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HomeMy WebLinkAboutC10-136 Burns Bridge IGA for ROW, Design and Construction(FMLAW RK) - Rev July 1, 2009 PROJECT BRO C440 -006 (17445) Burns Bridge Routing # 10 HA3 02516 REGION 3 /(DAW) ID # 331000280 STATE OF COLORADO DEPARTMENT OF TRANSPORTATION Inter - Governmental Agreement (IGA) With EAGLE COUNTY G(o-1 TABLE OF CONTENTS 1. PARTIES ...................:....................................................................................... ..............................2 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY ....................................... ..............................2 3. RECITALS ..........................................:.............................................................. ..............................2 4. DEFINITIONS .................................................................................................... ..............................2 5. TERM and EARLY TERMINATION ................................................................... ..............................3 6. SCOPE OF WORK ............................................................................................ ..............................3 7. OPTION LETTER MODIFICATION ........................................'............................ ..............................7 8. PAYMENTS ....................................................................................................... ..............................8 9. ACCOUNTING ................................................................................................. .............................10 10. REPORTING - NOTIFICATION ...................................................................... .............................11 11. LOCAL AGENCY RECORDS ......................................................................... .............................11 12. CONFIDENTIAL INFORMATION -STATE RECORDS ..................................... .............................12 13. CONFLICT OF INTEREST ............................................................................. .............................12 14. REPRESENTATIONS AND WARRANTIES .................................................... ..............:..............12 15. INSURANCE .................................................................................................. .............................13 16. DEFAULT - BREACH ....................................................................................... .............................14 17. REMEDIES ..................................................................................................... .............................15 18. NOTICES and REPRESENTATIVES .............................................................. .............................17 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE ............... .............................17 20. GOVERNMENTAL IMMUNITY ....................................................................... .............................17 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM .................................... .............................18 22. FEDERAL REQUIREMENTS .......................................................................... .............................18 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) .................................... .............................18 24. DISPUTES ...................................................................................................... .............................18 25. GENERAL PROVISIONS ...................................................................:........... .............................19 26. COLORADO SPECIAL PROVISIONS ............................................................ .............................22 27. SIGNATURE PAGE ........................................................................................ .............................24 28. EXHIBIT A -SCOPE OF WORK ..................................................................... ..............................1 29. EXHIBIT B - LOCAL AGENCY RESOLUTION ................................................ ..............................1 30. EXHIBIT C - FUNDING PROVISIONS ............................................................ ..............................1 31. EXHIBIT D- OPTION LETTER ....................................................................... ..............................1 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST .............................1 33. EXHIBIT F- CERTIFICATION FOR FEDERAL -AID CONTRACTS ..................................... :......... 1 34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE ......................... ............................... 0 35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES ........................1 36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS .................................. ..............................1 37. EXHIBIT J - FEDERAL REQUIREMENTS ...................................................... ..............................1 G(o-1 1. PARTIES THIS AGREEMENT is entered into by and between, the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the "State" or "CDOT ") and Eagle County (hereinafter called the "Local Agency "). 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 215' Century" of 1998 (TEA -21) and /or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA -LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the "Federal Provisions "), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ( "FHWA "). ii. State Authority Pursuant to CRS §43 -1 -223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS § §29 -1 -203, 43 -1 -110; 43 -1 -116, 43- 2- 101(4)(c) and 43 -2 -14. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT's Stewardship Agreement with the FHWA for the ROW, Design & Construction of the Burns Bridge Project BRO C440 -006 (17445) referred to as the Project or the Work per the Scope of Work contained in Exhibit A form 463. 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 Colroado State Fiscal Rules and Policies. Page 2 of 24 B. Agreement Funds "Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement. C. Budget "Budget" means the budget for the Work described in Exhibit C. D. Consultant and Contractor "Consultant" means a professional engineer or designer hired by Local Agency to design the Work and "Contractor" means the general construction contractor hired by Local Agency to construct the Work. 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 G. 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) and Exhibit J (Federal Requirements). 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 5 years from the Effective date (Controller Signature) 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 Scope of Work or Form 463. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. Page 3 of 24 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 Contractor shall be considered the Local Agencys', Consultants' or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Committments i. Design If the Work includes preliminary design or final design or design work sheets, or special provisions and estimates (collectively referred to as the "Plans "), the Local Agency shall comply with and be responsible for satisfying the following requirements: a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. 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 completness. 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. fl. Local Agency Work a) The 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) The 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) The 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) The 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) The 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. Page 4 of 24 (3) The 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) The 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) The 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) The Local Agency shall ensure that the Consultant agreement complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design /construction of the project. The State is an intended third -party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. iii. Construction a) 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 the Exhibit G. 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. b) 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. c) 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. Page 5 of 24 (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 three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, necessary to complete the Work if no additional federal -aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) if all or part of the Work is to be accomplished by the Local Agency's personnel (i.e. by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (b) An alternative to the preceeding 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. iv. State's Commitments a) 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, v. ROW and Acquistion /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 Page 6 of 24 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 Manuao 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). vi. 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. vii. Railroads If the Work involves modification of a railroad company's facilities and such modification will be accomplished by 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: a) 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. b) Obtain the railroad's detailed estimate of the cost of the Work. c) Establish future maintenance responsibilities for the proposed installation. d) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e) Establish future repair and /or replacement responsibilities in the event of accidental destruction or damage to the installation. viii. 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. ix. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. OPTION LETTER MODIFICATION Option Letters may be used to extend Agreement term, change the level of service within the current term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or decrease the amount of funding. These options are limited to the specific scenarios listed below. The Option Letter shall not be deemed valid until signed by the State Controller or an authorized delegate. Following are the applications for the individual options under the Option Letter form: A. Option 1- Level of service chance within current term due to unexpected overmatch in an overbid situation only. Page 7 of 24 In the event the State has contracted all project funding and the Local Agency's construction bid is higher than expected, this option allows for additional Local Overmatch dollars to be provided by the Local Agency to be added to the contract. This option is only applicable for Local Overmatch on an overbid situation and shall not be intended for any other Local Overmatch funding. The State may unilaterally increase the total dollars of this contract as stipulated by the executed Option Letter (Exhibit D), which will bringthe maximum amount payable under this contract tothe amount indicated in Exhibit C -1 attached to the executed Option Letter (future changes to Exhibit C shall be labeled as C -2, C -3, etc, as applicable). Performance of the services shall continue under the same terms as established in the contract. The State will use the Financial,Statement submitted by the Local Agency for "Concurrence to Advertise" as evidence of the Local Agency's intent to award and it will also provide the additional amount required to exercise this option. If the State exercises this option, the contract will be considered to include this option provision. B. Option 2 — Option to add overlapping phase without increasing contract dollars. The State may require the contractor to begin a phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition /Relocation or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original contract with the contract dollars remaining the same. The State may exercise this option by providing a fully executed option to the contractor within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. C. Option 3 - To update funding (increases and /or decreases) with a new Exhibit C. This option can be used to increase and /or decrease the overall contract dollars (state, federal, local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit C) in the Original Contract with an updated Exhibit C -1 (subsequent exhibits to Exhibit C -1 shall be labeled C -2, C -3, etc). The State may have a need to update changes to state, federal, local match and local agency overmatch funds as outlined in Exhibit C -1, which will be attached to the option form. The State may exercise this option by providing a fully executed option to the contractor within thirty (30) days after the State has received notice of funding changes, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. S. PAYMENTS The State shall, in accordance with the provisions of this §7, pay the Local Agency in the amounts and using the methods set forth below: A. Maximum Amount The maximum amount payable to the Local Agency under this contract shall be $2,110,100.00 The maximum amount payable is set forth in Exhibit C as determined by the State from available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance /resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work. A copy of such ordinance /resolution or authority letter is attached hereto as Exhibit B. B. Payment 1. 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 set forth in approved by the State. Page 8 of 24 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 tie used only for eligible costs identified herein. D. Matching Funds The Local Agency shall provide matching funds as provided in §7.A. and Exhibit C. The Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. The Local Agency's obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local Agency's treasury. The Local Agency represents to the State that the amount designated "Local Agency Matching Funds" in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. The Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple - fiscal year debt of the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the Local Agency's laws or policies. E. Reimbursement of Local Agency Costs The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total amount described in Exhibit C and §7. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the State's obligation to reimburse all costs incurred by the Local Agency and submitted to the State for 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. Page 9 of 24 However, any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof. Costs shall be: I. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred); 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: A. Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers, and other applicable records. B. Local Agency- Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents shall be on file in the office of the Local Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other Work documents. C. State - Administrative Services The State may perform any necessary administrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to the Work being approved or completed, then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency's sole expense. D. Local Agency - Invoices The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency, for which it seeks reimbursement; the dates such costs were incurred; and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices within 60 days after the date for which payment is requested, including final invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency. F. Reimbursement of State Costs CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to CDOT. Interim funds, shall be payable from the State Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail the reimbursable costs incurred, the dates incurred; and the amounts thereof, and shall not be submitted more often than monthly. Page 10 of 24 10. REPORTING - NOTIFICATION Reports, Evaluations, and Reviews required under this §8 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §19, if applicable. . A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency's performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of CDOT. C. Noncompliance The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with this §8 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: (1) 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 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 Page 11 of 24 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 §10 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. A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State's principal representative. B. Notification The Local Agency shall notify its agents, employees and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure- Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency 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, or assignees pursuant to this §10. 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. Page 12 of 24 A. Standard and Manner of Performance The Local Agency shall perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. B. Legal Authority — The Local Agency and the Local Agency's Signatory The Local Agency warrants that it possesses the legal authority to enter Into this Agreement and that it has taken all actions required by its procedures, by -laws, and /or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of the Local Agency's authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service 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 §13(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: Page 13 of 24 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 the Local Agencys, products and completed operations, blanket Agreementual 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. 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 Contractorsshall be primary over any insurance or self- insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non - renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Agreement and secured and maintained by the Local Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Agreement or any sub- contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §13. 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 Page 14 of 24 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 §16. 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 §15. 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 §15 in addition to all other remedies set forth in other sections of this Agreement following the notice and cure period set forth in §14(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and /or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non - performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non- performance within the cure period, the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if any. I. Obligations and Rights To the extent specified in any termination notice, the Local Agency shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub - Agreements with third parties. However, the Local Agency shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Agreement's terms. At the sole discretion of the State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under such terminated orders or sub - Agreements. Upon termination, the Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of the Local Agency in which the State has an interest. All materials owned by the State in the possession of the Local Agency shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by the Local Agency to the State and shall become the State's property. fl. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination. If, after termination by the State, it is determined that the Local Agency was not in default or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein. iii. Damages and Witholding 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. Page 15 of 24 The State may withhold any amount that may be due to the Local Agency as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services. The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover. B. Early Termination in the Public Interest The State is entering into this Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and /or Courts. If this Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the Local Agency, which shall be governed by §15(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 §16, specifying the effective date of the termination and whether it affects all or a portion of this Agreement. H. 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 §15(A)(1). iii. Payments If this Agreement is terminated by the State pursuant to this §15(B), the Local Agency shall be paid an amount which bears the same ratio to the total reimbursement under this Agreement as the Services satisfactorily performed bear to the total Services covered by this Agreement, less payments previously made. Additionally, if this Agreement is less than 60 % completed, the State may reimburse the Local Agency for a portion of actual out -of- pocket expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local Agency's obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to the Local Agency hereunder. C. Remedies Not Involving Termination The State, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: I. Suspend Performance Suspend the Local Agency's performance with respect to all or any portion of this Agreement pending necessary corrective action as specified by the State without entitling the Local Agency to an adjustment in price /cost or performance schedule. The Local Agency shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by the Local Agency after the suspension of performance under this provision. ii. Withold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed. !it. 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. Page 16 of 24 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. State: B. Local Agency: Martha Miller CDOT Region 3 Resident Engineer 714 Grand Avenue Eagle, CO 81631 970 328 -6385 Eva Wilson Eagle County County Engineer 500 Broadway PO Box 850 Eagle, CO 81631 970 328 -3560 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 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 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. Page 17 of 24 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 and inclusion of Agreement performance information in a statewide Agreement management system. The Local Agency's performance shalt 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 Agreement 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. A listing of certain federal and state laws that may be applicable are described in Exhibit J. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State - approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement, shall be decided by the Chief Engineer of the Department of Transportation. Page 18 of 24 The decision of the Chief Engineer will be final -and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 25. GENERAL PROVISIONS A. Assignment The Local Agency's rights and obligations hereunder are personal and may not be transferred, assigned or subcontracted without the prior, written consent of the State. Any attempt at assignment, transfer, 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 §20(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 omision 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. Jurisdction 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. Page 19 of 24 This includes, but is not necessarily limited to, limitations on (1) 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. Page 20 of 24 O. Waiver Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 21 of 24 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 funds 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(b) 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. 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. Page 22 of 24 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 arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 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 riot 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 Page 23 of 24 27. SIGNATURE PAGE Agreement Routing Number 10 HA3 02516 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 . FAGL E COUNTY By (Printed Title *Signature Attested by (Printed Name) Title: ( /F�(K ay-'d CO �O 3 ianature * .. STATE OF COLORADO Bill Ritter, Jr. GOVERNOR Colorado Department of Transportation Z George, Executive Director « By: Pam Hutton — CDOT Chief Engineer LEGAL REVIEW hn W. Suthers, Attorney General By. Signature'-- Assistant Attorney G� 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 D7 McDermott, CPA By: Colorado Department of Transporation Date: J j r P 'Z' Page 24 of 24 28. EXHIBIT A - SCOPE OF WORK Page 1 of 4 COLORADO DEPARTMENT OF TRANSPORTATION DESIGN DATA Page i to 3 Orig.Date: 06/24/2:009' Project Code #(SA1q: 17445 STIP#: SR35771 Rev.Date: Projacl #: BRO C440 -006 Revision #: 0 PE Project Code: Region n 03 Project Description: Burns Bridge - Eagle County Status: El Preliminary ❑ Final ❑ Revised Submitted By PM: KILLIANB Approved by Program Engineer: Date County:037 1MLun lei tar : Bums system code: Z_bt ton en Federal -Aid Highway Oversi ht B : A -Exam t Ravi °ad by: Date: Planned Len h: 0250 Geographic Location: MILE MARKER 32.5 COUNTY ROAD 301 Type of Terrain: Rollin Description of Proposed Construction/Improvement(Altach map sharing eke location) OFF SYSTEM BRIDGE Project Characteristics (Proposed) ❑ Lighting ❑ Hand.sip Rams Median (Type): ❑ Depressed ❑ Painted ❑ Raised ® None ❑ Traffic Control Signals ❑ Striping ❑ Curb and Guitar ❑ Curb Only ❑ Left -Tum Sias ❑ Continuous Width= Sidwalk Width= Bikew ay Width= El Right-Turn Slots Cl Continuous Widh= Parking Lane Widh= Detours Signing Construction Permanent ❑ Landscaping requirements (description): ❑ Other(descripfon): Right of Way Yas N. Est# ROW Wor Penn. Easement Required No Relocation Required No Temporary Easement Reciumid: No Changes in Access: No Changes to Connecting Roads: No Utilities (list names ofknown utility companies) Unknown Railroad Crossings #of Crosyingr. Recommendations: Environmental Type: N -CE Non ro remmatic Apprwad On: Project Code #Cleared Under. Project #Cleared Under: comments: Coordination ❑ Withdrawn Lands (Power Sites, Reservoirs, Etc.) Cleared through BUM or Forest Service Office Irrigation Ditch Name: ❑ New Traffic Ordinance Required ❑ Madly Schedule of Exisdng Ordinance Muncipalily: Burns Oher: Construction Method Advertised By: Local NoAd Reason: I Entity y Agency Conrad Name: Phone #: Safety Considerations Project Under: Guardrail meets current standards: No Comments: Unknown ❑ Variance in Minimum Design Standards Required El Jusfifcation Attached ❑ Request babe Submitla Britl else° item 12) See Remarks ❑ Safety pr ject not all standards atldressed ❑ Sta Construction ex lain in remarks 3R Projects Safety Evaluation Complete data: Page 2 of 4 Page 2of0 Prged Code ASg): 17445 ProJed#: 8 Redsedate, Use CalumnsA B, C, OendDr EtDldanti fadlh deudhed helm A= R= C= D= E_ Traffic C- ortYear AD DH DIN %Truck! FdumYear AD DH Faoiiity Lcdion 0 Industrial Q Commercial 0 Reddential Other Industrial Q Cammerdal O Residents] Q Other O Industrial Commercial Residential ( CRY Indsstdd Conaril Q Resell Q Other Industrial Corrmercial Residential [ Other Roadway Class Route Refpl ODR) Endrefpt 0.000 Fundiond Classificafion L IdIffUt Fadidl U Rural Code R Design Standards 3Lrrd3d E strre Fmposad U4irmte Smntlud F3isenD Proposed Ultimela Eudora 7 Fmposed Uldo4d Design Variance Required (substandard Ras am idensfified with an' In ter cdumn &dad as design variance whh COOT FOrm#464) Wckh Df 13arel Lanes Shou(derwidth Voutside Shoulderwidh d1 id Design Speed Cross Slope Max.superdevadon rate Min. Radius Min. Horizontal SSD Min. Vedhll SSD Max Grade Design Oecisicn LeRerRegdred (substandard Rems are inderlifiedwith en' in Let cdumn & dark with decision lell Typical Secton Type #of Travel Lanes Side Slope Did. (e� a Ila Median Width Posted Speed Page 3 of 4 Page 3 of 3 Prcja0 Code #(S17 Project #: Revise Data: 17445 BRO C440 -006 MT-r &—hares S= to stay, R= to be rem wed, P= proposed new structure ,Reference I Standard Structure Structural I Horizontal Vertical Year Structure lEnt Length I Point I Feature Intersected Wish Capacit Clearance Built Pmpsosed Treament of Bridges to Remain in Place(address bridge mil, capacity, and allowable surfacing Brickness): Remarks The structure number for this bridge Is (EAG301- 23.5). Eagle County is proposing to construct a bridge located on Colorado River Road (301), mile marker 23.5. The existing bridge is going to be removed and rapt acetl with a new two -lane structure. Each approach end is going to be reworked to accommodate drainage, the now structure and the road alignment The bridge will be constructed with either concrete or steel girders to accommodate higher weight loads and tragic volumes. Eagle County plans on using federal funds to complete a full design of the bridge structure and all associated elements for bridge replacement. The county has also elected to use federal funds for right -of -way, acquisigon and miscellaneous fees relating to acquisition fthe right -of -way. #The bridge will be constructed with either concrete or steel girders to accommodate higher weight loads and traffic volumes.# Page 4 of 4 29. EXHIBIT B - LOCAL AGENCY RESOLUTION LOCALAGENCY ORDINANCE or RESOLUTION Page 1 of 2 30. EXHIBIT C — FUNDING PROVISIONS BRO C440 -006 (17445) Burns Bridge A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $2,837,625.00 which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds $2,270,100.00 (80% of Participating Costs) b. Local Agency Matching Funds $567,525.00 (20% of Participating Costs) C* Local Agency Matching for CDOT - Incurred Non - Participating Costs Overmatch $0.00 TOTAL BUDGETED FUNDS $2,837,625.00 2 ESTIMATED CDOT- INCURRED COSTS a. Federal Share L of Participating Costs) $0.00 b. Local Agency Local Agency Share of Participating Costs $0.00. Non - Participating Costs (Including Non - Participating Indirects) $0.00 TOTAL ESTIMATED CDOT- INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (1 a) $2,270,100.00 b. Less 80% of $200,000.00ROW Acquisition ($160,000) (- $160,000.00) TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $2,110,100.00 FOR CDOT ENCUMBRANCE PURPOSES 1 a. Federal Funds $2,270,100.00 1 b. Local Agency Matching Funds $567,525.00 Total Encumbrance Amount "Note Federal funds are not yet available for encumbrence at this time. Funds will be encumbered at a later date by formal amendment or option letter. $2,837,625.00 Less ROW Acquisition 3111 and /or ROW Relocation 3109 - $200,000.00 Net to be encumbered as follows: $2,637,625.00 WBS Element 17445.10.50 ROW Misc 3114 $50,000.00 WBS Element 17445.10.301 Design 13020 $300,000.00 WBS Element 17445 -20.10 Const 3301 $2,287,625.00 TOTAL ENCUMBRANCE ** $0.00 Page 1 of 2 B. Matching Funds The matching ratio for the federal participating funds for this Work is 80% federal -aid funds (CFDA #20 2050) to 20% Local Agency funds, it being understood that such ratio applies only to the $2,837,625.00 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 $2,837,625.00, 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. If the total participating cost of performance of the Work is less than $2,837,625.00, then the amounts of Local Agency and federal -aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $2,110,100.00 (For CDOT accounting purposes, the federal funds of $2,270,100.00 and Local Agency matching funds of $567,525.00 will be encumbered for a total encumbrance of $2,837,625.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. "Note — No funds are available for encumbrence at this time. Funds will be encumbered at a later date by formal amendment or option letter. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non - profit organization Sub -The Local Agencys receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A- 133 (Audits of States, Local Governments and Non - Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub -The Local Agencys receiving federal funds are as follows: 1.. Expenditure less than $500,000 If the Sub -The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply it. Expenditure exceeding than $500,000- Highway Funds Only If the Sub -The Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial' procedures and processes for this program area. iii. Expenditure exceeding than $500,000 - Multiple Funding Sources If the Sub -The Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization /entity. 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 2 of 2 31. EXHIBIT D — OPTION LETTER SAMPLE IGA OPTION LETTER NOTE: This option is limited to the specific contract scenarios listed below AND may be used in place of exercising a formal amendment. Local Agency Name: A. SUBJECT: (Choose applicable options listed below AND in section Band delete the rest) 1. Level of service change within current term due to an unexpected Local overmatch on an overbid situation ONLY; 2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition /Relocation or Railroads); 3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be labeled C -1 (future changes for this option shall be labeled as follows: C -2, C -3, C -4, etc.) B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below: (insert the following language for use with Option #1): In accordance with the terms of the original Agreement (insert FY. Agency code & CON routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to record a level of service change due to unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by (indicate additional dollars here) specified in Paragraph /Section /Provision of the original Agreement. (insert the following language for use with Option #2): In accordance with the terms of the original Agreement (insert FY. Agency code & CLIN routing # Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to add an overlapping phase in indicate Fiscal Year here) that will include (describe which phase will be added and include all that apply — Design. Construction. Environmental, Utilities. ROW incidentals or Miscellaneous). Total funds for this Agreement remain the same (indicate total dollars he as referenced in Paragraph /Section /Provision /Exhibit of the original Agreement. (Insert the following language for use with Option #3): In accordance with the terms of the original Agreement (insert FY. Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to update funding based on changes from state, federal, local match and /or local agency overmatch funds. The Agreement is now select one: increased and /or decreased) by (insert dollars here) specified in Paragraph/- Section /- Provision /Exhibit of the original Agreement. 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.) Page 1 of 2 (The following language must be included on ALL options): The amount of the current Fiscal Year contract value is (increased /decreased) by ($ amount of change) to a new Agreement value of ($ ) to satisfy services /goods ordered under the Agreement for the current fiscal year (indicate Fiscal Year). The first sentence in Paragraph /Section /Provision is hereby modified accordingly. The total Agreement value to include all previous amendments, option letters, etc. is The effective date of this Option Letter is upon approval of the State Controller or delegate. APPROVALS: For the The Local Agency: Legal Name of the Local Agency M Print Name of Authorized Individual Signature: Date: Title: Official Title of Authorized Individual State of Colorado: Bill Ritter, Jr., 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. By: Date: Form Updated: July 1, 2009 State Controller David J. McDermott, CPA Page 2 of 2 32. EXHIBIT E — LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Page 1 of 6 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 Code Region BRO C440 -006 TBD 17445 3 Project Location Date Colorado River Rd (CR-301) mile marker 23.5 W15/09 . Project Description Replacement of off system bridge on Eagle County Road 301 Local Agency Local Agency Project Manager Eagle County Ben Gerdes CDOT Resident Engineer CDOT Project Manager Martha Miller Brian Killian/Peter lombardi 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 COOT Local Agency Manual. The checklist shall be prepared by placing an "X' under the responsible parry, opposite 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 CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist. RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT TIP / STIP AND LONG -RANGE PLANS 2.1 1 Review Project to ensure it is consist with STIP and amendments thereto X FEDERAL FUNDING OBLIGATION AND AUTHORIZATION 4.1 Authorize funding by phases (CDOT Form 418 - Federal -ald Program Data. Requires FHWA X concurrence/Involvement PROJECT DEVELOPMENT 5.1 Pre are Desl n Data - CDOT Form 463 X 5.2 Prepare Local A enc /CDOT Inter - Governmental A reement see also Chapter 3 X 5.3 Conduct Consultant Selection /Execute Consultant Agreement X 5.4 Conduct Desi n Sco in Review Meetin X 5.5 Conduct Public Involvement X 5.6 Conduct Field Inspection Review FIR X 5.7 Conduct Environmental Processes ma require F14WA concurrmcefinvolvement X X 5.8 Acquire Ri hFOf -Wa ma mm uire FHWA concurrencelinvolvement X 5.9 Obtain Utility and Railroad A reements X 5.10 Conduct Final Office Review FOR X 5.11 Justify Force Account Work b the Local Agency X 5.12 Justif y 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 1 Ensure Authorization of Funds for Construction X CDOT Form 1243 09i06 Pagel of 4 Previous editions are obsolete and may not be used Page 3 of 6 COOT Form 1243 09106 Page2 of 4 Previous editions are obsolete and may not be used Page 4 of 6 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 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.) Martha Miller 6/15/09 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 Region EEO /Civil Rights Specialist) 6.4 Title VI Assurances X .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 Contract CDOT Resident En ineer 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 Open Bids X 7.6 Process Bids for Compliance 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 determine If the Contractor has made a good faith effort when the low bidder does not meet X DBE goals Submit re uired documentation for CDOT award concurrence X 7.7 Concurrence from CDOT to Award X 7.8 rove Rejection of Low Bidder X 7.9 1 Award Contract X 7.10 1 Provide "Award" and "Record" Sets of Plans and Specifications X CONSTRUCTION MANAGEMENT 8.1 Issue Notice to Proceed to the Contractor I X 8.2 Pro ect Safety I I X 8.3 Conduct Conferences: Pre - Construction Conference (Appendix B) X Pre -survey • Construction staking X • Monumentation X Partnering (Optional) X Structural Concrete Pre -Pour (Agenda is In CDOTConstructfon Manual X Concrete Pavement Pre-Paving (Agenda is in CDOT Construction Manual X HMA Pre-Paving (Agenda is in CDOTConstruction Manual X 8.4 Develop and distribute Public Notice of Planned Construction to media and local residents X 8.5 Supervise Construction A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of construction supervision." Ben Gerdes, PE 970- 328 -3560 Local Agency Professional Engineer or Phone number X CDOT Resident Engineer COOT Form 1243 09106 Page2 of 4 Previous editions are obsolete and may not be used Page 4 of 6 CBOT Form 1243 09106 Page3 of 4 Previous editions are obsolete and may not be used Page 5 of 6 RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA COOT Provide competent, experienced staff who will ensure the Contract work is constructed in accordance with the plans andspecifications - X Construction inspection and documentation X 8.6 Approve Shop Drawin gs X 8.7 Perform Traffic Control inspections X 8.8 Perform Construction Surveying X 8.9 Monument Rig ht -of -Way X 8.10 Prepare and Approve Interim and Final Contractor Pay Estimates X Provide the name and phone number of the person authorized for this task. TBD Loral Aqency Representative Phone number 8.11 Prepare and Approve Interim and Final Utility and Railroad Billings X 812 Prepare Local A ency Reimbursement Requests X 8.13 Prepare and Authorize Change Orders X 8.14 A rove All Change Orders X 8.15 Monitor Project Financial Status X 8.16 Prepare and Submtt Monthly Progress Reports X 8.17 Resolve Contractor Claims and Disputes X 8.18 Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task. X Martha Miller 970 - 328 -6385 CDOT Resident Engineer Phone number MATERIALS 9.1 Conduct Materials Pre - Construction Meeting X 9.2 Complete CDOT Form 250 - Materials Documentation Record • Generate form, which Includes determining the minimum number of required tests and X applicable material submittals for all materials placed on the project • Update the form as work progresses X • Complete and distribute form after work is completed X 9.3 Perform Project Acceptance Samples and Tests X 9.4 Perform Laboratory Verification Tests X 9.5 Accept Manufactured Products X Inspection of structural components: • Fabrication of structural steel and pre- stressed concrete structural components X • Bridge modular expansion devices (0" to 6" or greater) - X • Fabrication of bearing devices X 9.6 1 Approve Sources of Materials X 9.7 Independent Assurance Testing (IAT), Local Agency Procedures 0 CDOT Procedures • Generate [AT schedule X • Schedule and provide notification X • Conduct ]AT X 9.8 Approve min designs • Concrete X • Hot mix asphalt X 9.9 Check Final Materials Documentation X 9.10 Complete and Distribute Final Materials Documentation X CBOT Form 1243 09106 Page3 of 4 Previous editions are obsolete and may not be used Page 5 of 6 CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10.1 Fulfill Project Bulletin Board and Pre - Construction Pecker Requirements X 10.2 Process COOT Form 205 - Sublet Permit Application Review and sign completed COOT Form 205 for each subcontractor, and submit to EEO /CNiI Rights Specialist X X 10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee Interviews. Complete COOT Form 280 X 10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the "Commercially Useful Function" Requirements X 10.5 Conduct Interviews When Project Utilizes On- the -Job Trainees. Complete COOT Form 200 - OJT Traninq Questionnaire X 10.6 Check Certified Payrolls Contact the Region EEO /Civil Rights Specialists for training re uirements. X 10.7 Submit FHWA Form 1391 - Highway Construction Contractor's Annual EEO Report X FINALS 11.1 Conduct Final Project Inspection. Complete and submit COOT Form 1212 - Final Acceptance Report (Resident Engineer vdth mandatory Local Agency participation.) X 11.2 Write Final Project Acceptance Letter X 11.3 Advertise for Final Settlement X 1104 Prepare and Distribute Final As- Constructed Plans X 1145 Prepare EEO Certification 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 Chapter 9 X 11.8 Obtain COOT Form 17 from the Contractor and Submit to the Resident Engineer X 11.9 Obtain FHWA Form 47 - Statement of Materials and Labor Used ... from the Contractor WA 11.10 Complete and Submit COOT Form 1212 — Final Acceptance Report (by COOT X 11.11 Process Final Payment X 11.12 Complete and Submit COOT Form 950 - Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X 11.14 Retain Final Version of Loral Agency Contract Administration Checklist X cc: COOT Resident Engineer /Project Manager COOT Region Program Engineer COOT Region EEO /Civil Rights Specialist COOT Region Materials Engineer COOT 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 Page 6 of 6 33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub - recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 Page 1 of 1 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 23. 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 23.41 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 1,72.1 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. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre- negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. 8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kept at least three years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three years after the case has been settled. CRS § §24 -30 -1401 through 24 -30 -1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the preceeding eight (8) steps. Page 2 of 2 35. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS FHWA Form 1273 REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS I. General 1 II. Nondiscrimination ..................................................... ............................... 1 III. Non - segregated Facilities ....................................... ............................... 3 IV.Payment of Predetermined Minimum Wage ............ ............................... 3 V.Statements and Payrolls .......................................... ............................... 6 VI.Record of Materials, Supplies, and Labor ................ ............................... 6 VII. Subletting or Assigning the Contract ..... ............................... 7 VIII. Safety: Accident Prevention .................. ............................... 7 IX.False Statements Concerning Highway Projects ..... ............................... 7 X. Implementation of Clean Air Am and Federal Water Pollution Control Act ...................................... ............................... 8 XI.Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion ........................ ............................... 8 XII. Certification Regarding Use of Contract Funds for Lobbying.................................................................... ............................... 9 ATTACHMENTS A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only) (.GENERAL 1. These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provisions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12: Section I, paragraph 2; Section IV, paragraphs 1, 2, 3, 4, and 7; Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this Agreement. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the DOL, or the contractors employees or their representatives. 6. Selection of Labor: During the performance of this Agreement, the contractor shall not: a. discriminate against labor from any other State, possession, or territory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or b employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole, supervised release, or probation. FHINA -1273 Electronic version —March 10, 1994 (Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or more.) 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFA 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this Agreement. The Equal Opportunity Construction Contract Specifications set forth under 41 CFR 60 -4.3 and the provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 at s� Mc.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this Agreement. In the execution of this Agreement, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the State highway agency (SHA) and the Federal Government in carrying out EEO obligations and in their review of his/her activities under the contract. b. The contractor will accept as his operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees am treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre- apprenticeship, and /or on- the -job training." 2. EEO Officer: The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruibnent for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minority group employees. d. Notices and posters setting forth the contractors EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. II. NONDISCRIMINATION 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Page 1 of 8 REQUIRED BY 23 CFR 633.102 -- Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementations of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. Information and procedures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed; a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. It. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimi- nation. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this Agreement, will attempt to resolve such complaints, and will take appropriate corrective action within a. reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on- the -job training programs for the geographical area of contract performance. Where feasible, 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training. In the event a special provision for training is provided under this Agreement, this subparagraph will be superseded as indicated in the special provision. c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use his/her best efforts to obtain the cooperation of such unions to increase opportunities for minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so cer ify to the SHA and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and /or qualifiable minority group persons and women. (The DOL has hell that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.) In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA. B. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this Agreement. b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this Agreement. The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c, The contractor will use his best efforts to ensure subcontractor compliance with their EEO obligations. 9. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHWA. a. The records kept by the contractor shall document the following: (1) The number of minority and non - minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. It. The contractors will submit an annual report to the SHA each July for the duration of the project, indicating the number of minority, women, and non - minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA -1391. If on -the job training is being required by special provision, the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or more.) a. By submission of this bid, the execution of this Agreement or subcontract; or the consummation of this material supply agreement or purchase order, as appropriate, the bidder, Federal -aid construction contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this Agreement. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking). c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or more and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) 1. General a. All mechanics and laborers employed or working upon the site of the work will be paid unconditionally and not less often than once a week and without subsequent deduction or rebate on any account [except such payroll deductions as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)j the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of Labor (hereinafter "the wage deterink nation") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics. The wage determination (including any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH -1321) or Form FHWA -1495) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. For the purpose of this Section, contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this Section IV. b. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. c. All rulings and interpretations of the Davis -Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this Agreement. 2. Classification: a. The BHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classification, wage rate and fringe benefits only when the following criteria have been met: (1) the work to be performed by the additional classification requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210. The Wage and Hour Administrator, or an authorized representa- tive, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or Will notify the contracting officer within the 30-day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropriate, the laborers or mechanics to be employed in the additional classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer Within the 30-day period that additional time is necessary e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed 3 of 8 REQUIRED BY 23 CFR 633.102 -- pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in his /her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeyman -level employees an the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate listed in the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job she in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman -level hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. (3) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman -level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the event the Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman -level employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (3) Every trainee must be paid at not less than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman -level hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman -level wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices. (4) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Helpers Helpers will be permitted to work on a project it the helper classification is specified and defined on the applicable wage determina- tion or is approved pursuant to the conformance procedure set forth in Section IV.2, Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. 5. Apprentices and Trainees (Programs of the U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal -aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 6. Withholding: The BHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor under this Agreement or any other Federal contract with the same prime contractor, or any other Federally - assisted contract subject to Davis -Bacon prevailing wage requirements which is held by the same prime contractor, as much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the BHA contracting officer may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 7. Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic, watchman, or guard in any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one - and - one -half times his/her basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8. Violation: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for his/her unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: The BHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally - assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 8 above. 4of8 REQUIRED BY 23 CFR 633.102 -- V. STATEMENTS AND PAYROLLS (Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records: a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types described in Section I(b)(2)(B) of the Davis Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. In addition, for Appalachian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not, normally reside in the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 1(b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to the laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, paragraphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V. This information may be submitted in any form desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal stock number 029 - 005- 0014 -1), U.S. Government Printing Office, Washington, D.C. 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his /her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph 2d of this Section V. f. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 10 U.S.C. 1001 and 31 U.S.C. 231. g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspection, copying, or transcription by authorized representatives of the BHA, the FHWA, or the DOL, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal -aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossings, those which are constructed on a force account or direct labor basis, highway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA -47, "Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds,' prior to the commencement of work under this Agreement. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA - 47, and in the units shown on Form FHWA -47. c. Furnish, upon the completion of the contract, to the BHA resident engineer on Form FHWA -47 together with the data required in paragraph I relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUBLETTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor. b. "Specially Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the BHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIII. SAFETY: ACCIDENT PREVENTION 1. In the performance of this Agreement the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the BHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this Agreement, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this Agreement, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safely and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppli- ers, and workers on Federal -aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal -aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: "Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act approved July 1, 1916, (39 Slat. 355), as amended and supplemented; Shall be fined not more that $10,000 or imprisoned not more than 5 years or both." X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal -aid construction contracts and to all related subcontracts of $100,000 or more.) By submission of this bid or the execution of this Agreement, or subcontract, as appropriate, the bidder, Federal -aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any facility that is or will be utilized in the performance of this Agreement, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 e1 Leggi., as amended by Pub.L. 91 -604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 at sew[., as amended by Pub.L. 92 -500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the tine agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That the firm shall promptly notify the BHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1. Instructions for Certification - Primary Covered Transactions: (Applicable to all Federal -aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If k is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause of default. d. The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction,' "debarred," "suspended," "Ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. I. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction he entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification, in all lower her covered transactions and in all solicitations for lower tier covered transactions. I. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the non - procurement portion of the "Lists of Parties Excluded From Federal Procurement or Non - procurement Programs" (Non- procurement List) which is compiled by the General Services Administration. I. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph f of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Primary Covered Transactions 1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; b. Have not within a 3 -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph 1b of this certification; and d. Have not within a 3 -year period preceding this application /proposal had one or more public transactions (Federal, State orlocal) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Covered Transac- tions: (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and /or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible," 'primary covered transaction," "participant," "person," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Non - procurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. I. Except for transactions authorized under paragraph a of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and /or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion —Lower Tier Covered Transactions: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from' participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. %II. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR LOBBYING (Applicable to all Federal -aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, 'Disclosure Form to Report Lobbying,' in accordance with its instructions. 2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. 2. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting 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 recipients shall certify and disclose accordingly 36. 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: i. the Local Agency /Contractor shall follow applicable procurement procedures, as required by section 18.36(d); ii. 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; ill. the Local Agency /Contractor shall comply with section 18.37 concerning any sub - Agreements; iv. 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; v. the Local Agency /Contractor shall incorporate the specific contract provisions described in 18.36(1) (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 sub -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 sub -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 Agencys and sub -the Local Agencys 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 Page 1 of 3 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 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 seg. 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 Americans with Disabilities Act (Public Law 101 -336; 42 USC 12101, 12102,12111-12117, 12131-12134,12141-12150, 12161-12165,12181-12189, 12201 -1 221 3 47 USC 225 and 47 USC 611. L. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91 -646, as amended and Public Law 100 -17, 101 Stat. 246 -256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). M. Drug -Free Workplace Act The Drug -Free Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et 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. 0.23 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: 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. Page 2 of 3 H. 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 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. Ill. 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