Loading...
HomeMy WebLinkAbout2015-083-09/15/2015-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE COLORADO DEPART RESOLUTION 2015-083 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE COLORADO DEPARTMENT OF TRANSPORTATION IN ORDER FOR THE CITY TO RECEIVE FEDERAL TRANSPORTATION ALTERNATIVE PROGRAM FUNDS FOR THE PITKIN STREET LOW STRESS BICYCLE CORRIDOR IMPROVEMENTS WHEREAS, the Colorado Department of Transportation (CDOT) administers the disbursement of Federal Transportation Alternative Program funds; and WHEREAS, the proposed Pitkin Low Stress Bicycle Corridor is designed to implement aspects of the Fort Collins Bicycle Master Plan by creating a safe and comfortable east-west connection across the City for bicyclists; and WHEREAS, a Federal Transportation Alternatives Program (TAP) grant has been awarded to the FC Moves Program in the amount of$593,000.00; and WHEREAS, in order to receive the TAP grant, the City has appropriated $148,250.00 in the Capital Projects Fund, FC Moves, BOB Bicycle Plan Implementation, to fulfill the required 20% local match portion for a total project budget of$741,250.00; and WHEREAS, the proposed intergovernmental agreement between CDOT and the City of Fort Collins that memorializes the terms and conditions of the TAP grant is attached hereto and incorporated herein as Exhibit"A"; and WHEREAS, Article II, Section 16 of the City Charter empowers the City Council, by ordinance or resolution, to enter into contracts with governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, Section 29-1-203 of the Colorado Revised . Statutes provides that governments may cooperate or contract with one another to provide certain services or facilities when such cooperation or contracts are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve; and WHEREAS, the City Council has determined that it is in the best interests of the City that the Pitkin Low Stress Bicycle Corridor improvements be constructed and that the Mayor be authorized to execute an intergovernmental agreement between the City and CDOT in support thereof. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the City Council hereby authorizes the Mayor to execute an intergovernmental agreement between the City and CDOT, substantially in the form attached hereto as Exhibit "A," together will such modifications and additions as the City Manager, in consultation with the City Attorney, determines necessary and appropriate to protect the interests of the City or further the purposes of this Resolution, as set forth above. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 15th day of September, A.D. 2015. FORT CO<�ti i SEAS, ; 6 Mayor i ATTEST: COLORP�O City Clerk­ - 2 - EXHIBIT A (FMLAWRK) Rev. 7/8/09 Project: Pitkin Low Stress Bike Corridor. (20664) Routing #: 16-HA4-XC-00004 Region: 04 (RH) SAP ID #: / 331001401 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.. .. . . .. . ........ . . .. . . ..... . ... . . . . ...... . .. . . . . . . .. ... ... . .... . . ... . . . . . ..... .... . . .. . . . ... . . ... . .... ..... . . . . .. .. . . . .. . .... . 1 . . "'. . 1 12 16. DEFAULT-BREACH .... . . . . . ....... ... . . . . ... ... .... . . . .. ..... ... ....... .... . . . . . .... .... . . .. . .. ... . . ... . ... ..... . . . . . .... . . . . . . ..... . . . . . . . . . 13 17. REMEDIES . . .. .. ..... . . .. . .... . .. .. ..... .... . . .. ... . ...... . . . .. .. . .. ... . .... ..... . . .. . ..... .. . . . . .. . . . .. . . . ... ..... .. ... . . . . . .. .. .. . . . .... . . . . .. . .. . 13 18 . NOTICES and REPRESENTATIVES . . ..... . .. .. . . . . . . .. . .......... . ... ..... . . .. . . . . . .. . . . . . . .. . .... .. ... .. .. .. . .. . . . . . .... ... .. . . .. . 15 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE . . . . . .. . .... .. ... . . . . . . . . . . . . .a ... . . . .. . . . . . . 15 20, GOVERNMENTAL IIVIMUNITY.... . . .. . .... . ..... . .... . .. . ......... ..... . ... . . . . . .. . . . .. . . . . . . .. . .... . . . . .. .. . . . . .. . . . . . ...... .. . . .. . . 15 21 , STATEWIDE CONTRACT MANAGEMENT SYSTEM ..... . . .. .. .. ... . .. .. . . . . . .. ...... . . . . . . .. . . . . .. . . . .. .. ..... .. . . .. . 16 22. FEDERAL REQUIREMENTS . . .. . .. . . ..... . .. . . .......... . . .. . . .. . . . .. . ..... . .. . . .. . . . . .. . . . . . . .. ....... . . .. ..... . . .. . . . . . . .. . ... .. . . . . . . 16 23 . DISADVANTAGED BUSINESS ENTERPRISE (DBE) . .... . . . .. . . .. . ... .. .. . .. . . ... . . .. . . . . . ... . . . . ... .. . . . .. . . ..... . . .. . 16 24. DISPUTES . ... .. . . ..... . . . . . .... .. . .. .. ... . ... . . . . ..... . . .. . . . . . . ..... .... . . . . .. . . . .... . .. . . . .... ..... .... . .. . . . . . . .. . . .. ..... . . ... . . . .. ... ..... . .... . 16 25 . GENERAL PROVISIONS . . . . . . ..... .. . . . . . . . .. ... . . . . . ... ...... . .... . . . .. . . . .. . . .. .... . .... ... . . ....... . .... .. ..... . . ... . . . . a... ..... ..... . 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 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 21 st Century" of 1998 (TEA-21 ) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-Li ) 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- 1410; 434 - 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. Document Builder Generated Page 2 of 22 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 . IC. 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. Document Builder Generated Page 3 of 22 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. H. 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. Document Builder Generated Page 4 of 22 (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. His 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(1))(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. 6352 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.F.R. 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 . Document Builder Generated Page 5 of 22 (c) If the State provides matching fiords 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. Document Builder Generated Page 6 of 22 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 Q 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 Document Builder Generated Page 7 of 22 enter into this Agreement and to expendits match share of the Work. A copy of such ordinancelresolution 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. in. 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 Document Builder Generated Page 8 of 22 State shall reimburse the Local Agency for the federal-aid share ofproperly 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. H. 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 ofthe 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 Document Builder Generated Page 9 of 22 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 Document Builder Generated Page 10 of 22 Ifan 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. Be 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. Be Legal Authority — The Local Agency and the Local Agency's Signatory Document Builder Generated Page 11 of 22 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, finther 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. H. 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 ofthe 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 Document Builder Generated Page 12 of 22 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. ni. 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. vu. 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 Document Builder Generated Page 13 of 22 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. in. 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. Document Builder Generated Page 14 of 22 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. n. Withhold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed. m. 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 Jake Schuch Dan Woodward Project Manager Project Manager 1402 2nd St 281 North College Ave Greeley, CO 80631 FORT COLLINS, CO 80524 970-350-2205 970-416-4203 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 Document Builder Generated Page 15 of 22 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 -6019 §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 .5401 , 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 ofthis 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 Document Builder Generated Page 16 of 22 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 Document Builder Generated Page 17 of 22 Except as specifically provided in this Agreement, modifications ofthis 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. u. 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, me 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. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Document Builder Generated Page 18 of 22 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. Be 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, Document Builder Generated Page 19 of 22 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 24-30402.4. [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 §2446.5-101 . 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 THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Document Builder Generated Page 20 of 22 27. SIGNATURE PAGE Agreement Routing Number: 16-HA4-XC-00004 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 STATE OF COLORADO CITY OF FORT COLLINS John W. Hickenlooper, GOVERNOR Colorado Department of Transportation Print: Shailen Bhatt, Executive Director Title: By: Joshua Laipply, P.E., Chief Engineer * Signature Date: Date: 2nd Local Agency Signature if needed LEGAL REVIEW Cynthia H. Coffman, Attorney General Print: By: Title: Signature - Assistant Attorney General * Signature Date: 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: Document Builder Generated Page 21 of 22 Document Builder Generated Page 22 of 22 28. EXHIBIT A — SCOPE OF WORK Scope of Work The Colorado Department of Transportation ("CDOT") will oversee the City of Fort Collins ("City") when the City designs and constructs the following: Pitkin St. low stress bicycle corridor improvements ("work") . CDOT and the City believe it will be beneficial to perform this work because the project will create a low-stress, comfortable, and safe bicycle route from the west side of the city to the east side as envisioned by the Bicycle Master Plan. The work focuses on improving crossings of major arterials and makes use of existing low-volume streets. This work will be located along Pitkin Street in various locations between Overland Park and Riverside Avenue. This work will conform to all standards of the Americans with Disabilities Act (ADA), MUTCD, and all applicable state and federal regulations. The design phase will identify more exact requirements, qualities, and attributes for this work (Hereinafter referred to as "the exact work") . The exact work shall be used to construct designed improvements. The design phase is anticipated to begin in 2016 and the construction phase is anticipated to begin in the fall of 2016 . Page 1 of 1 29. EXHIBIT B - LOCAL- AGENCY RESOLUTION LOCAL AGENCY ORDINANCE or RESOLUTION Page 1 of 1 30. EXHIBIT C — FUNDING PROVISIONS A. Cost of Work Estimate The Local Agency has estimated the total cost of the Work which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds (80.00% of Participating Costs — TAP) $5931000. 00 b. Local Matching Funds (20.00% of Participating Costs ) $148,250. 00 TOTAL BUDGETED FUNDS $741 ,250.00 2 ESTIMATED CDOT-INCURRED COSTS a. Federal Share $0. 00 (0% of Participating Costs) b. Local Share Local Agency Share of Participating Costs $0. 00 Local Agency Share of Non-Participating Costs $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) $593 , 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 $593, 000.00 FOR CDOT ENCUMBRANCE PURPOSES *Note - $0.00 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: $0.00 WBS Element 20664 . 10. 301 Design 13020 $0.00 WBS Element 20664 .20. 101 Construc. 1 3301 $0. 00 B. Matching Funds The matching ratio for the federal participating funds for this Work is 80. 00% federal-aid funds (CFDA #20 2050) to 20.00% Local Agency- and State funds, it being understood that such ratio applies only to the $741 ,250. 00 that is eligible for federal participation , it being further understood that all non-participating costs are bome by the Local Agency at 100% . If the total participating cost of performance of the Work exceeds $741 ,250. 00 and additional federal funds are made available for the Work, the Local Agency shall pay 20. 00% 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 $741 ,250. 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 $741 ,250, 00 (For CDOT accounting purposes, the federal funds of $593, 000.00 , State funds of $0. 00 , Local Agency matching funds of $ 148,250. 00, and Local Agency contribution funds of $0. 00 will be encumbered for a total encumbrance of $741 , 250, 00) , unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred . *** Note - $0.00 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. R 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 speck 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-31 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 tabled as follows: C-2, C-31 C4, 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 hen:) , 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, C4, 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 Page 1 of 2 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, C43 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. 2Z 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 Page 2 of 2 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No. STIP No. Project Code Region TAP M455-120 20664 04 Project location Date PiNn Street at Various locations in Fort Collins 6f5/2015 Project Description Bicycle Corridor Improvements Local Agency Local Agency Project Manager Fort Collins Dan Woodward CDOT Resident Engineer COOT Project Manager Long Nguyen Jake Schuch INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement Section numbers correspond to the applicable chapters of the CDOT Local Agency Manual. The checklist shall be prepared by placing an 'X' under the responsible party, opposite each of the tasks. The W denotes the party responsible for initiating and executing the task. When neither CDOT nor the Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a 'V will denote that CDOT must concur or approve. Tasks that mill be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine Mo will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the CDOT Resident Engineer or the COOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Loral Agency Project Manager, will prepare and distribute a revised checklist. RESPONSIBLE [NO, DESCRIPTION OF TASK PARTY LA CDOT TIP / STIP AND LONG-RANGE PLANS 2-1 Review Project to ensure consistent with STIP and amendments thereto X FEDERAL FUNDING OBLIGATION AND AUTHORIZATION 4-1 Authorize funding by phases (CDOT Form 418 - Federal-aid Progam Data. Requires FHWA X cancurren ceAnvnlvement PROJECT DEVELOPMENT 5-1 Prepare Design Data - CDOT Form 463 X X 5-2 Prepare Local Agency/CDOT Inter-Governmental Agreement see also Chapter 3 X 53 Conduct Consultant Selection/Execute Consultant Agreement X 5-4 Conduct Design Scoping Review meeting X X 5-5 Conduct Public Involvement X 5-6 Conduct Field Inspection Review FIR X 5-7 Conduct Environmental Processes (may require FHWA concurrenceAnvdvement X # 5-8 1 Acquire Right-of-Way ma require FHWA concurrenceAnvctvement X 5-9 Obtain Utility and Railroad Agreements X 5-10 Conduct Final Office Review FOR X 5-11 Justify Force Account Work by the Local Agency X # 5-12 Justify Proprietary, Sole Source or Local Agency Furnished items X # 5-13 Document Design Exceptions - CDOT Form 464 X # 5-14 Prepare Plans Slaeoftations and Construction Cost Estimates X # 715 Ensure Authorization of Funds for Construction X CDOT Form 1243 09/06 Page 1 of 4 Previous editions are obsolete and may not be used Page 1 of 4 RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6-1 Set Disadvantaged Business Enterprise (BDE) Goals for Consultant and Construction X Contrails CDOT Re on EEOMMI RightsSpecialist) 6-2 Determine Applicability of Davis-Bacon Act This project LJ is ® is not exempt from Davis-Bacon requirements as determined by the X functional �classifiication of the project location (Projects located on local roads and rural minor collectors may be exempt) Long Nauven 615/2015 CDOT Resident En ineer Si nature on File Date 6-3 Set On-the-Job Training Goals. Goal is zero if total construction is less than $1 million (CDOT X Re on EEO/CMI RightsSpecialist) 6-4 Tide VA Assurances X Ensure the correct Federal Wage -Decision, all required Disadvantaged Business Enterprise n-the-Job Training special provisions and FHWA Form 1273 are included in the X Contract (CDOT Resident Engineer) ADVERTISE, BID AND AWARD 7-1 Obtain Approval for Advertisement Period of Less Than Three Weeks X 7-2 Advertise for Bids X 73 Distribute 'Advertisement Set° of Plans and Specifications X 7-4 ReviewWorksite and Plan Details with Prospective Bidders While Project is Under X Advertisement 7-5 Open Bids X 7-6 Process Bids for Com riance X Check CDOT Form 1415 - Certificate of Proposed DBE Participation when the low bidder meets DBE goals X Evaluate COOT Form 1416 - DBE Good Faith Effort Documentation and determine 0 the Contractor has made a good faith effort when the law bidder does not meet DBE goals X Submit required documentation for CDOT award concurrence X 7-7 Concurrence from CDOT to Award X 7-8 Approve Re' ' n of Low Bidder X 7-9 Award Contract X 7-10 Provide "Award' and "Record" Sets of Plans and Specifications X CONSTRUCTION MANAGEMENT 8-1 Issue Notice tD Proceed to the Contractor X 8-2 Project Safe X 8-3 Conduct Conferences: Pre-construction Conference LAppendix 8) X Presurvey • Construction staking X • Monumentation X Partnering onal) X Structural Concrete Pre-Pour (Agenda is in CDOT Construction MenuaP X Concrete Pavement Pre-Pavi .do is in CDOT Construction Menuan X HMA Pre-Paving (Agenda Is in CDOT Construction Manua X 8-4 Develop and distribute Public Notice of Planned Construction to media and kcal residents X 8-5 Supervise Construction A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of construction supervision." Dean Klinoer 970-221 -6511 X Local Agency Professional Engineer or Phone number CDOT Resident Engineer CDOT Form 1243 09106 Page 2 of 4 Pr"ous editions are obsolete and may not be used Page 2 of 4 RESPONSIBLE NO, DESCRIPTION OF TASK PARTi LA CDOT Provide competent, experienced staff who will ensure the Contract work is constructed in X X accordance with the plans and specifications Construction inspection and documentation X 8 6 Approve Shop Drawings X 8-7 Perform Traffic Control I rispections X 8-8 Perform Construction Surveying X 8-9 Monument Right-of-Way X $-10 Prepare and Approve Interim and final Contractor Pay Estimates X Provide the name and phone number of the person authorized for this task Dan Woodward 970 416-4203 Local Agency Representative Phone number 8-11 Prepare and Approve Interim and Final Utility/Railroad Billings X B-12 Prepare Local Agency Reimbursement Requests X 8-13 Prepare and Authorize Change Orders X # 8-14 Approve All Change Orders X 8-15 Monitor Project Financial Status X B-16 Prepare and Submit MontWy Progress Reports X 8-17 Resolve Contractor Claims and Disputes X 8-18 Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task X Lono Nouven 970-350-2126 CDOT Resident Engineer Phone number MATERIALS 9-1 Conduct Materials Preconstruction Meeting X 9-2 Complete CDOT Form 250 - Materials Documentation Record • Generate form, which includes determining the minimum number of required tests and X applicable material submittals for all materials placed on the project • Update the form as work progresses X • Complete and distribute form after work is completed X 9 3 Perform Project Acceptance Samples and Tests X 9-4 Perform Laboratory Verification Tests X 9-5 Accept Manufactured Products X Inspection of structural components: • Fabrication of structural steel and pre-stressed concrete structural components X • Bridge modular expansion devices ((r to 60 or greater) X • Fabrication of bearing devices X 9-6 Approve Sources of Materials X 9-7 Independent Assurance Testing (IAT), Local Agency Procedures Z CDOT Procedures • Generate IAT schedule X • Schedule and provide notification X • Conduct IAT X 9-8 Approve Mix Designs • Concrete X • Hot Mix Asphalt X 9.9 Ghedc Firml Materials Documentation X 9-10 Complete and Distribute Final Materials Documentation X CDOT Form 1243 09/06 Page 3 of 4 Previous editions are obsolete and may not be used Page 3 of 4 CONSTRUCTION CIVIL RIGHTSAND LABOR COMPLIANCE 10-1 Fulfill Project Bulletin Board and Pre-construction Packet Requirements X 10.2 Process CDOT Form 205b - Sublet Permit Application X Review and sign completed CDOT Form 205 for each subcontractor, and submit to EEO/CivftRights Specialist 10-3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee X Interviews. Complete CDOT Form 280 10-4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the X "Commercially Useful Function" requirements 10-5 Conduct Interviews When Project Utilizes On-the-Job Trainees, Complete CDOT Form 200 . X. OJT Trainina Questionnaire 1V Check Certified Payrolls Contact the Region EEO/CMI Rights Specialists fortraimn requirements.) X 10.7 Submit FI- WA Form 1391 - Highway Highymy Construction Contractor's Annual EEO Report X FINALS 11 -1 Conduct Final Project Inspection. Complete and submit COOT Form 1212 - Final •X X Acceptance Report (Resident Engineer with mandatory Laval Agency participation.] 11 .2 Write Final Project Acceptance Letter X 11 -3, Adverdse for Final Settlement X 11 -4 Prepare and Distribute Final As-Constructed Plans X 115 Prepare EEO Certification X 11 -6 Check Final Quantities, Plans and Pay Estimate; Check Project Documentation; and submit X Final Certifications 11 -7 Check Material Documentation and Accept Final Material Certification See Chapter X 11 -8 Obtain CDOT Form 1419 - Contractor DBE Payment Certification from the Contactor and X submit to the Resident Engineer Quarto 11 -9 Obtain FHWA Form 47 - Statement of Materials and Labor Used . . . from the Contractor NA 11 -10 Process Final Payment X X 11 A 1 I Complete and Submit CDOT Form 950 - Project Closure X 11 -12 1 Retain Project Records for Sic Years from Date of Project Closure X X 11 -13 1 Retain Final Version of Local Agency Contract Adrrrinistration Checklist X X ca CDOT Resident Engineer/Project Manager CDOT Region Program Engineer CDOT Region EEO/Civil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager CDOT Form 1243 09106 Page 4 of 4 Previous editions are obsolete and may not be used Page 4 of 4 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 Page 1 of 1 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 Page 1 of 1 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 . 24-30A405. 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. Page 1 of 2 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 . Page 2 of 2 36. EXHIBIT I - FEDERAL-AID CONTRACT PROVISIONS F11WA-1273 -- Revised May 1 , 2012 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS I. General 3. A breach of any of the stipulations contained in these It. Nondiscrimination Required Contract Provisions may be sufficientgrpunds for III. Nonsegregated Facilities withholding of progress payments, withholding of final IV. Davis-Bacon and Related Act Provisions payment termination of the contract, suspension / debarment V. Contract Work Hours and Safety Standards Act or any other action determined to be appropriate by the Provisions contracting agency and FHWA VI. Subletting or Assigning the Contract VII. Safety Accident Prevention 4. Selection of Labor. During the performance of this contract, Vill. False Statements Concerning Highway Projects the contractor shall not use convict labor for any purpose LK Implementation of C4ean Air Act and Federal Water within the limits of a construction project on a Federal-aid Pollution Control Act highway unless it is labor performed by convicts who are on X Compliance with Govemmentwide Suspension and parole, supervised release, or probation. The term Federal aid Debarment Requirements highway does not include roadways functionally classified as A . Certification Regarding Use of Contract Funds for local roads or rural minor collectors. Lobbying ATTACHMENTS It. NONDISCRIMINATION A. Employment and Materials Preference for Appalachian The provisions of this section related to 23 CFR Pert 230 are Development Highway System or Appalachian Local Access applicable to all Federalald construction contracts and to all Road Contracts (included in Appalachian contracts only) related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 ere not applicable to material supply, engineering, or architectural service contracts. I. GENERAL In addition, the contractor aril all subcontractors must comply 1 . Form FHWAA 273 must be physically Incorporated in each with the following policies: Executive Order 11246, 41 CFR 60. construction contract handed under Title 23 (excluding 29 CFR 1625-1627, Title 23 USC Section 140, the emergency contracts solely Intended for debris removal). The Rehabilitation Act of 1973, as amended (29 USC 794), Title VI contractor (or subcontractor) must insert this forth In each of the Ovll Rights Act of 1964, as amended and rotated subcontract and further require its inclusion in all lower ter regulations including 49 CFR Parts 21 , 26 and 27: and 23 CFR subcontracts (excluding purchase orders, rental agreements Parts 200, 230, and 633. and other agreements for supplies or services). The contractor and all subcontractors must comply with: the The applicable requirements of Farm FHWA-1273 are requirements of the Equal Opportunity pause in 41 CFR 60- Incorporated by reference for work done under any purchase I Ab) arid, for all construction contracts exceeding $10,000, order, rental agreement or agreement for other services. The the Standard Federal Equal Employment Opportunity prime contractor shall be responsible for compliance by any Construction Contract Specifications in 41 CFR 60-4 .3. subcontractor, lower-tier subcontractor or service provider Note* The U.S. Department of Labor has exclusive authority to Form FHWA-1273 must be Included In all Federal-aid design- determine compliance with Executive Order 11246 and the build contracts, in all subcontracts and in lower tier policies of the Secretary of Labor including 41 CFR 60 and 29 subcontracts (excluding subcontracts for design services, CFR 1625-1627. The contracting agency and the FHWA have purchase orders, rental agreements and other agreements for the authority and the responsibility to ensure compliance with supplies or services). The design-builder shall be responsible Title 23 USC Section 140, the Rehabilitation Act of 1973, as for compliance by any subcontractor, lower-tier subcontractor amended (29 USC 794). and Title VI of the Civil Rights Act of or service provider. 1964, as amended, and related regulations including 49 CFR Parts 21 26 and 27: and 23 CFR Parts 200 230, and 633. Contracting agencies may reference Form FHWA-1273In bid proposal or request for proposal documents, however, the The following provision is adopted from 23 CFR 230, Appendix Form FHWA-1273 must be physically incorporated (not A, with appropriate revisions to conform to the U.S. referenced) in all contracts, subcontracts and lower tier Department of Labor (US DOL) and FHWA requirements. subcontracts (excluding purchase orders rental agreements and other agreements for supplies or services related to a 1 . Equal Employment Opportunity: Equal employment construction contract). opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth 2. Subject to the applicability criteria noted in the following under laws, executive orders, hies, regulations (28 CFR 35, sections, these contract provisions shall apply to all work 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27) perfomed on the contract by the contractor's own organization and orders of the Secretary of Labor as modified by the and with the assistance of workers under the contractors provisions prescribed herein, and imposed pursuant to 23 immediate superintendence and to all work performed on the U.S.C. 140 shall constitute the EEO and specific affirmative contract by piecework, station work, or by subcontract. action standards for the contractors project activities under t Page 1 of 12 this oonImCL The provisions of the Americans with Msebillties 4. Rerrubbrnent When advertising for employees, the Act of 19M (42 U.S.C. 12101 at seq.) set forth under 28 CFR contractor will Include In all advertisements for employees the 35 and 29 CFR 1630 are incorporated by reference In this notation: "An Equal Opportunity Employer " All such contract. In the execution of this contract, the oonvactor advertisements will be placed in publication having a large agrees to comply with the following minimum specific circulation among minorities and women in the area from requirement activities of EEO: which the project worts force world normally be derived. a. The contractor will waft with the contracting agency and a The contractor will, unless precluded by a valid the Federal Goverment to ensure that it has made every bargaining agreement, conduct systematic and direct good faith effat to provide equal opportunity with respect to all recruitment through public and private employee referral of its terms and condfions of employment and in their review sources likely to yield quaGfled minorities and women. To of activities under the contract. meet this requirement, the corntaclorwill identify sources of potential minority group employees, and establish with such b. The contractor will accept as its operating policy the identified sources procedures whereby minority and women following statement applicants may be referred to the contractor for employment consideration. "It is the policy of this Company to assume that applicants are employed, and that employees are treated during b In the event the contractor has a valid bargaining employment, without regard to their race, religion, sex color, agreement providing for exclusive hiring hall referrals, the national origin, age or disability. Such action shall include: contractor is expected to observe the provisions of that employment, upgrading, demotion, or transfer, recrutment or agreement to the extent that the system meets the contractor's recruitment advertising: layoff or termination: rates of pay or compliance with EEO contract provisions. Where other forms of compensation; and selection for training, implementation of such an agreement has the effect of including apprenticeship, pm-apprenticeship, and/or on-the- discriminating against minorities or women, orobllgates the Job training." contractor to do the same, such implementation violates Federal nondiscrimination provisions. 2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have c, The contractorwill encourage Its present employees to the responsibility for and must be capable of effectively refer minorities and women as applicants for employment administering and promoting an active EEO program and who Information and procedures with regard to referring such must be assigned adequate euthoriy and responsibility to do applicants will be discussed with employees. SO. S. Personnel Actions: Wages, vmrldng conditions, and 9. Dissemination of Policy. All members of the contractor's employee benefits shall be established and administered, and staff who are authorized to tire, su pwAse, promote, and personnel actions of every type, including hiring, upgrading, discharge employees, or who recommend such action, orwho promotion, transfer, demotion, layoff, and termination, shall be are substantially Involved In such action, will be made hilly taken without regard to race, color, religion, sex; national cognizant of, and will implement, the contractors EEO policy origin, age or disability. The following procedures shall be and contractual responsibilities to provide EEO in each grade followed: and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a a The contractor will conduct periodic Inspections of project minimum: sites to Insure that working conditions and employee facilities do not Indicate discriminatory treatment of project site a. Periodic meetings of supervisory and personnel office personnel. employees will be conducted before the start of work and then not less often than once every six months, at which time the b. The contractor will periodically evaluate the spread of contractor's EEO policy and its implementation will be wages paid within each classification to determine any reviewed and explained. The meetings will be conducted by evidence of discriminatory wage practices. the EEO Officer. c. The contractor will periodically review selected personnel b. All new supervisory or personnel office employees will be actions In depth to determine whether there is evidence of given a thorough indoctrination by the EEO Officer, covering discrimination. Where evidence is found, the contactor will all major aspects of the contractors EEO obligations within promptly take corrective action . If the review indicates that the thirty days following their retorting fir duty with the contractor. discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the d. The contractor will promptly investigate all complaints of contractors procedures for locating and hiring minorities and alleged discrimination made to the contractor in connection women. with Its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action d. Notices and posters setting forth the contractors EEO within a reasonable time. if the investigation indicates that the policy will be placed in areas readily accessible to employees, discrimination may affect persons other than the complainant. applicants for employment and potential employees. such corrective action shall include such other persons. Upon completion of each Investigation, the contractor will inform e. The contractors EEO policy and the procedures to every complainant of all of their avenues of appeal, implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or 6. Training and Promotion: other appropriate means. a. The contractor will assist in locating, qualifying, and Increasing the skills of minorities and women who are Page 2 of 12 applics" foromploymeM:,,or;cumerd _employees. Such efforts with the requirements for and comply with the Americans with should be aimed etltevelopitig full p ntsylevel status Disabilities Act and all rules and regulations established.there employest irYths iype oftredg,orj&l dassi8ntloninvolved. under. Employers must provide reasonable accommodation In all employment activities unless to do so would-cause an b. Consistent with tl,e,6orftctWs*work force requiremeft undue hardship. and as permissible under Federal and State regulations, the contractor shall make Q use _aftraining programs, I.e., 9. Selection of Subcontractors, Procurement of Materials apprenticeship, and oh-ihe=jcEi,iraining programs for the and leasing of Equipment The corer shall not geographical area of Cbiitisct perfamenca. "In the event a discriminate on the grourhds of lace, color, religion, sex special provision for training fa provided under this contract, national origin, age or disability in the selection and retention this subparagraph will iie:t:uperseded as Indicated in the of supconlractors, including procurement of materials and special provision. The,wntracling a9ency may reserve losses of equipment The contractor shall take.all necessary training positions for persons:whb'io6sive welfare assistance and reasonable steps to ensure nondiscrimination in the In accordance with 23 U.S.C; 140(a). administration of this contract c- The contradorwill?advise?w m loyees,and applicants for a. The contractor shall notify all potential subcontractors and employmeni of evarlable'iralning,programs and entrance suppliers and lessors of their EEO obligations under this requirements for each. I - contract d. The contractor will periudicatiy review the training and b. The contractor will use good faith efforts to ensure promotion potential of employees who are minorities and subcontractor compliance with their EEO obligations women and will encourage eligible employees to apply for such training and promotion, 10, Assurance Required by 49 CFR 26.13(b): 7. Unions: If the contractor relies In whole or in part upon unto ms as a source of employees, the contractor will use good a. The requirements of 49 CFR Part 26 and the State faith efforts to obtain the cooperation of such unions to DOTS U.S. DOT-approved DBE program are incorporated by Increase opporturdUes for minorities and women. Actions by reference. the contractor, either directly orthrough a contracto's association acting as agent, will Include the procedures set b. The contractor or subcontractor shall not discriminate on forth below the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out 9. The contractor Wil use good faith efforts to develop, in applicable requirements of 49 CFR Part 26 In1he award and cooperation with the unions, joint training programs aimed administration of DOT-assisted contracts. Failure by the toward quialitying more minorities and women for membership contractor to carry out these requirements is a material breach in the unions and increasing tine sldlis of minorities and women of this contract, which may result in the terrnmetion of this so that they may qualify for higher paying employment contract or such other remedy as the contracting agency deems appropriate. b. The contractor will use good faith efforts to Incorporate an EEO clause into each union agreement to the end that such 11. Records and Reports: The contractor shall keep such union will be contractually bound to refer applicants without records as necessary to document compliance with the EEO regard to their race, color, religion, sex, natiiml origin, age or requirements. Such records shall be retained for a period of disability. three years following the date of the final payment to the contractor for all contract work and shall be available at c. The contractor Is to obtain information as to the referral reasonable tines and places for Inspection by authorized practices aril policies of.the labor union except that to the representatives of the contracting agency and the FHWA. extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such a. The records kept by the contractor shall document the Information to the contractor, the contractor shall so certify to following• the contracting agency and shall set forth what efforts have been made to obtain such Information. (1 ) The number and wok hours of minority and non- minority group members and women employed in each work d. In the event the union Is unable to provide the contractor classification on the project with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, (2) The progress and efforts being made in cooperation through independent recruitment efforts, fill the employment with unions, when applicable, to Increase employment vacancies without regard to race, color, religion, sex, national opportunities for minorities and women: and origin, age or disability, making full efforts to obtain qualified andfor qualifiable minorities and worsen. The failure of a union (3) The progress and efforts being made in locating, hiring. to provide sufficient referrals (even though it is obligated to training, qualifying, and upgrading minorities and women: provide exclusive referrals under the terms of a oo0ectve bargaining agreement) does not relieve the contractor from the b. The contractors and subcontractors will submit an annual requirements of this paragraph. In the event the union referral repot to the contracting agency each July for the duration of practice prevents the contractor from meeting the obligations the project indicating the number of minority, women, and pursuant to Executive Order 11246, as amended, and these non-minority group employees currently engaged in each wont special provisions. such contractor shall immediately notify the classification required by the contract work This information is contracting agency. to be reported on Forth FHWA-1391 . The staffing data should represent the project work force on board in all or any part of S. Reasonable Accommodation for Applicants / the last payroll period preceding the end of Judy. If on-the job Employees with Disabilities: The contractor must be familiar training Is being required by special provision, the contractor Page 3 of 12 will be required to collect and report training data The of paragraph 1 _d.:of_th s sectionzalso, regular contributions employment data should reflect the work force on board during made or costs incurted.for-more than a weekly period (but not all or any part of the last payroll period preceding Ure and of less often than quarteity),und' erplans, funds. or progrmns July, which cover the paiticuldrweekiy period, are doomed to be constructively made gr incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate III, NONSEGREGATED FACILITIES wage rate and fringe benetii on the wage determination for the dasNticallon .of-work actually performed, without regard to This provision is applicable to all Federai-aid construction skill, except as prpiAded ih''29 CFR`5.5(a)(4). Laborers or contracts and to all related construction subcontracts of mechanlcs perfori., n kirk to more then one classification m$10,000 or more, ay be canpensafed;at.theyate specified for each classification for ths4ne actually worked theroln: Provided, The contractor must ensure that fadli ies provided for That the empioyee%payrolk records accurately set forth the employees are provided in such a manner that segregation on time spent in each'dasstfication in which work is performed. the basis of race, color, religion, sex, ornational origin cannot The wage detennihitil6ri,(includirig any additional classification result. The contractor may neither require such se gregated and wage rates cwtfotrned;under' paragraph 1 .b. of this use by written or oral policies nor tolerate such use by section) and the Dedis-Bacon.poster (WH-1321) shall be employee custom. The contractor's obligation extends further posted at all times by fY torftctor and its subcontractors at to ensure that Its employees are not assigned to perform their the site at the wok'lWa;promknemt and accessible place where services at any location, under the contractors control, where It can be easily seen by the workers. the facilities are segregated. The term "facilities° includes waiting rooms, work areas, restaurants and other eating areas, b. 1 The contracting officer shall r time clocks, restrooms, washrooms, locker rooms, and other ( ) n9 square that any class of storage or dressing areas, parting lots, drinking fountains, laborers or mechanics, Including helpers, which is not Wed in recreation or entertainment areas, transportation, and housing the wage determination and which is to be employed umderthe provided for employees. The contractor shall provide separate contract shall be classified in conformance with the wage or single-user restrooms and necessary dressing or sleeping determination. The contracting officer shall approve an areas to assure privacy between sexes additional classification and wage rate and finge benefits therefore only when the following criteria have been met: IV. DAVIS BACON AND RELATED ACT PROVISIONS (i) The work to be performed by the classification requested is not performed by a classification In the wage This section is applicable to all Federal-aid construction detemJnation; and projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The (io The classification is utilized In the area by the requirements apply to all projects located within the right-of- construction industry; and way of a roadway that is functionally classified as Federal-eld highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. (iil) The proposed wage rate, including any bona fide Contracting agencies may elect to apply these requirements to fringe benefits, bears a reasonable relationship to the other projects. wage rates contained in the wage determination. The following provisions are from the U.S. Department of (2) If the contractor and the laborers and mechanics to be Labor regulations in 29 CFR 5.5 "Contract provisions and employed in the classification (d known), or their related matters' with minor revisions to conform to the FHWA- representatives, and the contacting officer agree on the 1273 format and FHWA program requirements. classification and wage rate (including the amount designated for fringe benefits where appropriate), a repot of the action taken shall be sent by the contracting officer to the 1. Minimum wages Administrator of the Wage and Han Division, Employment Standards Administration, U.S. Department of labor, a. All laborers and mechanics employed or working upon Washington, DC 20210. The Administrator. or an authorized the site of the work, will be paid uncoditionally and not less representative, will approve, modify, or disapprove every often than once a week, and without subsequent deduction or additional classification action within 30 days of receipt and rebate on any account (except such payroll deductions as are so advise the contracting officer or will notify the contracting permitted by regu latlons issued by the Secretary of labor officer within the 30-day period that additional time is under the Copeland Ad (29 CFR pan 3)), the full amount of necessary. wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less (3) In the event the contractor, the laborers or mechanics than those contained in the wage detenrrination of the to be employed In the classification or their representatives, Secretary or labor which is attached hereto and made a part and the contracting officer do not agree on the proposed hereof, regardless of any contractual relationship which may classification and wage rate (including the amount be alleged to exist between the contractor and such laborers designated for fringe benefits, where appropriate), the and mechanics. contracting officer shall refer the questions including the views of all interested parties and the recommendation of the Contributions made or costs reasonably anticipated for bona contracting offlo ar, to the Wage and Hour Administrator for fide fringe benefits under section 1(b)(2) of the Davis-Bacon determination. The Wage and Hour Administrator, or an Act on behalf of laborers or mechanics are considered wages authorized representative, will Issue a determination within paid to such laborers or mecharries, subject to the provisions 30 days of receipt and so advise the contracting officer or a Page 4 of 12 will notify the contracting officer within the 30-day period that Baron Ad, the contractor shall maintain records which show additional time is necessary. that fhe commitment to provide such benefits is enforceable. that the plan orprogram is financially responsible, and that to (4)-The wage rate {ncludng fringe benefits where plan or program has been communicated in writing to the appropriate) detemtined pursuant to paragraphs 1 .b (2) or laborers or mechanics affected, and records which show the 1 .b.(3) of this section, shall be paid to all workers performing costs anticipated or the actual cost incurred in providing such work in the classi cation under this contract from the first benefits Contractors employing apprentices or trainees under Bay on which work is performed in the classification. approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and c. Whenever the minimum wage rate prescribed In the trainees, and the ratios and wage rates prescribed In fhe contract for a class of iaboram or mechanics includes a fringe applicable programs. benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination in or shall pay another borne fide fringe benefit or an hourly cash loch The ontrad work shall submited a copy each week s equivalent thereof which any corntrad work is performed a copy of all payrolls ro the contracting agency. The payrolls submitted shall set out eccwvWiy and completely all of the information required to be d. If the contractor does not make payments to a trustee or maintained under 29 CFR 5,5(a)(3)Q), except that full social other third person, the contractor may consider as part of the secunty numbers and home addresses shall not be included wages of any laborer or mechanic the amount of any costs on weekly transmt tals. Instead the payrolls shall only need to reasonably anticipated in providing bona file fringe benefits Include an Individually identifying number for each employee under a plan or program, Provided, That the Secretary of a g. , the last four digits of the employee's social security Labor has found, upon the written request of the contractor, number). The required weekly payroll Information may be that the applicable standards of the Davis-Bacon Act have submitted in any form desired. Optional Form W H-347 is been met The Secretary of tabor may require the contractor available for this purpose from the Wage and Hsu Division to set aside In a separate account assets for the meeting of Web site at httpl/www.dol.00v/esahvhdtformstwh347]nstr.htrn obligations under the plan or program, or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. 2. Withholding security and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency The contracting agency shall upon Its own action or upon for transmission to the State DOT the FHWA or the Wage and written request of an aulhorized representative of the Hour Division of the Department of Labor for purposes of an Department of Labor, withhold or cause to be withheld from investigation or audit of compliance with prevailing wage the conrador under the contract, or' any other Fedensi requirements. it is not a violation of this section for a prune contract with the same prime contactof, or any other federally- oontrador to require a subcontractor to provide addresses and assisted contract subject to Davis-Bacon prevailing wage social security numbers to the prime contractor for Its own requirements, which Is held by the same prime contractor, so records, without weekly subrnissio n to the contracting agency.. much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, (2) Each payroll submitted shall be accompanied by a Including apprentices, trainees, and helpers, employed by the uStatemeni of Compliance,' signed by the contractor or contractor or any subcontractor the Mi amount of wages subcontractor or his or her agent who pays or supervises the required by the contact. In the event of failure to pay any payment of the laborer or mechanic, including any apprentice, trainee, or cerfify persons employed under the contract and shall the following:helper, employed orworking on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as (i) That the payroll for the payroll period contains the may be necessary to cause the suspension of any further Information required to be provided under §5.5 (a)(3)(II)4Df payment, advance, or guarantee of funds until such violations Regulations, 29 CFR part 5, the appropriate information is have ceased. being maintained under §5.5 (a)(3)(s) of Regulations 29 CFR part 5, and that such information is correct and 3. Payrolls and basic records complete' a. Payrolls and basic records relating thereto shall be (iI) That each laborer or mechanic (including each maintained by the contractor during the course of the work and helper, apprentice, and trainee) employed on the contract preserved for a period of three years thereafter for all laborers wages the payroll period has been paid the full weekly wages tamed, withoutrebate, either and mechanics working at the site of the work. Such records andd that no deductionnss have beenndirectly or indirectly, shall contain the name, address, and social security number of made either directly or indirectly from the full wages tamed, other than each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs permissible deductions as set forth in Regulations, 29 CFR anticipated for bona fide fringe benefits or cash equivalents Pan 3, thereof of the typos described in section 1 (b)(2)(8) of the Davis-Bacon Act), daily and weekly number of hours worked, (hi) That each laborer or mechanic has been paid not deductions made and actual wages paid Whenever the less than the applicable wage rates and fringe benefits or Secretary of Labor has found under 29 CFR 5.5(a)(1 )(v) that cash equivalents for the classification of work performed, the wages of any laborer or mechanic include the amount of as spedfied in the applicable wage determination any costs reasonably anticipated in providing benefits under a incorporated into the contract. plan or program described In section 1 (b)(2)(B) of the Davis- Page 5 of 12 (3) The weekly submission of a properly executed rate specified in the applicable wage determination certification set forth on the reverse side of Optional Form Apprentices shall be paid hinge benefits in accordance with WH-347 shall satisfy the requirement for submission of the the provisions of the apprenticeship program If the "Statement of Compliance' raqulrl§d by paragraph 3.b.(2) of apprenticeship program does not specify fringe benefds, this sectiorc apprentices must be paid the full amount of fringe benefits listed on the wage determination forthe applicable (4) The falsification of any of the above certifications may classification. if the Administrator determines that a different subject the contractor or subcontractor to dull or criminal fringes prevails forthe applicable apprentice classification fringes shall be paid accordance with prosecution under:sectlon 1001 of title 18 and section 231 of 'm fret delertniratinSn title 31 of the United States Code. In the event the Office of Apprenticeship Training, Employer c. The contractor or subcontractor shall make the records and Labor Services, or a State Apprenticeship Agency required under paragraph 3.a. of this section available for recognized by the Office' withdrawn approval of an inspection, copying, or transcription by authorized apprenticeship program, the contractor will no longer be representativea of the contracting agency, ire Slate DOT, the permitted to utilize apprentices at less than the applicable FHWA, or the Department of Labor, and shall permit such Predetermined rate for the wok performed anti an acceptable representatives to interview employees during working h ours Program is approved. on thejob. If the contractor or subcontractor fads to submit the required records or to make them available, the FHWA may, b. Trainees (programs of the USD04 after written notice to the ,contractor, the contracting agency or the State DOT, take such action as may be necessary to 6ucaptas provided in 29 CFR 5.16, trainees will not be cause the suspension of any ftMher payment, advance or guarantee of funds. Furthermore, failure to submit the required permitted to wok at less than the predetermined rate for the reconds upon request or to make such records available may work performed unless they are employed pursuant to and be grounds for debarment action pursuant to 29 CFR 5.12. individually registered in a program which has received prior approval. evidenced by formal certification by the U S. Department of Labor, Employment and Training 4. Apprentices and trainees Administration. a. Apprentices (programs of the USDOL). The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Apprentices will be permitted to work at less than the Employment and Training Administration. predetermined rate for the wok they performed when they are employed pursuant to and Individually registered In a bona fide Every trainee must be paid at not less than the rate specified apprenticeship program registered with the U.S. Department of in the approved program for ire trainee's level of progress, Labor, Employment and Training Administration, Office of expressed as a percentage of the journeyman hourly rate Apprenticeship Training, Employer and Labor Services, or with specified In the applicable wage determination. Trainees shall a State Apprenticeship Agency recognized by the Office, or if a be paid fringe benefits in accordance with the provisions of the person Is employed in his or her first 90 days of probationary trainee program. if the trainee program does not mention employment as an apprentice in such an apprenticeship fringe benefits, trainees shall be paid the full amount of fringe program, who Is not Individually registered in the program, but benefits listed on the wage determination unless the who has been certified by the Office of Apprenticeship Administrator of the Wage and Hour Division determines that Training, Employer and Labor Services or a State there is an apprenticeship program associated with the Apprenticeship Agency (where appropriate) to be eligible for corresponding journeyman wage rate on the wage probationary employment as an apprentice determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee The allowable ratio of epprertticeg to Journeymen on the job rate who is not registered and participating in a training plan site in arry craft classification shall not be greater than the ratio approved t l the Employment and Training Administration snail permitted to the contractor as to the entire work force under be paid not less than the applicable le wage rate on the wage the registered program . Any worker listed on a payroll at an determination for the classificationperormng w work actually performed. apprentice wage rate, who is not registered or otherwise a addition, any trainee performing work on the job site In employed as stated above, shall be paid not less than the excess of the ratio ps than t under the registered program applicable wage rate on the wage detemnation forthe shall be paid not ions than the applicable wage rate on the classification of work actually.perforned. in addition, any wage determination for the wok actually performed. apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not In the event the Employment and Training Administration less than the applicable wage rate on the wage determination withdraws approval of a training program the contractor wtii no for the work actually performed. Where a contractor is longer be permitted to utilize trainees at less than the performing construction on a project in a locality other than applicable predetermined rate for the work performed until an that in which its program is registered, the ratios and wage acceptable program is approved. rates (expressed in percentages of the journeyman s hourly rate) specified in the contractor's or subcontractor's registered c. Equal employment opportunity. The utilization of program shall be observed apprentices, trainees and Joumeymen under this part shall be in conformity with the equal employment opportunity Every apprentice must be paid at not less than the rate requirements of Executive Order 11246, as amended, and 29 specified in the registered program for the apprentice's level of CFR part 30. progress, expressed as a percentage of the journeymen hourly 6 Page 6 of 12 d. Apprentices and Trainees (programs of-the US. DOT), V. CONTRACT WORK HOURS AND SAFETY Apprentices and traineeg worsting tJndarpppren, 9a tp and STANDARDS ACT Wit training programs fild i hai s.been certified by the Secretary of Transportatidnsas:prbmbtlrig EEO ins connection with Federal-aid higt wa , oiisVuction'programs are.hot The following clauses apply to any Federal-aid construction subject th the requiremgihisg atagraphd of4iis Section IV. contract in an amount in excess of$10D.000 and subject to the The straight time houtywage.rates torX)ip e11"arui overfhrre provisions of the Contract Work Haas and Safety tralnees under such programs;M 4e estabfshad by the Standards Act These clauses shall be Inserted in addition to particular programs. The stick f appientices7and trair%bs to the clauses required by 29 CFR 5.5(s) or 29 CFR 4.8, As Journeymen shall notbe,'greafel than permitted by,Uhe tar�rrs of the particu used in this paragraph, the terms laborers and mechanics lar program. Include watchmen and guards. 6. Compliance with Copeland'Aet requlremeiits. The 1 . Overtime requirements. No contractor or subcontractor contractor ctlall comply With he requdremerds;oT 29 CFR part contracting for any part of the contract work Mich may require 3, which ere incorporated'by:igfe. ,n -in ibis contract. or involve the employment of laborers or mechanics shag require or permit any such laborer or mechanic in any 6. Subeontraefs. The o:OntraCtOr or subcontracor shag insert workweek in which he or she is employed on such work to Form FFIWA-1273 in any subcontracts and also require the work In excess of forty hours in such workweek unless 4ueh subcontractors to include Form FHWA;1273 in any lower tier laborer or mechanic receives compensation at a rate not less subcontracts. The prime contractor shall be responsible for the then one and one-half times the basic rate of pay for all hours compliance by any subcontractor or lower tier subcontractor worked in excess of forty hours in such workweek with all the conb3d clauses in 29 CFR 5.5 2. Violation; liability for unpaid wages; liquidated 7. Contract 1erminaUon: debarment A breads of the damages In the event of any violation of the clause set forth in paragraph ( contract clauses in 29 CFR 5.5 may be grounds for termination of Us section, the contractor and any re of the contract, and for debarment as a contractor and a subcontractor responsible therefor shall be gable forme subcontractor as provided in 29 CFR 5. 12. unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (m the case of work done under contract for the District of Columbia or a territory, to such 8. Compliance with Devl"acon and Related Act District or to such territory), for liquidated damages. Such requirements. All rulings and interpretations of the Davis- liquidated damages shall be computed with respect to each Bacon and Related Ads contained in 29 CFR parts 1 , 3, and 5 Individual laborer or mechanic, including watchmen and are herein incorporated by reference in this contract guards, employed in violation of the clause set forth in paragraph (1 . ) of this section, in the sum of$10 for each 9. Disputes concerning labor standards. Disputes arising calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty out of the labor standards provisions of this contract shall not hours without be subject to the general disputes clause of this contract Such clause set forth n pa In paragraph the overtime wages required by the disputes shall be resolved in accordance with the procedures grr aph (1 .) of this section of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes wtthin the meaning of this clause include disputes 3. Withholding for unpaid wages and liquidated damages. between the contractor (or any of its subcontractors) and the The FHWA or the contracting agency shall upon Its own action contracting agency, Lire U.S. Department of Labor, or the or upon written request of an authorized representative of the employees or their representatives. Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the 10. Certification of eligibility. contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federafly assisted contract subject to the Contract Work a. By entering into this contract, the contractor certifies that Hours and Safety Standards Ad, which is held by the same neither it (nor he or she) nor any person or firth who has an prime contractor, such sums as may be determined to be interest In the contractors firm is a person or firm ineligible to necessary to satisfy any liabilities of such contractor or be awarded Government contracts by virtue of section 3(a) of subcontractor for unpaid wages and liquidated damages as the Davis-Bacon Act or 29 CFR 5.12(ax1 ). provided in the clause set forth in paragraph (2.) of this section. b. No part of this contract shag be subcontracted to any person or firm Ineligible for award of a Government contract by virtue 4. Subcontracts. The contractor or subcontractor shag Insert of section 3(a) of the Davis-Bacon Ad or 29 CFR 5. 12(ax1 ). in any subcontracts the clauses set forth in paragraph (1 .) through (4 .) of this section and also a clause requiring the c. The penalty for making false statements is prescribed in the subcontractors to include these clauses in any lower tier U.S. Criminal Code, 18 U.S.C. s subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1 .) through (4.) of this section. Page 7 of 12 evidenced in wriffi1g gnd.that it contains all pertinent previsions VI. `SUBLETTING OR ASSIGNING TF E.CONTRACT and requirementsof the prime contract This provision is applicable to all Fedei al-eidiC_ ins"on 5. The 30% self-performance requirement of paragraph (1 ) is contracts on the National Highway Systelit.r not applicable to design-bulid contracts; however contracting agencies may establish their own self-performance 1 The contractor shall perform with Its own,,organizatlon requirements. contract work amounting to not iess than'30ipercer (ora greater percentage N specified sisewfieWiq the contract)of the total original contract price, exdtrdirig'arjr specially iteitie. VII. SAFETY: ACCIDENT PREVENTION designated by tine contracting agency. Speciallyttems may be performed by subcontract and the amount of T h i s p r o v i s i o n I s applicable to all Federat-aid specialty hems performed may be deducted froth thetotai construction contracts and to all related subcontracts original contract price before computing the aim required to be performed by the coMractoL's otorgardzabon 1 . in the performance of this contract the contractor shag (23 CFR 635. 116). comply with all applicable Federal. State. and local laws governing safety, health, and sanitation (23 CFR 635). The a. The tern "perfam work with its own organization` refers contractor shall provide'ali safeguards safety devices and to workers employed or leased by the prime contractor, and protective equipment and take any other needed actions as it equipment owned oriented by the prime contractor, with or determines, or as the contracting officer May determine to be without operators. Such term does not include employees or reasonably necessary to protect the life and health of equipment of a subcontractor or lower tier subcontractor, employees on the Job and the safety of the public and to agents of the prime contractor, or any other assignees. The protect property in connection with the performance of the term may include payments for the costs of hiring leased work covered by the contract. employees from an employee leasing firm meeting all relevant Federal and State reguatory requirements. Leased 2. It is a condibon.of this contract, and shag be made a employees may only be included in this term If the prime condition of each subcontract, which the contractor enters into contractor meets all of the following conditions: pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance (1 ) the prime contractor maintains control over the of the contract, to wale in surroundings or under conditions supervision of the day-to-day activities of the leased which are unsanitary, hazardous or dangerous to Nwber employees; health or safety, as determined under construction safety and (2) the prime contractor remains responsible for the quality health standards (29 CFR 1926) promulgated by the Secretary of the work of the leased employees; of Labor, In accordance with Section 107 of the Contract Work (3) the prime contractor retains all power to accept or Hours and Safety Standards Act (40 U.S.C. 3704). exclude sndividual employees from work on the project and (4) the prime contractor remains ultimately responsible for 3. Pursuant to 29 CFR 1926.3, lt is a condition of this contract the payment of predetermined minimum wages, the that the Secretary of Labor or authorized representative submission of payrolls, statements of compliance and all thereof, shaii have right of entry to any site of contract other Federal regulatory requirements. performance to inspect or Investigate the matter of compliance with the construction safety and health standards aril to carry b. "Speciafty Items" shelf be construed to be limited to work out the duties of the Secretary under Section 107 of the that requires highly specialized knowledge, abilities, or Contract Work Hours and Safety Standards Act (40 equipment not ordinarily available in the type of contracting U.S.C.3704), organizations qualified and expected to bid or propose on the contract as a wide and in general are to be limited to minor components of the overall contrail Vill. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS 2. The contract amount upon which the requirements set forth in paragraph (1 ) of Section VI Is computed includes the cost of T h i s p r o v i s i o n i s applicable to all Federal-aid material and manufactured products Mich are to be construction contracts and to all related subcontracts. purchased or produced by the contractor under the contract provisions. in order to assure high quality and durable construction in conformity with approved plans and specifications and a high 3. The contractor shall famish (a) a competent superintendent degree of reliability on statements and representations made or supervisor who is employed by the firth, has full authority to by engineers, contractors, suppliers, and workers on Federal- direct performance of the work in accordance with the contract aid highway projects, it is essential that all persons concerned requirements, and is in charge of all construction operations with the project perform their functions as carefully, thoroughly, (regardless of who performs the work) and (b) such other of its and honestly as possible. Wiilfui falsification, distortion, or own organizational resources (supervision, management, aril misrepresentation with respect to any facts related to the engineering services) as the contracting officer determines is project is a violation of Federal law. To prevent any necessary to assure the performance of the contract. misu ndersterding regarding the seriousness of these and similar acts, Forth FHWA-1022 shall be posted on each 4. No portion of the contract shall be sublet, assigned or Federal-aid highway project (23 CFR 635) in one or more otherwise disposed of except with the written consent of the places where it Is readily available to all persons concerned contrecting officer. or authorized representative, and such with the project: consent when given shag not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent wili be given only after the 18 U.S.C. 1020 reads as follows: contracting agency has assured that each subcontract is 8 Page 8 of 12 Whoever, being an officer, agent or,,empioyse of the United covered transaction. The prospective first tier participant shall Stan, .a of any State or Tern mr or-h4hoevir.whether a submit an explanation of why It cannot provide the certification person, association, fine or corpaxation,knowingly:makes any set out below. The certification or explanation will be false staterment, false representation',#* false eportas to the considered in connection with the department or agencys character, quality, quantity, or cosEbfthe_materiiiii* l.or:to determination whether to enter into this transection. HJtiuever, be used, or the quantity or quardy,:pf t}ie work:porforned or to failure of the prospective first ter participant to furnish a be performed, or the xxist thereottin'connecto­with the certification or an explanation shall disqualify such a person submission of plans, maps, specs lci6 isrcorntrecte,br.costs from participation in this tmnsectioh. of construction on any highway ofWelatad pfoJect:su rrittad for approval to the Secretary of Trani o►talprr;''or c. The certification.in this clause Is a material representation Z of fact upon which reliance was placed when the contracting Whoever knowingly makes any fajss'statement, false agency determined to enter Into this transaction, if it is later representation, false report or false cia6n.w�ih respect to the determined that the prospective participant knowingly rendered character, quality quantity, or cost'*iiny work performed or to an erroneous certification, in addition to other remedies be performed, or materials fumishieil_gtto be fiiniished, in available to the Federal Govemmerd, the contracting agency connection with the construction of any highway or related may terminate this transaction for cause of default project approved by the Searetark of-Trannsportation: or d The prospective first ter participant shall provide Whoever knowingly makes any.fala(f`statement or false immediate written notice to the contracting agency.to whom representation as to materiel fact in arty statement, certificate, this proposal is}autimitted if any time the prospective first tier or report submitted pursuant to provisions of the Federal aid participant ie ri s #.Wlits certification was erroneous when Roads Act approved July 1 , 1916, (39 Stat. 355), as amended submitted or has becofne erroneous by reason of changed and supplemented: dramstanCes:, Shall be fined under this title or Imprisoned not more than 5 e The teirim.",_covered transaction " 'debarred,' years or both." "suspended!.1neiigi bill 0paticipant," "person," "principal' and 'volurrtariiyexclirded?� used..in this clause, are defined In 2 CFR Parts::180 and ,1200. "Flit Tier Covered DL IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Transaction' refers'twany covered transaction between a WATER POLLUTION CONTROL ACT grantee orsubgrdntee of Federal funds and a partidpant (such as the primiW'geiienif contract). "Lower Tier Covered This provision Is applicable to all Fedemi-aid construction Transactions'reiei torany covered transaction under a First contracts and to all related subcontracts. Tier Coveredlransaction'(such as subcontracts). "FTrst Tier Participant' refeis.to the participant who has entered into a By submission of this bid/proposai or the execution of this covered trairisectignwith e,granteeror subgrantee of Federal contract, or subcontract, as appropriate, the bidder, proposer, funds (such`n3`s.`ifie',prime or general contractor). 'Lower Tier Federal-aid constriction contractor, or subcontractor, as Participant" referaiany parficipant who has entered into a appropriate, will be deemed to have stiputated as follows: covered transaction with;a First Tier Participant or other Lower Tier Participants (such as;subcontractors and suppliers). 1 . That any person who is or will be utilized in the performance of this contract Is not prohibited from receiving an I. The prospective first ter participant agrees by submitting award due to a violation of Section 506 of the Clean Water Act this proposal that should the proposed covered transaction be or Section 306 of the Clean Air Act. entered Iri .lt shall not knowingly enter into any tower ter 2. That the contractor agrees to include or cause to be Covered transaction with a person who is debarred, included the requirements of paragraph (1 ) of this Section X in suspended, declared ineligible, or voluntarily excluded from every subcontract, and further agrees to take such action as participation in this covered transaction, unless authorized by the contracting agency may direct as a means of enforcing the department or agency entering into this transaction. such requirements. g. The prospective first tier participant further agrees by submitting this proposal that it will Include the clause titled K CERTIFICATION REGARDING DEBARMENT, "Certification Regarding Debarment, Suspension, Ineligibility SUSPENSION, INELIGIBILITY AND VOLUNTARY and Voluntary Exclusion-(.over Tier Covered Transactions." EXCLUSION provided by the department or contracting agency, entering Into this covered transaction, without modification, in all lower This provision is applicable to all Federai-ald construction tier covered transactions and in all solicitations for tower tier contracts, design-bulid contracts. subcontracts, iower-tier covered transactions exceeding the $25,000 threshold. subcontracts, purchase oilers, lease agreements, consultant contracts or any other covered transaction requiring FHWA h. A participant in a covered transaction may rely upon a approval or that is estimated to cost $25,000 or more - as certification of a prospective participant in a lower tier covered defined in 2 CFR Parts 180 and 1200, transection that is not debarred, suspended. Ineligible, or voluntarily excluded from the covered transaction. unless it knows that the certification Is erroneous A participant is responsible for ensuring that its principals are not suspended, 1 . Instructions for Certification - First Tier Participants: debarred, or otherwise ineligible to participate in covered transactions. To verity the eligibility of its principals, as well as a. By signing and submitting this proposal, the prospective the eligibility of any lower tier prospective participants, each first tier participant Is providing the certification set out below. participant may, but is not required to, check the Excluded Parties List System website (thttos://www.eolsoov/), which is b. The Inability of a person to provide the certification set out compiled by the General Services Administration. below will not necessarily result in denial of participation in this Page 9 of 12 1. Nothing contained In,the,foregoing shall be construed to ihls transaction originated may pursue available remedies, require the establishmerd ":system of records in order to including suspension and/or debarment render in good faith theroertification:required by this clause. The knowledge and infohnatioh bf the prospective participant c. The prospedive,lower tier participant shall provide Is riot required to euccee'b;tfiat wtifi t:i3 rwrYnally possessed by immediate written notice to the person to which this proposal is a prudent person in theorrDnarYootuse oT lousiness dealings. submitted if at any ttine the prospective lower tier parUdpant learns that its certification was erroneous by reason of J. Except for trarisadions:auUwrized under paragraph (0 of changed circumstances. these instructions; ifa participant in a;covered transaction knowingly enters into a,lowei'ter covered transaction with a d. The terms 'covered transaction,' 'debarred " personwho (a suapernied de6srted,Ineligible, or voluntarily "suspended," "ineligible." Opartidpant" "person," "prindpal excluded from pardcl ion in lEls transaction, in addition to and "voluntarily excluded,* as used In this clause, are defined other remedies avallibia.to the Federai Government, the in 2 CFR Parts 180 and 1200. You may contact the person to department or agency.fnay terminate this transaction for cause which this proposal Is submitted for assistance in obtaining a or default copy of those regulations. "First Tier Covered Transactions' refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contradI. 'Lower Tier Covered Transactions, 2, Certification Regarding Debarment, Suspension, refers to any covered transaction under a First Tier Covered Ineligibility and Voluntary Exclusion - First Tier Transaction (such as subcontracts). °First Tier Participant' Participants: refers to the participant who has entered into a covered transaction with a grantee or sutugrentee-of Federal funds a. The prospective first tier participant certifies to the best of (such as the prime or general contractor). 'Lower Tier its knowledge and belief, that it and Its principals: Partidpanr refers any participant who has entered into a covered transaction with a Frst Tier Participant or other Lower (1) Are not presently debarred, suspended, proposed for Tier Participants (such as subcontractors and suppliers). debarment, declared ineligible, or voiuntariy excluded from participating in covered transactions by any Federal e. The prospective lower tier participant agrees by department or agency; submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into (2) Have not within a three-year period preceding this any lower tier covered transaction with a person who is proposal been convicted of or had B civil Judgment rendered debarred, suspended, declared ineligible, or voiuntarily against them for commission of fraud or a criminal offense in excluded from participation in this covered transaction, unless cormection with obtaining, attempting to obtain. or performing authorized by the department or agency with which this a public (Federal, State or local) transaction or contract under transaction originated. a public transaction: violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, I. The prospective lower tier participant further agrees by bribery, falsification or destruction of records, making false submitting this proposal that it will include this clause titled statements, or receiving stolen property; "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," (3) Are not presently indicted for or otherwise criminally or without modification, in all lower tier covered transactions and civilly charged by a governmental entity (Federal, State or In all solicitations for lower tier covered transactions exceeding local) with commission of any of the offenses enumerated in the $25,000 threshold. paragraph (ax2) of this certification; and g. A participant in a covered transaction may rely upon a (4) Have not within a three-year period preceding this certification of a prospective participant in a lower tier covered appiicabordproposai had one or more public transaclons transaction that is not debarred, suspended, ineligible, or (Federal, State or local) terminated for cause or default. voluntarily excluded from the covered transaction unless it knows that the certification is erroneous. A participant is b. Where the prospective participant is unable to certify to responsible for ensuring that its principals are not suspended, any of the statements in this certification, such prospective debarred, or otherwise Ineligible to participate in covered participant shall aftach an explanation to this proposal. transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants. each 2. Instructions for Certification - Lower Tier Participants: participant may, but is not required to, check the Excluded Parties List System website (httos1twww.eols.00W), which is (Applicable to all subcontracts, purchase orders and other compiled by the General Services Administration. lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and h. Nothing contained in the foregoing shali be construed to 1200) require establishment of a system of records in order to render in good faith the certification required by this clause. The a. By signing and submitting this proposal, the prospective knowledge and information of participant is not required to lower ter is providing the certification set out below. exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction i. Except for transactions authorized under paragraph a of was entered into. If it is later determined that the prospective these instructions, d a participant In a covered transaction lower tier participant knowingly rendered an erroneous knowingly enters into a lower tier covered transaction with a certification, in addition to other remedies available to the person who Is suspended, debarred, ineligible, or voluntarily Federal Government, the department, or agency with which excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the Page 10 of 12 department or agency with which this transaction originated may pursue_evallable remedies, Including suspension andfor debarment Cerdfbeatlon Regarding Debarment, Suspension, Ineligibility and Voluntary Exoluslon—Lower Tier Participants: 1 . The prospective lower tier participant certifies, by submission of this proposal, that neither It norits principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from partiGpating in covered transactions by any Federal department or agency 2. Where the prospective lower tier participant Is unable to certify to any of the statements in this certification, such prospective participant shall altach an explanation to this proposal. XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision is applicable to all Federal-aid construction contracts and to all related subcontracts whlch exceed $100,000 (49 CFR 20). 1 . The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that a. No Federal appropriated funds have been paid or will be paid, by or on behalf of 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 contract, the making of any Federal grant, the meldng of any Federal loan, the entering into of any cooperative agreement. and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. 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 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 this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying° in accordance with its instructions. 2. This certification is a material representation of fad 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 31 U.S.C. 1352. 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. 3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in as lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose aocordingiy. 11 Page 11 of 12 ATTACHMENT A - EMPLOYMENT AND MATERIALS S. The contractor shelf include the provisions d Sections 1 PREFERENCE FOR APPALACHIAN DEVELOPMENT through 4 of this Attachment Alin every subcoihactfor work HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS which Is, or reasonably may be done as on-site work. ROAD CONTRACTS This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Ad of 1965. 1 . During the performance of this contract, the contractor undsrtai�ing to do wok which is, or reasonably may be, done as on-site wok, shall give preference to qualified persons who regularly reside In the labor area as designated by the DOL wherein the contract work Is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except a. To the extent that qualified persons regularly residing in the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below. 2. The contractor shall place a job order with the State Employment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contrad work, (b) the number of employees required in each ciassification, (c) the date on which the participant estimates such employees will be required, and (d) arry other pertinent information required by the State Employment Service to complete the job order forth. The job order may be placed with the State Employment Service in writing or by telephone. if during the course of the contract work, the information submitted by the contractor in the original job order Is substantially modified, the participant shall promptly notify the State Employment Service. 3, The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, In his opinion, are not qualified to perform the classification of work required. 4. If, within one week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service will forward a certificate to the contractor Indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c) above. 5. The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region. 12 Page 12 of 12 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 $ 101000 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. 94A 63) . H . OMB Circulars Page 1 of 3 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 sea . 42 USC 2000d , 29 USC 794, and implementing regulation , 45 C . F . R. Part 80 et. sea . 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 sea . . 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. Om 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'. On 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 Page 2 of 3 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. Ili. 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. Page 3 of 3 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; I .I .S. 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: htto://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 ; Page 1 of 4 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 hfp://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 $101000. 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 Page 2 of 4 I s 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 hftp://www. colorado.aov/dr)a/dfr)/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 3 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 7AX 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. Page 4 of 4 J 11I II■ _ ' I . �I . ' II . ■ �1�■ 1 • Ir-• _ . � I . � ■ III • I ■• L . I 1 • ■ I■ ■ ■ F� ' 1 u I I - • I - n ^J — I r ' I C - LL' 4 ■ I . • - ■ � r I ■ � � 1 • I ■ I • - I II r 1 I I --_ rr L . _ _ J ■ I '� - �• 11 • • _ _ II - , I _ _ 11 I _ • _ III " _ I •I I • v . • 11 I II 1 ■ 1 ■ II 1 1 " Il '�• ■Ir ■ � J ■ IrJr �I ■ a.��,.t .-/�1 I '� "• rG! ) " �•` � � 1.:: ' _' �- � a, . �1 �' � (_1 ... S 9i _�.j I , , �:'-'.: i«.�� ' : " I " ' I: •il :� - •� _ •ix � 11� .r 1•--i Al r S :.J - - �' -?'=11 •`•.t � �a It ..rl - ' 11• = .�- ' •L_ ! 7._�n �� � 11 ` t � 'l'ri} � 1 h- • ( Irk ■L ,1 � 't: . r . .� . I r' Ire T! � - . , 11s , . . I ci ♦_ �' ► �.�C . •• -•K1r ' .. .rl.'�'11f1 rzTM, S �• S A� , !�I Ili . .♦��:.h.".,�1/ y In f •ar '•IS .r J ' rl •I I -.;:_.�_;;. . .. , :III :11T '1` �►l. Gi.i� ..■■ajII ! r • MOV'1 . I11 . !,ir' ,II:I N'' {n11,•JJ1r„� Rfa='''J11:.. , I 1 � � I r �l,..{L� la:•.Cllh2lr- HJ IAt:C 76, R .I. IL .ajl '-I ' • . -V) } 1'rr� _- , I '-d'::,,:y OV •. • (' y4P= /=ni cam. - '•f "l11' I I: _.^-_f �` �Y4. •C ��„= RI hlil='� .t '� e„�'•'�f ! ` T r!' ••J,1-- oil f.• .1 .. ,1 I4;• I1. r 1 . r .. I II rA • L- T'11 li r �I:' ' �� •.4.1 �7 lJe `tc ,l {� I•.', n '..I _ GG a • ,a r h 4. a' 1 .. 11f;v. — . .-•: 7 rl .. iIn4J E` - V �= I" • 1 ,I��t' 1 : ' . 1 h i '^ I irT1�.Y �i' 111 =d1 [II =• .r ' - I�II • •� t,'�fh:c,rlll -:1 ' r _ • a 7.r : �� I ifA .I cf . I:-`a . ( I _ !_ 1 � C_. °] rr =:.�; �IiI(:.y^ • ' ly 'Lmi� •_ I4Z. . ' d MI •1 -. - I' ,_ ' _ :n ' JI:. . .� _c':�.�'f�'.Lfut� Sr . I � -f • w 1 f: MAT Ll .'.+ : j lilt '� , �' .. , n' r ' • .? a 1/� ' r. lure : } ! ` ■ IIkI - - ��.; r YI ,.- �•_ _J!'r II ,, '. �: : { ({ rl .-p ' ' 1)r ' e:•.. y 1 , _�. , .Liwo ; r : � � •`���'hIy"�'x� • ��1 '' = ' '� • � 1 : r•=t,�. n • I•`.�r�J art ♦� 1:i f.`�r� l 1 - .� �11� • ly III _ r•"-�T� �� L' II lilt .f " 1+Ir1 ' I, a i , l ••I ��■^tl'1! 151 •� Ifil Jill u. : a Jl . V�. JJ11 ill I) TG ' 1 I �^ I'I r r " ♦ 1 • 1' �' 1• III • 1 -4io ? IE� : ''I }I�"il • � ,'d.._ _ II'IJIYP C 'I :� S':�11• Il'r`I�` I • io .c- :�-. ,.I ii .•.. II - 1' �a �;' a•: III � 1 _ • �t 1 I �_ ■. • � � �ru- .II 1t4 � : Z �' l. r•a .. :u-:_t r . I � ' T� �- -�•.rl } i- r� . � R� . ) • art II ° FBI ora , �- 11 ' li l - : li 1r9�:y1., r r . I .•.r lln 11 I• r r`71 ' i•-�I_ :.1 %� �3L�p..l�_ � f: �■n �,I�,• � .=_ n: - .S a=- I1'11 1 r �.�: , _ l _ `� f� �-^ I u.,:r rlr_ r�!}� _l : -�I �•I ll I �'i l 'i1'?� � . I - i � . 3� a:�.• q� '- 4rlrr`:J'll� I fA -� i- rr - .; n ■ r _- _ I V• IIr.._. f � -. . � 11_ .,�., ' i � c l�l ;_� . 11.`� I ' �)T ... 11 r ' � � +f� I, � I - " IF ' • -I I u l ill l ■ ■ II I ■ I - ■ I 1 • :j I • 1 - I II III ■ ■ •. I - J ' 1 1 - • 1-11 L . 1 � •�� II L- ON 1 _•I • - - , - - I III n_^ . _ 1 _ I - ■ 11 1 I - -