Loading...
HomeMy WebLinkAbout2011-040-05/03/2011-AUTHORIZING THE MAYOR TO EXECUTE AN AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT WITH THE TOWN OF WI RESOLUTION 2011-040 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO EXECUTE AN AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT WITH THE TOWN OF WINDSOR AND THE COLORADO DEPARTMENT OF TRANSPORTATION TO ADD FUNDING TO THE DESIGN OF THE INTERSTATE 25/STATE HIGHWAY 392 INTERCHANGE PROJECT WHEREAS,the Interstate 25/State Highway 392 Interchange("Interchange"),located at Exit 262,borders the western limits of the Town of Windsor("Town")and the southeastern limits of the City of Fort Collins ("City"); and WHEREAS, the City and the Town have worked cooperatively to finalize the design plan for improvements to the Interchange (the "Plan") and to identify sufficient funding to finance the construction of those improvements; and WHEREAS,on February 3,2009,the City Council adopted Resolution 2009-010 approving an intergovernmental agreement between the City, the Town, and CDOT that identified the scope of work for the design and designated how the design contract will be managed(the"Design IGA"); and WHEREAS, the City Council has previously appropriated funds, from a CDOT grant, in the amount of$1,768,523 with $1,692,104 allocated for the engineering work on the Design IGA and $75,000 allocated for staff time managing the engineering work (the "Staff Management Share"); and WHEREAS, the City, the Town, and CDOT have, at the request of CDOT, subsequently increased the scope of work, resulting in an increase of$92,000 to the cost of the Design IGA; and WHEREAS,the City Council has appropriated an additional$70,000 for the implementation of the Design IGA through the adoption of Ordinance No. 116, 2010, which funding was provided to the City by CDOT to pay for the increased scope of work in the Design IGA; and WHEREAS, the additional $22,000 will be available through savings in the staff Management Share; and WHEREAS, the City, the Town, and CDOT have negotiated a proposed amendment to the Design IGA(the"Amendment')a copy of which is attached hereto as Exhibit"A"and incorporated herein by this reference; and WHEREAS, the City Council has determined that it is in the best interests of the City to amend the original Design IGA. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Mayor is hereby authorized to execute an amendment to the original Design IGA to add $92,000 in funding to be provided by CDOT in the support of the Plan. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 3rd day of May A.D. 2011. ayor (�C/ ATTEST: OF FORT co SEAL City Clerk r c�C O R F�O EXHIBIT A CONTRACT AMENDMENT Amendment#1 Original Contract CMS #09 HA4 00078 CMS # 11 HA4 29252 Project # IM 392A-012 16639 PO# 271000945 1) PARTIES This Amendment to the above-referenced Original Contract (hereinafter called the Contract) is entered into by and between The City of Fort Collins, CDOT Vendor#2000023 and The Town of Windsor, CDOT Vendor#2000340 (hereinafter called "The Local Agency"), and the STATE OF COLORADO (hereinafter called the "State") acting by and through the Department of Transportation, (hereinafter called "CDOT"). 2) EFFECTIVE DATE AND ENFORCEABILITY This Amendment shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or reimburse Contractor 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) FACTUAL RECITALS The Parties entered into the Original Basic Contract#09 HA4 00078 dated February 17`", 2009 to provide engineering services to the City of Fort Collins and the Town of Windsor for the SH 392/1- 25 interchange reconstruction. Design funds totaling $1,768,523.00 have been encumbered under the Basic Contract. The parties now desire to add FY 11 Federal and State Participating funds increasing the total contract value by $92,000.00 to a new contract total of$1,860,523.00. 4) CONSIDERATION-COLORADO SPECIAL PROVISIONS The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Amendment. The Parties agree to replacing the Colorado Special Provisions with the most recent version (if such have been updated since the Contract and any modification thereto were effective) as part consideration for this Amendment. If applicable, such Special Provisions are attached hereto and incorporated by reference herein . 5) LIMITS OF EFFECT This Amendment is incorporated by reference into the Contract, and the Contract and all prior amendments thereto, if any, remain in full force and effect except as specifically modified herein. 6) MODIFICATIONS. The Amendment and all prior amendments thereto, if any, are modified as follows: a. Exhibit C-1 Exhibit C to the Basic Contract shall be removed and replaced in its entirety by Exhibit C-1 attached hereto and incorporated herein by this reference. All references in the Basic Contract to Exhibit C shall be removed and replaced by Exhibit C-1. b. Section 19 Modification and Amendment Section 19 Modification and Amendment to the original Basic Contract shall be removed and Replaced in its entirety by the Section 19—Option Letters Modification hereto and incorporated herein by this reference. Option Letters may be used to extend Agreement terms, change the level of service within the current term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or decrease the amount of funding. These options are 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. Following are the applications for the individual options under the Option Letter form: Page 1. 10 Option 1-Level of service change within current term due to unexpected overmatch in an overbid situation only. In the event the State has contracted all project funding and the Local Agency's construction bid is higher than expected, this option allows for additional Local Overmatch dollars to be provided by the Local Agency to be added to the contract. This option is only applicable for Local Overmatch on an overbid situation and shall not be intended for any other Local Overmatch funding. The State may unilaterally increase the total dollars of this contract as stipulated by the executed Option Letter (Exhibit D), which will bring the maximum amount payable under this contract to the amount indicated in Exhibit C-1 attached to the executed Option Letter (future changes to Exhibit C shall be labeled as C-2, C-3, etc, as applicable). Performance of the services shall continue under the same terms as established in the contract. The State will use the Financial Statement submitted by the Local Agency for"Concurrence to Advertise"as evidence of the Local Agency's intent to award and it will also provide the additional amount required to exercise this option. If the State exercises this option, the contract will be considered to include this option provision. Option 2—Option to add overlapping phase without increasing contract dollars. 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 contract with the contract dollars remaining the same. 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 contract will be considered to include this option provision. Option 3 -To update funding (increases and/or decreases) with a new Exhibit C. This option can be used to increase and/or decrease the overall contract dollars (state, federal, local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit C) in the Original Contract with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc). The State may have a need to update changes to state, federal, local match and local agency overmatch funds as outlined in Exhibit C-1, which will be attached to the option form. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days after the State has received notice of funding changes, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. c. Exhibit K FFATA Federal Provisions attached hereto and incorporated herein by this reference are hereby added to the Basic Contract. Supplemental Federal Provisions will be to the Basic Contract by adding the following: Section 24 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. A listing of certain Page 2:of M. federal and state laws that may be applicable are described in Exhibit J (Section 37) and Exhibit K (Section 38 - Supplemental Federal Provisions). d. Section 25 Special Provisions dated January 1, 2009 attached hereto and incoporated herein by this reference are hereby added to the Basic Contract. e.Section 26 Statewide Contract Management System — hereto and incorporated herein by this reference is hereby added to the Basic Contract. —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 anytime 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. 7) START DATE This Amendment shall take effect upon the date of the State Controller's Signature. 8) ORDER OF PRECEDENCE Except for the Special Provisions, in the event of any conflict, inconsistency, variance, or contradiction between the provisions of this Amendment and any of the provisions of the Contract, the provisions of this Amendment shall in all respects supersede, govern, and control. The most recent version of the Special Provisions incorporated into the Contract or any amendment shall always control other provisions in the Contract or any amendments. 9) AVAILABLE FUNDS Page 3 of 10 Financial obligations of the state payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, or otherwise made available. Section 25 SPECIAL PROVISIONS The Special Provisions apply to all contracts except where noted in italics. 1. CONTROLLER'S APPROVAL.CRS§24-30-202(1).This contract shall not be valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY.CRS§24-30.202(55).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. 3. GOVERNMENTAL IMMUNITY.No term or condition of this contract shall be construed or interpreted as a waiver,express or implied,of any of the immunities,rights,benefits,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. 4. INDEPENDENT CONTRACTOR.Contractor shall perform its duties hereunder as an independent contractor and not as an employee.Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State.Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees.Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party.Contractor shall pay when due ail applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract.Contractor shall not have authorization,express or implied,to bind the State to any agreement,liability or understanding,except as expressly set forth herein.Contractor shall(a)provide and keep in force workers•'compensation and unemployment compensation insurance in the amounts required by law,(b)provide proof thereof when requested by the State,and(c)be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW.Contractor shall strictly comply with all applicable federal and State laws,rules,and regulations in effect or hereafter established,including,without limitation,laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW.Colorado law,and rules and regulations issued pursuant thereto,shall be applied in the interpretation,execution,and enforcement of this contract.Any provision included or incorporated herein by reference which conflicts with said 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 contract,to the extent capable of execution. 7. 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. 8. SOFTWARE PIRACY PROHIBITION.Governor's Executive Order D 002 00.State or other public funds payable under this contract shall not be used for the acquisition,operation,or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions.Contractor hereby certifies and warrants that,during the term of this contract and any extensions,Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds.If the State determines that Contractor is in violation of this provision,the State may exercise any remedy available at law or in equity or under this contract,including,without limitation,immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL.INTEREST/CONFLICT OF INTEREST.CRS§§24.18-201 and 24-50-507.The signatories aver that to their knowledge,no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract.Contractor has no interest and shall not acquire any interest,direct or indirect,that would conflict in any manner or degree with the performance of Contractor's services and Contractor shall not employ any person having such known interests. 10. VENDOR OFFSET.CRS§§24-30-202(1)and 14-30-202.4.[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.ei 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. IL 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 Contractor certifies,warrants.and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract,through participation in the E- Verify Program or the Department program established pursuant to CRS§8-17.5-102(5)(c),Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to gerform work under this contract.Contractor(a)shall not use E-Verify Program or Department program procedures to undertake pre- employment screening of job applicants while this contract is being performed,(b)shall notify the subcontractor and the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract.(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§8-175-102(5),by the Colorado Department of labor and Employment.If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision a written, notarized ajfirmatian,affirming that Contractor has examined the legal work status of such employee,and shall comply with all of the other requirements of the Department program If Contractor 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 contract for breach and,if so terminated,Contractor shall be liable far damages. >`.Page,4 of to 12. PUBLIC CONTRACTS WITH NATURAL PERSONS.CBS§24.76.5-101.Contractor,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 contract. Revised 1.1-09 Signature Page- Project No. IM 392A-012/(16639) Town of Windsor STATE OF COLORADO John W. H Hickenlooper, GOVERNOR By: Department of Transportation Title: By: Pamela Hutton,CDOT Chief Engineer City of Fort Collins By: Title: Legal Review John W. Suthers, Attorney General Bv: Signature - Attorney General's Office ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS§24-30-202 requires the State Controller to approve all State Contracts.This Contract 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 Contractor begins performing prior thereto,the State of Colorado is not obligated to pay Contractor for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER David J. McDermott, CPA By: Department of Transportation Date: Page 5'of 10 EXHIBIT C— 1 FUNDING PROVISIONS Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $1,860,523.00 which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds $1,437,878.00 (91.21% of Participating Costs) b. State Matching Funds $138,570.00 (8.79% of Participating Costs) "Overmatching State Contribution (100%) $284,075.00 TOTAL BUDGETED FUNDS $1,860,523.00 2 ESTIMATED CDOT-INCURRED COSTS a. Federal Share $0.00 (10%of Participating Costs) b. Local Agency Local Agency Share of Participating Costs $0.00 Non-Participating Costs (Including Non- Participating Indirects) $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 & State Participating Funds $1,576,448.00 b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00 c. State Contributions (100%) $284,075.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $1,860,523.00 FOR CDOT ENCUMBRANCE PURPOSES $0.00 $0.00 Net to be encumbered as follows: $1,860,523.00 WBS Element 16639.10.301 Design 13020 $1,860,523.00 WBS Element 16639.20.101 Contt 13301 $0.00 Page 6 of 10 Matching Funds The matching ratio for the federal participating funds for this Work is 91.21% federal-aid funds (CFDA#20 2050) and 8.79% State Funds, it being understood that such ratio applies only to the $1,437,878.00 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 $1,437,878.00 and additional federal funds are made available for the Work, the Local Agency shall pay 0%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 $1,437,878.00 then the amounts of State and federal-aid funds will be decreased in accordance with the funding ratio described herein. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $1,860,523.00 (For CDOT accounting purposes, the federal funds of$1,437,878.00 Local Agency matching funds of $0, and State funds of $138,570.00 and State Overmatching Contribution of $284,075.00 will be encumbered for a total encumbrance of$1,860,523.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. 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. Single Audit Act Amendment All state and local government and non-profit organization Sub-The Local Agencys receiving more than $500,000 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: Expenditure less than $500,000 If the Sub-The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. Expenditure exceeding than $500,000-Highway Funds Only If the Sub-The Local Agency expends more than $500,000 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. Expenditure exceeding than $500,000-Multiple Funding Sources If the Sub-The Local Agency expends more than $500,000 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. Independent CPA Single Audit shall onlv be conducted by an independent CPA,not by an auditor on staff. An Page 7bf 16 EXHIBIT K State of Colorado Supplemental Provisions for Contracts, Grants, and Purchase Orders for Federal Funds received pursuant to the Federal Funding Accountability and Transparency Act (FFATA) of 2006 and 2008 Amendments As of October 1, 2010 The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole or in part, with 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 does not include cooperative research and development agreements (CRDA)pursuant to the Federal Technology Transfer Act of 1986, as amended(15 U.S.C.3710a)), 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,or 1.1.10. Other financial assistance transactions that authorize the non-Federal Entities' expenditure of Federal Funds. Award does not include: 1.1.11. Technical assistance which provides services in lieu of money: 1.1.12. A transfer of title to Federally-owned property provided in lieu of money,even if the award is called a grant; 1.1.13. Anv classified award;or 1.1.14. 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(Pub.L. 111-5) 1.2. "Central Contractor Registration(CCR)"means the Federal repository into which an Entity must provide information required for the conduct of business as a recipient. 1.3. "Data Universal Numbering Svstem(DUNS)Number" means the nine-digit number established and assigned by Dun and Bradstreet Inc to uniquely identify business entities. 1.4. "Entity"means all of the following as defined at 2 CFR part 25,subpart C; 1.4.1. A governmental organization which is a State,local government,or Indian Tribe, 1.4.2. A foreign public entity, 1.4.3. A domestic or foreign non-profit organization, 1.4.4. A domestic or foreign for-profit organization,and 1.4.5. A Federal Agency,but only a subrecivient under an award or subaward to a non-Federal entity. 1.5. "Subaward"means a legal instrument to provide support for the performance of any portion of the substantive project or program funded by federal funds to a Prime Recipient that a Prime Recipient awards to a Subrecipient. 1.6. "Contract"means the contract to which these Supplemental Provisions are attached and includes all award types in 1.7. "Contractor"means the party or parties to the Contract other than the Prime Recipient and includes a grantee, subaramee Subrecipient or a borrower.For purposes of FFATA reporting Contractor is either a Subrecipient or a ;;:Page 8 of.10 Vendor under this Contract. 1.8. "FFATA"means the Federal Funding Accountability and Transparency Act of 2006(Public Law 109-282). Also referred to as the"Transparency Act." 1.9. "Prime Recipient"means a Colorado State Agency or Institution of Higher Education that receives federal funds directly from a Federal Agency in the form of an award in §1.1. 1.10. "Subrecipient"means 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. 1.11. "Supplemental Provisions"means these Supplemental Provisions for Contracts,Grants, and Purchase Orders using Federal funds except those funds provided under the American Recovery and Reinvestment Act of 2009 as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado Agency or Institution of Higher Education. 1.12. "Total Compensation"means the cash and noncash dollar value earned by the executive during the Prime Recipient's or Subrecivient's preceding fiscal year and includes the following 1.12.1. Salary and bonus, 1.12.2. Awards of stock stock options and stock appreciation rights This amount shall equal 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, 1.12.3. Earnings for services under non-equity incentive plans This does not include group life,health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives and are available generally to all salaried employees, 1.12.4. Change in pension value this amount shall equal the change in present value of defined benefit and actuarial pension plans, 1.12.5. Above-market earnings on deferred compensation which is not tax-qualified,and 1.12.6. 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. "Vendor"means a dealer,distributor,merchant or other seller providing goods or services required for a project or program funded by Federal funds A Vendor is not subject to all the terms and conditions of the Federal award,and all program compliance requirements do not pass through to a Vendor. 2. Compliance Contractor shall comply with all applicable provisions of the Transparence 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 anv 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. Central Contractor Registration(CCR)and Data Universal Numbering System(DUNS)Requirements. 3.1. CCR Contractor shall maintain the currency of its information in the CCR until the Contractor submits the final financial report required under this award or receives final payment whichever is later. Contractor shall review and update the CCR 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 its information in Dun&Bradstreet at least annually after the initial registration and more frequently if required by changes in its information. 4. Total Compensation Contractor shall include total compensation in CCR for each of its five most highly compensated executives for the preceding completed fiscal year if: 4.1. the total Federal funding authorized to date under this award is$25,000 or more,and 4.2. in the preceding fiscal year,Contractor received: 4.2.1. 80 percent or more of its annual gross revenues from Federal procurement contracts and Page 9 of 10 subcontracts and Federal financial assistance 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 Federal financial assistance subject to the Transparency Act,and 4.3. the public does not have access to information about the compensation of the 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 section 6104 of the Internal Revenue Code of 1986. 5. Reporting Contractor shall include data elements in its CCR and report to its Prime Recipient Entity the data elements required in§7 if Contractor is a Subrecipient for the award types of grants contracts and cooperative agreements(which does not include cooperative research and development agreements(CRDA)pursuant to the Federal Technology Transfer Act of 1986 as amended(15 U.S.C. 3710a) No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions as the cost of producing such reports shall be deemed included in the Contract price The reporting requirements in §7 are based on guidance from the US Office of Management and Budget (OMB) and as such are subiect 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 The State may provide written notice to Contractor of any such change in accordance with§2 above but such notice shall not be a condition precedent to Contractor's duty to comply with revised OMB reporting requirements.The Colorado Office of the State Controller shall provide summaries of revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/scofFFATA.htm 6. Effective Date and Dollar Threshold for Reporting The reporting requirements in §7 apply for new Federal grants, contracts and cooperative agreements(except CRDA)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 continues to be subiect to the reporting requirements. 7. Subrecipient Reporting Requirements If Contractor is a Subrecipient Contractor shall report as set forth below. 7.1 To CCR. A Subrecipient shall register in CCR and report the following data elements in CCR: 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 Officers' Names of top 5 highly compensated officials if the criteria in§4 are met. 7.1.6 Subrecipient Officers'Total Compensation of top 5 highly compensated officials if criteria in §4 met 7.2 To Prime Contractor. A Subrecipient shall report to its Prime Recipient, upon the effective date of the contract,the following data elements: 7 2 1 Primary Place of Performance Information including: Street Address City,State Country.Zia code+4 and Congressional District. 8. Vendor There are no Transparency Act reporting requirements for vendors. 9. 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 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. Page 10'of 10 ;