HomeMy Public PortalAboutResolution 2014-05-07 Authorizing Execution of an Intergovernment Agreement with the Colorado Department of Transportation and Local Funding Agreement with Rendezvous and Grand Park Regarding the Fraser US 40 Highway Improvement Project TOWN OF FRASER
BOARD OF TRUSTEES
Resolution No. 2014-05-07
A RESOLUTION AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION AND
A LOCAL FUNDING AGREEMENT WITH RENDEZVOUS AND GRAND PARK
REGARDING THE FRASER US40 HIGHWAY IMPROVEMENT PROJECT, SUBJECT
TO CERTAIN CONDITIONS.
WHEREAS, the Town Board finds that the Fraser US40 Highway Improvement
Project effectively leverages private improvement traffic signal projects at Rendezvous
Road and First Street toward funding capacity improvements which provide significant
public benefit.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF FRASER, COLORADO, THAT:
1. The Board of Trustees hereby approves the State of Colorado Department of
Transportation Agreement with Town of Fraser for US40 Improvements (NHPP
0403-058 19874), a copy of which is attached hereto (hereinafter referred to as the
"CDOT IGA"). The Mayor and Town Clerk are authorized to execute said
Agreement on behalf of the Town and the Town Clerk is authorized to transmit three
(3) signed originals to the Colorado Department of Transportation for approval and
signature upon satisfaction of the conditions specified in Paragraph 2 below.
2. The Board of Trustees hereby approves the Highway 40 Improvement Project
Agreement between the Town of Fraser, Rendezvous Colorado, LLC and Grand
Park Development, LLC, a copy of which is attached hereto (hereinafter referred to
as the "Local Funding Agreement"). The Mayor and Town Clerk are authorized to
execute said Agreement on behalf of the Town upon satisfaction of all of the
following conditions:
a. Due execution of said Local Funding Agreement, with all Exhibits referred to
therein, by Rendezvous Colorado, LLC and Grand Park Development, LLC and
delivery of one or more originally signed copies to the Town Clerk;
b. Receipt of payment by the Town from Rendezvous Colorado, LLC and Grand
Park Development, LLC, in good funds, in the amount of$364,060 each,
representing their respective shares of the local agency match funds payable
pursuant to Section 2.4 of the Local Funding Agreement.
If said conditions are not fully satisfied within six (6) working days after the date
hereof, this Resolution shall be automatically rescinded and shall be of no force or
effect, unless the time for satisfaction of such conditions is extended by further
action of the Board.
3. Provided that the conditions specified in Paragraph 2 hereof are fully satisfied and
the CDOT IGA is approved and signed by the Department of Transportation, the
Board of Trustees authorizes the expenditure of the local agency match funds
pursuant to the CDOT IGA.
READ, PASSED ON ROLL CALL VOTE, AND ADOPTED BY THE BOARD OF
TRUSTEES THIS day of , 2014.
Votes in favor: BOARD OF TRUSTEES OF THE
Votes opposed: TOWN OF FRASER, COLORADO
Absent:
Abstained: BY: - f
of F S�P Mayo
ATTEST:
( s LSEAL
�oLOIR Town Clerk
(FMLAWRK)
Project: US40 Improvements NHPP 0403-058 (19874)
Region:3 (JG)
OF COLORADO
Department of Transportation
Agreement
with
TOWN OF FRASER
Rev. 7/8/09
Routing #:14-HA3-X00188
SAP ID #: 331001118
28.
TABLE OF CONTENTS
SCOPE OF WORK
1.
PARTIES.................................................................................................................................................2
- LOCAL AGENCY RESOLUTION
2.
EFFECTIVE DATE AND NOTICE OF NONLIABILITY....................................................................2
FUNDING PROVISIONS
3.
RECITALS..............................................................................................................................................2
- OPTION LETTER
4.
DEFINITIONS........................................................................................................................................2
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
5.
TERM AND EARLY TERMINATION..................................................................................................3
- CERTIFICATION FOR FEDERAL -AID CONTRACTS
6.
SCOPE OF WORK.................................................................................................................................3
DISADVANTAGED BUSINESS ENTERPRISE
7.
OPTION LETTER MODIFICATION.....................................................................................................7
-LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
8.
PAYMENTS............................................................................................................................................7
CONTRACT
9.
ACCOUNTING.......................................................................................................................................9
FEDERAL REQUIREMENTS
10.
REPORTING - NOTIFICATION...........................................................................................................9
SUPPLEMENTAL FEDERAL PROVISIONS
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 1N DATA, DOCUMENTS, AND COMPUTER SOFTWARE.............................................15
20.
GOVERNMENTAL IMMUNITY........................................................................................................15
21.
STATEWIDE CONTRACT MANAGEMENT SYSTEM....................................................................16
22.
FEDERAL REQUIREMENTS.............................................................................................................16
23.
DISADVANTAGED BUSINESS ENTERPRISE (DBE).....................................................................16
24.
DISPUTES............................................................................................................................................16
25.
GENERAL PROVISIONS....................................................................................................................17
26.
COLORADO SPECIAL PROVISIONS...............................................................................................19
27.
SIGNATURE PAGE.............................................................................................................................21
28.
EXHIBIT A-
SCOPE OF WORK
29.
EXHIBIT B
- LOCAL AGENCY RESOLUTION
30.
EXHIBIT C-
FUNDING PROVISIONS
31.
EXHIBIT D
- OPTION LETTER
32.
EXHIBIT E-
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
33.
EXHIBIT F
- CERTIFICATION FOR FEDERAL -AID CONTRACTS
34.
EXHIBIT G-
DISADVANTAGED BUSINESS ENTERPRISE
35.
EXHIBIT H
-LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
36.
EXHIBITI-FEDERAL-AID
CONTRACT
37.
EXHIBIT I -
FEDERAL REQUIREMENTS
38.
EXHIBIT K-
SUPPLEMENTAL FEDERAL PROVISIONS
1. PARTIES
THIS AGREEMENT is entered into by and between TOWN OF FRASER (hereinafter called the "Local
Agency"), and the STATE OF COLORADO acting by and through the Department of Transportation
(hereinafter called the "State" or "CDOT").
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or
reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses
incurred, or be bound by any provision hereof prior to the Effective Date.
3. RECITALS
A. Authority, Appropriation, and Approval
Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a
sufficient unencumbered balance thereof remains available for payment and the required approval,
clearance and coordination have been accomplished from and with appropriate agencies.
i. Federal Authority
Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21st Century" of
1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United
States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be
amended, (collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have
been and are expected to continue to be allocated for transportation projects requested by the Local
Agency and eligible under the Surface Transportation Improvement Program that has been proposed
by the State and approved by the Federal Highway Administration CTHWA").
it. 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 FHW A.
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.
Document Builder Generated Page 2 of 21
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.
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
Document Builder Generated Page 3 of 21
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.
c) Prepare provisions and estimates in accordance with the most current version of the State's
Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge
Construction or Local Agency specifications if approved by the State.
d) Include details of any required detours in the Plans in order to prevent any interference of the
construction Work and to protect the traveling public.
e) Stamp the Plans produced by a Colorado Registered Professional Engineer.
f) Provide final assembly of Plans and all other necessary documents.
g) Be responsible for the Plans' accuracy and completeness.
h) Make no further changes in the Plans following the award of the construction contract to
contractor unless agreed to in writing by the Parties. The Plans shall be considered final when
approved in writing by CDOT and when final they shall be incorporated herein.
ii. Local Agency Work
a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA),
and applicable federal regulations and standards as contained in the document "ADA Accessibility
Requirements in CDOT Transportation Projects".
b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes
in the Plans that are directed by the State to comply with FHWA requirements.
c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the
Plans and/or of construction administration. Provided, however, if federal -aid funds are involved
in the cost of such Work to be done by such Consultant, such Consultant contract (and the
performance/provision of the Plans under the contract) must comply with all applicable
requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as
provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with
a Consultant for the Work:
(1) Local Agency shall submit a certification that procurement of any Consultant contract
complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant
contract, subject to the State's approval. If not approved by the State, the Local Agency shall
not enter into such Consultant contract.
(2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by
the State and FHWA and that they are in writing. Immediately after the Consultant contract
has been awarded, one copy of the executed Consultant contract and any amendments shall be
submitted to the State.
(3) Local Agency shall require that all billings under the Consultant contract comply with the
State's standardized billing format. Examples of the billing formats are available from the
CDOT Agreements Office.
(4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the
CDOT procedures described in Exhibit H to administer the Consultant contract.
(5) Local Agency may expedite any CDOT approval of its procurement process and/or
Consultant contract by submitting a letter to CDOT from the Local Agency's
attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R.
172.5(b)and (d).
(6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49
CFR 18.36(i) and contains the following language verbatim:
(a) The design work under this Agreement shall be compatible with the requirements of the
contract between the Local Agency and the State (which is incorporated herein by this
reference) for the design/construction of the project. The State is an intended third -party
beneficiary of this agreement for that purpose.
Document Builder Generated Page 4 of 21
(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.
iii. Construction
If the Work includes construction, the Local Agency shall perform the construction in accordance with
the approved design plans and/or administer the construction in accordance with Exhibit E. Such
administration shall include Work inspection and testing; approving sources of materials; performing
required plant and shop inspections; documentation of contract payments, testing and inspection
activities; preparing and approving pay estimates; preparing, approving and securing the funding for
contract modification orders and minor contract revisions; processing Construction Contractor claims;
construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT
Stewardship Agreement, as described in the Local Agency Contract Administration Checklist.
a) If the Local Agency is performing the Work, the State may, after providing written notice of the
reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the
failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or
for such periods as the State may deem necessary due to unsuitable weather, or for conditions
considered unsuitable for the prosecution of the Work, or for any other condition or reason
deemed by the State to be in the public interest.
b) The Local Agency shall be responsible for the following:
(1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local
Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall
administer the Work in accordance with this Agreement, the requirements of the construction
contract and applicable State procedures.
(2) For the construction of the Work, advertising the call for bids upon approval by the State and
awarding the construction contract(s) to the low responsible bidder(s).
(a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall
comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635
and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that the
Local Agency and its Contractor shall incorporate Form 1273 (Exhibit 1) 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 fourteen (14) working days after they are publicly opened.
(c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject
to their availability and appropriation, necessary to complete the Work if no additional
federal-aid funds are available.
(3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by
the State.
(4) If all or part of the Work is to be accomplished by the Local Agency's personnel (i.e. by force
account) rather than by a competitive bidding process, the Local Agency shall perforin such
work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635,
Subpart B, Force Account Construction.
(a) Such Work will normally be based upon estimated quantities and firm unit prices agreed
to between the Local Agency, the State and FHWA in advance of the Work, as provided
for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to
the value of the Work to be performed.
Document Builder Generated Page 5 of 21
(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.
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.
I) Establish future repair and/or replacement responsibilities in the event of accidental destruction or
damage to the installation.
Document Builder Generated Page 6 of 21
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 State 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..
7. OPTION LETTER MODIFICATION
An option letter may be used to add a phase without increasing total budgeted funds, increase or decrease the
encumberance amount as shown on Exhibit C, and/or tranfer 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 labled C-2, C-3, etc.)
and attached to the option letter. The funds transferred from one phase to another are subject to the same
terms and conditions stated in the original Agreement with the total budgeted funds remaining the same.
The State may unilaterally exercise this option by providing a fully executed option to the Local Agency
within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to
Exhibit D. Any transfer of funds from one phase to another is limited to an aggregate maximum of 24.99%
of the original dollar amount of either phase affected by a transfer. A bilateral amendment is required for
any transfer exceeding 24.99% of the original dollar amount of the phase affected by the increase or
decrease.
C. Option to do both Options A and B.
The State may require the Local Agency to add a phase as detailed in Exhibit A, and encumber and
transfer funds from one phase to another. The original funding exhibit (Exhibit C) in the original
Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be
labeled C-2, C-3, etc.) and attached to the option letter. The addition of a phase and encumbrance and
transfer of funds are subject to the same terms and conditions stated in the original Agreement with the
total budgeted funds remaining the same. The State may unilaterally exercise this option by providing a
fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the
phase, in a form substantially equivalent to Exhibit D.
8. PAYMENTS
The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the
methods set forth below:
A. Maximum Amount
The maximum amount payable is set forth in Exhibit C as determined by the State from available funds.
Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in
Document Builder Generated Page 7 of 21
Exhibit C. The Local Agency shall provide its match share of the costs, if any, 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.
ii. Interest
The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced
represents performance by the Local Agency previously accepted by the State. Uncontested amounts
not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day
at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall
not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice
the State separately for accrued interest on delinquent amounts. The billing shall reference the
delinquent payment, the number of days interest to be paid and the interest rate.
iii. Available Funds -Contingency -Termination
The State is prohibited by law from making commitments beyond the term of the State's current fiscal
year. Therefore, the Local Agency's compensation beyond the State's current Fiscal Year is contingent
upon the continuing availability of State appropriations as provided in the Colorado Special Provisions.
The State's performance hereunder is also contingent upon the continuing availability of federal funds.
Payments pursuant to this Contract shall be made only from available funds encumbered for this
Contract and the State's liability for such payments shall be limited to the amount remaining of such
encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to
fund this Contract, the State may terminate this Contract immediately, in whole or in part, without
further liability in accordance with the provisions hereof.
iv. Erroneous Payments
At the State's sole discretion, payments made to the Local Agency in error for any reason, including,
but not limited to overpayments or improper payments, and unexpended or excess funds received by
the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments
under this Contract or other contracts, Agreements or agreements between the State and the Local
Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not
be paid to any party other than the State.
C. Use of Funds
Contract Funds shall be used only for eligible costs identified herein.
D. Matching Funds
The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency
shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State
regarding the status of such funds upon request. The Local Agency's obligation to pay all or any part of any
matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the
proposes 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
Document Builder Generated Page 8 of 21
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 reimubursement 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:
Reasonable and Necessary
Reasonable and necessary to accomplish the Work and for the Goods and Services provided.
ii. Net Cost
Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local
Agency that reduce the cost actually incurred).
9. ACCOUNTING
The Local Agency shall establish and maintain accounting systems in accordance with generally accepted
accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting
scheme). Such accounting systems shall, at a minimum, provide as follows:
A. Local Agency Performing the Work
If Local Agency is performing the Work, all allowable costs, including any approved services contributed
by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts,
vouchers, and other applicable records.
B. Local Agency -Checks or Draws
Checks issued or draws made by the Local Agency shall be made or drawn against properly signed
vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other
accounting documents shall be on file in the office of the Local Agency ,clearly identified, readily
accessible, and to the extent feasible, kept separate and apart from all other Work documents.
C. State -Administrative Services
The State may perform any necessary administrative support services required hereunder. The Local
Agency shall reimburse the State for the costs of any such services from the Budget as provided for in
Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this
Agreement prior to the Work being approved or completed, then all actual incurred costs of such services
and assistance provided by the State shall be the Local Agency's sole expense.
D. Local Agency -Invoices
The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency
for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not
be submitted more often than monthly.
E. Invoicing Within 60 Days
The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such
invoices within 60 days after the date for which payment is requested, including final invoicing. Final
payment to the Local Agency may be withheld at the discretion of the State until completion of final audit.
Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by
the Local Agency, or the State may offset them against any payments due from the State to the Local
Agency.
F. Reimbursement of State Costs. Reserved.
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.
Document Builder Generated Page 9 of 21
B. Litigation Reporting
Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a
court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of
such pleadings to the State's principal representative as identified herein. If the State or its principal
representative is not then serving, such notice and copies shall be delivered to the Executive Director of
CDOT.
C. Noncompliance
The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with
this §10 may result in the delay of payment of funds and/or termination as provided under this Agreement.
D. Documents
Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies
of all documents, including contracts and subcontracts, in its possession related to the Work.
11. LOCAL AGENCY RECORDS
A. Maintenance
The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a
complete file of all records, documents, communications, notes and other written materials, electronic
media files, and communications, pertaining in any manner to the Work or the delivery of Services
(including, but not limited to the operation of programs) or Goods hereunder. The Local Agency shall
maintain such records until the last to occur of the following: (i) a period of three years after the date this
Agreement is completed or terminated, or (ii) three years after final payment is made hereunder, whichever
is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an
audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit
has been completed and its findings have been resolved (collectively, the "Record Retention Period").
B. Inspection
The Local Agency shall permit the State, the federal government and any other duly authorized agent of a
governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records
related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or
to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at
all reasonable times and places during the term of this Agreement, including any extension. If the Work
fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to
bring the Work into conformity with Agreement requirements, at the Local Agency's sole expense. If the
Work cannot be brought into conformance by re -performance or other corrective measures, the State may
require the Local Agency to take necessary action to ensure that future performance conforms to
Agreement requirements and may exercise the remedies available under this Agreement at law or in equity
in lieu of or in conjunction with such corrective measures.
C. Monitoring
The Local Agency also shall permit the State, the federal government or any other duly authorized agent of
a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency
pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to:
internal evaluation procedures, examination of program data, special analyses, on-site checking, formal
audit examinations, or any other procedures. All such monitoring shall be performed in a manner that shall
not unduly interfere with the Local Agency's performance hereunder.
D. Final Audit Report
If an audit is performed on the Local Agency's records for any fiscal year covering a portion of the term of
this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal
representative at the address specified herein.
12. CONFIDENTIAL INFORMATION -STATE RECORDS
The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information
in connection with its performance hereunder. Confidential information, includes, but is not necessarily limited
to, state records, personnel records, and information concerning individuals. Nothing in this §12 shall be
construed to require the Local Agency to violate the Colorado Open Records Act, C.R.S. §§ 24-72-1001 et seq.
Document Builder Generated Page 10 of 21
A. Confidentiality
The Local Agency shall keep all State records and information confidential at all times and to comply with
all laws and regulations concerning confidentiality of information. Any request or demand by a third party
for State records and information in the possession of the Local Agency shall be immediately forwarded to
the State's principal representative.
B. Notification
The Local Agency shall notify its agents, employees and assigns who may come into contact with State
records and confidential information that each is subject to the confidentiality requirements set forth herein,
and shall provide each with a written explanation of such requirements before they are permitted to access
such records and information.
C. Use, Security, and Retention
Confidential information of any kind shall not be distributed or sold to any third party or used by the Local
Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The
Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State
records and other confidential information wherever located. Confidential information shall not be retained
in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and
approved by the State.
D. Disclosm•e-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.
Document Builder Generated Page 11 of 21
The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during
the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits,
and other authorization required by law to perform its obligations hereunder. The Local Agency warrants
that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other
authorizations required to properly perform this Agreement, without reimbursement by the State or other
adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing
Services under this Agreement shall hold all required licenses or certifications, if any, to perform their
responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in
the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable
certificate of authority to transact business in the State of Colorado and has designated a registered agent in
Colorado to accept service of process. Any revocation, withdrawal or non -renewal of licenses,
certifications, approvals, insurance, permits or any such similar requirements necessary for the Local
Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the
Local Agency and constitute grounds for termination of this Agreement.
15. INSURANCE
The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times
during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be
issued by insurance companies satisfactory to the Local Agency and the State.
A. The Local Agency
i. Public Entities
If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, CRS §24-10-101, et seq., as amended (the "GIA"), then the Local Agency shall maintain at all
times during the term of this Agreement such liability insurance, by commercial policy or self-
insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of
such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each
Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to
include the insurance requirements necessary to meet Consultant or Contractor liabilities under the
GIA.
ii. Non -Public Entities
If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the
Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and
policies meeting the same requirements set forth in § 15(B) with respect to sub -contractors that are not
"public entities".
B. Contractors
The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than
those that are public entities, providing Goods or Services in connection with this Agreement, to include
insurance requirements substantially similar to the following:
i. Worker's Compensation
Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance
covering all of the Local Agency's Contractors, Subcontractors, or Consultant's employees acting
within the course and scope of their employment.
ii. General Liability
Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or
equivalent, covering premises operations, fire damage, independent contractors, products and
completed operations, blanket liability, personal injury, and advertising liability with minimum limits
as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products
and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced
below $1,000,000 because of claims made or paid, contractors, subcontractors, and consultants shall
immediately obtain additional insurance to restore the full aggregate limit and furnish to the Local
Agency a certificate or other document satisfactory to the Local Agency showing compliance with this
provision.
iii. Automobile Liability
Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with
a minimum limit of $1,000,000 each accident combined single limit.
Document Builder Generated Page 12 of 21
iv. Additional Insured
The Local Agency and the State shall be named as additional insured on the Commercial General
Liability policies (leases and construction contracts require additional insured coverage for completed
operations on endorsements CG 2010 11/85, CG 2037, or equivalent).
v. Primacy of Coverage
Coverage required of the Consultants or Contractors shall be primary over any insurance or self-
insurance program carried by the Local Agency or the State.
vi. Cancellation
The above insurance policies shall include provisions preventing cancellation or non -renewal without
at least 45 days prior notice to the Local Agency and the State by certified mail.
vii. Subrogation Waiver
All insurance policies in any way related to this Agreement and secured and maintained by the Local
Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier
shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the
State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.
C. Certificates
The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing
insurance coverage required hereunder to the State within seven business days of the Effective Date of this
Agreement. No later than 15 days prim 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.
B. Obligations and Rights
Document Builder Generated Page 13 of 21
C.
E.
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 witlrin 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.
Payments
The State shall reimburse the Local Agency only for accepted performance received up to the date of
termination. If, after termination by the State, it is determined that the Local Agency was not in default or
that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination
in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had
been terminated in the public interest, as described herein.
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.
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.
F. 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
Document Builder Generated Page 14 of 21
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. Withold Payment
Withhold payment to the Local Agency until corrections in the Local Agency's performance are
satisfactorily made and completed.
iii. Deny Payment
Deny payment for those obligations not performed that due to the Local Agency's actions or inactions
cannot be performed or, if performed, would be of no value to the State; provided that any denial of
payment shall be reasonably related to the value to the State of the obligations not performed.
iv. Removal
Demand removal of any of the Local Agency's employees, agents, or contractors whom the State
deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued
relation to this Agreement is deemed to be contrary to the public interest or not in the State's best
interest.
v. Intellectual Property
If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual
property right while performing its obligations under this Agreement, the Local Agency shall, at the
State's option (a) obtain for the State or the Local Agency the right to use such products and services;
(b) replace any Goods, Services, or other product involved with non -infringing products or modify
them so that they become non -infringing; or, (c) if neither of the forgegoing 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:
CDOT Region: 3
Brian Killian
Project Manager
222 S. 6th Street, Ste 100
Grand Junction, CO 81501
970-683-6285
B. If to the Local Agency:
TOWN OF FRASER
Jeff Durbin
Town Manager
PO BOX 370
FRASER, CO 80442
970-726-5491
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 Agencys's obligations hereunder without the
prior written consent of the State.
20. GOVERNMENTAL IMMUNITY
Document Builder Generated Page 15 of 21
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 anytime thereafter, this §21 applies.
The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206,
§24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state
agreements/contracts and inclusion of agreement/contract performance information in a statewide contract
management system.
The Local Agency's performance shall be subject to Evaluation and Review in accordance with the terms and
conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of the Local Agency's performance shall be part of the normal Agreement
administration process and the Local Agency's performance will be systematically recorded in the statewide
Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to
quality, cost and timeliness. Collection of information relevant to the performance of the Local Agency's
obligations under this Agreement shall be determined by the specific requirements of such obligations and shall
include factors tailored to match the requirements of the Local Agency's obligations. Such performance
information shall be entered into the statewide Contract Management System at intervals established herein and
a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term. The
Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct
any identified problem in a timely manner and maintain work progress.
Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross
failure to meet the performance measures established hereunder, the Executive Director of the Colorado
Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of
good cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements.
The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which
may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS §24-105-
102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202,
which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive
Director, upon showing of good cause.
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
Page 16 of 21
Document Builder Generated
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 30calendar days
after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the
State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding
under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in
support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently
with the performance of this Agreement in accordance with the Chief Engineer's decision. The decision of the
Executive Director or his duly authorized representative for the determination of such appeals shall be final and
conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of
law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed
as making final the decision of any administrative official, representative, or board on a question of law.
25. GENERAL PROVISIONS
A. Assignment
The Local Agency's rights and obligations hereunder are personal and may not be transferred, assigned or
subcontracted without the prior written consent of the State. Any attempt at assignment, transfer, or
subcontracting without such consent shall be void. All assignments and subcontracts approved by the Local
Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely
responsible for all aspects of subcontracting arrangements and performance.
B. Binding Effect
Except as otherwise provided in §25(A), all provisions herein contained, including the benefits and
burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors,
and assigns.
C. Captions
The captions and headings in this Agreement are for convenience of reference only, and shall not be used to
interpret, define, or limit its provisions.
D. Counterparts
This Agreement may be executed in multiple identical original counterparts, all of which shall constitute
one agreement.
E. Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties and all prior
representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition,
deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein.
F. Indemnification - General
If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its
employees and agents, against any and all claims, damages, liability and court awards including costs,
expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local
Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement.
This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado
Governmental Immunity Act, CRS §24-10-101, et seq.
G. Jurisdiction and Venue
All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and
exclusive venue shall be in the City and County of Denver.
H. Limitations of Liability
Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document
attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit,
attachment, schedule, or any other name, are void and of no effect. This includes, but is not necessarily
Document Builder Generated Page 17 of 21
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.
ii. By Operation of Law
This Agreement is subject to such modifications as may be required by changes in Federal or Colorado
State law, or their implementing regulations. Any such required modification automatically shall be
incorporated into and be part of this Agreement on the effective date of such change, as if fully set
forth herein
J. Order of Precedence
The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the
event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such
conflicts or inconsistencies shall be resolved by reference to the documents in the following order of
priority:
i. Colorado Special Provisions,
ii. The provisions of the main body of this Agreement,
iii. Exhibit A (Scope of Work),
iv. Exhibit B (Local Agency Resolution),
V. Exhibit C (Funding Provisions),
vi. Exhibit D (Option Letter),
vii. Exhibit E (Local Agency Contract Administration Checklist),
viii. Other exhibits in descending order of their attachment.
K. Severability
Provided this Agreement can be executed and performance of the obligations of the Parties accomplished
within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes
inoperable for any reason shall not affect the validity of any other provision hereof.
L. Survival of Certain Agreement Terms
Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued
performance, compliance, or effect after termination hereof, shall survive such termination and shall be
enforceable by the State if the Local Agency fails to perform or comply as required.
M. Taxes
The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all
State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions
apply when materials are purchased or services rendered to benefit the State; provided however, that certain
political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the
product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as
the State is prohibited from paying for or reimbursing the Local Agency for them
N. Third Party Beneficiaries
Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties,
and not to any third party. Any services or benefits which third parties receive as a result of this Agreement
are incidental to the Agreement, and do not create any rights for such third parties.
O. Waiver
Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy
hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of
any subsequent breach of such term, provision or requirement, or of any other term, provision, or
requirement.
Document Builder Generated Page 18 of 21
26. COLORADO SPECIAL PROVISIONS
The Special Provisions apply to all Agreements except where noted in italics.
1. 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.
2. FUND AVAILABILITY. CRS §24-30-202(5.5).
Financial obligations of the State payable after the current fiscal year are contingent upon finds for that
purpose being appropriated, budgeted, and otherwise made available.
3. 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(6) and 2671 et
seq., as applicable now or hereafter amended.
4. 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.
5. 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.
6. 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.
7. BINDING ARBITRATION PROHIBITED.
The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any
provision to the contrary in this contact or incorporated herein by reference shall be null and void.
8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00.
State or other public funds payable under this 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.
Document Builder Generated Page 19 of 21
9. 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.
10. 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 arrear•ages; (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.
11. 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.
12. 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
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Document Builder Generated Page 20 of 21
27. SIGNATURE PAGE
Agreement Routing Number: 14-HA3-XC-00188
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local
Agency's behalf and acknowledge that the State is relying on their representations to that effect.
THE LOCAL AGENCY
STATE OF COLORADO
TOWN OF FRASER
John W. Hiekenlooper, GOVERNOR
#n'
Print:
Colorado Department of Transportation
Donald E.Hunt, Executive Dire or
Title:
By: Scott McDaniel,, P.E., Acting Chief Engineer
Date:
*Signature
Date:
2nd Local Agency ignature if needed
LEGAL REVIEW
E
John W. Suthers, Attorney General
Print: Li�'
By: /i% / 4
Signature - Assisiant Attorney General
Date:
_e
Title: n LiD \r . G k
CX L- La--)-� (�CA
*Signature
r (
Date: 60 lu
ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement is not valid until signed
and dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such
time. If The Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay The Local
Agency for such performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
Robe Jar o , CP , MBA, JD
By:
Colorado D ar me'nt of Transportation
INTENTIONALLY LEFT BLANK
Document Builder Generated Page 21 of 21
28. EXHIBIT A — SCOPE OF WORK
This project will mitigate significant traffic safety and congestion problems on a half mile segment of
228.9. The projecotr would adjoinis project
Wi ter Park's add
recent US 40 North Portal Improvements project.city and intersection improvements from 228.2 to MP
Currently US 40 highway segment transitions from four travel lanes in Winter Park to two travel lanes in Fraser.
The scope of the RAMP project would add highway capacity by widening US 40 from two travel lanes to four
travel lanes. It would also incorporate intersection and signal installation improvements at the First Street and
ignal system will be coordinated and timed with the King's
Rendezvous Road intersections. The new traffic s
Crossing signal in Winter Park. The intersection improvements would have associated aux
the State Highway Access Code requirements.
The Town of Fraser will contribute 35% of the estimated cost to the CDOT RAMP funds and CDOT will account
for the remaining 65% to ensure there is enough money to construct the project per plans and specifications.
The CDOT 65% RAMP funding is estimated to be $1,394,458 and the 35% contribution from the Town is
estimated to be $750,862 for a total project cost of $2,145,320. The Town's 35% contribution to the project may
be used prior to the Intergovernmental Agreement execution date for professional design services and/or pre
ordering equipment approved by CDOT.
This project will be constructed and designed in accordance with CDOT standards and regulations
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 1 of 1
29. EXHIBIT B — LOCAL AGENCY RESOLUTION
LOCALAGENCY
ORDINANCE
or
RESOLUTION
Page 1 of 1
TOWN OF FRASER
BOARD OF TRUSTEES
Resolution No. 2014-05-07
A RESOLUTION AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION AND
A LOCAL FUNDING AGREEMENT WITH RENDEZVOUS AND GRAND PARK
REGARDING THE FRASER US40 HIGHWAY IMPROVEMENT PROJECT, SUBJECT
TO CERTAIN CONDITIONS,
WHEREAS, the Town Board finds that the Fraser US40 Highway Improvement
Project effectively leverages private improvement traffic signal projects at Rendezvous
Road and First Street toward funding capacity improvements which provide significant
public benefit.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF FRASER, COLORADO, THAT:
1. The Board of Trustees hereby approves the State of Colorado Department of
Transportation Agreement with Town of Fraser for US40 Improvements (NHPP
0403-058 19874), a copy of which is attached hereto (hereinafter referred to as the
"CDOT IGA"). The Mayor and Town Clerk are authorized to execute said
Agreement on behalf of the Town and the Town Clerk is authorized to transmit three
(3) signed originals to the Colorado Department of Transportation for approval and
signature upon satisfaction of the conditions specified in Paragraph 2 below.
2. The Board of Trustees hereby approves the Highway 40 Improvement Project
Agreement between the Town of Fraser, Rendezvous Colorado, LLC and Grand
Park Development, LLC, a copy of which is attached hereto (hereinafter referred to
as the "Local Funding Agreement"). The Mayor and Town Clerk are authorized to
execute said Agreement on behalf of the Town upon satisfaction of all of the
following conditions:
a. Due execution of said Local Funding Agreement, with all Exhibits referred to
therein, by Rendezvous Colorado, LLC and Grand Park Development, LLC and
delivery of one or more originally signed copies to the Town Clerk;
b. Receipt of payment by the Town from Rendezvous Colorado, LLC and Grand
Park Development, LLC, in good funds, in the amount of $364,060 each,
representing their respective shares of the local agency match funds payable
pursuant to Section 2.4 of the Local Funding Agreement.
If said conditions are not fully satisfied within six (6) working days after the date
hereof, this Resolution shall be automatically rescinded and shall be of no force or
effect, unless the time for satisfaction of such conditions is extended by further
action of the Board.
3. Provided that the conditions specified in Paragraph 2 hereof are fully satisfied and
the CDOT IGA is approved and signed by the Department of Transportation, the
Board of Trustees authorizes the expenditure of the local agency match funds
pursuant to the CDOT [GA.
READ, PASSED ON ROLL CALL VOTE, AND ADOPTED BY THE BOARD OF
TRUSTEES THIS _day of 2014.
Votes in favor:
Votes opposed:
Absent:
8
Abstained:
K
(S
BOARD OF TRUSTEES OF THE
TOWN OF 7ASER, C ),LORADO
BY:
Mayo
ATTEST:
X & , /A
Town Clerk
EXHIBIT C — FUNDING PROVISIONS
A. Cost of Work Estimate
NHPP 0403-058 19874
RAMP Tracking # 3-31
The Local Agency has estimated the total cost the Work to be $1,394,458.00 which is to be funded
as follows:
1
BUDGETED FUNDS
a.
Federal Funds (FY 15) $1,115,566.40
Total Federal Funds (80.00% of Participating Cost)
$1,115,566.40
b.
State Contribution (FY 15) $278,891.60
Total State Contribution (20.00% of Participating Cost)
$278,891.60
c.
Local Agency Contribution (FY 15) $0.00
Total Local Contribution (0.00% of Participating Costs)
$0.00
TOTAL BUDGETED FUNDS
$1,394,458.00
2
ESTIMATED CDOT-INCURRED COSTS
a.
Federal Share
$0.00
b.
Local Agency
$0.00
TOTAL ESTIMATED CDOT-INCURRED COSTS
$0.00
3
ESTIMATED PAYMENT TO LOCAL AGENCY
a.
Federal Funds Budgeted (1a)
$1,115,566.40
b.
State Funds Budgeted (1 b)
$278,891.60
b.
Less Estimated Federal Share of CDOT-Incurred Costs (2a)
$0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY
$1,394,458.00
FOR CDOT ENCUMBRANCE PURPOSES
Total Encumbrance Amount
$1,394,458.00
Less ROW Acquisition 3111 and/or ROW Relocation 3109
$0.00
Net to be encumbered as follows:
$1,394,458.00
WBS Element 19874.20.101
Const
1 3301
$0.00
Page 1 of 2
B. Matching Funds
The matching ratio for the federal participating funds for this Work is 80.00% federal -aid funds
(CFDA #20.205) to 20.00% State Contribution, it being understood that such ratio applies only to the
$1,394,458.00 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 $1,394,458.00, and additional Federal funds are made available
for the Work, the Local Agency shall pay 20% 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. At any time during the Project, any cost savings, regardless
of who is administrating the Project, or when the cost savings occurs, may be prorated as
determined by CDOT.
C. Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $1,394,458.00
(For CDOT accounting purposes, the Federal funds of $1,115,566.40 and the State Contribution of
$278,891.60 for a total encumbrance of $1,394,458.00), 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. Design and/or Construction Funds will be added
when they become available by either by Option Letter or Amendment *** It is understood
and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best
estimate available, based on the design data as approved at the time of execution of this
Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous
sentence) agreeable to the parties prior to bid and award. Should the project receive a construction
bid less than the estimated construction amount, the Local Agency Contribution may be lowered
proportionally as determined by CDOT.
D. Single Audit Act Amendment
All state and local government and non-profit organizations receiving more than $500,000 from all
funding sources defined as federal financial assistance for Single Audit Act Amendment purposes
shall comply with the audit requirements of OMB Circular A-133 (Audits of States, Local
Governments and Non -Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single
Audit Act Amendment requirements applicable to Sub -The Local Agency receiving federal funds are
as follows:
L Expenditure less than $500,000
If Sub -The Local Agency expends less than $500,000 in Federal funds (all federal sources, not
just Highway funds) in its fiscal year then this requirement does not apply.
ii. Expenditure exceeding than $500,000 -Highway Funds Only
If Sub -The Local Agency expends more than $500,000 in Federal funds, but only received federal
Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific
audit shall be performed. This audit will examine the "financial' procedures and processes for this
program area.
iii. Expenditure exceeding than $500,000 -Multiple Funding Sources
If Sub -The Local Agency expends more than $500,000 in Federal funds, and the Federal funds
are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an
audit on the entire organization/entity.
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.
Page 1 of 2
30. 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.
Fiscal Year: Option Letter No. Option Letter CMS Routing
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.).
Btransfer funds
it C
et
aat ached with the opon letter nd shall be labeled C-1,futu
tre changes fort is option n shallsbee
labeled as follows: C-2, C-3, C-4, etc.).
do
h A and
new
he option
C. option
be labeled C unilaterally
uturetchang sBfor aExhibit
th s optontletter
shall be labeled as follows:C-2, C-3, C
al4, etc.).
REQUIRED PROVISIONS:
Option A (Insert the following language for use with the Option A):
In accordance with the terms of the original Agreement (insert CMS routing # of the original
Agreement) between the State of Colorado, Department of Transportation and (insert the Local
Agency's name here), the State hereby exercises the option to authorize the Local Agency to begin a
phase that will include (describe which phase will be added and include all that apply — Design,
Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) and to encumber previously
budgeted funds for the phase based upon changes in funding availability and authorization. The
encumbrance for (Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous) is
(insert dollars here). A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit
C. (The following is a NOTE only, please delete when using this option. Future changes for this option
for Exhibit C shall be labled as follows: C-2, C-3, C-4, etc.).
Option B (Insert the following language for use with Option 8):
In accordance with the terms of the original Agreement (insert CMS # of the original Agreement)
between the State of Colorado, Department of Transportation and (insert the Local Agency's name
here), the State hereby exercises the option to transfer funds from (describe phase from which funds
will be moved) to (describe phase to which funds will be moved) based on variance in actual phase
costs and original phase estimates. A new Exhibit C-1 is made part of the original Agreement and
replaces Exhibit C. (The following is a NOTE only so please delete when using this option: future
changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.; and no more than
24.99% of any phase may be moved using this option letter. A transfer greater than 24.99% must be
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, C-3, C-
4, etc.; and no more than 24.99% of any phase may be moved using this option letter. A transfer
greater than 24.99% must be made using an formal amendment).
(The following language must be included on ALL options):
The total encumberance as a result of this option and all previous options and/or amendments is now
(insert total encumberance amount), as referenced in Exhibit (C-1, C-2, etc., as appropriate). The
total budgeted funds to satisfy services/goods ordered under the Agreement remains the same:
(indicate total budgeted funds) as referenced in Exhibit (C-1, C-2, etc., as appropriate) of the original
Agreement.
The effective date of this option letter is upon approval of the State Controller or delegate
APPROVALS:
State of Colorado:
John W. Hickenlooper, Governor
By: Date:
Executive Director, Colorado Department of Transportation
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid
until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin
performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado
is not obligated to pay the Local Agency for such performance or for any goods and/or services
provided hereunder.
Date:
Form Updated: December 19, 2012
Page 1 of 2
State Controller
Robert Jaros, CPA, MBA, JD
31. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Page 1 of 1
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.
xvi
COLORADO DEPARTMENT OF TRANSPORTATION
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Project No.
STIP No.
Project C7Da
NHPP 0403-058
1 Review Project to ensure it is consist with STIP and amendments thereto
X
FEDERAL FUNDING OBLIGATION AND AUTHORIZATION
SR36607.034
19874Project
4.1
Location
SH 40 Im rovements- Town of Fraser
Project Description
Widening and signalization of SH -40 between the Town of Fraser and Town of Winter Park
Local Agency
Local Agency Project Manager
Town of Fraser
Jeff Durbin
CDOT Resident Engineer
CDOT Project Manager
Sean Yeates
Brian Killian
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, apposite each of the tasks. The "X' denotes the
party responsible for initiating and executing the task. Only one responsible party should be selected. 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 COOT Resident Engineer or the COOT Project Manager, in cooperation with the Local
Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the
CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist.
NO.
DESCRIPTION OF TASK
RESPONSIBLE
PARTY
LA CDOT
TIP / STIP AND LONG-RANGE PLANS
2.1
1 Review Project to ensure it is consist 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
concurrencelinvolvement
X
PROJECT DEVELOPMENT
5.1
Prepare Desi n Data - CDOT Form 463
X
5.2
Prepare Local A enc /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
5.5
Conduct Public Involvement
X
5.6
Conduct Field Inspection Review FIR
X
5.7
Conduct Environmental Processes (may require FHWA concurrencelinvolvement
X
5.8
Acquire Right -of -Way ma require FHWA concurrencelinvolvement
X
5.9
Obtain Utility and Railroad Agreements
X
5.10
1 Conduct Final Office Review FOR
X
5.11
Justi 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 09106 Pagel of 4
Previous editions are obsolete and may not be used
CDOT Form 1243 09106 Paget 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 Underutilized Disadvantaged Business Enterprise (UBDE) Goals for Consultant and
X
Construction Contracts CDOT Region EEO/Civil Rights Specialist)
6.2
Determine Applicability of Davis -Bacon Act
X
This project ❑ is ® is not exempt from Davis -Bacon requirements as determined by the
functional classification of the project location (Projects located on local roads and rural
minor collectors may be exempt.)
Sean Yeates 2/4/2014
CDOT Resident Engineer (Signature on File Date
6.3
Set On -the -Job Training Goals. Goal is zero if total construction is less than $1 million (CDOT
X
Re ion 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
3,
Contract CDOT Resident Engineer)
X
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 Oen Bids X
7.6 Process Bids for Com liancem `gig
Check CDOT Form 715 - Certificate of Proposed Underutilized DBE Participation when the
low bidder meets UDBE goals X
Evaluate CDOT Form 718 - Underutilized DBE Good Faith Effort Documentation and
r determine if the Contractor has made a good faith effort when the low bidder does not meet X
DBE goals
, 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
Pre -survey
• Construction staking X
• Monumentation X
- Partnering (Optional) X
Structural Concrete Pre -Pouf (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
r A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of
construction supervision."
R sg
970.623.0788
Kari J. McDowell Schroeder, PE, PTOE
Phone
X
Local Agency Professional Engineer or number
CDOT Resident Engineer
CDOT Form 1243 09106 Paget of 4
Previous editions are obsolete and may not be used
CDOT Form 1243 09106 Page3 of 4
Previous editions are obsolete and may not be used
CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE
10.1 Fulfill Pro'ect Bulletin Board and Pre -Construction Packet Requirements
X
10.2
Process CDOT Form 205 - Sublet Permit Application
Review and sign completed CDOT Form 205 for each subcontractor, and submit to
X
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 TrainingQuestionnaire
X
10.6
Check Certified Pa rolls Contact the Region EEO/Civil Rights S ecialists for training re uirements.
10.7
Submit FHWA Form 1391 - Hi hwa Construction Contractor's Annual EEO Re on
X
FINALS
11.1
Conduct Final Project Inspection. Complete and submit CDOT Form 1212 -Final
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
X
11.6
Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit
Final Certifications
X
11.7
Check Material Documentation and Accept Final Material Certification See Cha ter 9
11.8
Obtain CDOT Form 17 from the Contractor and Submit to the Resident En ineer
X
11.9
Obtain FHWA Form 47 - Statement of Materials and Labor Used ... from the Contractor
NIA
11.10
Com late and Submit CDOT Form 1212 —Final Acce lance Re ort b CDOT
X
11.11
Process Final Payment
X
X
11.12
Com late and Submit CDOT Form 950 - Project Closure
11.13
Retain Project Records for Six Years from Date of Project Closure
X
11.14
Retain Final Version of Local Actency Contract Administration Checklist
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 09106 Page4 of 4
Previous editions are obsolete and may not be used
32. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS
The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that
No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to
any person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or of Congress, or an employee of a Member of
Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub -recipients shall certify and disclose accordingly.
Required by 23 CFR 635.112
Page 1 of 1
33. 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
Page 1 of 1
Required by 49 CFR Part 26
34. 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 1721.
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.
i. 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 1- FEDERAL -AID CONTRACT PROVISIONS
W
REQUIRED CONTRACT PROVISIONS..
FEDERAL -AID CONSTRUCTION CONTRACTS
ATTACHMENTS
A. Employment and Materials Preference few Appalachian
Development I tighway System or Appalachian Lat:al Arms
Rna(iConnects Qntliuded 16 Appalaohlan Contracts only)
L GENERAL
1.. Form Fr WAg273 must be physlcallyincarpormad in each
construction contract funded under Title 23.(ezduding
emergency contracts solely Intended for debris removal) The
cdniractor(er subcontractor) must mean this rami in each
subcontract and tu(thor require Its Inclusion In all (ower Oar
subcontracts (oxcluding purchase orders, mnial agmamanis
and other agreements for supplies a sarvites).
The applicable requirements of Form FNWA-1273 are
Inremwelad by reforence for Nod(done under any purchase
order. rental agreement or agreement for other serylces. The
prime contractor shall ba responsible torcomctlance by any
subcontractor, lower -1h, subcontractor or service provider.
Form FHWA-1273 must be 6lcloded In all Federal -old design.
build contrera$, In ell subcontracts and In lower tier
subcontracts (exdudma subcontracts for design seMces,
purchase orders, rental agreements and other agreements for
supplies a seimces) The design -builder shall be responsible
forconpllance by any subcontractor, loNar Ilersubcontractor
lar Service provide(.
Contratling agencies may reference Farm IT IWA-12731n No
proposal a request for proposal do Wmenu, however,lhe
From Ff IWA4273 must he physically dnrMfroodAd (not
referenced) in all commcis, subcontrads and lower -tier
sour.ontracrs (o eluding purchase orders, moral ogreemems
and crier agreements far supplies of services rotated to a
conttrutmon cnribari). .
2. Snbfectlothe appllcabllity anode noted in the M110%Adg
seefians, these contract provielpns shall apply to nil wuik
pelfoimed on he contract by Cha contramer's m'ay nnlarvrafion
and with the atsistonce of workers under the contractors
immediate superintendence and to all Nods perforated nn Ne
contract by pucowodG $fallen svoik, or by subcontract.
R IWA-1273-- Raweed May.l.2012
3: A breach of any births stipulations contalnad in theta
Secured Contract Provisions may be sufficient grounds for
wfmbpldng of pmgmss payments, xllliholding of final
payment. lamination of the ccoMacl, suspension I dermal
or any mparso" dAhordood to b8: appropriate by me
contracting agency and FliWA.
4. Selection of Labor. During the performance of Nis contract.
the contractor shall not use contact labor mi any purpose
YAMO the Motifs of a construction prosect on a Federal -aid
hlglwray unless It is labor Festooned by convicts who are on
panels, supervised mleao; or probation: The lets Federalald
highway doss not Include madwaysfunctionally daseiaed as
local toads or viral minor collackins
If. NONDISCRIMINATION
The provisions of this sectiun related to 23 CFR Pad 230 are
applicable to all Federal -aid construction contracts end to all
mletedcon6tmuilon6ubcoltmctsof510,000mIntoe. The
provisions of 23 CFR Part 230 ora not applicable Ie patarial
supply, eng nearing, ar drehitequral service contracts.
In addition, the contractor and all subcontmchas, must comply
Win the fnlimwfng Faddist- Executive Order 71246, 41 CFR 60,
20 CFR 1026-1627. Title 23 USC Seetian 140; the
Rehabilitation Act of 1973 as amended (29 USC 794). Tide VI.
of the Civil Rights Act of 1064, as amended, and rotated
regulations Including 49 CFR Pads 21 26 anti 27; and 23 CFR
pads 200, 230, and 03,1
The contractor and all cubconimciom must oornplyMAh: the
requirements p( the Equal Opportunity Clause In 41 CFR 60-
1 q(b) and. for all Construction contracts axceed ins $1 0,000,
the Standard Federal Equal Employment Opportunity
ConslNcllun Contract Specifications in 41 CFR 60-0 3
Nola: The U.S. Department of Labor has exclusive authority In
determine COmpllann Win E{Oc Ne Order 11246 and the
policies of the Secretary of Labor including 41 CFR 60, and 29
CFR 1625.1627: The contracting agency and the FIiWA have
the authority and the responsibtlity to ensure compliance with
Tits 23 USC Section 140, theRehabilltatlore Act of 1973, as.
amended (29 USC 704)and Title VI of the Chill Rights Art of
1964 as amentled, and rotated regulations Including 49 CFR.
Parts 21, 26 and 21; and 23 CFR Pare 200, 230, and 633.
The follovAng provision Is adapted from 23 CFR 230, Appendix
A; with apprnFdatarovisions to M. Icon to MOUS,
Department of Labor (US OOL)and FHWA regolmmenls..
1. Equal 6npInterest Opportunity: Equal employment
opportunity (EEO) faqulmm&Ns not to discriminate and to take
affirmative action to assure equal opporWniry as set form
under laws, executive orders, piles, tegulatlons (20 CFR 35.
20 CFR 1630,-29 CFR 1625-1027, 41 CFR 60 and 49 CFR 27)
and orders of the Secretary of Lobar as moddled by the.
provisions Prescribed herein, and imposed pursuant to 23
U.S C. 140. shall constitute Via EEO and apedfic a(fimhadve
nation standards for the contractor's project activides under
Page 1 of 12
this comms! The provisions of the Amenrens with Disabilities
Act of 1490 (42 Ua.C: 12101 at seq.) set faith under 28 CFR
35 and 29 CFR 1694. ere Incorporated by reference in this
contract mine execu6nn of this contract, Ilia mMmctar
agrees to complywith the follooing minimum specific
requirement activities of EEO
a. The contractor will work with the contracfirig agency and
the federal Government to ensure that it has made every -
good faith effort to pravmde equal onpoitunity with respect to all
of its benne and conditions of employment and In their review
of octivides under the contract.
b, The contractor Will Accept as Its eparsdng pricy Ino
following slatemmt
"it is the poicy of th s Company to assure (hat applicants
are employed, and that employees am orated during
employmentwA mgl regard to their (Ace. teiigim, sex. Octal,
I -k" torigin. agoordisabrily Such action shall Include:
emidamuet, upgrading demotion: a Varrctar: reclulntent or
racmibnat advert eing' layoff ar tenth fOW rales of pay M'
other farts of oompansaimc and selection for craning,
including appmnlle65hlp, lit" ranliceshlp, anchor on-the-
job training"
2 EEO officer: the contractor Wil designate and make
known to the ccouscting officals an EEO Officer Who Will have
the respan utility for and must be capable of effectively
adm:nlededng and praboling an acdye. EEO Program And Wim
must be Assigned adequate sulk dly and respanSlbliiy to do
5n.
3. Dissemlaadtan of Policy All members Of Ilia correctors
staff who are ,thorned to hire. supervise, Promote, and
discharge employee-: orsvho me Mond such action. ar Who
are substantially involved In such action, Will be mode fully
cogrxam of, and will implement, the cmimdors EEO policy
and comms uat respons tsilifles to provide EEO In each grade
agreement
theymenl g ensum Na be
as
agrdemet Will Its nref the following ecIlolls Will be taken as e
minimum
a. Pedodicineaingsafsupervisary m
andpeonneloffice
employees wit be conducted before the sten of work and then
not less often than once every six months, at which the fire
contractors EEO policy and its Implementation will be
reviewed and explained The rneetingswiltbacondudedby
the EEO Of icer.
b.. All new supervisory or personnel offs, employees Will be
given a No -ugh IpdoctrNallon by the EEO Officer, coVenn9
all major aspects of the coidredoes EEO obligations NY Oil"
thirty days followng their reporting for duty tIh The contractor,
the.All prolertwlIll l e Instructed by has EEOral lopgRr In m ani for
amunctnra procedures fax locating and Il drig minodlles and
women.
It Notices and posters setting forth the coneacta°s EEO
Iialicy will be placed in areas road ly accessible in employees.
applicants for enlpnymenl antl POsudisl 011110y6es.
a. The conUastora EEO Policy and the procedures to
Implemenl such policy will be brought to the attention Of
employeet bymeahe of nlaatinge, mitpinyoa haridbdaks:ib
other apprOpdate means,
4, Recruitment: When aMerosing foremployess, ins.
cmdrictorved include in All advertisements for employees the
notation: "An Equal Opportunity Employer: All such
advanieementc Wit be placed in publications having a large
circulation amon9 minOneea and women In the area from
which the project work on, would normally he convert
a The contractor MAIL unless precluded by a valid
bargaining agreement conduct systematic and direct
widuibnent through public and private employee refarml
sources likely to yield qualified mirprides and Women. To
meat this requirement, the contractor will Identity sources of
po(e0tial mmonly group employees. and establish %Nit such
idonlified sources procedures whereby minority and Woolen
applicants may be retained to the contractor for employment
consideration.
b. In Ne event the contractor has a valid bargaining
agreement providing tw exdusive hiring hall Mistral%, the
cgnirador is expected to observe the ptnvisians of that
agreement to the extent that the system meets the crmimdars
compkanco with EEO Contract prcrvpaens Whom
implementallon of such 00 agreement has the effect of
disr,minafing against famodbes or WOMOn, oroWigates me
contrador to do the same, mush Implementation Vidales
Federal nwallsannineuonpromsions,
c, The contractorwill encourage its presentetplayess to
reler minoddes and Women as applicants for employment
Information and procedures with regard to referring such
applicants Nil be discussed with eniplayess.
S. Personnel Aclfons: yveges, wilding c,ndlfioils.. and
employee benefits shall he established and administered. and
personnel actions of every We, Including hiring. upgrading.
promotion, tiapsfmr, demotion, layuft. and semtinaosa, shall be
taken without regard to race wlor,religion. sax, national
.origin, age or disability, The following pmcedurosshallW
followed:
a. The conlrectarwfll conduct Periodic Inspections ofprgect
do not lntllc6te11chse mniatiory treatment of pr c employee eadiides
personnel
b The contractor Wit periodically evaluate the spread of
wages paid within each ciassdwaton to deleAIM0 any
evidence of discriminatory Wag, practices,
c TheronGaalpr will pedodnslly revlewselestaN personnel
actions in depth to determine Whether there Is evidence of
disr,mm'ation Where evidence I% fond hl contractor Vali
.promptly take collective action,tf the review Indicates (hatihe
rasodromadon ntay extend beyond the actions revlaivedmuch
ro,mfive action shall include all Alieded palmnAe,
d The cotmry4'wdil pmmptiyfiivisigald all cornplalnls of
alleged efiscdnanadon made to the Contractor In connection
with rats Obligations under tons fxinbed Wil Altampl to resolve
elicit compiants, suet will take appmptite ctirective action
with a reasoushte lime, If the Investigation Indicates that the
disdlminafinn may affect persons other Nat lite colnpinlnanl.
such tnnerit" action shall Include such other persons Upon
cornpledon of aach Investigation, the contractor will Worst'
every complaint of all of their avenues Of appeal,
6, Training and Protolioh:'
a The coidraChu Wll assist At missing quallying, and
Increasing the skiis of minoridas and woman Who are
Page 2 of 12
applicants for employment orcunont employees.. Suchelfats
should he good at developing full tourney level status
employees In the type of trade of job classification involved,
C. The contractor will advise employees and applicants far
employn)ara of available Vaiging pregame and entrance
regVlreman161oreadL
rl. The contiadnpgill peliorlically review the training and
promotion potential of employees who are minuitles, and
women and Oil encourage eligible employees to apply for
such irmpkig and promnaon.
7, Unions: If the connector relies in whole or in part upon
unions as a source of employees, the contractor will use Used
faith egods is obtain the cooperation of such unions to
tailgate opportunities for minieiles and women. Actionsby
the contractor, either directly orthrough a contractor's
assopauori aaung as agent, Wil Include the piraoedures set
faith below;
a: The contractor will use good faith efforts to develop, in
cooperation with the unions join) Veining programs aimed
toward qualifying more minorities and woman far membership
in the unions and increasing the dolls of minorities and women
so goad they may qualify far higher paying employment.
b. The contractm gall use good fail eRods to Imbilmoale an
EEO rdause into each union agreement to me and that such
union Wit be contractually bound to rater applicants without
regard to Iheir raw, solar, religion. sex, national origin. age or
chsabitty.
o. The cmeactsels to obtain Information as to the referral
practices and potties of the labor union except mat to the
extent such Information is within me exclusive possession of.
the labor union and such labor union mtuses Is furnish such
Information to the contractor the contractor shall ao Canty 10
the cmt ereng agency and shall set faith what egods have
been made to obtain such Information,
6, Reasonable Accommodation for AppllcaetsI
Employees with Dlsabllttios: The contractor must be familiar
Win the renoremenls far end comply, With Ute Americans with
Disabilities Ad and all miss and ragulalions established there
under, Employers must provide reasonable accommudoonin
all employmont activities unless to do to would cause an
unduehardshtp,
9. Solocfton of Subcontractors; Procurement of Materials
and Lea hill of Equipment The contractor that act
discriminate an the grounds of race, color, retglooi sax,
national origin. age or disability In the selection and retention
of subcontrectorsi including ptoaremeng of matelots and
luasesofetuipment The contradorshalt into all necessary
and reasonable steps to ensure nondwe nmmalion In the
admimsbaOoil at rale Waited.
a. The contractor &Mall noely all Plants' ant'
suppliers and lessors of their EEO obligations most this
wmtra&
Is The cnnVarim gill use good faith egmts to ensure
subcontractor compliance will their EEO abligatiots.
10. Aaaurahce Rcgnlmd by49 CFR 26.13(b)
a. The roqulrenimts of 49 CFR Pan 2n and i h6 StMe
DOTs U.S, DOT -approved DOE program are Incorporated by
reference.
b. The contractor or subcontractor shall not tastotmmata an
the basis olface, color, national origin, lir sex In the
pedmmanre at rats cpltraN The tentractor Wiail fang nut
applicable requirements of 4g CFR Pan 26 in the 2mrd and
administration of OOT -assisted contracts. Failure by the
catheter to May cul these requirements Is a malarial breach
of this contract, winch may result in the termination of this
contract or such other remedy as fine contracting agency
deems appropriate.
11. Records and Repodsi The contractor shell keep such
records as necessary to document compliance win the EEO
requirements, Such recomsehall be retained for a period of
three years following me date ofthe final payment to me
contractor for all contract walk and shall be available at.
reasonable times and places for inspection by authorised
mMesentatives oflho wntraculli agency and theftiWA.
a The mosses kept by the cuaclM shah donanent the
(1) The number and wok hours of minority and lips'
minority group. members and vromen employed in each walk
.classification on the proled:
(2) The pragross and efforts being made of cooperation
with umogs. whan applicable, 19 Increase employment
opporlunifias tar minorities and wopherc and
(3) The progress and efforts being made in testing, filling:
Vaming. quattying, and upgrading niln vities and waren;
Is The contractors and suncontrsclnm still submit rail annual
report to the contracting agency each JtAy far Inn tfurahgi Of
the project. Indiwliog the number of minority. "men, and
non•metogly, group emplei pas cunan0y engaged in each Work
etassiowtlmrequlyd0bythecoh4bclwerk Tmslnfamiatlonis
to be leportorl on Form FI IV/A-1391, The stetting data should
represent the project Wok forty on board in all or any part of
me last ppymg permit preceding Ills and of duly- )f oh -the -jab
training Is being required by special provision, the cphimcgor
Page 3 of 12
will be regNred to collect and tapurk imbing data The
olil ny part of the lasplolent data h reflect the Welk force on board ng
payroll peliod preceding the And of
July:
111. NONSEGREGATED FACILITIES
Thus provlsiwt Is appllcaote to all Federal -old construclim
contracts and to ail related construction subcoat'ads of
570,000 or mole.
IV. DAVIS-BACON AND RELATEDACT PROVISIONS
The fallowing pioNslons are from the U.5 Departmehl of
labor h glaattwlS In 29 CFR 5.6 "Contract promslons and
related matters" vMh minor revisions to conform to the FI WA -
1211 fedurd and FNWA program ledue9monts.
1, Mlnlmum wage&
Contdbuggle, Made or casts roasgnabiy anticipated for bona
fde tongs benefits under section 1(bg2) of Uta DaylrBacon
AN ch behalf of tabours or maehanics aro considered l"gas
paid to such laborers or muchailis, subject to the provlsims
0 (1) The rXmtractog officer shall require that ally cla$s Of
laborer, or mechanics tnchuling helpers -Which Is net fisted in
the Wage datdrrulnNgm ON, Ohlch is to be Nuployed under the
contract shall be ciassifid in confonnarrce 01) the wage
determmaaon The rmt aid g officer shall approve an
additional dassl0celin and yoga rale and binge benefits
therefore only when the fulovang colors have been twat:
0) The vmrk to be pedomjed by the classifice6n
raquesled is Nd perlwmed by a classification In the wage
detem9nation; and.
(it) The slassgloation Is himself In the area by pia
ennstrudiopindustry; and
(fn) The, proposed wage rate, including any bona fide
binge benefits: hoars a reasnriabin wlaflonship to the
wage rales contained in the Wage dolomtlnatlon.
Page 4 of 12
Will nu4fy die contracting officer Within the 3gclay period that
additional time is necessary,
(h) The Wage rote (including flags benefits where
appropriate) determined pursuant to paragraphs a.b,(2) or
1.b.(3) of this section, shalt be paid toall Workers performing
Work In theclassification under this contract area dta first
day on WHO work is performed In the ClaealfifatiM1:
c, Whenever the minimum Wage rate prescribed In the
contract far a class of laborers or modumics includes a fringe
benefit Which Is not etpressed as an haudy rate, the contractor
shall either pay we benefit as stated in the wage determination
or shall pay another bona his fringe benefit or an hourly cash
equivalent thereof
: to a trustee a
w as pad of the
I of any costs
fringe benefits
iacratary of
2. Withholding
3. Payrolls and baste records
(2) Each payroll euhlnitled shall be accompanied by a
"Statement of Compliance,+signed. by the contractor or
sm oontranor ar his or her agent who pays or supervisas the
payment of the, persons employed Under the contract and shall
cattily the falloWNg:.
_O That the payroll for the payrd(.petiod ccnfams the
information required to be provided under §b:§ (aX3)(li) at
Regulatlorw, 20 CFR part 5, the appropriate Information Is
being maintained under §5.5 (eg3A) of Regulations, 29
CFR pad 5, and that such Infoanelicn Is convict and
complete: ,
SII) That each laborer or mechanic including each
00
per, apprentice and bsinee}emp(oyad on the contract
during the payroll period has been paid the full weekly
Wages earned. without rebate, either cirecty or indirectly,
and that no deductions have been Made either dnmcmy or
indlecify tenni the full Wages Germed, other than
permissible deductions as sot moth in Regulations, 29 CFR
pan 3;
(fill That each laborer otmechanlc has been paid not
less than the applicable Wage rates and Idnge bends or
cash equivalents for the dassificatien of work performed,
as specified in the applicable Wage deteminakei
Inrcirporaled Into the contract.
Page 5 of 12
(3)The Moldy eubm'sston of a properly exerthed
rarifficefipn set forth on the reverse side of Optional Font
requirementWI f-347 $hall ultsfy the "IM of the
Statement of Compliance' re4uimdby paragraph 11 &1, l2) Of
this seCIOM
(4)The falsti doh of any of the above certillOdmes may
Sbbjent the oome'apia or subronlrapior to 001 or l3imInal
prosecugnn Under secUon snot of late 16 and section 231 of
tine it at the United Slates Code,
A. Apprentices and holnoes
a. Apprentices (programs of the LISUOL).
In the event the once of Apprenticeship Training. Employer
egpgnizsd by a CMOs, SWate tlxlraws appmwlof en 1yy
apprehtloes4lp progteam� Ibe cohiml for edit no longer be
permitted to ulnae apprentices at less than the applicable
predetermined rate for the Work performed mill an acceptable
program is apprpved.
b. Tremae. (programs of the USOOL).
Except as provided in29 CFR 5,18. Iramees vrill not be
pemaned to work at less than the predetermined rale fa the
,Werk pmommed unless they are employed pursuant to and
Individually milletered In A program Which has received prior
Departmentlateral f
of Labor Employment and Troication nning U.5'
Administration
Tea ratio of trainees to journeyrneli on the InU site shall not be
greater than
permitted
nt Tmdlba erthnPllanlapproved by the
Emplym
Every apprentice must be paid at Wiese than the rate
specified In the registered program for the apprentice's 1601 of
progress, expressed as a patcentage of the journeymen hourly
In the event the.Fleployment end Training Administration
Withdraws approval of a. bristling pmgrafn, the cordmot" "ill no
longer be peitndted to ulyin Inniees at less than the
applicable pmcles,mined rate for the wak performed bell' on
aOcspmbiq program is approved.
c Equal bmploymantoppo Wnity The WIINA1011 of
apprentices trainees and jobmeymen under this pad shall be
in confpmtity titch the e4ual employment opportunity
requirements of Exacalwo order 11246, as amended, and 29
CFR pad 30.
Page 6 of 12
o. ;Apprentices and Trainees (programs of the US, DCT),
3. Compliance with Copeland Ant requirements. The
wnbadorshall comply vgtr the requbemenK of 29 CFR pad
3, Which are Incorporated by reference In this connect.
0. Subeomraots. The contractor Or subcontractor shag treat
Foran FIIWA-1213 in any subcontracts and also require. the
Subcontractors to Occlude Form FH WA42731n any lower ser
subcontracts, the prime nonmotor shall be espomabla forff a
compliance by any subcontractor or [vier ser subcontractor
with all the contract Clauses In 29 CFR 6.5,
7.Colltmettetlnlnatloll:debarment. Abreathotme
contract clauses in 29 CFR 5.5 may he grounds for termination
of the confratl, and for debarment as a AlntraCtor and a
Subcontractor as provided in 29 CFR.5,12.
8. Compliance with Davis -flacon and Related Act
requirements. All whose andOtemrelafighs of Ilia Devi* -
Dacon and Related Acts contained In Rik GFR parts 1, 3, and .5
are herein incorporated by reference in this contract.
S. Disputes concerning tabor Standards. DISputes Wising
out of the labor standards provisions of INS contract shall not
be subject to Ilia general disputes Clause of this Conran, Such
disputes shall be resolved to accordance with The procedures
of the Dapatmalil of LAW Set fade In 29 GFR parts 5, 6, and
7. Disputes within the meaning of this clause Include disputes
beh"an Iiia cotsschir for any of IMS Snbcnniraotora) and the
contracting agency, Ilia U.S. Dapattment of Labor, or the
omployeas nr their representasvex�
to. Certification of at1916i1ify.
a. Dy entering Into this contract the carpenter certiflas that
neither It (nor he Or she) net any person a ami who has an
Interest in the coitractar's film Is a person or firm Ineligible to
he awarded Govemmenl conlmcfs by Virtue of septoY 3(a) of
the Davis -Sacco Act er 20 CFR 5.12ta'41).
b. No part of this contrad shall be subcontracted to any person
or firm ineligible for award of a Government 6intmw by virus
of aedlon 3(a) at Ilia Davis Sawn Act nr 29 CFR SI2(axi ).
c: The penalty for melding raise statements is proscribed In the
U,S, Criminal Code, /0 U.SC. 100E
V, .CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
The following clauses apply to any Federabald construction
contract in an amount In excess of 5100,000 and subject Ip the
overtime provislous at the Contract Wak I loulsand Safety
Standards Act Three clauses shall be insetted In incident to
the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As
used in Mile paragraph. the tenns laborers and mechanics
mciude Wa Chin al and guards.
1, overtime requirements. Nncantmcmrarsubcnntrsdof
carit ailing farany pad of the coliuoct Wok which may mqum
Or involve the employment of laborers or mechanics shag
require or permit any such laborer or mechanic in any
workweek In %hicnhe or she Is employed an such Wok to
work in excess of lorry hours in such wbrkWeak unless such
Water or mechanic mad a3 compensation at a Pate not less
Than one and one -halt times the Basic late of pay for all hours
wWiced in excess of foray hours In such workweek.
4. Subcontracts. The contractor orsubcontractor shall itself
in any subcontr$cfeNis dauses set forth In peragratill I )
through (4,) of this shcton and Stan a Clause requiring tie
subcontractors to Induce these evident to any lower liar
spbainlrads. The prime contractor shall be haponsIblo far
compliano7 by any subcontractor or tower ser Subcontractor
with the dauses not forth In paragraphs (I ) (hough (4) of this
section.
Page 7 of 12
Vt. SUBLETTING OR ASSIGNING THE CONTRACT
This provision Is applicable to all Federal -aid construction
contrails an the National I IlghWay system.
evidenced in Waling and beat It contains all pertfienl provisions
and requirements of Die prime contract
5. The 30% sof- performance e quiroment of paragraph (1) is
not applicable to deslgn4wild contracts: however, contracting
agencies may establish their sera selfltedomfence
requirements.
VII. SAFETY: ACCIDENT PREVENTION
T In 1 a p r o v I s I o n J e applicable to Federal-ald
construction contracts and to all related subcontracts,
(t) the From m irdfoi torntalntauls caret over rho
superAsinn of the day ho -day activities of the leased
all
b. "Specialty Items" shall be ognetrued to be limited to we*
that requires hfglly spedaAzed knoviledge. abldles, or
equipment not 016hadly available in the type of contracting
organizations qualified and expected to bid a propose on the
contract as a Whole and in general are to be lunged to minor
Components oftheoveral cordtracC
2, The contract emound upon which the requirements set forth
In paragraph (1) of Section Vt is computed Includes the cost of
material and manufactured products Winch are to be
purchaser) or pmduod by ma contractor under %4 contract
proVislons.
a. Ilia contractor shall fumish (a) a amtpatent aupodMandent
or supervisor who Is employed by the firm, has tel authority to
direct prominence of the wens In accordenco with the case Act
requirements, and Is In charge of all conslrurtlon operations
(regardless of Who paiforms the Wolk) and (b) such olher of Its
own organlutionat resources (supervision, managanient, end
engineering services) as the contracting nater datemtuies is
necessary to secure die performance of Die contract
4, No portion. of the contract shall be sublet, assigned or
othanNea disputed of except von Cha wnttan cmumsd of Die
contracting officer, or authorized rewasehlsllye, and such
content Men given shall Who (MMMad to relays the
contractor of any responsibility fa the fulfillment of the
commis Written consent Will be given only atter she`
contracting agency has assured Ural each subcontract is.
2, Disarm
condition of i
I more and Safety Standards Art (40 U.S:C. 3704)
b
be
1. Pursuant to 29 CFR 1326.3; it Is acondition of this contract
that the Secretary of Labor or authonzod representative
thereof, shall have light of entry to any site of Contract
performance to inspect a investigate Ilia matter of compliance
With the construction safety and health standards and to carry
out the duties of the Secretary under Section 107 of the
Contract Waft Hours and Safety Standards Act (40
U.S.C.3704).
VIIL FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
T In I a p r o V I a I a n I a applicable to all federal -aid
construction contracts and to all related subcahiracis..
1a U.5 C. 1020 roads As Tollo al
Page 8 of 12
Whoever knowingly makes any false statemo nt, false
representation. false report or false claim with respect to the
character, quality, nuanfily, or chat of any weir performed or to.
W performed. a materials furnished or to be furnished, in
mon6tbmn With the mosbut im atmy highway at related
project approved by the Secretary of Transportation: or
Wlmaver Wal mngiy makes any false statement or false
tepresemation as to matmad fact in any slab mint, cerfificate,
lir report submitted pursuant to provisions of the Federalald
Roa9S Act approved July 1, 1916. (39 Stat 3551, as amended
endsJpplamanted;
Shall be finadunder this title m imprisoned not more than 5
years Of troth."
19. IMPLEMENTATION OF CLEAN AIR ACT AND. FEDERAL
WATER POLLUTION CONTROL ALT
This provision Is aprirabe to all Federal -alit conSUMt o,
contracts and In all related subcontracts.
By submission of this bldlpmpinsel or the execution of this
contract. Or suhconirard. as appropriate: die bidder, proposer,
Faderdl-ald conshucllon contractor, or subcontractor, as
appropriate, will be deemed to hove stipulated asfollows:
i; Thal any person who is or will be utilized in the
performance of this contract Is not prohibited from recalling an
award due to a violation of Section 608 of Bre Clean Water Act
or Section 300 of the Clean Air Act.
2. That the contractor agrees to include or cause to be
Included the requirements of paragraph (i) of this Section X In
every subcontract. and further agrees to lake such Aram es
the contracting agency may direct as a means of enforcing
such requirements.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Fedoml-aid ronsOpction
contracts, design -build contracts, subcontracts lowervfier
supcyntracts, purchase orders; lease agreement6 r:nneultalt
contracts or any other covered transaction squiring FI WA
approvalor that Isetl180 to cost525,990 erninla-as
defined in 2 CFR Parts 180
189 and 1290.
1, Insirueflens for Certiflcatlan— First Tier Participants:
a, By signing add .submitting this tvaposal, the prPspedivo
first der participant Is proAdplg the imbrication ani and below.
is The Inability of a parson to provide the certification RM nut
boleti cold not necessarily result in denial of participation 10 this
covered tlatisection. The prospective Arst her participate shall
submit an explanation of why it cannot provide the cerfilicadon
sot out below. The c irtificaVon or explanation will be
considered in manodon with the depallment or agencys
determination whether to enter into this trails action. Ilow'evsr.
(allure of iia PrIsmactive Aust ter participant 10 furnish a
mobfication a an explanation shall disqualify such a person
from participation In this bins cfion.
c. The caroficationin this clause IS a nratedal regresenfaficn
of fact upon Mich reliance was placed Mien the contracting.
aga7cy determined to enter Into this transaction. If IIIc later
datanbbned dial the prospective participant knowingly rendered
an eNanepas cortlAcaion to addition to other ramadies
available to the Federal Govemment, the contracting agency
may temmiriato this transaction for mum of defaull.
it The prospective Arst barpanitipant shall provide
Immediate written halite to the correcting agency to whom
this proposal A submitted it any time the prospective first der
participant knows that Its cerebration was erroneous when
Wbmdlad or has became erhMeaus by reason of Ehangod
drewnstances.
I. The prospectva first ter participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered Into. it shall not Imovingly enter Into any lower Ver
covered ba isadidn with a person who is debarred.
suspended, declarer) Ineligible, orvoluntanty excluded from
paiticipsdon In this covered Iromactian unless authorized by
the deparbneM or agency entering Into this transacVon.
g. The prospective first der panichant further agrees by
submitting this proposal That d will Include the dol ur filled
"Cerfifitation Regarding Debarment. Suspension. Inellgllxllly
and Voluntary Exclusion -Laver Tier Covered Transomons; r
provided by Vie department a contracting agency, entering
Into this covered transaction, esthoul modification. in all Iowm
liar coverers bansaclims and In all solicitations lot lower bar
covered Iranandlars exceeding the 325,999 threshold.
Page 9 of 12
Nothing cnmNed in the foregoing shall be cans Wed to
rage¢, the establishment of A system of records In order to
render in good faith the cedffirabon raguired by this douse.
The knomadga and Information of the prospective participant
Is hot required to exceed that which Is normally possessed by
a prudent person in No ordinary comae of business dealings
1, Except for transactions auNodZOd under paragraph (I) of
these Instructions, if a pamdpant in a covered transaction
oiowdngly enters into a lower her covered transaction Win a.
person who Is suspended, debarred. Ineligible, or voldnianly
exdutled hpm parodpallon in this Iransachn, in adds lon to
Other
remedies available to Vie Federal Gova ndirld. Its
department pr agency may eminate this de eactial for Cache
or default.
I.
2. Centillcillicid utry Debarment, erloh,
Ineligibility and Voluntary EzcsloFirst suspension,
participan(s:
a. The prospaclive gmltierpedldpam caflioastothe, bestor
Its knowedgaadd ballot that it and its pre lcipaw
(1) Am not presently debarred suspended. proposadta
deharmenl declared ineligible orvdimhahly excluded from
padidpalmg in covered transactions by any Federal
paperboard or 8gehdyl
(2) l leve not Wthin a rhom.yearpedod pmcoding(his
proposal been MWACAed If or had a civil fudgmanl consisted
against Nem for trmmission or fraud or a criminal offense In.
connection "t, obla trail attempting to obtainOr pedumoirt4
a public (Fademl State nr meal) bansacdn or contmd under
e public transaction; violation of Federal or State) antitrust
statutes orwoudisslon of embinWemenl, theft, forgery,
bribery, latmfieOn or destruction o1 records. 111 18150
statements, oenucelving stolen properly;'
(3) Are not Presehllyfndicted tororbthenviss criminally or
civilly charged by a gwarnmentel mudy (Federal. Slate or
local) \dth conmissin of any of the off xnses enumerated In
paragraph (8X2) of this carhfrcabonl and
(4) Nave not wiNN a threeyear period preceding this
appllcauoNproposa) had ria or more public transactions
(Federal, State or local) terminated to Imus- 0' default,
h. Whare the prospective pared identis unable to caddy to
any of. the Statements In this certlhcetin, aucb prospective
pamcipant shall attach an explanation to Ws Propose'
2. Instructions for certification , I -Mor Tier Pernclponta:
(Applleble to -11 subeanhacfe, purchase orders and OHIO'
lower forhar+aadoda requiring poor FI)WA approval OF
estimated to cost 525,000 or mora 2 CFR Parts 180 and
WOO)
flavoruris provid ng the carhand firal on set out belowaspenGve
b The c,dificattort in this clause is a material represe)nlatiori
It fact upon which iallance was Piero() Oar this tmosactibn
cogs entered Into It it is later detelmim l that the Pio drectlJo
I"o, hal pamnpenl knowingly, romood an ferments
ceroficalln, In addition to other remedies available to the
Federal Gwsfibllam, the deparldrWA or agency Win Which
this transaction corrosion Play pursue available remedies,
including suspension atnifw debamoent.
c.. ros
The ppedNo tovmr for participant shall provide
linmedrsto vmtten police to the person to which this proposal Is
,wantiled if learns that its erlifieti n Was SompOws by reany film& the prospective ImAer ason Of iar rlpant
a
changed Grcurlslances.
e The prospective havverber participant agrees by
submitting this proposal that; should rho proposed covered
tronsadionbe entered into. It shall notknovengly enter into
anylower oar covered transaction WAN a person Om 'a
debarred. sugponded, dedared ineligible, M valuoundy
excluded from pardppaOnn In this covered transaction ,txdeas
euthoInd by the department o agency veld which this
transacsnodgishmad
I. The prospective lovrer tier patticipanl further agrees by
submitting this proposal that it will include this clause filled,
"Cerofmatln Regarding pabament, Suspension, hux'SllbltlN
and Voluntary Exclusion- rTior Covered Transaction;'
vANout modification In all lower tier covered transactions and
in all sollGIIII s for lower lief covered bansacbns exceeding
the $25,000 threshold.
Ig
h Nothinegconialnn In Ore foregoing shall heiwnsWad to
return eab, ushment of a system of rafrrda reorder torpnder
in good faith the cedRlrahn mQueed by the clause. Tile
.knowledge end inlomtaoon of panlapantIs not tegUred to
exceed that vAll¢h Is ❑mmally Possessed by a prurient partial)
In the ordinary xvir, of business dealings..
1. Except for mansadnons audwdzed under paragraph a of
those Instructions. If a padtelpant In a covered transaGBM
IntoWngN timers into a Imar Her covered transection Win a
person who is suspended debarred Ineligible. Of votuntedly
excluded from participation In Nis haneachn in addition to
other remedies evadable to the Federal Government, the
Page 10 of 12
department or agency with which this transaction cdginared
may pursue evalletle remedies, Including suspension Mull.
debarment
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion—LoworTlor
Participants:
9,TheWwpecavelowerborpediclpanteeltifies,by
subbdssim Q11heproir sal, that neither It nor Its principals Is
presently debarred, suspended. proposed Iordebanneinl.
declared Ineligible,. br VolUmarih/ excluded from participating In
covered trensactlons by any Federal department or agency.
2. Where the prospective lower bar participant is unable to
certify to any of the statements In iltie ceraficauen, such
4Vospactive participant Shall attach an explanation to this
proposal.
Xi. CERTIFICATION REGARDING USE OF CONTRACT
FUNDS FOR LOBBYING
This provision Is applicable to all Federal-ald constructlon
rantracts and to all murtedsubanntracls whlch exceed
S100,000 (49 CFR 20),
i. The ismspoc0v4 participant celsfias, by signing and
auumiffing this bid or Proposal, to the befit of his or liar
knonladlia and belief, that:
b. It any funds other than Federal appropdated.funds have
been paid or will be paid to any person for In luepdng or
attemp0lg to Influence an officer or employee of any Federal
agency, a Member of Congress, an ofAcer .employee of
Congress, or an employee of a Membar of congress In
connection with this Federal contract, grant, loan, at
cooperative agreement, fire uhderslgnedshall compete and
subntt standard ppm -LLL, `,pisdosure Fomr to Report
Lobbying," In accordams with its In4IW, lons
2. 7Nscedda:auan la a malenal tepYeaentagon otfacdtipnn
which reliance was placed when this Immacflon was made or
entered Into, :Submission of this cenlfifation is a prerequisite
for nuking or entering into dile transaction Imposed by 31
OS.C, 1352 "my person who tails to file the required
cedifioa4nn shall be subject to a civil penalty of not less than
310,000 and not mora than. 5100,000 far each such failum,
3: The proapetfWa phrlidpahl also agrees by submitting pa
bid or proposot that the participant shall require that the
language of this colti0caflon be Included in all Imwr list
subcontracts, which exceed $100,000 and that alt such
recipients shall fainly and disclose accordngty.
Page 11 of 12
ATTACHMENT A•EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
undarrtheprovision
Appalaapplicable
ialn Regional �evoiopmlent Art of 96scts funded
a. During the pori mtance of this contract. the contractor
undeNsking to do work yvhin Is, or reasonably may bo, done
as on.site Wolk. shall, give pfefemnce to qualified persons Win
regylady reside in the labor area as designated by the DOC.
vdleroln the contract MIR Is sthiated, or the subregion, or the
Appalachian cuuuGeaOf fits State 151terein the contract Mix Is
situated, except:
a, To the extent that c uallaad persona regularly nuodmg In
me area are not evaliab�a.
D. For the reasonable needs of Ute contractor to employ
supervisory m specially expedenced parsoonai necetssry to
"auto an efgdent eaecugen of the PMUact VmrkL
o. For the obligation of the caalrsclor to ager employment to
present or fanner employaos as the result of a lavdul collective
bargaining cnntrmlt; provided gnat the numberOfnonresident
persons employed under "a subparagraph ( )
exceed 20 percent of the total number of employeesemployed
by the contractor on the tonbact work, except as provided In
subparagraph (4) 11e10%
3. Tne conhacatt titan give full consideration to all ouagaeO
fob epplirams retelred to him by tine State Employment
Sentra. The Wireciorls not required to grant employment to
any Job applicants On., in his Opinion are not qualified to
Perform the classification of work required
6. The contractor aflad include the provisions of fiecUns 1
illoct
wKh"icrh is, oreasonably may be, done as on
fthim ' a -site MIR � wok
5, The provisions 0230FR633207(a)allow the
lOnto 1"
use ofcontractual
mnuet resource materials aive ttf
the Appaachani6
fagion.
12
page 12 of 12
EXHIBIT J — FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule)
The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to
State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18,
except to the extent that other applicable federal requirements (including the provisions of 23
CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore
supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation:
the Local Agency/Contractor shall follow applicable procurement procedures, as required by
section 18.36(d); the Local Agency/Contractor shall request and obtain prior CDOT approval of
changes to any subcontracts in the manner, and to the extent required by, applicable provisions
of section 18.30; the Local Agency/Contractor shall comply with section 18.37 concerning any
sub -Agreements; to expedite any CDOT approval, the Local Agency/Contractor's attorney, or
other authorized representative, shall also submit a letter to CDOT certifying Local
Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d)
procurement procedures, and with 18.37 sub -Agreement procedures, as applicable;
the Local Agency/Contractor shall incorporate the specific contract provisions described in
18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services
as terms and conditions of those subcontracts.
B. Executive Order 11246
Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as
amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department
of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of
$10,000 by the Local Agencys and their contractors or the Local Agencys).
C. Copeland "Anti -Kickback" Act
The Copeland "Anti -Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR Part 3) (All contracts and sub -Agreements for construction or repair).
D. Davis -Bacon Act
The Davis -Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor
regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local
Agencys and the Local Agencys when required by Federal Agreement program legislation. This
act requires that all laborers and mechanics employed by contractors or sub -contractors to work
on construction projects financed by federal assistance must be paid wages not less than those
established for the locality of the project by the Secretary of Labor).
E. Contract Work Hours and Safety Standards Act
Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction
contracts awarded by the Local Agency's in excess of $2,000, and in excess of $2,500 for other
contracts which involve the employment of mechanics or laborers).
F. Clear Air Act
Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and
sub -Agreements of amounts in excess of $100,000).
G. Energy Policy and Conservation Act
Mandatory standards and policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
(Pub. L. 94-163).
H. OMB Circulars
Page 1 of 3
office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110,
whichever is applicable.
I. Hatch Act
The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state
that federal funds cannot be used for partisan political purposes of any kind by any person or
organization involved in the administration of federally -assisted programs.
J. Nondiscrimination
42 USC 6101 et sea. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part
80 et. seg. 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 121 1 -12134,12141-12150,12161-12165, es Act1c Law 0
2 47 USC 225 and 472 USC 12101, 12102,17
USC 611,
L. Uniform Relocation Assistance and Real Property Acquisition Policies Act
The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended
(Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor
is acquiring real property and displacing households or businesses in the performance of the
Agreement).
M. Drug -Free Workplace Act
The Drug -Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seg. .
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
Page 2 of 3
procurement of materials and leases of equipment. The Contractor will not participate either
directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations,
including employment practices when the contract covers a program set forth in Appendix C
of the Regulations.
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.
Page 3 of 3
36. EXHIBIT K — SUPPLEMENTAL FEDERAL PROVISIONS
State of Colorado
Supplemental Provisions for
Federally Funded Contracts, Grants, and Purchase Orders
Subject to
The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended
Revised as of 3-20-13
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded,
in whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these
Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into
and made a part of the contract, the provisions of these Supplemental Provisions shall control.
1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the
meanings ascribed to them below.
1.1. "Award" means an award of Federal financial assistance that a non -Federal Entity receives or
administers in the form of:
1.1.1. Grants;
1.1.2. Contracts;
1.1.3. Cooperative agreements, which do not include cooperative research and development
agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as
amended (15 U.S.C. 3710);
1.1.4. Loans;
1.1.5. Loan Guarantees;
1.1.6. Subsidies;
1.1.7. Insurance;
1.1.8. Food commodities;
1.1.9. Direct appropriations;
1.1.10. Assessed and voluntary contributions; and
1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by
non -Federal Entities.
Award does not include:
1.1.12. Technical assistance, which provides services in lieu of money;
1.1.13. A transfer of title to Federally -owned property provided in lieu of money; even if the award
is called a grant;
1.1.14. Any award classified for security purposes; or
1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of
the American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111-5).
1.2. "Contract" means the contract to which these Supplemental Provisions are attached and includes all
Award types in §1.1.1 through 1.1.11 above.
1.3. "Contractor" means the party or parties to a Contract funded, in whole or in part, with Federal
financial assistance, other than the Prime Recipient, and includes grantees, subgrantees,
Subrecipients, and borrowers. For purposes of Transparency Act reporting, Contractor does not
include Vendors.
1.4. "Data Universal Numbering System (DUNS) Number" means the nine -digit number established
and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet's
website may be found at: http://fedgov.dnb.com/webform.
I.S. "Entity" means all of the following as defined at 2 CFR part 25, subpart C;
1.5.1. A governmental organization, which is a State, local government, or Indian Tribe;
1.5.2. A foreign public entity;
1.5.3. A domestic or foreign non-profit organization;
Page 1 of 4
1.5.4. A domestic or foreign for-profit organization; and
1.5.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non -Federal
entity.
1.6. "Executive" means an officer, managing partner or any other employee in a management position.
1.7. "Federal Award Identification Number (FAIN)" means an Award number assigned by a Federal
agency to a Prime Recipient.
1.8. "FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-
282), as amended by §6202 of Public Law 110-252. FFATA, as amended, also is referred to as the
"Transparency Act."
1.9. "Prime Recipient" means a Colorado State agency or institution of higher education that receives an
Award.
1.10. "Subaward" means a legal instrument pursuant to which a Prime Recipient of Award funds awards
all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient's support in the
performance of all or any portion of the substantive project or program for which the Award was
granted.
1.11. "Subrecipient" means a non -Federal Entity (or a Federal agency under an Award or Subaward to a
non -Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of
the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to
the terms and conditions of the Federal Award to the Prime Recipient, including program compliance
requirements. The term "Subrecipient" includes and may be referred to as Subgrantee.
1.12. "Subrecipient Parent DUNS Number" means the subrecipient parent organization's 9 -digit Data
Universal Numbering System (DUNS) number that appears in the subrecipient's System for Award
Management (SAM) profile, if applicable.
1.13. "Supplemental Provisions" means these Supplemental Provisions for Federally Funded Contracts,
Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of
2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or
State of Colorado agency or institution of higher education.
1.14. "System for Award Management (SAM)" means the Federal repository into which an Entity must
enter the information required under the Transparency Act, which maybe found at
http://www.sam.gov.
1.15. "Total Compensation" means the cash and noncash dollar value earned by an Executive during the
Prime Recipient's or Subrecipient's preceding fiscal year and includes the following:
1.15.1. Salary and bonus;
1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised
2005) (FAS 123R), Shared Based Payments;
1.15.3. Earnings for services under non -equity incentive plans, not including group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of
Executives and are available generally to all salaried employees;
1.15.4. Change in present value of defined benefit and actuarial pension plans;
1.15.5. Above -market earnings on deferred compensation which is not tax -qualified;
1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the Executive exceeds $10,000.
1.16. "Transparency Act" means the Federal Funding Accountability and Transparency Act of 2006 (Public
Law 109-282), as amended by §6202 of Public Law 110-252. The Transparency Act also is referred
to as FFATA.
1.17 "Vendor" means a dealer, distributor, merchant or other seller providing property or services required
for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and
Page 2 of 4
is not subject to the terms and conditions of the Federal award. Program compliance requirements do
not pass through to a Vendor.
2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the
regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any
revisions to such provisions or regulations shall automatically become a part of these Supplemental
Provisions, without the necessity of either party executing any further instrument. The State of Colorado
may provide written notification to Contractor of such revisions, but such notice shall not be a condition
precedent to the effectiveness of such revisions.
3. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements.
3.1. SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the
final financial report required under the Award or receives final payment, whichever is later.
Contractor shall review and update SAM information at least annually after the initial registration, and
more frequently if required by changes in its information.
3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor's information in Dun & Bradstreet, Inc. at least annually after the initial registration, and
more frequently if required by changes in Contractor's information.
4. Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal year if:
4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
4.2. In the preceding fiscal year, Contractor received:
4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.3. The public does not have access to information about the compensation of such Executives through
periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
5. Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7
below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment
shall be made to Contractor for providing any reports required under these Supplemental Provisions and the
cost of producing such reports shall be included in the Contract price. The reporting requirements in §7
below are based on guidance from the US Office of Management and Budget (OMB), and as such are
subject to change at any time by OMB. Any such changes shall be automatically incorporated into this
Contract and shall become part of Contractor's obligations under this Contract, as provided in §2 above.
The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements
at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm.
6. Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions
apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of
October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent
Award modifications result in a total Award of $25,000 or more, the Award is subject to the reporting
requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding
is subsequently de -obligated such that the total award amount falls below $25,000, the Award shall continue
to be subject to the reporting requirements.
7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth
below.
Page 3 of 4
7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each
Federal Award Identification Number no later than the end of the month following the month in which
the Subaward was made:
7.1.1 Subrecipient DUNS Number;
7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account;
7.1.3 Subrecipient Parent DUNS Number;
7.1.4 Subrecipient's address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
7.1.5 Subrecipient's top 5 most highly compensated Executives if the criteria in §4 above are
met; and
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.
Page 4 of 4