State shall be the Local Agency’s sole expense.
D. Local Agency-Invoices
The Local Agency’s invoices shall describe in detail the reimbursable costs incurred by the Local Agency
for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not
be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices
within 60 days after the date for which payment is requested, including final invoicing. Final payment to the
Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred
by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or
the State may offset them against any payments due from the State to the Local Agency.
F. Reimbursement of State Costs
CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local
Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment
within 60 days, at CDOT’s request, the State is authorized to withhold an equal amount from future
apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to
CDOT. Interim funds shall be payable from the State Highway Supplementary Fund (400) until CDOT is
reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a
rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT’s invoices
shall describe in detail the reimbursable costs incurred, the dates incurred and the amounts thereof, and shall
not be submitted more often than monthly.
10. REPORTING - NOTIFICATION
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Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in
such form as prescribed by the State and in accordance with §18, if applicable.
A. Performance, Progress, Personnel, and Funds
The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement,
containing an Evaluation and Review of the Local Agency’s performance and the final status of the Local
Agency's obligations hereunder.
B. Litigation Reporting
Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a
court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of
such pleadings to the State’s principal representative as identified herein. If the State or its principal
representative is not then serving, such notice and copies shall be delivered to the Executive Director of
CDOT.
C. Noncompliance
The Local Agency’s failure to provide reports and notify the State in a timely manner in accordance with this
§10 may result in the delay of payment of funds and/or termination as provided under this Agreement.
D. Documents
Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies
of all documents, including contracts and subcontracts, in its possession related to the Work.
11. LOCAL AGENCY RECORDS
A. Maintenance
The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete
file of all records, documents, communications, notes and other written materials, electronic media files, and
communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited
to the operation of programs) or Goods hereunder. The Local Agency shall maintain such records until the
last to occur of the following: (i) a period of three years after the date this Agreement is completed or
terminated, or (ii) three years after final payment is made hereunder, whichever is later, or (iii) for such
further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the
Local Agency has received notice that an audit is pending, then until such audit has been completed and its
findings have been resolved (collectively, the “Record Retention Period”).
B. Inspection
The Local Agency shall permit the State, the federal government and any other duly authorized agent of a
governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records
related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or
to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all
reasonable times and places during the term of this Agreement, including any extension. If the Work fails to
conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring
the Work into conformity with Agreement requirements, at the Local Agency’s sole expense. If the Work
cannot be brought into conformance by re-performance or other corrective measures, the State may require
the Local Agency to take necessary action to ensure that future performance conforms to Agreement
requirements and may exercise the remedies available under this Agreement at law or in equity in lieu of or
in conjunction with such corrective measures.
C. Monitoring
The Local Agency also shall permit the State, the federal government or any other duly authorized agent of
a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency
pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to: internal
evaluation procedures, examination of program data, special analyses, on-site checking, formal audit
examinations, or any other procedures. All such monitoring shall be performed in a manner that shall not
unduly interfere with the Local Agency’s performance hereunder.
D. Final Audit Report
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If an audit is performed on the Local Agency’s records for any fiscal year covering a portion of the term of
this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal
representative at the address specified herein.
12. CONFIDENTIAL INFORMATION-STATE RECORDS
The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in
connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to,
state records, personnel records, and information concerning individuals. Nothing in this §12 shall be construed
to require the Local Agency to violate the Colorado Open Records Act, C.R.S. §§ 24-72-1001 et seq.
A. Confidentiality
The Local Agency shall keep all State records and information confidential at all times and to comply with
all laws and regulations concerning confidentiality of information. Any request or demand by a third party
for State records and information in the possession of the Local Agency shall be immediately forwarded to
the State’s principal representative.
B. Notification
The Local Agency shall notify its agents, employees and assigns who may come into contact with State
records and confidential information that each is subject to the confidentiality requirements set forth herein,
and shall provide each with a written explanation of such requirements before they are permitted to access
such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by the Local
Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The
Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State
records and other confidential information wherever located. Confidential information shall not be retained
in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved
by the State.
D. Disclosure-Liability
Disclosure of State records or other confidential information by the Local Agency for any reason may be
cause for legal action by third parties against the Local Agency, the State or their respective agents. The
Local Agency is prohibited from providing indemnification to the State pursuant to the Constitution of the
State of Colorado, Article XI, Section 1, however, the Local Agency shall be responsible for any and all
claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs,
incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees
pursuant to this §12.
13. CONFLICT OF INTEREST
The Local Agency shall not engage in any business or personal activities or practices or maintain any relationships
which conflict in any way with the full performance of the Local Agency’s obligations hereunder. The Local
Agency acknowledges that with respect to this Agreement even the appearance of a conflict of interest is harmful
to the State’s interests. Absent the State’s prior written approval, the Local Agency shall refrain from any
practices, activities or relationships that reasonably appear to be in conflict with the full performance of the Local
Agency’s obligations to the State hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain
whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a
disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a
disclosure statement or to follow the State’s direction in regard to the apparent conflict constitutes a breach of
this Agreement.
14. REPRESENTATIONS AND WARRANTIES
The Local Agency makes the following specific representations and warranties, each of which was relied on by
the State in entering into this Agreement.
A. Standard and Manner of Performance
The Local Agency shall perform its obligations hereunder, including in accordance with the highest
professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement.
B. Legal Authority – The Local Agency and the Local Agency’s Signatory
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The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has
taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to
lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the
Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of
the Local Agency’s authority to enter into this Agreement within 15 days of receiving such request.
C. Licenses, Permits, Etc.
The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the
term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and
other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it
shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations
required to properly perform this Agreement, without reimbursement by the State or other adjustment in
Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under
this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The
Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
further warrants that it currently has obtained and shall maintain any applicable certificate of authority to
transact business in the State of Colorado and has designated a registered agent in Colorado to accept service
of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance,
permits or any such similar requirements necessary for the Local Agency to properly perform the terms of
this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for
termination of this Agreement.
15. INSURANCE
The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times
during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be
issued by insurance companies satisfactory to the Local Agency and the State.
A. The Local Agency
i. Public Entities
If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, CRS §24-10-101, et seq., as amended (the “GIA”), then the Local Agency shall maintain at all times
during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is
necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance
satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with
their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance
requirements necessary to meet Consultant or Contractor liabilities under the GIA.
ii. Non-Public Entities
If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the
Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and
policies meeting the same requirements set forth in §15(B) with respect to sub-contractors that are not
"public entities".
B. Contractors
The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than
those that are public entities, providing Goods or Services in connection with this Agreement, to include
insurance requirements substantially similar to the following:
i. Worker’s Compensation
Worker’s Compensation Insurance as required by State statute, and Employer’s Liability Insurance
covering all of the Local Agency’s Contractors, Subcontractors, or Consultant’s employees acting within
the course and scope of their employment.
ii. General Liability
Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent,
covering premises operations, fire damage, independent contractors, products and completed operations,
blanket liability, personal injury, and advertising liability with minimum limits as follows: (a)
$1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed
operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000
because of claims made or paid, contractors, subcontractors, and consultants shall immediately obtain
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additional insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or
other document satisfactory to the Local Agency showing compliance with this provision.
iii. Automobile Liability
Automobile Liability Insurance covering any auto (including owned, hired and non-owned autos) with
a minimum limit of $1,000,000 each accident combined single limit.
iv. Additional Insured
The Local Agency and the State shall be named as additional insured on the Commercial General
Liability policies (leases and construction contracts require additional insured coverage for completed
operations on endorsements CG 2010 11/85, CG 2037, or equivalent).
v. Primacy of Coverage
Coverage required of the Consultants or Contractors shall be primary over any insurance or self-
insurance program carried by the Local Agency or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non-renewal without at
least 45 days prior notice to the Local Agency and the State by certified mail.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and maintained by the Local
Agency’s Consultants or Contractors as required herein shall include clauses stating that each carrier
shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State,
its agencies, institutions, organizations, officers, agents, employees, and volunteers.
C. Certificates
The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing
insurance coverage required hereunder to the State within seven business days of the Effective Date of this
Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and
each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of
insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the
term of this Agreement or any sub-contract, the Local Agency and each contractor, subcontractor, or
consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of
compliance with the provisions of this §15.
16. DEFAULT-BREACH
A. Defined
In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform
any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner constitutes
a breach.
B Notice and Cure Period
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in
the manner provided in §18. If such breach is not cured within 30 days of receipt of written notice, or if a
cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued
with due diligence, the State may exercise any of the remedies set forth in §17. Notwithstanding anything to
the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may
immediately terminate this Agreement in whole or in part if reasonably necessary to preserve public safety
or to prevent immediate public crisis.
17. REMEDIES
If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the remedies
listed in this §17 in addition to all other remedies set forth in other sections of this Agreement following the notice
and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole
discretion, concurrently or consecutively.
A. Termination for Cause and/or Breach
If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to
ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State
may notify the Local Agency of such non-performance in accordance with the provisions herein. If the Local
Agency thereafter fails to promptly cure such non-performance within the cure period, the State, at its option,
may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a
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failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations
hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if
any.
i. Obligations and Rights
To the extent specified in any termination notice, the Local Agency shall not incur further obligations or
render further performance hereunder past the effective date of such notice, and shall terminate
outstanding orders and sub-Agreements with third parties. However, the Local Agency shall complete
and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may
incur obligations as are necessary to do so within this Agreement’s terms. At the sole discretion of the
State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under
such terminated orders or sub-Agreements. Upon termination, the Local Agency shall take timely,
reasonable and necessary action to protect and preserve property in the possession of the Local Agency
in which the State has an interest. All materials owned by the State in the possession of the Local Agency
shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered
by the Local Agency to the State and shall become the State’s property.
ii. Payments
The State shall reimburse the Local Agency only for accepted performance received up to the date of
termination. If, after termination by the State, it is determined that the Local Agency was not in default
or that the Local Agency's action or inaction was excusable, such termination shall be treated as a
termination in the public interest and the rights and obligations of the Parties shall be the same as if this
Agreement had been terminated in the public interest, as described herein.
iii. Damages and Withholding
Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the
State for any damages sustained by the State by virtue of any breach under this Agreement by the Local
Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the
State’s damages, until such time as the exact amount of damages due to the State from the Local Agency
is determined. The State may withhold any amount that may be due to the Local Agency as the State
deems necessary to protect the State, including loss as a result of outstanding liens or claims of former
lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services.
The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties
replacement Work, Services or substitute Goods as cover.
B. Early Termination in the Public Interest
The State is entering into this Agreement for the purpose of carrying out the public policy of the State of
Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to
further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole
or in part. Exercise by the State of this right shall not constitute a breach of the State’s obligations hereunder.
This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the
Local Agency, which shall be governed by §17(A) or as otherwise specifically provided for herein.
i. Method and Content
The State shall notify the Local Agency of the termination in accordance with §18, specifying the
effective date of the termination and whether it affects all or a portion of this Agreement.
ii. Obligations and Rights
Upon receipt of a termination notice, the Local Agency shall be subject to and comply with the same
obligations and rights set forth in §17(A)(i).
iii. Payments
If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall be paid an
amount which bears the same ratio to the total reimbursement under this Agreement as the Services
satisfactorily performed bear to the total Services covered by this Agreement, less payments previously
made. Additionally, if this Agreement is less than 60% completed, the State may reimburse the Local
Agency for a portion of actual out-of-pocket expenses (not otherwise reimbursed under this Agreement)
incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local
Agency’s obligations hereunder; provided that the sum of any and all reimbursement shall not exceed
the maximum amount payable to the Local Agency hereunder.
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C. Remedies Not Involving Termination
The State, its sole discretion, may exercise one or more of the following remedies in addition to other
remedies available to it:
i. Suspend Performance
Suspend the Local Agency’s performance with respect to all or any portion of this Agreement pending
necessary corrective action as specified by the State without entitling the Local Agency to an adjustment
in price/cost or performance schedule. The Local Agency shall promptly cease performance and
incurring costs in accordance with the State’s directive and the State shall not be liable for costs incurred
by the Local Agency after the suspension of performance under this provision.
ii. Withhold Payment
Withhold payment to the Local Agency until corrections in the Local Agency’s performance are
satisfactorily made and completed.
iii. Deny Payment
Deny payment for those obligations not performed that due to the Local Agency’s actions or inactions
cannot be performed or, if performed, would be of no value to the State; provided that any denial of
payment shall be reasonably related to the value to the State of the obligations not performed.
iv. Removal
Demand removal of any of the Local Agency’s employees, agents, or contractors whom the State deems
incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation
to this Agreement is deemed to be contrary to the public interest or not in the State’s best interest.
v. Intellectual Property
If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual property
right while performing its obligations under this Agreement, the Local Agency shall, at the State’s option
(a) obtain for the State or the Local Agency the right to use such products and services; (b) replace any
Goods, Services, or other product involved with non-infringing products or modify them so that they
become non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove
any infringing Goods, Services, or products and refund the price paid therefore to the State.
18. NOTICES and REPRESENTATIVES
Each individual identified below is the principal representative of the designating Party. All notices required to
be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such
Party’s principal representative at the address set forth below. In addition to but not in lieu of a hard-copy notice,
notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to
time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless
otherwise provided herein, all notices shall be effective upon receipt.
A. If to State: B. If to the Local Agency:
CDOT Region: 04 City of Fort Collins
Long Nguyen Kyle Lambrecht
Project Manager Project Manager
1420 2nd Street PO BOX 580
Greeley, CO 80631 FORT COLLINS, CO 80522-0580
970-350-2205 970-221-6566
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE
Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models,
materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its
obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be
delivered to the State by the Local Agency upon completion or termination hereof. The State’s exclusive rights
in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare
derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used
for any purpose other than the performance of the Local Agency's obligations hereunder without the prior written
consent of the State.
20. GOVERNMENTAL IMMUNITY
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Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied,
of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity
Act, CRS §24-10-101, et seq., as amended. Liability for claims for injuries to persons or property arising from
the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees
and of the Local Agency is controlled and limited by the provisions of the Governmental Immunity Act and the
risk management statutes, CRS §24-30-1501, et seq., as amended.
21. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the
Effective Date or at any time thereafter, this §21 applies.
The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206,
§24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state
agreements/contracts and inclusion of agreement/contract performance information in a statewide contract
management system.
The Local Agency’s performance shall be subject to Evaluation and Review in accordance with the terms and
conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of the Local Agency’s performance shall be part of the normal Agreement
administration process and the Local Agency’s performance will be systematically recorded in the statewide
Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality,
cost and timeliness. Collection of information relevant to the performance of the Local Agency’s obligations
under this Agreement shall be determined by the specific requirements of such obligations and shall include
factors tailored to match the requirements of the Local Agency’s obligations. Such performance information shall
be entered into the statewide Contract Management System at intervals established herein and a final Evaluation,
Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall
be notified following each performance Evaluation and Review, and shall address or correct any identified
problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross
failure to meet the performance measures established hereunder, the Executive Director of the Colorado
Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good
cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local
Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result
in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS §24-105-102(6),
exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may
result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon
showing of good cause.
22. FEDERAL REQUIREMENTS
The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution
of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing
regulations, as they currently exist and may hereafter be amended.
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration
Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE
program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must
submit a copy of its program’s requirements to the State for review and approval before the execution of this
Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency
shall be solely responsible to defend that DBE program and its use of that program against all legal and other
challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation,
determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for
DBE goals and good faith efforts. State approval (if provided) of the Local Agency’s DBE program does not
waive or modify the sole responsibility of the Local Agency for use of its program.
24. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this
Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of
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Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days
after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the
State a written appeal addressed to the Executive Director of CDOT. 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 this Agreement in accordance with the Chief Engineer’s decision. The decision of the Executive
Director or his duly authorized representative for the determination of such appeals shall 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 Agreement, however, shall be construed as making
final the decision of any administrative official, representative, or board on a question of law.
25. GENERAL PROVISIONS
A. Assignment
The Local Agency’s rights and obligations hereunder are personal and may not be transferred, assigned or
subcontracted without the prior written consent of the State. Any attempt at assignment, transfer, or
subcontracting without such consent shall be void. All assignments and subcontracts approved by the Local
Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely responsible
for all aspects of subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in §25(A), all provisions herein contained, including the benefits and burdens,
shall extend to and be binding upon the Parties’ respective heirs, legal representatives, successors, and
assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall not be used to
interpret, define, or limit its provisions.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one
agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties and all prior
representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition,
deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein.
F. Indemnification - General
If Local Agency is not a “public entity” within the meaning of the Colorado Governmental Immunity Act,
CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its employees
and agents, against any and all claims, damages, liability and court awards including costs, expenses, and
attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its
employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not
applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental
Immunity Act, CRS §24-10-101, et seq.
G. Jurisdiction and Venue
All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive
venue shall be in the City and County of Denver.
H. Limitations of Liability
Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document
attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit,
attachment, schedule, or any other name, are void and of no effect. This includes, but is not necessarily
limited to, limitations on (i) the types of liabilities, (ii) the types of damages, (iii) the amount of damages,
and (iv) the source of payment for damages.
I. Modification
i. By the Parties
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Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective
unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and
approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office of the State
Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF
AGREEMENTS - TOOLS AND FORMS.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in Federal or Colorado
State law, or their implementing regulations. Any such required modification automatically shall be
incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth
herein
J. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the
event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such conflicts
or inconsistencies shall be resolved by reference to the documents in the following order of priority:
i. Colorado Special Provisions,
ii. The provisions of the main body of this Agreement,
iii. Exhibit A (Scope of Work),
iv. Exhibit B (Local Agency Resolution),
v. Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vii. Exhibit E (Local Agency Contract Administration Checklist),
viii. Other exhibits in descending order of their attachment.
K. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties accomplished
within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes
inoperable for any reason shall not affect the validity of any other provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if the Local Agency fails to perform or comply as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State
and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply
when materials are purchased or services rendered to benefit the State; provided however, that certain
political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the
product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as
the State is prohibited from paying for or reimbursing the Local Agency for them
N. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties,
and not to any third party. Any services or benefits which third parties receive as a result of this Agreement
are incidental to the Agreement, and do not create any rights for such third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any
subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement.
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26. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics.
A. CONTROLLER'S APPROVAL. CRS §24-30-202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or
designee.
B. FUND AVAILABILITY. CRS §24-30-202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of
any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental
Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et
seq., as applicable now or hereafter amended.
D. INDEPENDENT CONTRACTOR.
The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee.
Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent
or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment
insurance or workers compensation benefits through the State and the State shall not pay for or otherwise
provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance
benefits shall be available to The Local Agency and its employees and agents only if such coverage is made
available by The Local Agency or a third party. The Local Agency shall pay when due all applicable
employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local
Agency shall not have authorization, express or implied, to bind the State to any Agreement, liability or
understanding, except as expressly set forth herein. The Local Agency shall (a) provide and keep in force
workers' compensation and unemployment compensation insurance in the amounts required by law, (b)
provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its
employees and agents.
E. COMPLIANCE WITH LAW.
The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair
employment practices.
F. CHOICE OF LAW.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference
which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated
herein by reference which purports to negate this or any other Special Provision in whole or in part shall not
be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise.
Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of
this Agreement, to the extent capable of execution.
G. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any
provision to the contrary in this contact or incorporated herein by reference shall be null and void.
H. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or
maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions.
The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions,
The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper
use of public funds. If the State determines that The Local Agency is in violation of this provision, the State
may exercise any remedy available at law or in equity or under this Agreement, including, without limitation,
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immediate termination of this Agreement and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest
whatsoever in the service or property described in this Agreement. The Local Agency has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the
performance of The Local Agency’s services and The Local Agency shall not employ any person having
such known interests.
J. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4.
[Not Applicable to intergovernmental agreements]. Subject to CRS §24-30-202.4 (3.5), the State Controller
may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for:
(a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or
other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the
Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund;
and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action.
K. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101.
[Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental Agreements, or information
technology services or products and services]. The Local Agency certifies, warrants, and agrees that it does
not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and
shall confirm the employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Agreement, through participation in the E-Verify Program or the State
program established pursuant to CRS §8-17.5-102(5)(c), The Local Agency shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement or enter into a contract with a
subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E-
Verify Program or State program procedures to undertake pre-employment screening of job applicants while
this Agreement is being performed, (b) shall notify the subcontractor and the contracting State agency within
three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with
an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not
stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall
comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-
17.5-102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the
State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher
Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has
examined the legal work status of such employee, and shall comply with all of the other requirements of the
State program. If The Local Agency fails to comply with any requirement of this provision or CRS §8-17.5-
101 et seq., the contracting State agency, institution of higher education or political subdivision may
terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101.
The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under
penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to
federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form
of identification required by CRS §24-76.5-103 prior to the effective date of this Agreement.
SPs Effective 1/1/09
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27. SIGNATURE PAGE
Agreement Routing Number: 15 HA4 75629
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
* Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local
Agency’s behalf and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY
City of Fort Collins
Print: ________________________________________
Title: ________________________________________
____________________________________________
*Signature
Date: __________________________
STATE OF COLORADO
John W. Hickenlooper, GOVERNOR
Colorado Department of Transportation
Donald E. Hunt, Executive Director
_____________________________________________
By: Joshua Laipply, P.E., Chief Engineer
Date: __________________________
2nd Local Agency Signature if needed
Print: ________________________________________
Title: ________________________________________
____________________________________________
*Signature
Date: __________________________
LEGAL REVIEW
John W. Suthers, Attorney General
By:___________________________________________
Signature - Assistant Attorney General
Date: _________________________
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement is not valid until signed
and dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such
time. If The Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay The Local
Agency for such performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:______________________________________________
Colorado Department of Transportation
Date:_______________________
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28. EXHIBIT A – SCOPE OF WORK
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29. EXHIBIT B – LOCAL AGENCY RESOLUTION
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
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30. EXHIBIT C – FUNDING PROVISIONS
A. Cost of Work Estimate
The Local Agency has estimated the total cost the Work to be $908,323 which is to be funded
as follows:
1 BUDGETED FUNDS
a. Federal Funds
(82.79% of Participating Costs – AQC) $752,000.00
b. Local Agency Matching Funds
(17.21% of Participating Costs) $156,323.00
c. State Contribution
(80% of Participating Costs FASTER Transit) $0.00
TOTAL BUDGETED FUNDS $908,323.00
2 ESTIMATED CDOT-INCURRED COSTS
a. Federal Share $0.00
(0% of Participating Costs)
b. Local Share
Local Agency Share of Participating Costs
Local Agency Share of Non-Participating Costs
$0.00
$0.00
Estimated to be Billed to Local Agency $0.00
TOTAL ESTIMATED CDOT-INCURRED COSTS $0.00
3 ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted (1a) $752,000.00
b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00
c. State Funds Budgeted (1c) $0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $752,000.00
FOR CDOT ENCUMBRANCE PURPOSES
*Note - $131,421.00 is currently available. Funds and/or Local
Agency Overmatch will be added in the future either by Option
Letter or Amendment.
Net to be encumbered as follows:
$131,421.00
WBS Element 19561.10.30 Design 3020 $131,421.00
WBS Element 19561.20.10 Construc. 3301 $0.00
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B. Matching Funds
The matching ratio for the federal participating funds for this Work is 82.79% federal-aid funds
(CFDA #20 2050) to 17.21% Local Agency and State funds, it being understood that such ratio
applies only to the $908,323.00 that is eligible for federal participation, it being further
understood that all non-participating costs are borne by the Local Agency at 100%. If the total
participating cost of performance of the Work exceeds $908,323.00 and additional federal funds
are made available for the Work, the Local Agency shall pay 17.21% of all such costs eligible for
federal participation and 100% of all non-participating costs; if additional federal funds are not
made available, the Local Agency shall pay all such excess costs. If the total participating cost
of performance of the Work is less than $908,323.00, then the amounts of State and federal-aid
funds will be decreased in accordance with the funding ratio described herein. The
performance of the Work shall be at no cost to the State.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $752,000.00
(For CDOT accounting purposes, the federal funds of $752,000.00, State funds of $0.00, Local
Agency matching funds of $156,323.00, and Local Agency Overmatch funds of $0.00 will be
encumbered for a total encumbrance of $908,323.00), unless such amount is increased by an
appropriate written modification to this Agreement executed before any increased cost is
incurred. *** Note - $131,421.00 is currently available. Funds and/or Local Agency
Overmatch will be added in the future either by Option Letter or Amendment *** It is
understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore
is the best estimate available, based on the design data as approved at the time of execution of
this Agreement, and that such cost is subject to revisions (in accord with the procedure in the
previous sentence) agreeable to the parties prior to bid and award.
D. Single Audit Act Amendment
All state and local government and non-profit organization Sub-The Local Agencys receiving
more than $750,000 from all funding sources defined as federal financial assistance for Single
Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A-
133 (Audits of States, Local Governments and Non-Profit Organizations) see also, 49 C.F.R.
18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub-The
Local Agencys receiving federal funds are as follows:
i. Expenditure less than $750,000
If the Sub-The Local Agency expends less than $750,000 in Federal funds (all federal
sources, not just Highway funds) in its fiscal year then this requirement does not apply.
ii. Expenditure exceeding than $750,000-Highway Funds Only
If the Sub-The Local Agency expends more than $750,000 in Federal funds, but only
received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205)
then a program specific audit shall be performed. This audit will examine the “financial”
procedures and processes for this program area.
iii. Expenditure exceeding than $750,000-Multiple Funding Sources
If the Sub-The Local Agency expends more than $750,000 in Federal funds, and the Federal
funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies,
which is an audit on the entire organization/entity.
iv. Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An
audit is an allowable direct or indirect cost.
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31. EXHIBIT D – OPTION LETTER
SAMPLE IGA OPTION LETTER
(This option has been created by the Office of the State Controller for CDOT use only)
NOTE: This option is limited to the specific contract scenarios listed below
AND may be used in place of exercising a formal amendment.
Date:
State Fiscal Year:
Option Letter No. Option Letter CMS Routing #
Option Letter SAP #
Original Contract CMS # Original Contract SAP #
Vendor name: _________________________________________________
SUBJECT:
A. Option to unilaterally authorize the Local Agency to begin a phase which may include Design,
Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to
Acquisition/Relocation or Railroads) and to update encumbrance amounts(a new Exhibit C must be
attached with the option letter and shall be labeled C-1, future changes for this option shall be
labeled as follows: C-2, C-3, C-4, etc.).
B. Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be
attached with the option letter and shall be labeled C-1, future changes for this option shall be
labeled as follows: C-2, C-3, C-4, etc.).
C. Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and
shall be labeled C-1, future changes for this option shall be labeled as follows: C-2, C-3, C-4, etc.).
REQUIRED PROVISIONS:
Option A (Insert the following language for use with the Option A):
In accordance with the terms of the original Agreement (insert CMS routing # of the original
Agreement) between the State of Colorado, Department of Transportation and (insert the Local
Agency’s name here), the State hereby exercises the option to authorize the Local Agency to begin a
phase that will include (describe which phase will be added and include all that apply – Design,
Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously
budgeted funds for the phase based upon changes in funding availability and authorization. The
encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous)is
(insert dollars here). A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit
C. (The following is a NOTE only, please delete when using this option. Future changes for this option
for Exhibit C shall be labled as follows: C-2, C-3, C-4, etc.).
Option B (Insert the following language for use with Option B):
In accordance with the terms of the original Agreement (insert CMS # of the original Agreement)
between the State of Colorado, Department of Transportation and (insert the Local Agency’s name
here), the State hereby exercises the option to transfer funds from (describe phase from which funds
will be moved) to (describe phase to which funds will be moved) based on variance in actual phase
costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and
replaces Exhibit C. (The following is a NOTE only so please delete when using this option: future
changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.; and no more than
24.99% of any phase may be moved using this option letter. A transfer greater than 24.99% must be
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made using an formal amendment)..
Option C (Insert the following language for use with Option C):
In accordance with the terms of the original Agreement (insert CMS routing # of original Agreement)
between the State of Colorado, Department of Transportation and (insert the Local Agency’s name
here), the State hereby exercises the option to 1) release the Local Agency to begin a phase that will
include (describe which phase will be added and include all that apply – Design, Construction,
Environmental, Utilities, ROW incidentals or Miscellaneous); 2) to encumber funds for the phase
based upon changes in funding availability and authorization; and 3) to transfer funds from (describe
phase from which funds will be moved) to (describe phase to which funds will be moved) based on
variance in actual phase costs and original phase estimates. A new Exhibit C-1 is made part of the
original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when
using this option: future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-
4, etc.; and no more than 24.99% of any phase may be moved using this option letter. A transfer
greater than 24.99% must be made using an formal amendment).
(The following language must be included on ALL options):
The total encumberance as a result of this option and all previous options and/or amendments is now
(insert total encumberance amount), as referenced in Exhibit (C-1, C-2, etc., as appropriate). The
total budgeted funds to satisfy services/goods ordered under the Agreement remains the same:
(indicate total budgeted funds) as referenced in Exhibit (C-1, C-2, etc., as appropriate) of the original
Agreement.
The effective date of this option letter is upon approval of the State Controller or delegate.
APPROVALS:
State of Colorado:
John W. Hickenlooper, Governor
By: _____________________________________________ Date: __________________
Executive Director, Colorado Department of Transportation
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid
until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin
performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado
is not obligated to pay the Local Agency for such performance or for any goods and/or services
provided hereunder.
State Controller
Robert Jaros, CPA, MBA, JD
By: __________________________________
Date: ________________________________
Form Updated: December 19, 2012
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32. EXHIBIT E – LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
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33. EXHIBIT F – CERTIFICATION FOR FEDERAL-AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to
any person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or of Congress, or an employee of a Member of
Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub-recipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
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34. EXHIBIT G – DISADVANTAGED BUSINESS ENTERPRISE
SECTION 1. Policy.
It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business
enterprises shall have the maximum opportunity to participate in the performance of contracts financed
in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 26.
Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE
Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement.
SECTION 2. DBE Obligation.
The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as
determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the
maximum opportunity to participate in the performance of contracts and subcontracts financed in whole
or in part with Federal funds provided under this agreement. In this regard, all participants or
contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program
(or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged
business enterprises have the maximum opportunity to compete for and perform contracts. Recipients
and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the
award and performance of CDOT assisted contracts.
SECTION 3 DBE Program.
The Local Agency (sub-recipient) shall be responsible for obtaining the Disadvantaged Business
Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall
comply with the applicable provisions of the program. (If applicable).
A copy of the DBE Program is available from and will be mailed to the Local Agency upon request:
Business Programs Office
Colorado Department of Transportation
4201 East Arkansas Avenue, Room 287
Denver, Colorado 80222-3400
Phone: (303) 757-9234
revised 1/22/98 Required by 49 CFR Part 26
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35. EXHIBIT H – LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL-AID
PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project
agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1
states “The policies and procedures involve federally funded contracts for engineering and design
related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure
that a qualified consultant is obtained through an equitable selection process, that prescribed work
is properly accomplished in a timely manner, and at fair and reasonable cost” and according to 23
CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore, local
agencies must comply with these CFR requirements when obtaining professional consultant
services under a federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related
operations guidebook titled "Obtaining Professional Consultant Services". This directive and
guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and
CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request
from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own
written procedures on file for each method of procurement that addresses the items in 23 CFR 172].
Because the procedures and laws described in the Procedural Directive and the guidebook are
quite lengthy, the subsequent steps serve as a short-hand guide to CDOT procedures that a local
agency must follow in obtaining professional consultant services. This guidance follows the format
of 23 CFR 172. The steps are:
1. The contracting local agency shall document the need for obtaining professional services.
2. Prior to solicitation for consultant services, the contracting local agency shall develop a
detailed scope of work and a list of evaluation factors and their relative importance. The
evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate
should be prepared for use during negotiations.
3. The contracting agency must advertise for contracts in conformity with the requirements of
C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of
15 days prior to the selection of the three most qualified firms and the advertising should be
done in one or more daily newspapers of general circulation.
4. The request for consultant services should include the scope of work, the evaluation factors
and their relative importance, the method of payment, and the goal of 10% for Disadvantaged
Business Enterprise (DBE) participation as a minimum for the project.
5. The analysis and selection of the consultants shall be done in accordance with CRS §24-30-
1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT
pre-qualified prime consultants and their team. It also shows which criteria are used to short-
list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the Work,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
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Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
6. Once a consultant is selected, the local agency enters into negotiations with the consultant to
obtain a fair and reasonable price for the anticipated work. Pre-negotiation audits are
prepared for contracts expected to be greater than $50,000. Federal reimbursements for
costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees
(profit) are determined with consideration given to size, complexity, duration, and degree of
risk involved in the work. Profit is in the range of six to 15 percent of the total direct and
indirect costs.
7. A qualified local agency employee shall be responsible and in charge of the Work to ensure
that the work being pursued is complete, accurate, and consistent with the terms, conditions,
and specifications of the contract. At the end of Work, the local agency prepares a
performance evaluation (a CDOT form is available) on the consultant.
8. Each of the steps listed above is to be documented in accordance with the provisions of 49
CFR 18.42, which provide for records to be kept at least three years from the date that the
local agency submits its final expenditure report. Records of projects under litigation shall be
kept at least three years after the case has been settled.
CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional
details for complying with the preceeding eight (8) steps.
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36. EXHIBIT I – FEDERAL-AID CONTRACT PROVISIONS
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37. EXHIBIT J – FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule)
The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18,
except to the extent that other applicable federal requirements (including the provisions of 23
CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore
supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation:
the Local Agency/Contractor shall follow applicable procurement procedures, as required by
section 18.36(d); the Local Agency/Contractor shall request and obtain prior CDOT approval of
changes to any subcontracts in the manner, and to the extent required by, applicable provisions
of section 18.30; the Local Agency/Contractor shall comply with section 18.37 concerning any
sub-Agreements; to expedite any CDOT approval, the Local Agency/Contractor's attorney, or
other authorized representative, shall also submit a letter to CDOT certifying Local
Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d)
procurement procedures, and with 18.37 sub-Agreement procedures, as applicable;
the Local Agency/Contractor shall incorporate the specific contract provisions described in
18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services
as terms and conditions of those subcontracts.
B. Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as
amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department
of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of
$10,000 by the Local Agencys and their contractors or the Local Agencys).
C. Copeland "Anti-Kickback" Act
The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair).
D. Davis-Bacon Act
The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local
Agencys and the Local Agencys when required by Federal Agreement program legislation. This
act requires that all laborers and mechanics employed by contractors or sub-contractors to work
on construction projects financed by federal assistance must be paid wages not less than those
established for the locality of the project by the Secretary of Labor).
E. Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by the Local Agency’s in excess of $2,000, and in excess of $2,500 for other
contracts which involve the employment of mechanics or laborers).
F. Clear Air Act
Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and
sub-Agreements of amounts in excess of $100,000).
G. Energy Policy and Conservation Act
Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
(Pub. L. 94-163).
H. OMB Circulars
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Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110,
whichever is applicable.
I. Hatch Act
The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state
that federal funds cannot be used for partisan political purposes of any kind by any person or
organization involved in the administration of federally-assisted programs.
J. Nondiscrimination
42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part
80 et. seq. These acts require that no person shall, on the grounds of race, color, national
origin, age, or handicap, be excluded from participation in or be subjected to discrimination in
any program or activity funded, in whole or part, by federal funds.
K. ADA
The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117,
12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 47 USC 225 and 47
USC 611.
L. Uniform Relocation Assistance and Real Property Acquisition Policies Act
The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor
is acquiring real property and displacing households or businesses in the performance of the
Agreement).
M. Drug-Free Workplace Act
The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
N. Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing
regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as
amended, and implementing regulation 45 C.F.R. Part 84.
O. 23 C.F.R. Part 172
23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
P. 23 C.F.R Part 633
23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction
Contracts".
Q. 23 C.F.R. Part 635
23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of
1973
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached
hereto and made a part hereof.
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal
Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest,
agree as follows:
i. Compliance with Regulations
The Contractor will comply with the Regulations of the Department of Transportation relative
to nondiscrimination in Federally assisted programs of the Department of Transportation
(Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"),
which are herein incorporated by reference and made a part of this Agreement.
ii. Nondiscrimination
The Contractor, with regard to the work performed by it after award and prior to completion of
the contract work, will not discriminate on the ground of race, color, sex, mental or physical
handicap or national origin in the selection and retention of Subcontractors, including
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procurement of materials and leases of equipment. The Contractor will not participate either
directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations,
including employment practices when the contract covers a program set forth in Appendix C
of the Regulations.
iii. Solicitations for Subcontracts, Including Procurement of Materials and
Equipment
In all solicitations either by competitive bidding or negotiation made by the Contractor for
work to be performed under a subcontract, including procurement of materials or equipment,
each potential Subcontractor or supplier shall be notified by the Contractor of the
Contractor's obligations under this Agreement and the Regulations relative to
nondiscrimination on the ground of race, color, sex, mental or physical handicap or national
origin.
iv. Information and Reports
The Contractor will provide all information and reports required by the Regulations, or orders
and instructions issued pursuant thereto and will permit access to its books, records,
accounts, other sources of information and its facilities as may be determined by the State or
the FHWA to be pertinent to ascertain compliance with such Regulations, orders and
instructions. Where any information required of the Contractor is in the exclusive possession
of another who fails or refuses to furnish this information, the Contractor shall so certify to the
State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain
the information.
v. Sanctions for Noncompliance
In the event of the Contractor's noncompliance with the nondiscrimination provisions of this
Agreement, the State shall impose such contract sanctions as it or the FHWA may determine
to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor
under the contract until the Contractor complies, and/or b. Cancellation, termination or
suspension of the contract, in whole or in part.
T. Incorporation of Provisions §22
The Contractor will include the provisions of paragraphs A through F in every subcontract,
including procurement of materials and leases of equipment, unless exempt by the Regulations,
orders, or instructions issued pursuant thereto. The Contractor will take such action with respect
to any subcontract or procurement as the State or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance; provided, however, that, in the
event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor
or supplier as a result of such direction, the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition, the Contractor may request the
FHWA to enter into such litigation to protect the interests of the United States.
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38. EXHIBIT K – SUPPLEMENTAL FEDERAL PROVISIONS
State of Colorado
Supplemental Provisions for
Federally Funded Contracts, Grants, and Purchase Orders
Subject to
The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended
Revised as of 3-20-13
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded,
in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these
Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into
and made a part of the contract, the provisions of these Supplemental Provisions shall control.
1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the
meanings ascribed to them below.
1.1. “Award” means an award of Federal financial assistance that a non-Federal Entity receives or
administers in the form of:
1.1.1. Grants;
1.1.2. Contracts;
1.1.3. Cooperative agreements, which do not include cooperative research and development
agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U.S.C. 3710);
1.1.4. Loans;
1.1.5. Loan Guarantees;
1.1.6. Subsidies;
1.1.7. Insurance;
1.1.8. Food commodities;
1.1.9. Direct appropriations;
1.1.10. Assessed and voluntary contributions; and
1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by
non-Federal Entities.
Award does not include:
1.1.12. Technical assistance, which provides services in lieu of money;
1.1.13. A transfer of title to Federally-owned property provided in lieu of money; even if the award
is called a grant;
1.1.14. Any award classified for security purposes; or
1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of
the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5).
1.2. “Contract” means the contract to which these Supplemental Provisions are attached and includes all
Award types in §1.1.1 through 1.1.11 above.
1.3. “Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal
financial assistance, other than the Prime Recipient, and includes grantees, subgrantees,
Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not
include Vendors.
1.4. “Data Universal Numbering System (DUNS) Number” means the nine-digit number established
and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s
website may be found at: http://fedgov.dnb.com/webform.
1.5. “Entity” means all of the following as defined at 2 CFR part 25, subpart C;
1.5.1. A governmental organization, which is a State, local government, or Indian Tribe;
1.5.2. A foreign public entity;
1.5.3. A domestic or foreign non-profit organization;
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1.5.4. A domestic or foreign for-profit organization; and
1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federal
entity.
1.6. “Executive” means an officer, managing partner or any other employee in a management position.
1.7. “Federal Award Identification Number (FAIN)” means an Award number assigned by a Federal
agency to a Prime Recipient.
1.8. “FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-
282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is referred to as the
“Transparency Act.”
1.9. “Prime Recipient” means a Colorado State agency or institution of higher education that receives an
Award.
1.10. “Subaward” means a legal instrument pursuant to which a Prime Recipient of Award funds awards
all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient’s support in the
performance of all or any portion of the substantive project or program for which the Award was
granted.
1.11. “Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a
non-Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of
the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to
the terms and conditions of the Federal Award to the Prime Recipient, including program compliance
requirements. The term “Subrecipient” includes and may be referred to as Subgrantee.
1.12. “Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data
Universal Numbering System (DUNS) number that appears in the subrecipient’s System for Award
Management (SAM) profile, if applicable.
1.13. “Supplemental Provisions” means these Supplemental Provisions for Federally Funded Contracts,
Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of
2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or
State of Colorado agency or institution of higher education.
1.14. “System for Award Management (SAM)” means the Federal repository into which an Entity must
enter the information required under the Transparency Act, which may be found at
http://www.sam.gov.
1.15. “Total Compensation” means the cash and noncash dollar value earned by an Executive during the
Prime Recipient’s or Subrecipient’s preceding fiscal year and includes the following:
1.15.1. Salary and bonus;
1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised
2005) (FAS 123R), Shared Based Payments;
1.15.3. Earnings for services under non-equity incentive plans, not including group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of
Executives and are available generally to all salaried employees;
1.15.4. Change in present value of defined benefit and actuarial pension plans;
1.15.5. Above-market earnings on deferred compensation which is not tax-qualified;
1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the Executive exceeds $10,000.
1.16. “Transparency Act” means the Federal Funding Accountability and Transparency Act of 2006 (Public
Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred
to as FFATA.
1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required
for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and
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is not subject to the terms and conditions of the Federal award. Program compliance requirements do
not pass through to a Vendor.
2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the
regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any
revisions to such provisions or regulations shall automatically become a part of these Supplemental
Provisions, without the necessity of either party executing any further instrument. The State of Colorado
may provide written notification to Contractor of such revisions, but such notice shall not be a condition
precedent to the effectiveness of such revisions.
3. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements.
3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the
final financial report required under the Award or receives final payment, whichever is later.
Contractor shall review and update SAM information at least annually after the initial registration, and
more frequently if required by changes in its information.
3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor’s information in Dun & Bradstreet, Inc. at least annually after the initial registration, and
more frequently if required by changes in Contractor’s information.
4. Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal year if:
4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
4.2. In the preceding fiscal year, Contractor received:
4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.3. The public does not have access to information about the compensation of such Executives through
periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
5. Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7
below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment
shall be made to Contractor for providing any reports required under these Supplemental Provisions and the
cost of producing such reports shall be included in the Contract price. The reporting requirements in §7
below are based on guidance from the US Office of Management and Budget (OMB), and as such are
subject to change at any time by OMB. Any such changes shall be automatically incorporated into this
Contract and shall become part of Contractor’s obligations under this Contract, as provided in §2 above.
The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements
at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm.
6. Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions
apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of
October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent
Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting
requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding
is subsequently de-obligated such that the total award amount falls below $25,000, the Award shall continue
to be subject to the reporting requirements.
7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth
below.
Page 4 of 4
7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each
Federal Award Identification Number no later than the end of the month following the month in which
the Subaward was made:
7.1.1 Subrecipient DUNS Number;
7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account;
7.1.3 Subrecipient Parent DUNS Number;
7.1.4 Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
7.1.5 Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are
met; and
7.1.6 Subrecipient’s Total Compensation of top 5 most highly compensated Executives if
criteria in §4 above met.
7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the
Contract, the following data elements:
7.2.1 Subrecipient’s DUNS Number as registered in SAM.
7.2.2 Primary Place of Performance Information, including: Street Address, City, State,
Country, Zip code + 4, and Congressional District.
8. Exemptions.
8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural
person, unrelated to any business or non-profit organization he or she may own or operate in his or
her name.
8.2 A Contractor with gross income from all sources of less than $300,000 in the previous tax year is
exempt from the requirements to report Subawards and the Total Compensation of its most highly
compensated Executives.
8.3 Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other
arrangement as defined in Section 1.1 of these Special Provisions. On future dates “Award” may
include other items to be specified by OMB in policy memoranda available at the OMB Web site;
Award also will include other types of Awards subject to the Transparency Act.
8.4 There are no Transparency Act reporting requirements for Vendors.
Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default
under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if
the default remains uncured five calendar days following the termination of the 30 day notice period. This
remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law
or in equity.
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ORDINANCE NO. 009, 2015
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING UNANTICIPATED REVENUE IN THE CAPITAL PROJECTS FUND
FOR THE NORTH COLLEGE PEDESTRIAN MULTI-USE PATH PROJECT,
AUTHORIZING THE TRANSFER OF APPROPRIATIONS FROM THE BUILDING ON
BASICS PEDESTRIAN PLAN AND AMERICAN WITH DISABILITIES IMPROVEMENTS
PROJECT INTO THE NORTH COLLEGE PEDESTRIAN MULTI-USE PATH PROJECT
WHEREAS, North College Avenue is a major thoroughfare for both the City and the
Colorado Department of Transportation (CDOT); and
WHEREAS, the City has rehabilitated the North College corridor within the City limits
and CDOT is currently pursuing a project to improve the section of North College Avenue from
State Highway 1 to the LaPorte Bypass; and
WHEREAS, as a result of the North College Corridor improvements, a gap in pedestrian
infrastructure will exist along both sides of North College Avenue for approximately 1,000 feet
including a crossing over the Larimer and Weld Canal; and
WHEREAS, with the North College Marketplace Development the City negotiated with
the developer to provide $125,000 for the construction of a pedestrian bridge crossing the
Larimer and Weld Canal and in 2014 the Urban Renewal Authority transferred these funds to the
City; and
WHEREAS, in 2012, the City was awarded $752,000 of federal Congestion Mitigation
and Air Quality funds by the North Front Range Metropolitan Planning Organization (to initiate
a project addressing the lack of pedestrian facilities along North College Avenue between the
city limits and State Highway 1; and
WHEREAS, the City Council has adopted Resolution 2015-007 authorizing the City to
enter into a grant construction contract with the Colorado Department of Transportation for the
North College Pedestrian Multi-Use Path Project; and
WHEREAS, this grant requires local matching funds in the amount of $156,323 which
are provided by reason of the $125,000 contributed from the developer of the North College
Marketplace and $31,323 that will be transferred from existing appropriations in the Building on
Basics (BOB) Pedestrian Plan & American with Disabilities Improvements Project; and
WHEREAS, the total project funds of $908,323 will be used to design and construct
pedestrian amenities along North College Avenue between the northern city limits and State
Highway 1; and
WHEREAS, a portion of the total project funds are ineligible for public art purposes, as
Section 23-304 of the City Code otherwise requires, due to grant restrictions and conditions on
developer contributions, though prior appropriation of funds to the BOB Pedestrian Plan &
A.D.A. Improvements Project included transfer of one percent of such appropriation to the
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Cultural Services & Facilities Fund for Art in Public Places (APP) artwork; and
WHEREAS, Engineering staff will coordinate APP staff to incorporate the costs to
acquire and maintain appropriate public art into the project, pursuant to the City Code; and
WHEREAS, Article V, Section 9, of the City Charter permits the City Council to make
supplemental appropriations by ordinance at any time during the fiscal year, provided that the
total amount of such supplemental appropriations, in combination with all previous
appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated
revenues to be received during the fiscal year; and
WHEREAS, City staff has determined that the appropriation of the revenue as described
herein will not cause the total amount appropriated in the Capital Projects Fund to exceed the
current estimate of actual and anticipated revenues to be received in that fund during any fiscal
year; and
WHEREAS, Article V, Section 10, of the City Charter authorizes the City Council to
transfer by ordinance any unexpended and unencumbered appropriated amount or portion thereof
from one fund (project) to another fund (project), provided that the purpose for which the
transferred funds are to be expended remains unchanged.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That there is hereby appropriated from unanticipated revenue in the
Capital Projects Fund the sum of EIGHT HUNDRED SEVENTY-SEVEN THOUSAND
DOLLARS ($877,000) for expenditure on the North College Pedestrian Multi-Use Path Project.
Section 2. That the unexpended appropriated amount of THIRTY-ONE
THOUSAND THREE HUNDRED TWENTY-THREE DOLLARS ($31,323) in the Capital
Projects Fund, BOB Pedestrian Plan & A.D.A. Improvements Project is authorized for transfer to
the North College Pedestrian Multi-Use Path Project and appropriated therein.
Introduced, considered favorably on first reading, and ordered published this 20th day of
January, A.D. 2015, and to be presented for final passage on the 3rd day of February, A.D. 2015.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Passed and adopted on final reading on the 3rd day of February, A.D. 2015.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk