HomeMy WebLinkAbout2017-031-03/21/2017-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE COLORADO DEPART RESOLUTION 2017-031
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
FOR REPLACEMENT OF THE RIVERSIDE AVENUE BRIDGE
WHEREAS, based on federal bridge inspection standards, the City has determined that
the Riverside Avenue Bridge over Spring Creek(the "Bridge") is in need of replacement because
it is progressing toward deterioration and does not possess the desired load carrying capacity;
and
WHEREAS, the City has been awarded a grant by the Colorado Department of
Transportation ("CDOT") from the Colorado Off-System Bridge Program for replacement of the
Bridge; and
WHEREAS, to memorialize and make binding the terms of the grant for the Bridge
replacement, an Intergovernmental Agreement ("IGA") between the City and CDOT is attached
hereto and.incorporated herein as Exhibit"A"; and
WHEREAS, pursuant to the terms of the IGA, grant funds in the amount of$1,156,000
are promised to reimburse the City for certain costs of replacing the Bridge provided that the
City provide matching funds in the amount of$289,000; and
WHEREAS, the total projected cost for. replacing the Bridge is $2,745,223 which
consists of the $1,156,000 grant, the $289,000 City match, and $1,300,223 the City previously
appropriated as part of the 2017-2018 City budget (including the required funding for the Art in
Public Places Program); 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 the Bridge replacement is in the best
interests of the City and'that the,Mayor be authorized to execute the IGA between the City and
CDOT in support thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF'THE CITY OF
FORT COLLINS as follows:
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r r
Section 1. That the City Council hereby makes any and all determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council hereby authorizes the Mayor to execute the IGA
between the City and CDOT, substantially in the form attached hereto as Exhibit "A", together
with 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
21st day of March, A.D. 2017.
ATTEST: 1.
U1 SEAL •) ayor .100
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City Clerk
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EXHIBIT A
OLA #: 331001573
Routing #: 17-HA4-XC-00068
Project:Spring Creek at Riverside Bridge (20825)
Region: 4 (dz (BRO M455-121)) (FMLAWRK) Rev. 7/8/09
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. REPORTING - NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11 . LOCAL AGENCY RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. CONFIDENTIAL INFORMATION-STATE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13 . CONFLICT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15 . INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. DEFAULT-BREACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. NOTICES and REPRESENTATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
20. GOVERNMENTAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
21 . STATEWIDE CONTRACT MANAGEMENT SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22. FEDERAL REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
23 . DISADVANTAGED BUSINESS ENTERPRISE (DBE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24. DISPUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
25 . GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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
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1 . PARTIES
THIS AGREEMENT is entered into by and between CITY OF FORT COLLINS (hereinafter called the "Local
Agency"), and the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter
called the "State" or "CDOT").
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or
reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses
incurred, or be bound by any provision hereof prior to the Effective Date .
3. RECITALS
A. Authority, Appropriation, and Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a
sufficient unencumbered balance thereof remains available for payment and the required approval, clearance
and coordination have been accomplished from and with appropriate agencies.
i. Federal Authority
Pursuant to Title I, Subtitle A. Section 1108 of the "Transportation Equity Act for the 21 st Century" of
1998 (TEA-21 ) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code
and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended,
(collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have been and are
expected to continue to be allocated for transportation projects requested by the Local Agency and
eligible under the Surface Transportation Improvement Program that has been proposed by the State and
approved by the Federal Highway Administration ("FHWA").
ii. State Authority
Pursuant to CRS §43 - 1 -223 and to applicable portions of the Federal Provisions, the State is responsible
for the general administration and supervision of performance of projects in the Program, including the
administration of federal funds for a Program project performed by a Local Agency under a contract
with the State. This Agreement is executed under the authority of CRS § §29- 1 -203 , 43 - 1 -110; 43-1 - 116,
43 -2- 101 (4)(c) and 43 -2- 104.5 .
B. Consideration
The Parties acknowledge that the mutual promises and covenants contained herein and other good and
valuable consideration are sufficient and adequate to support this Agreement.
C. Purpose
The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT ' s
Stewardship Agreement with the FHWA.
D. References
All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits
or other attachments, are references to sections, subsections, exhibits or other attachments contained herein
or incorporated as a part hereof, unless otherwise noted.
4. DEFINITIONS
The following terms as used herein shall be construed and interpreted as follows:
A. Agreement or Contract
"Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits, documents
incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits,
attachments or references that are incorporated pursuant to Colorado State Fiscal Rules and Policies.
B. Agreement Funds
"Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement.
C. Budget
"Budget" means the budget for the Work described in Exhibit C.
D. Consultant and Contractor
"Consultant" means a professional engineer or designer hired by Local Agency to design the Work and
"Contractor" means the general construction contractor hired by Local Agency to construct the Work.
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E Evaluation
"Evaluation" means the process of examining the Local Agency' s Work and rating it based on criteria
established in §6 and Exhibits A and E.
F. Exhibits and Other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of
Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E
(Checklist), Exhibit F (Certification for Federal-Aid Funds), Exhibit G (Disadvantaged Business
Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal-Aid Contract Provisions), Exhibit J
(Federal Requirements) and Exhibit K (Supplemental Federal Provisions).
G. Goods
"Goods" means tangible material acquired, produced, or delivered by the Local Agency either separately or
in conjunction with the Services the Local Agency renders hereunder.
H. Oversight
"Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and the Federal
Highway Administration ("FHWA") and as it is defined in the Local Agency Manual.
I. Party or Parties
"Party" means the State or the Local Agency and "Parties" means both the State and the Local Agency
J. Work Budget
Work Budget means the budget described in Exhibit C .
K Services
"Services" means the required services to be performed by the Local Agency pursuant to this Contract.
L. Work
"Work" means the tasks and activities the Local Agency is required to perform to fulfill its obligations under
this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods.
M. Work Product
"Work Product" means the tangible or intangible results of the Local Agency' s Work, including, but not
limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished
documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts.
5. TERM AND EARLY TERMINATION
The Parties ' respective performances under this Agreement shall commence on the Effective Date. This
Agreement shall terminate after five (5) years of state controllers signature in section 27, unless sooner terminated
or completed as demonstrated by final payment and final audit.
6. SCOPE OF WORK
A. Completion
The Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work
performed prior to the Effective Date or after final acceptance shall not be considered part of the Work.
B. Goods and Services
The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement
shall be accomplished using the Contract Funds and shall not increase the maximum amount payable
hereunder by the State.
C. Employees
All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered
the Local Agency' s, Consultants ' , or Contractors ' employee(s) for all purposes and shall not be employees
of the State for any purpose.
D. State and Local Agency Commitments
i. Design
If the Work includes preliminary design or final design or design work sheets, or special provisions and
estimates (collectively referred to as the "Plans"), the Local Agency shall comply with and be responsible
for satisfying the following requirements:
a) Perform or provide the Plans to the extent required by the nature of the Work.
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.
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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.
n. 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.
(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.
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ni. 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(13)(iii)(c)(2) also apply to any advertising and awards made by the
State.
(4) If all or part of the Work is to be accomplished by the Local Agency' s personnel (i.e. by force
account) rather than by a competitive bidding process, the Local Agency shall perform such
work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635,
Subpart B, Force Account Construction.
(a) Such Work will normally be based upon estimated quantities and firm unit prices agreed
to between the Local Agency, the State and FHWA in advance of the Work, as provided
for in 23 C.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 .
(c) If the State provides matching funds under this Agreement, rental rates for publicly owned
equipment shall be determined in accordance with the State ' s Standard Specifications for
Road and Bridge Construction § 109.04.
(d) All Work being paid under force account shall have prior approval of the State and/or
FHWA and shall not be initiated until the State has issued a written notice to proceed.
E. State's Commitments
a) The State will perform a final project inspection of the Work as a quality control/assurance activity.
When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212 .
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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.
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
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An option letter may be used to add a phase without increasing total budgeted funds, increase or decrease the
encumbrance amount as shown on Exhibit C, and/or transfer funds from one phase to another. Option letter
modification is limited to the specific scenarios listed below. The option letter shall not be deemed valid until
signed by the State Controller or an authorized delegate.
A. Option to add a phase and/or increase or decrease the total encumbrance amount.
The State may require the Local Agency to begin a phase that may include Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation
or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original Agreement,
with the total budgeted funds remaining the same. The State may simultaneously increase and/or decrease
the total encumbrance amount by replacing the original funding exhibit (Exhibit C) in the original Agreement
with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc). The State
may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days
before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State
exercises this option, the Agreement will be considered to include this option provision.
B. Option to transfer funds from one phase to another phase.
The State may require or permit the Local Agency to transfer funds from one phase (Design, Construction,
Environmental, Utilities, ROW Incidentals or Miscellaneous) to another as a result of changes to state,
federal, and local match. The original funding exhibit (Exhibit C) in the original Agreement will be replaced
with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3 , etc.) and attached
to the option letter. The funds transferred from one phase to another are subject to the same terms and
conditions stated in the original Agreement with the total budgeted funds remaining the same. The State may
unilaterally exercise this option by providing a fully executed option to the Local Agency within thirty (30)
days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. Any
transfer of funds from one phase to another is limited to an aggregate maximum of 24.99% of the original
dollar amount of either phase affected by a transfer. A bilateral amendment is required for any transfer
exceeding 24.99% of the original dollar amount of the phase affected by the increase or decrease.
C. Option to do both Options A and B .
The State may require the Local Agency to add a phase as detailed in Exhibit A, and encumber and transfer
funds from one phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be
replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2, C-3, etc.)
and attached to the option letter. The addition of a phase and encumbrance and transfer of funds are subject
to the same terns 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
enter into this Agreement and to expend its match share of the Work. A copy of such ordinance/resolution or
authority letter is attached hereto as Exhibit B.
B. Payment
i. Advance, Interim and Final Payments
Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules
and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall
initiate any payment requests by submitting invoices to the State in the form and manner approved by
the State.
n. Interest
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The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents
performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by
the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not
to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on
unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State
separately for accrued interest on delinquent amounts. The billing shall reference the delinquent
payment, the number of days interest to be paid and the interest rate.
iii. Available Funds-Contingency-Termination
The State is prohibited by law from making commitments beyond the term of the State ' s current fiscal
year. Therefore, the Local Agency' s compensation beyond the State ' s current Fiscal Year is contingent
upon the continuing availability of State appropriations as provided in the Colorado Special Provisions.
The State' s performance hereunder is also contingent upon the continuing availability of federal funds.
Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract
and the State ' s liability for such payments shall be limited to the amount remaining of such encumbered
funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this
Contract, the State may terminate this Contract immediately, in whole or in part, without further liability
in accordance with the provisions hereof.
iv. Erroneous Payments
At the State' s sole discretion, payments made to the Local Agency in error for any reason, including, but
not limited to overpayments or improper payments, and unexpended or excess funds received by the
Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under
this Contract or other contracts, Agreements or agreements between the State and the Local Agency or
by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to
any party other than the State.
C. Use of Funds
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funds
The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C . The Local Agency shall
have raised the full amount of matching funds prior to the Effective Date and shall report to the State
regarding the status of such funds upon request. The Local Agency' s obligation to pay all or any part of any
matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the
purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local
Agency' s treasury. The Local Agency represents to the State that the amount designated "Local Agency
Matching Funds" in Exhibit C has been legally appropriated for the purpose of this Agreement by its
authorized representatives and paid into its treasury. The Local Agency does not by this Agreement
irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not
intended to create a multiple-fiscal year debt of the Local Agency. The Local Agency shall not pay or be
liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the
Local Agency' s laws or policies.
E. Reimbursement of Local Agency Costs
The State shall reimburse the Local Agency' s allowable costs, not exceeding the maximum total amount
described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R.
18 .22 shall govern the State ' s obligation to reimburse all costs incurred by the Local Agency and submitted
to the State for reimbursement hereunder, and the Local Agency shall comply with all such principles. The
State shall reimburse the Local Agency for the federal-aid share of properly documented costs related to the
Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. However,
any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to
the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof.
Costs shall be:
i. Reasonable and Necessary
Reasonable and necessary to accomplish the Work and for the Goods and Services provided.
no 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).
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9. ACCOUNTING
The Local Agency shall establish and maintain accounting systems in accordance with generally accepted
accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting
scheme). Such accounting systems shall, at a minimum, provide as follows:
A. Local Agency Performing the Work
If Local Agency is performing the Work, all allowable costs, including any approved services contributed by
the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers,
and other applicable records.
B. Local Agency-Checks or Draws
Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers
detailing the purpose thereof All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting
documents shall be on file in the office of the Local Agency, clearly identified, readily accessible, and to the
extent feasible, kept separate and apart from all other Work documents.
C. State-Administrative Services
The State may perform any necessary administrative support services required hereunder. The Local Agency
shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If
FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to
the Work being approved or completed, then all actual incurred costs of such services and assistance provided
by the State shall be the Local Agency' s sole expense.
D. Local Agency-Invoices
The Local Agency' s invoices shall describe in detail the reimbursable costs incurred by the Local Agency
for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not
be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices
within 60 days after the date for which payment is requested, including final invoicing. Final payment to the
Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred
by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or
the State may offset them against any payments due from the State to the Local Agency.
F. Reimbursement of State Costs
CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local
Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment
within 60 days, at CDOT ' s request, the State is authorized to withhold an equal amount from future
apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to
CDOT. Interim funds shall be payable from the State Highway Supplementary Fund (400) until CDOT is
reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a
rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT ' s invoices
shall describe in detail the reimbursable costs incurred, the dates incurred and the amounts thereof, and shall
not be submitted more often than monthly.
10. REPORTING - NOTIFICATION
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.
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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
If an audit is performed on the Local Agency' s records for any fiscal year covering a portion of the term of
this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal
representative at the address specified herein.
12. CONFIDENTIAL INFORMATION-STATE RECORDS
The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in
connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to,
state records, personnel records, and information concerning individuals. Nothing in this §12 shall be construed
to require the Local Agency to violate the Colorado Open Records Act, C.R. S. § 24-72- 101 et seq.
A. Confidentiality
The Local Agency shall keep all State records and information confidential at all times and to comply with
all laws and regulations concerning confidentiality of information. Any request or demand by a third party
for State records and information in the possession of the Local Agency shall be immediately forwarded to
the State ' s principal representative.
B. Notification
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The Local Agency shall notify its agents, employees, and assigns who may come into contact with State
records and confidential information that each is subject to the confidentiality requirements set forth herein,
and shall provide each with a written explanation of such requirements before they are permitted to access
such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by the Local
Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The
Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State
records and other confidential information wherever located. Confidential information shall not be retained
in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved
by the State.
D. Disclosure-Liability
Disclosure of State records or other confidential information by the Local Agency for any reason may be
cause for legal action by third parties against the Local Agency, the State or their respective agents. The
Local Agency is prohibited from providing indemnification to the State pursuant to the Constitution of the
State of Colorado, Article XI, Section 1 , however, the Local Agency shall be responsible for any and all
claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs,
incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees
pursuant to this §12 .
13. CONFLICT OF INTEREST
The Local Agency shall not engage in any business or personal activities or practices or maintain any relationships
which conflict in any way with the full performance of the Local Agency' s obligations hereunder. The Local
Agency acknowledges that with respect to this Agreement even the appearance of a conflict of interest is harmful
to the State ' s interests. Absent the State' s prior written approval, the Local Agency shall refrain from any
practices, activities or relationships that reasonably appear to be in conflict with the full performance of the Local
Agency' s obligations to the State hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain
whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a
disclosure statement setting forth the relevant details for the State' s consideration. Failure to promptly submit a
disclosure statement or to follow the State' s direction in regard to the apparent conflict constitutes a breach of
this Agreement.
14. REPRESENTATIONS AND WARRANTIES
The Local Agency makes the following specific representations and warranties, each of which was relied on by
the State in entering into this Agreement.
A. Standard and Manner of Performance
The Local Agency shall perform its obligations hereunder, including in accordance with the highest
professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement.
B. Legal Authority — The Local Agency and the Local Agency' s Signatory
The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has
taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to
lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the
Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of
the Local Agency' s authority to enter into this Agreement within 15 days of receiving such request.
C. Licenses, Permits, Etc.
The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the
term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and
other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it
shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations
required to properly perform this Agreement, without reimbursement by the State or other adjustment in
Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under
this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The
Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado,
further warrants that it currently has obtained and shall maintain any applicable certificate of authority to
transact business in the State of Colorado and has designated a registered agent in Colorado to accept service
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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.
no Non-Public Entities
If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the
Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and
policies meeting the same requirements set forth in § 15(B) with respect to sub -contractors that are not
"public entities" .
B. Contractors
The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than
those that are public entities, providing Goods or Services in connection with this Agreement, to include
insurance requirements substantially similar to the following:
i. Worker's Compensation
Worker' s Compensation Insurance as required by State statute, and Employer's Liability Insurance
covering all of the Local Agency' s Contractors, Subcontractors, or Consultant ' s employees acting within
the course and scope of their employment.
no 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
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.
vn. 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
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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
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.
u. 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
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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.
ni. 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.
C. Remedies Not Involving Termination
The State, its sole discretion, may exercise one or more of the following remedies in addition to other
remedies available to it:
i. Suspend Performance
Suspend the Local Agency' s performance with respect to all or any portion of this Agreement pending
necessary corrective action as specified by the State without entitling the Local Agency to an adjustment
in price/cost or performance schedule. The Local Agency shall promptly cease performance and
incurring costs in accordance with the State' s directive and the State shall not be liable for costs incurred
by the Local Agency after the suspension of performance under this provision.
ii. Withhold Payment
Withhold payment to the Local Agency until corrections in the Local Agency' s performance are
satisfactorily made and completed.
in. 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.
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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: 4
Jake Schuch, Project Manager Jin Wang
Project Manager City of Fort Collins
10601 W. 10th St. 281 N. College Ave
Greeley, CO 80634 Fort Collins, CO 80524
970-350-2205 970-416-2292
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
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- 102-2059 §24- 102-2069
§24- 103-601 , §24- 103 . 5 - 101 and §24- 105- 102 concerning the monitoring of vendor performance on state
agreements/contracts and inclusion of agreement/contract performance information in a statewide contract
management system.
The Local Agency' s performance shall be subject to Evaluation and Review in accordance with the terms and
conditions of this Agreement, State law, including CRS §24- 103 . 5- 101 , and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of the Local Agency' s performance shall be part of the normal Agreement
administration process and the Local Agency' s performance will be systematically recorded in the statewide
Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality,
cost and timeliness. Collection of information relevant to the performance of the Local Agency' s obligations
under this Agreement shall be determined by the specific requirements of such obligations and shall include
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factors tailored to match the requirements of the Local Agency' s obligations. Such performance information shall
be entered into the statewide Contract Management System at intervals established herein and a final Evaluation,
Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall
be notified following each performance Evaluation and Review, and shall address or correct any identified
problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross
failure to meet the performance measures established hereunder, the Executive Director of the Colorado
Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good
cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local
Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result
in either removal or correction of the evaluation (CRS §24- 105- 102(6)), or (b) under CRS §24- 105- 102(6),
exercising the debarment protest and appeal rights provided in CRS § §24- 109- 106, 107, 201 or 202, which may
result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon
showing of good cause.
22, FEDERAL REQUIREMENTS
The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution
of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing
regulations, as they currently exist and may hereafter be amended.
23. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration
Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE
program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must
submit a copy of its program' s requirements to the State for review and approval before the execution of this
Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency
shall be solely responsible to defend that DBE program and its use of that program against all legal and other
challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation,
determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for
DBE goals and good faith efforts. State approval (if provided) of the Local Agency' s DBE program does not
waive or modify the sole responsibility of the Local Agency for use of its program.
24. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this
Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of
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
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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
Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective
unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and
approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office of the State
Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF
AGREEMENTS - TOOLS AND FORMS.
H. 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,
lie The provisions of the main body of this Agreement,
iii. Exhibit A (Scope of Work),
iv. Exhibit B (Local Agency Resolution),
v. Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vn. Exhibit E (Local Agency Contract Administration Checklist),
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viii. Other exhibits in descending order of their attachment.
K Severability
Provided this Agreement can be executed and performance of the obligations of the Parties accomplished
within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes
inoperable for any reason shall not affect the validity of any other provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if the Local Agency fails to perform or comply as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State
and local government sales and use taxes under CRS § §39-26- 101 and 201 et seq. Such exemptions apply
when materials are purchased or services rendered to benefit the State; provided however, that certain
political subdivisions (e.g. , City of Denver) may require payment of sales or use taxes even though the
product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as
the State is prohibited from paying for or reimbursing the Local Agency for them
N. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties,
and not to any third party. Any services or benefits which third parties receive as a result of this Agreement
are incidental to the Agreement, and do not create any rights for such third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any
subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement.
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26. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics.
A. CONTROLLER'S APPROVAL. CRS §24-30-202 (1).
This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or
designee.
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,
immediate termination of this Agreement and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
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L EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest
whatsoever in the service or property described in this Agreement. The Local Agency has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the
performance of The Local Agency' s services and The Local Agency shall not employ any person having
such known interests.
J. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4.
[Not Applicable to intergovernmental agreements]. Subject to CRS §24-30-202.4 (3 .5), the State Controller
may withhold payment under the State ' s vendor offset intercept system for debts owed to State agencies for:
(a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or
other charges specified in CRS § 39-21 - 101 , et seq. ; (c) unpaid loans due to the Student Loan Division of the
Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund;
and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action.
K. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101 .
[Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental Agreements, or information
technology services or products and services]. The Local Agency certifies, warrants, and agrees that it does
not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and
shall confirm the employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Agreement, through participation in the E-Verify Program or the State
program established pursuant to CRS § 8 - 17.5- 102(5)(c), The Local Agency shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement or enter into a contract with a
subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E-
Verify Program or State program procedures to undertake pre-employment screening of job applicants while
this Agreement is being performed, (b) shall notify the subcontractor and the contracting State agency within
three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with
an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not
stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall
comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS § 8 -
17 .5- 102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the
State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher
Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has
examined the legal work status of such employee, and shall comply with all of the other requirements of the
State program. If The Local Agency fails to comply with any requirement of this provision or CRS § 8 - 17. 5-
101 et seq. , the contracting State agency, institution of higher education or political subdivision may
terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101 .
The Local Agency, if a natural person eighteen ( 18) years of age or older, hereby swears and affirms under
penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to
federal law, (b) shall comply with the provisions of CRS §24-76.5- 101 et seq. , and (c) has produced one form
of identification required by CRS §24-76.5 - 103 prior to the effective date of this Agreement.
SPs Effective 1 /1/09
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27. SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
* Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local
Agency's behalf and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY
CITY OF FORT COLLINS
STATE OF COLORADO
John W. Hickenlooper
Name: Department of Transportation
(print name)
Title: By
(print title) Joshua Laipply, P.E. , Chief Engineer
(For) Shailen P . Bhatt, Executive Director
* Signature
Date:
Date :
2nd Local Agency Signature if needed
STATE OF COLORADO
Name: LEGAL REVIEW
(print name) Cynthia H. Coffman, Attorney General
Title: By
(print 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 OF COLORADO
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:
Colorado Department of Transportation
Date:
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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: Riverside Avenue bridge replacement over Spring
Creek (#work#) . CDOT and the City believe it will be beneficial to perform this work because the project
will create a safe crossing for vehicles, bicycle and pedestrian. The current bridge is Structurally
Deficient and is failing. Riverside Avenue serves as the only access to Edora Pool Ice Center, a City
recreation facility which experiences high usage throughout the year. This work will be located on
Riverside Avenue over Spring Creek.
This work will conform to all standards of AASHTO, 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 (Herein after referred to as #the exact work#) . The exact work shall
be used to construct designed improvements . The design phase is underway and the construction phase is
anticipated to begin in the summer of 2017 .
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 — BRO ) $ 1 , 1567000 . 00
b . Local Matching Funds
(20 . 00 % of Participating Costs ) $289 , 000 . 00
TOTAL BUDGETED FUNDS $ 11445 , 000 . 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 ) $ 1 , 156 , 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 $ 15156 , 000 . 00
FOR CDOT ENCUMBRANCE PURPOSES
*Note - $0. 00 is currently available. Funds will be added in the
future either by Option Letter or Amendment.
Net to be encumbered as follows : $0 . 00
WBS Element 20825 . 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 $ 1 , 445 , 000 . 00 that is eligible for federal participation , it being further
understood that all non- participating costs are borne by the Local Agency at 100 % . If the total
participating cost of performance of the Work exceeds $ 1 , 445 , 000 . 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 $ 1 , 445 , 000 . 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
$ 1 , 445 , 000 . 00 ( For CDOT accounting purposes , the federal funds of $ 1 , 156 ; 000 . 00 , State
funds of $0 . 00 , Local Agency matching funds of $289 , 000 . 00 , and Local Agency contribution
funds of $0 . 00 will be encumbered for a total encumbrance of $ 1 , 445 , 000 . 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 will be added in
the future either by Option Letter orAmendment *** 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 .
31 . EXHIBIT D — OPTION LETTER
SAMPLE IGA OPTION LETTER
(This option has been created by the Office of the State Controller for CDOT use only)
NOTE: This option is limited to the specific contract scenarios listed below
AND may be used in place of exercising a formal amendment.
Date : State Fiscal Year: Option Letter No . Option Letter CMS Routing #
Option Letter SAP #
Original Contract CMS # Original Contract SAP #
Vendor name :
SUBJECT :
A. Option to unilaterally authorize the Local Agency to begin a phase which may include Design ,
Construction , Environmental , Utilities , ROW incidentals or Miscellaneous ONLY (does not apply to
Acquisition/Relocation or Railroads) and to update encumbrance amounts(a new Exhibit C must be
attached with the option letter and shall be labeled C- 1, future changes for this option shall be
labeled as follows: C-2, C-3, C-4, etc. ) .
B . Option to unilaterally transfer funds from one phase to another phase (a new Exhibit C must be
attached with the option letter and shall be labeled C- 1 , future changes for this option shall be
labeled as follows : C-2 , C-3 , C-4 , etc. ) .
C . Option to unilaterally do both A and B (a new Exhibit C must be attached with the option letter and
shall be labeled C- 1 , future changes for this option shall be labeled as follows : C-2 , C-3 , C-4 , etc.) .
REQUIRED PROVISIONS :
Option A ( Insert the following language for use with the Option A) :
In accordance with the terms of the original Agreement (insert CMS routing # of the original
Agreement) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here) , the State hereby exercises the option to authorize the Local Agency to begin a
phase that will include (describe which phase will be added and include all that apply — Design,
Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously
budgeted funds for the phase based upon changes in funding availability and authorization . The
encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) is
(insert dollars here) . A new Exhibit C -1 is made part of the original Agreement and replaces Exhibit
C . ( The following is a NOTE only, please delete when using this option. Future changes for this option
for Exhibit C shall be tabled as follows: C4, C-3, 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
here) , the State hereby exercises the option to transfer funds from ( describe phase from which funds
will be moved) to (describe phase to which funds will be moved) based on variance in actual phase
costs and original phase estimates . A new Exhibit C -1 is made part of the original Agreement and
replaces Exhibit C . ( The following is a NOTE only so please delete when using this option: future
changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, 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, C4, 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, C4, 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=30402 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
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
The following checklist has been developed to ensure that all required aspects of a
project approved for Federal funding have been addressed and a responsible party
assigned for each task .
After a project has been approved for Federal funding in the Statewide Transportation
Improvement Program , the Colorado Department of Transportation (CDOT ) Project
Manager, Local Agency project manager, and CDOT Resident Engineer prepare the
checklist . It becomes a part of the contractual agreement between the Local Agency
and CDOT . The CDOT Agreements Unit will not process a Local Agency agreement
without this completed checklist . It will be reviewed at the Final Office Review meeting
to ensure that all parties remain in agreement as to who is responsible for performing
individual tasks .
xv
COLORADO DEPARTMENT OF TRANSPORTATION
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Project No . STIP No . Project Code Region
BRO M455- 121 SR46601 . 027 20825
04
Project Location Date
Spring Creek at Riverside Bridge 6/5/2015
Project Description
Riverside Bridge Replacement
Local Agency Local Agency Project Manager
Fort Collins Jin Wang
CDOT Resident Engineer CDOT 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 "X" 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 "#" will denote that CDOT must concur or approve .
Tasks that will be performed by Headquarters staff will be indicated . The Regions, in accordance with established policies and
procedures , will determine who will perform all other tasks that are the responsibility of CDOT.
The checklist shall be prepared by the CDOT Resident Engineer or the CDOT 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 Local 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 1 Review Project to ensure consistency with STIP and amendments thereto X
FEDERAL FUNDING OBLIGATION AND AUTHORIZATION
4- 1 Authorize funding by phases (CDOT Form 418 - Federal-aid Program Data. Requires FHWA X
concurrence/involvement)
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
5-3 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 concurrence/involvement) X #
5-8 Acquire Right-of-Way (may require FHWA concurrence/involvement) 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, Specifications and Construction Cost Estimates X #
5- 15 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
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
Contracts (CDOT Region EEO/Civil Rights Specialist)
6-2 Determine Applicability of Davis-Bacon Act
This project ❑ is ❑ is not exempt from Davis-Bacon requirements as determined by the X
functional classification of the project location ( Projects located on local roads and rural
minor collectors may be exempt. )
Katrina Kloberdanz 12/20/2016
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
Region EEO/Civil Rights Specialist)
6-4 Title VI Assurances X
Ensure the correct Federal Wage Decision , all required Disadvantaged Business
Enterprise/On-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
7-3 Distribute "Advertisement Set" of Plans and Specifications X
7-4 Review Worksite and Plan Details with Prospective Bidders While Project is Under X
Advertisement
7-5 Open Bids X
7-6 Process Bids for Compliance X
Check CDOT Form 1415 - Certificate of Proposed DBE Participation when the low bidder
meets DBE goals X
Evaluate CDOT Form 1416 - DBE Good Faith Effort Documentation and determine if the
Contractor has made a good faith effort when the low 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 Rejection 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 to Proceed to the Contractor X
8-2 Project Safety X
8-3 Conduct Conferences :
Pre-construction Conference (Appendix B ) X
Pres u rvey
• Construction staking X
• Monumentation X
Partnering (Optional) X
Structural Concrete Pre-Pour (Agenda is in CDOT Construction Manual) X
Concrete Pavement Pre-Paving (Agenda is in CDOT Construction Manual) X
HMA Pre-Paving (Agenda is in CDOT Construction Manual) X
8-4 Develop and distribute Public Notice of Planned Construction to media and local residents X
8-5 Supervise Construction
A Professional Engineer ( PE) registered in Colorado , who will be "in responsible charge of
construction supervision . "
Jin Wang 970-416-2292 X
Local Agency Professional Engineer or Phone number
CDOT Resident Engineer
CDOT Form 1243 09/06 Page 2 of 4
Previous editions are obsolete and may not be used
RESPONSIBLE
NO , DESCRIPTION OF TASK PARTY
LA CDOT
Provide competent, experienced staff who will ensure the Contract work is constructed in X X
accordance with the plans andspecifications
Construction inspection and documentation X
8-6 Approve Shop Drawings X
8-7 Perform Traffic Control Inspections X
8-8 Perform Construction Surveying X
8-9 Monument Right-of-Way X
8- 10 Prepare and Approve Interim and Final Contractor Pay Estimates X
Provide the name and phone number of the person authorized for this task.
Jin Wang 970-416-2292
Local Agency Representative Phone number
8- 11 Prepare and Approve Interim and Final Utility/Railroad Billings X
8- 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
8- 16 Prepare and Submit Monthly 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
Katrina Kloberdanz 970-350-2211
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 (0" to 6" or greater) X
• Fabrication of bearing devices X
9-6 Approve Sources of Materials X
9-7 Independent Assurance Testing (IAT), Local Agency Procedures ® 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 Check Final 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
CONSTRUCTION CIVIL RIGHTS AND 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/Civil Rights 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 Training Questionnaire
10-6 Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for training requirements.) X
10-7 Submit FHWA Form 1391 - Highway Construction Contractor's Annual EEO Report X
FINALS
11 - 1 Conduct Final Project Inspection . Complete and submit CDOT Form 1212 - Final X X
Acceptance Report (Resident Engineer with mandatory Local Agency participation. )
11 -2 Write Final Project Acceptance Letter X
11 -3 Advertise for Final Settlement X
11 -4 Prepare and Distribute Final As-Constructed Plans X
11 -5 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 9 X
11 -8 Obtain CDOT Form 1419 - Contractor DBE Payment Certification from the Contactor and X
submit to the Resident Engineer (Quarterly)
11 -9 Obtain FHWA Form 47 - Statement of Materials and Labor Used . . . from the Contractor NA
11 - 10 Process Final Payment X X
11 - 11 Complete and Submit CDOT Form 950 - Project Closure X
11 - 12 Retain Project Records for Six Years from Date of Project Closure X X
11 - 13 Retain Final Version of Local Agency Contract Administration Checklist X X
cc: 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 09/06 Page 4 of 4
Previous editions are obsolete and may not be used
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
i
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 . 24-30- 1405 . The public notice period , when such notice is required , is a minimum of
15 days prior to the selection of the three most qualified firms and the advertising should be
done in one or more daily newspapers of general circulation .
4 . The request for consultant services should include the scope of work , the evaluation factors
and their relative importance , the method of payment , and the goal of 10% for Disadvantaged
Business Enterprise (DBE) participation as a minimum for the project.
5 . The analysis and selection of the consultants shall be done in accordance with CRS §24-30-
1403 . This section of the regulation identifies the criteria to be used in the evaluation of CDOT
pre-qualified prime consultants and their team . It also shows which criteria are used to short-
list and to make a final selection .
The short-list is based on the following evaluation factors:
a . Qualifications ,
b . Approach to the Work ,
c. Ability to furnish professional services .
d . Anticipated design concepts , and
e . Alternative methods of approach for furnishing the professional services .
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
FHWA-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
II . Nondiscrimination Required Contract Provisions may be sufficient grounds 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 FI IWA.
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
IX. Implementation of Clean 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 Part 230 are
Development Highway System or Appalachian Local Access applicable to all Federal-aid 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 are not applicable to material
supply, engineering, or architectural service contracts.
I. GENERAL
In addition, the contractor and all subcontractors must comply
1 . Form FHWA-1273 must be physically incorporated In each with the following policies: Executive Order 11246, 41 CFR 60,
construction contract funded 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 form in each of the Civil Rights Act of 1964, as amended, and related
subcontract and further require its inclusion in all lower tier 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 Form FHWA-1273 are requirements of the Equal Opportunity Clause in 41 CFR 60-
incorporated by reference for work done under any purchase 1 .4(b) and, for all construction contracts exceeding $100000,
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 lights 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 Fomm FHWA-1273 in 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, rules, 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)
performed 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 contractor's 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 contractor's project activities under
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this contract. The provisions of the Americans with Disabilities 4. Recruitment: When advertising for employees, the
Act of 1990 (42 U.S.C. 12101 et 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 contractor advertisements will be placed in publications 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 work force would normally be derived.
a. The contractor will work with the contracting agency and a. The contractor W11, unless precluded by a valid
the Federal Goverment to ensure that it has made every bargaining agreement, conduct systematic and direct
good faith effort to provide equal opportunity with respect to all recruitment through public and private employee referral
of its terms and conditions of employment and in their review sources likely to yield qualified minorities and women. To
of activities under the contract. meet this requirement, the contractor will 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 assure 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; recruitment 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, pre-apprenticeship, and/or on-the- discriminating against minorities or women, or obligates 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 contractor will 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 authority and responsibility to do applicants will be discussed with employees.
so.
5. Personnel Actions: Wages, working conditions, and
3. Dissemination of Policy. All members of the contractor's employee benefits shall be established and administered, and
staff who are authorized to hire, supervise, promote, and personnel actions of every type, including hiring, upgrading,
discharge employees, or who recommend such action, or who promotion, transfer, demotion, layoff, and termination, shall be
are substantially involved in such action, will be made fully taken without regard to race, color, religion, sex, national
cognizant of, and will implement, the contractor's 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 wilt 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 contractor will
all major aspects of the contractor's EEO obligations within promptly take corrective action. If the review indicates that the
thirty days following their reporting for 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
contractor's 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 contractor's 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 contractor's 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 wit assist in locating, qualifying, and
increasing the skills of minorities and women who are
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applicants for employment or current employees. Such efforts with the requirements for and comply with the Americans with
should be aimed at developing full journey level status Disabilities Act and all rules and regulations established there
employees in the type of trade or job classification involved. under. Employers must provide reasonable accommodation in
all employment activities unless to do so would cause an
b. Consistent with the contractor's work force requirements undue hardship.
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs, i.e., 9. Selection of Subcontractors, Procurement of Materials
apprenticeship, and on4he-job training programs for the and Leasing of Equipment: The contractor shall not
geographical area of contract performance. In the event a discriminate on the grounds of race, color, religion, sex,
special provision fortralning is provided under this contract, national origin, age or disability in the selection and retention
this subparagraph will be superseded as Indicated in the of subcontractors, Including procurement of materials and
special provision. The contracting agency may reserve leases of equipment. The contractor shall take all necessary
training positions for persons who receive welfare assistance and reasonable steps to ensure nondiscrimination in the
In accordance with 23 U.S.C. 140(a). administraflon of this contract.
c. The contractorwill advise employees and applicants for a. The contractor shall notify all potential subcontractors and
employment of available training programs and entrance suppliers and lessors of their EEO obligations under this
requirements for each. contract.
d. The contractor will periodically 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
unions 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 opportunities for minorities and women. Actions by reference.
the contractor, either directly or through a contractor'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
a. The contractor still use good faith efforts to develop, in applicable requirements of 49 CFR Part 26 in the award and
cooperation with the unions, joint training programs aimed administration of DOT-assisted contracts. Failure by the
toward qualifying more minorities and women for membership contractor to carry out these requirements is a material breach
in the unions and increasing the skills of minorities and women of this contract, which may result in the termination 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 and 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, national 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 times and places for inspection by authorized
practices and 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 work 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
and/or qualiflable minorities and women. 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 collective
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 report 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 work
special provisions, such contractor shall Immediately notify the classification required by the contract work. This information is
contracting agency. to be reported on Form FFIWA-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 July. If on-the-job
Employees with Disabilities : The contractor must be familiar training is being required by special provision, the contractor
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Page 3 of 12
will be required to collect and report training data. The of paragraph 1 .d, of this section; also, regular contributions
employment data should reflect the work force on board during made or costs incurred for more than a weekly period (but not
all or any part of the last payroll period preceding the end of less often than quarterly) under plans, funds, or programs
July. which cover the particular weekly period, are deemed to be
constructively made or Incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate
ill. NONSEGREGATED FACILITIES wage rate and fringe benefits on the wage determination for
the classification of work actually performed, without regard to
This provision Is applicable to all Federal-aid construction skill, except as provided in 29 CFR 5.5(aX4). Laborers or
contracts and to all related construction subcontracts of mechanics performing work in more than one classification
$10,000 or more. may be compensated at the rate specified for each
classification for the time actually worked therein: Provided,
The contractor must ensure that facilities provided for That the employer's payroll records accurately set forth the
employees are provided in such a manner that segregation on time spent In each classification in which work Is performed.
the basis of race, color, religion, sex, or national origin cannot The wage determination (including any additional classification
result. The contractor may neither require such segregated and wage rates conformed under paragraph 1 .b. of this
use by written or oral policies nor tolerate such use by section) and the Davis-Bacon poster (WH-1321 ) shall be
employee custom. The contractor's obligation extends further posted at all times by the contractor and Its subcontractors at
to ensure that its employees are not assigned to perform their the site of the work in a prominent and accessible place where
services at any location, under the contractor's 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 require that any class of
time clocks, restrooms, washrooms, locker rooms, and other laborers or mechanics, including helpers, which is not listed in
storage or dressing areas, parking lots, drinking fountains, the wage determination and which is to be employed under the
recreation or entertainment areas, transportation, and housing contract shall be classified in conformance with the wage
provided for employees. The contractor shall provide separate
or single-user restrooms and necessary dressing or sleeping determination. The contracting officer shall approve areas to assure privacy between sexes. additional classification and wage rate and fringe 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 determination; and
projects exceeding $2,000 and to all related subcontracts and
lower-tier subcontracts (regardless of subcontract size). The (11) The classification is utilized in the area by the
requirements apply to all projects located within the dght-of- construction industry; and
way of a roadway that is functionally classified as Federal-aid
highway. This excludes roadways functionally classified as
local roads or rural minor collectors, which are exempt. (iii) 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 (if known), or their
related matters" with minor revisions to conform to the FHWA- representatives, and the contracting officer agree on the
1273 format and FHWA program requirements. classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of
the action taken shall be sent by the contracting officer to the
1 . Minimum wages Administrator of the Wage and Hour 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 unconditionally 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 regulations issued by the Secretary of Labor officer within the 30-day period that additional time is
under the Copeland Act (29 CFR part 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 determination of the to be employed in the classification or their representatives,
Secretary of 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 officer, to the Wage and Hour Administrator for
fide fringe benefits under section 1 (bX2) 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 mechanics, subject to the provisions 30 days of receipt and so advise the contracting officer or
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Page 4 of 12
will notify the contracting officer within the 30-day period that Bacon Act, the contractor shall maintain records which show
additional fime is necessary. that the commitment to provide such benefits Is enforceable ,
that the plan or program is financially responsible, and that the
(4) The wage rate (including fringe benefits where plan or program has been communicated in writing to the
a laborers or mechanics affected, and records which show the
appropriate) determined pursuant to paragraphs 1 .b.(2) or
1 .b.(3) of this section, shall be paid to all workers performing costs anticipated or the actual cost incurred (n providing such
work In the classification under this contract from the first benefits. Contractors employing apprentices or trainees under
day on which work is performed in the classification. registration
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 Pie ratios and wage rates prescribed in the
contract for a class of laborers 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 b.(1 ) The contractor shall submit weekly for each week in
or shall pay another bona fide fringe benefit or an hourly cash which any contract work is performed a copy of all payrolls to
equivalent thereof. the contracting agency. The payrolls submitted shall set out
accurately 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)(i), except that full social
other third person, the contractor may consider as part of the security numbers and home addresses shall not be included
wages of any laborer or mechanic the amount of any costs on weekly transmittals. Instead the payrolls shall only need to
reasonably anticipated in providing bona fide fringe benefits Include an individually Identifying number for each employee
under a plan or program, Provided, That the Secretary of e.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 WH-347is
been met. The Secretary of Labor may require the contractor available for this purpose from the Wage and Hour Division
to set aside In a separate account assets for the meeting of Web site at http://vvww.dol.goviesa/whdKormsAvh347instr.htni
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 Contractors 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 authorized 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 contractor under this contract, or any other Federal requirements. It is not a violation of this section for a prime
contract with the same prime contractor, or any other federally- contractor 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 submission 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 OStatement of Compliance," signed by the contractor or
contractor or any subcontractor the full amount of wages subcontractor or his or her agent who pays or supervises the
required by the contract. In the event of failure to pay any payment of the persons employed under the contract and shall
laborer or mechanic, including any apprentice, trainee, or certify the following:
helper, employed or working 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 (aX3)(ii) of
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)(i) 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 (it) That each laborer or mechanic (including each
helper, apprentice, and trainee) employed on
maintained by the contractor during the course of the work and the contract
preserved for a period of three years thereafter for all laborers during the payroll period has been paid the Tull weekly
wages eared, without rebate, either
and mechanics working at the site of the work. Such records directly or indirectly,
shall contain the name, address, and social security number of and that no deductions have beennmade 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
Part 3;
anticipated for bona fide fringe benefits or cash equivalents
thereof of the types described in section 1 (b)(2)(B) of the
Davis-Bacon Act), daily and weekly number of hours worked, (III) 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 )(iv) that cash equivalents for the classification of work performed,
the wages of any laborer or mechanic include the amount of as specified 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-
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(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 fringe 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" required by paragraph 3.b.(2) of apprenticeship program does not specify fringe benefits,
this section. apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the 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 civil or criminal practice prevails for time applicable apprentice classification,
prosecution under section 1001 of title 18 and section 231 of fringes shall be paid in accordance with that determination.
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 Apprenticeshlp Agency
required under paragraph 3.a. of this section available for recognized by the Office, withdraws approval of an
inspection, copying, or transcription by authorized apprenticeship program, the contractor will no longer be
representatives of the contracting agency, the State DOT, the permitted
FHWA, or the Department of Labor, and shall permit such prredodeteerrmined rate for the work performed until an acceptable
utilize apprentices at less than the applicable
n
representatives to interview employees during working hours program is approved.
on the job. If the contractor or subcontractor fails to submit the
required records or to make them available, the FHWA may, b. Trainees (programs of the USDOL).
after written notice to the contractor, the contracting agency or
the State DOT, take such action as may be necessary to Except as provided in 29 CFR 5.16. trainees will not be
cause the suspension of any further payment, advance, or permitted to work at less than the predetermined rate for the
guarantee of funds. Furthermore, failure to submit the required work performed unless they are employed pursuant to and
records upon request or to make such records available may individually registered in a program which has received prior
be grounds for debarment action pursuant to 29 CFR 5. 12, 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 work 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 the 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 determinatlon 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 apprentices tojoureymen on the Job rate who is not registered and participating in a training plan
site in any craft class cation shall not be greater than the ratio approved by the Employment and Training Administration shall
permitted to the contractor as to the entire work force under be paid not less than the applicable wage rate on the wage
the registered program. Any worker listed on a payroll at an determination for the a perclassformingcation
of work actually performed.
apprentice wage rate, who Is not registered or otherwise In addition, any trainee performing thewor gi the Job site in
employed as stated above, shall be paid not less than the excess of the ratio permitted under the registered program
applicable wage rate on the wage determination for the shall be paid not less than the applicable wage rate on the
classification of work actually performed. In addition, any wage determination for the work 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 will 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 contractors or subcontractor's registered c. Equal employment opportunity. The utilization of
program shall be observed. apprentices, trainees and journeymen 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
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Page 6 of 12
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and V. CONTRACT WORK HOURS AND SAFETY
skill training programs which have been certified by the STANDARDS ACT
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not The following clauses apply to any Federal-aid construction
subject to the requirements of paragraph 4 of this Section IV. contract In an amount in excess of $100,000 and subject to the
The straight time hourly wage rates for apprentices and overtime provisions of the Contract Work Hours and Safety
trainees under such programs will be established by the Standards Act. These clauses shall be inserted in addition to
particular programs. The ratio of apprentices and trainees to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As
journeymen shall not be greater than permitted by the terms of used in this paragraph, the terms laborers and mechanics
the particular program. Include watchmen and guards.
5, Compliance with Copeland Act requirements. The 1 . Overtime requirements. No contractor or subcontractor
contractor shall comply with the requirements of 29 CFR part contracting for any part of the contract work which may require
3, which are Incorporated by reference in this contract. or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
6. Subcontracts. The contractor or subcontractor shall insert workweek in which he or she is employed on such work to
Form FHWA-1273 In any subcontracts and also require the work in excess of forty hours in such workweek unless such
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 than 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 contract clauses in 29 CFR 5.5.
2. Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the clause set forth
7. Contract termination: debarment. A breach of the
In paragraph (1 .) of this section, the contractor and any
contract clauses in 29 CFR 5.5 may be grounds for termination
of the contract, and for debarment as a contractor and a subcontractor responsible therefor shall be liable for the
subcontractor as provided in 29 CFR 5. 12. unpaid wages. In addition, such contractor and subcontractor
shall be liable to the United States (in the case of work done
under contract for the District of Columbia or a territory, to such
8. Compliance with Davis-Bacon 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 Acts 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
be subject to the general disputes clause of this contract. Such hours without payment of the overtime wages required by the
disputes shall be resolved in accordance with the procedures clause set forth in paragraph (1 .) of this section.
of the Department of Labor set forth in 29 CFR parts 5, 6, and
7. Disputes within 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 contacting agency shall upon its ovm action
contracting agency, the 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 federally-assisted contract subject to the Contract Work
a. By entering Into this contract, the contractor certifies that Hours and Safety Standards Act, which is held by the same
neither it (nor he or she) nor any person or firm who has an prime contractor, such sums as may be determined to be
interest in the contractor's firm is a person or firm ineligible to necessary to satisfy any liabilities of such contractor or
be awarded Goverment 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(a)(1 ). provided in the clause set forth In paragraph (2.) of this
section.
b. No part of this contract shall be subcontracted to any person
or fine ineligible for award of a Goverment contract by virtue 4. Subcontracts. The contractor or subcontractor shall insert
of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1 ). In any subcontracts the clauses set forth in paragraph (1 .)
through (4 .) of this section and also a clause requiring the
subcontractors to include these clauses in any lower tier
statements
c. The penalty for making false sents is prescribed in the
U.S. Criminal Code, 18 U.S.C. state 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.
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Page 7 of 12
evidenced in writing and that It contains all pertinent provisions
VI. SUBLETTING OR ASSIGNING THE CONTRACT and requirements of the prime contract.
This provision is applicable to all Federal-aid construction 5. The 30% self-performance requirement of paragraph (1 ) is
contracts on the National Highway System. not applicable to design-build contracts; however, contracting
agencies may establish their own self-performance
1 . The contractor shall perform with its own organization requirements.
contract work amounting to not less than 30 percent (or a
greater percentage if specified elsewhere in the contract) of
the total original contract price, excluding any specialty items VII. SAFETY: ACCIDENT PREVENTION
designated by the contracting agency. Specialty Items may be
performed by subcontract and the amount of any such T h i s p r o v i s i o n i s applicable to all Federal-aid
specialty items performed may be deducted from the total construction contracts and to all related subcontracts,
original contract price before computing the amount of work
required to be performed by the contractor's own organization 1 . In the performance of this contract the contractor shall
(23 CFR 635. 116). comply with all applicable Federal, State, and local laws
governing safety, health, and sanitation (23 CFR 635). The
a. The term "perform work with Its own organization" refers contractor shall provide all 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 or rented 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 regulatory requirements. Leased 2. It Is a condition of this contract, and shall 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 work in surroundings or under conditions
supervision of the day-today activities of the leased which are unsanitary, hazardous or dangerous to his/her
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 Wth 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 individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for 3. Pursuant to 29 CFR 1926.32 it 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, shall 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 and to carry
b. "Specialty Items" shall 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 whole and In general are to be limited to minor
components of the overall contract. 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 which 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 furnish (a) a competent superintendent degree of reliability on statements and representations made
or supervisor who is employed by the firm, 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. Willful falsification, distortion, or
own organizational resources (supervision, management, and misrepresentation with respect to any facts related to the
engineering services) as the contracting officer determines is project is a violation of Federal taw. To prevent any
necessary to assure the performance of the contract. misunderstanding regarding the seriousness of these and
similar acts, Form 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
contracting officer, or authorized representative, and such with the project:
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the
contract. Written consent will 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 employee of the United covered transaction. The prospective first tier participant shall
States, or of any State or Territory, or whoever, whether a submit an explanation of why it cannot provide the certification
person, association, firm, or corporation, knowingly makes any set out below. The certification or explanation will be
false statement, false representation, or false report as to the considered In connection with the department or agency's
character, quality, quantity, or cost of the material used or to determination whether to enter into this transaction. However,
be used, or the quantity or quality of the work performed or to failure of the prospective first tier participant to furnish a
be performed, or the cost thereof In connection with the certification or an explanation shall disqualify such a person
submission of plans, maps, specifications, contracts, or costs from participation in this transaction.
of construction on any highway or related project submitted for
approval to the Secretary of Transportation; or c. The certification in this clause Is a material representation
of fact upon which reliance was placed when the contracting
Whoever knowingly makes any false statement, false agency determined to enter Into this transaction. If It is later
representation, false report or false claim with respect to the determined that the prospective participant knowingly rendered
character, quality, quantity, or cost of any work performed or to an erroneous certification, In addition to other remedies
be performed, or materials furnished or to be furnished, in available to the Federal Government, the contracting agency
connection with the construction of any highway or related may terminate this transaction for cause of default.
project approved by the Secretary of Transportation; or
d. The prospective first her participant shall provide
Whoever knowingly makes any false statement or false immediate written notice to the contracting agency to whom
representation as to material fact in any statement, certificate, this proposal is submitted if any time the prospective first tier
or report submitted pursuant to provisions of the Federal-aid participant learns that its certification was erroneous when
Roads Act approved July 1 , 1g16, (30 Stat. 355), as amended submitted or has become erroneous by reason of changed
and supplemented; circumstances.
Shall be fined under this title or imprisoned not more than 5 e. The terms "covered transaction," "debarred,"
years or both." "suspended," "Ineligible," 'participant;"'person," "principal;'
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180 and 1200. "First Tier Covered
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Transactions" refers to any covered transaction between a
WATER POLLUTION CONTROL ACT grantee or subgrantee of Federal funds and a participant (such
as the prime or general contract). "Lower Tier Covered
This provision is applicable to all Federal-aid construction Transactions" refers to any covered transaction under a First
contracts and to all related subcontracts. Tier Covered Transaction (such as subcontracts). 'First Tier
Participant' refers to the participant who has. entered into a
By submission of this bid/proposal or the execution of this covered transaction with a grantee or subgrantee of Federal
contract, or subcontract, as appropriate, the bidder, proposer, funds (such as the prime or general contractor). "Lower Tier
Federal-aid construction contractor, or subcontractor, as Participant' refers any participant who has entered Into a
appropriate, will be deemed to have stipulated 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 f. The prospective first tier participant agrees by submitting
award due to a violation of Section 508 of the Clean Water Act this proposal that, should the proposed covered transaction be
or Section 306 of the Clean Air Act. entered into, it shall not knowingly enter into any lower tier
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
X. CERTIFICATION REGARDING DEBARMENT, "Certification Regarding Debarment, Suspension, Ineligibility
SUSPENSION, INELIGIBILITY AND VOLUNTARY and Voluntary Exclusion-Lower 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 Federal-aid construction tier covered transactions and in all solicitations for lower tier
contracts, design-build contracts, subcontracts, lower-tier covered transactions exceeding the $25,000 threshold.
subcontracts, purchase orders, 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. transaction 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 verify 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 webslte (httos:/hvww.eols.00vl), 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
0
Page 9 of 12
t. Nothing contained in the foregoing shall be construed to this transaction originated may pursue available remedies,
require the establishment of a system of records In order to including suspension and/or debarment.
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant c. The prospective lower tier participant shall provide
Is not required to exceed that which is normally possessed by immediate written notice to the person to which this proposal is
a prudent person in the ordinary course of business dealings. submitted if at any time the prospective lower tier participant
teams that Its certification was erroneous by reason of
j. Except for transactions authorized under paragraph (f) of changed circumstances.
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a d. The terms "covered transaction," "debarred,"
person who is suspended, debarred, ineligible, or voluntarily "suspended," "ineligible," ')participant" "person," "principal."
excluded from participation In this transaction, in addition to and "voluntarily excluded," as used In this clause, are defined
other remedies available to the Federal Goverment, the in 2 CFR Parts 180 and 1200. You may contact the person to
department or agency may 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 contract). "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 subgrantee 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: Participant" refers any participant who has entered into a
covered transaction with a First Tier Participant or other Lower
(1 ) Are not presently debarred, suspended, proposed for Tier Participants (such as subcontractors and suppliers).
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal a. The prospective lowertierparticipant 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 a civil judgment rendered debarred, suspended, declared ineligible, or voluntarily
against them for commission of fraud or a criminal offense in excluded from participation in this covered transaction, unless
connection 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, f. 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 othervse 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 (a)(2) 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
applicationlproposal had one or more public transactions 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 attach 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 (hftos:/Mnvw.enls.aov//), 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 shall 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 tier 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, if 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
10
Page 10 of 12
department or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment.
. * . . .
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Excluslon—Lower Tier
Participants:
1 . The prospective lower tier participant certifies, by
submission of this proposal, that neither it nor its principals Is
presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating 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 attach 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 which 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 making 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 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 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 all lower tier
subcontracts, which exceed 8100,000 and that all such
recipients shall certify and disclose accordingly.
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Page 11 of 12
ATTACHMENT A - EMPLOYMENT AND MATERIALS 6. The contractor shall include the provisions of Sections 1
PREFERENCE FOR APPALACHIAN DEVELOPMENT through 4 of this Attachment A in every subcontract for 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 Act of 1965.
1 . During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done
as on-site work, 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 (1 c) 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 contract work, (b) the number of employees required In
each classification, (c) the date on which the participant
estimates such employees will be required, and (d) any other
pertinent information required by the State Employment
Service to complete the job order form. 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 (1 c)
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.
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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 .
Be Executive Order 11246
Executive Order 11246 of September 24 , 1965 entitled " Equal Employment Opportunity , " as
amended by Executive Order 11375 of October 13 , 1967 and as supplemented in Department
of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of
$ 10 , 000 by the Local Agencys and their contractors or the Local Agencys) .
C . Copeland "Anti -Kickback" Act
The Copeland "Anti- Kickback" Act ( 18 U . S . C . 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and sub-Agreements for construction or repair) .
D . Davis-Bacon Act
The Davis- Bacon Act (40 U . S . C . 276a to a-7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2 , 000 awarded by the Local
Agencys and the Local Agencys when required by Federal Agreement program legislation . This
act requires that all laborers and mechanics employed by contractors or sub-contractors to work
on construction projects financed by federal assistance must be paid wages not less than those
established for the locality of the project by the Secretary of Labor) .
E . Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U . S . C . 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5) . (Construction
contracts awarded by the Local Agency' s in excess of $2 , 000 , and in excess of $2 , 500 for other
contracts which involve the employment of mechanics or laborers) .
F . Clear Air Act
Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U . S . C .
1857 (h ) , section 508 of the Clean Water Act (33 U . S . C . 1368) . Executive Order 11738 , and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts , subcontracts , and
sub-Agreements of amounts in excess of $ 100 , 000) .
G . Energy Policy and Conservation Act
Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
( Pub . L . 94- 163) .
H . OMB Circulars
Page 1 of 3
Office of Management and Budget Circulars A-87 , A-21 or A- 122 , and A- 102 or A- 1101
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 - 121347 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- 171 101 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. seg . and its implementing
regulation , 45 C . F . R . Part 91 ; Section 504 of the Rehabilitation Act of 1973 , 29 U . S . C . 794 , as
amended , and implementing regulation 45 C . F . R . Part 84 .
O . 23 C . F. R. Part 172
23 C . F . R . Part 172 , concerning "Administration of Engineering and Design Related Contracts" .
P . 23 C . F. R Part 633
23 C . F . R Part 633 , concerning " Required Contract Provisions for Federal-Aid Construction
Contracts" .
Q . 23 C . F . R. Part 635
23 C . F . R . Part 635 , concerning "Construction and Maintenance Provisions" .
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of
1973
Title VI of the Civil Rights Act of 1964 and 162 (a) of the Federal Aid Highway Act of 1973 . The
requirements for which are shown in the Nondiscrimination Provisions , which are attached
hereto and made a part hereof.
S . Nondiscrimination Provisions :
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162 (a) of the Federal
Aid Highway Act of 1973 , the Contractor, for itself, its assignees and successors in interest,
agree as follows :
i . Compliance with Regulations
The Contractor will comply with the Regulations of the Department of Transportation relative
to nondiscrimination in Federally assisted programs of the Department of Transportation
(Title 49 , Code of Federal Regulations, Part 21 , hereinafter referred to as the " Regulations") ,
which are herein incorporated by reference and made a part of this Agreement.
ii . Nondiscrimination
The Contractor, with regard to the work performed by it after award and prior to completion of
the contract work, will not discriminate on the ground of race , color, sex , mental or physical
handicap or national origin in the selection and retention of Subcontractors, including
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procurement of materials and leases of equipment. The Contractor will not participate either
directly or indirectly in the discrimination prohibited by Section 21 . 5 of the Regulations ,
including employment practices when the contract covers a program set forth in Appendix C
of the Regulations.
iii . Solicitations for Subcontracts , Including Procurement of Materials and
Equipment
In all solicitations either by competitive bidding or negotiation made by the Contractor for
work to be performed under a subcontract, including procurement of materials or equipment ,
each potential Subcontractor or supplier shall be notified by the Contractor of the
Contractor's obligations under this Agreement and the Regulations relative to
nondiscrimination on the ground of race , color, sex, mental or physical handicap or national
origin .
iv. Information and Reports
The Contractor will provide all information and reports required by the Regulations , or orders
and instructions issued pursuant thereto and will permit access to its books , records ,
accounts , other sources of information and its facilities as may be determined by the State or
the FHWA to be pertinent to ascertain compliance with such Regulations , orders and
instructions . Where any information required of the Contractor is in the exclusive possession
of another who fails or refuses to furnish this information , the Contractor shall so certify to the
State , or the FHWA as appropriate and shall set forth what efforts have been made to obtain
the information .
v. Sanctions for Noncompliance
In the event of the Contractor's noncompliance with the nondiscrimination provisions of this
Agreement, the State shall impose such contract sanctions as it or the FHWA may determine
to be appropriate , including , but not limited to : a . Withholding of payments to the Contractor
under the contract until the Contractor complies , and/or b. Cancellation , termination or
suspension of the contract , in whole or in part.
T. Incorporation of Provisions §22
The Contractor will include the provisions of paragraphs A through F in every subcontract,
including procurement of materials and leases of equipment, unless exempt by the Regulations ,
orders , or instructions issued pursuant thereto . The Contractor will take such action with respect
to any subcontract or procurement as the State or the FHWA may direct as a means of
enforcing such provisions including sanctions for noncompliance ; provided , however, that, in the
event the Contractor becomes involved in , or is threatened with , litigation with a Subcontractor
or supplier as a result of such direction , the Contractor may request the State to enter into such
litigation to protect the interest of the State and in addition , the Contractor may request the
FHWA to enter into such litigation to protect the interests of the United States .
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38 . EXHIBIT K — SUPPLEMENTAL FEDERAL PROVISIONS
State of Colorado
Supplemental Provisions for
Federally Funded Contracts , Grants , and Purchase Orders
Subject to
The Federal Funding Accountability and Transparency Act of 2006 (FFATA) , As Amended
Revised as of 3=20=13
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded ,
in whole or in part, with an Award of Federal funds . In the event of a conflict between the provisions of these
Supplemental Provisions , the Special Provisions , the contract or any attachments or exhibits incorporated into
and made a part of the contract, the provisions of these Supplemental Provisions shall control .
1 . Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the
meanings ascribed to them below.
1 . 1 . "Award " means an award of Federal financial assistance that a non-Federal Entity receives or
administers in the form of:
1 . 1 . 1 . Grants ;
1 . 1 .2 . Contracts;
1 . 1 .3. Cooperative agreements , which do not include cooperative research and development
agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U . S. C . 3710);
1 . 1 .4. Loans;
1 A 95. Loan Guarantees ;
1 . 1 .6 . Subsidies;
1 A w7 . Insurance;
1 . 1 .8 . Food commodities ;
1 . 1 .9 . Direct appropriations;
1 . 1 . 10. Assessed and voluntary contributions ; and
1 . 1 . 11 . Other financial assistance transactions that authorize the expenditure of Federal funds by
non-Federal Entities.
Award does not include:
1 . 1 . 12. Technical assistance, which provides services in lieu of money;
1 . 1 . 13. A transfer of title to Federally-owned property provided in lieu of money; even if the award
is called a grant;
1 . 1 . 14. Any award classified for security purposes ; or
1 . 1 . 15. Any award funded in whole or in part with Recovery funds , as defined in section 1512 of
the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5) .
1 .2. "Contract" means the contract to which these Supplemental Provisions are attached and includes all
Award types in §1 . 1 . 1 through 1 . 1 . 11 above.
1 .3. "Contractor" means the party or parties to a Contract funded , in whole or in part, with Federal
financial assistance, other than the Prime Recipient , and includes grantees , subgrantees ,
Subrecipients , and borrowers . For purposes of Transparency Act reporting , Contractor does not
include Vendors.
1 .4. " Data Universal Numbering System ( DUNS) Number" means the nine-digit number established
and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet's
website may be found at: http ://fedgov. dnb . com/webform .
1 .5. " Entity" means all of the following as defined at 2 CFR part 25, subpart C ;
1 .5. 1 . A governmental organization , which is a State, local government, or Indian Tribe ;
1 .5.2. A foreign public entity;
1 .5.3. A domestic or foreign non-profit organization ;
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1 .6.4. 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
htta ://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 . 16.4. 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
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is not subject to the terms and conditions of the Federal award . Program compliance requirements do
not pass through to a Vendor.
2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the
regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any
revisions to such provisions or regulations shall automatically become a part of these Supplemental
Provisions , without the necessity of either party executing any further instrument. The State of Colorado
may provide written notification to Contractor of such revisions , but such notice shall not be a condition
precedent to the effectiveness of such revisions .
3 . System for Award Management (SAM ) and Data Universal Numbering System ( DUNS) Requirements.
3 . 1 , SAM . Contractor shall maintain the currency of its information in SAM until the Contractor submits the
final financial report required under the Award or receives final payment, whichever is later.
Contractor shall review and update SAM information at least annually after the initial registration , and
more frequently if required by changes in its information .
3.2. DUNS . Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor's information in Dun & Bradstreet, Inc. at least annually after the initial registration , and
more frequently if required by changes in Contractor' s information .
4. Total Compensation . Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal year if:
4. 1 . The total Federal funding authorized to date under the Award is $25 , 000 or more; and
4.2. In the preceding fiscal year, Contractor received :
4.2.1 . 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.2.2 . $25 , 000 , 000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.3 . The public does not have access to information about the compensation of such Executives through
periodic reports filed under section 13(a) or 15(d ) of the Securities Exchange Act of 1934 ( 15 U . S . C .
78m(a) , 78o(d) or § 6104 of the Internal Revenue Code of 1986 .
5. Reporting . Contractor shall report data elements to SAM and to the Prime Recipient as required in §7
below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment
shall be made to Contractor for providing any reports required under these Supplemental Provisions and the
cost of producing such reports shall be included in the Contract price . The reporting requirements in §7
below are based on guidance from the US Office of Management and Budget (OMB) , and as such are
subject to change at any time by OMB. Any such changes shall be automatically incorporated into this
Contract and shall become part of Contractor's obligations under this Contract, as provided in §2 above.
The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements
at http ://www. colorado. aov/dpa/dfp/sco/FFATA. htm .
6. Effective Date and Dollar Threshold for Reporting . The effective date of these Supplemental Provisions
apply to new Awards as of October 1 , 2010. Reporting requirements in §7 below apply to new Awards as of
October 1 , 2010, if the initial award is $25 , 000 or more . If the initial Award is below $25, 000 but subsequent
Award modifications result in a total Award of $25 , 000 or more, the Award is subject to the reporting
requirements as of the date the Award exceeds $25, 000 . If the initial Award is $25 , 000 or more, but funding
is subsequently de-obligated such that the total award amount falls below $25 , 000 , the Award shall continue
to be subject to the reporting requirements.
7. Subrecipient Reporting Requirements . If Contractor is a Subrecipient, Contractor shall report as set forth
below.
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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 A Subrecipient's address , including : Street Address , City, State, Country, Zip + 4 , and
Congressional District;
7. 1 .5 Subrecipient's top 5 most highly compensated Executives if the criteria in §4 above are
met; and
7. 1 .6 Subrecipient's Total Compensation of top 5 most highly compensated Executives if
criteria in §4 above met.
7.2 To Prime Recipient, A Subrecipient shall report to its Prime Recipient, upon the effective date of the
Contract, the following data elements :
7. 2. 1 Subrecipient's DUNS Number as registered in SAM .
7. 2.2 Primary Place of Performance Information , including : Street Address , City, State,
Country, Zip code + 4 , and Congressional District.
8. Exemptions ,
8. 1 . These Supplemental Provisions do not apply to an individual who receives an Award as a natural
person , unrelated to any business or non -profit organization he or she may own or operate in his or
her name.
8.2 A Contractor with gross income from all sources of less than $300 , 000 in the previous tax year is
exempt from the requirements to report Subawards and the Total Compensation of its most highly
compensated Executives .
8.3 Effective October 1 , 2010 , "Award" currently means a grant , cooperative agreement, or other
arrangement as defined in Section 1 . 1 of these Special Provisions . On future dates "Award" may
include other items to be specified by OMB in policy memoranda available at the OMB Web site ;
Award also will include other types of Awards subject to the Transparency Act.
8.4 There are no Transparency Act reporting requirements for Vendors .
Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default
under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if
the default remains uncured five calendar days following the termination of the 30 day notice period . This
remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law
or in equity.
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