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HomeMy WebLinkAboutC12-177 5304 Agreement State of Colorado CMS: 12- HTR- 41296/SAP PO #: 291001220
STATE OF COLORADO
5304 AGREEMENT
with
EAGLE COUNTY
TABLE OF CONTENTS
1. PARTIES 2
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY 2
3. RECITALS 2
4. DEFINITIONS 2
5. FEDERAL FUNDING 3
6. PROJECT IMPLEMENTATION 3
7. ETHICS 7
8. FEDERAL ASSISTANCE • 10
9. LOCAL SHARE 11
10. APPROVED PROJECT BUDGET 11
11. ACCOUNTING RECORDS 12
12. REPORTING, RECORD RETENTION, AND ACCESS 12
13. PAYMENTS 13
14. PROJECT COMPLETION, AUDIT, SETTLEMENT, AND CLOSEOUT 15
15. RIGHT OF THE STATE TO TERMINATE 15
16. CIVIL RIGHTS 18
17. PREFERENCE FOR UNITED STATES PRODUCTS AND SERVICES 20
18. PROCUREMENT 21
19. LEASES 23
20. PATENT RIGHTS 24
21. RIGHTS IN DATA AND COPYRIGHTS 24
22. USE OF REAL PROPERTY, EQUIPMENT, AND SUPPLIES 25
23. INSURANCE 28
24. REAL PROPERTY 29
25. EMPLOYEE PROTECTIONS 29
26. ENVIRONMENTAL PROTECTIONS 31
27. ENERGY CONSERVATION 33
28. CHARTER SERVICE OPERATIONS 33
29. SCHOOL TRANSPORTATION OPERATIONS 33
30. METRIC SYSTEM 33
31. SUBSTANCE ABUSE 34
32. FEDERAL "$1 COIN" REQUIREMENTS 34
33. SEAT BELT USE 34
34. PROTECTION OF SENSITIVE SECURITY INFORMATION 34
35. DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION 34
36. STATEWIDE CONTRACT MANAGEMENT SYSTEM 35
37. OPTION LETTER TO EXTEND PROVISIONS 35
38. CONFLICTS OF INTEREST 35
39. REPRESENTATIONS AND WARRANTIES 36
40. GOVERNMENTAL IMMUNITY 36
41. GENERAL PROVISIONS 36
42. SPECIAL PROVISIONS 39
43. SIGNATURE PAGE 41
EXHIBIT A -SCOPE OF WORK AND BUDGET 42
EXHIBIT B - GRANTEE PAYMENT CHECKLIST 44
EXHIBIT C- OPTION LETTER 46
EXHIBIT D- FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA) 47
Page 1 of 51
Ci 12,' I ��
1. PARTIES
THIS Agreement is entered into by and between the Colorado Department of Transportation (hereinafter
called "CDOT" or the "State "), and the Eagle County (hereinafter called "Grantee "), a public entity within
the STATE OF COLORADO.
2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY
This Grant shall not be effective or enforceable until it is approved and signed by the Colorado State
Controller or designee (hereinafter called the "Effective Date "). Except as provided in this agreement and in
Exhibit A, the State shall not be liable to pay or reimburse Grantee 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 to enter into this Agreement exists in C.R.S. 43 -1 -701, 43 -1 -702, and funds have been budgeted,
appropriated and otherwise made available, and a sufficient unencumbered balance thereof remains
available for payment. Required approvals, clearance and coordination have been accomplished from and
with appropriate agencies:
G/L Account: 4518000010 Funds Center: D9711 -411 I Company Code: 1000 1 Vendor Number: 2000124
Functional Area: 1510 -Not Relevant CO Area: 1000 1 Fund: 400 1 Catalog Federal Domestic Assistance Number (CFDA) 20.515
*SAP Line Item *WBS 5304 Total Encumbered Contract Amount: $37,500
10- FFY2009 CO- 80- DB19.ECOR Federal Amount Total: $30,000 Local Amount Total: $7,500 1
*The grants and line item WBS numbers may be replaced without changing the amount of the grant at CDOT's discretion.
B. Consideration
The Grantee has proposed a project in the form of an application for funding under Section 5304 of the Act,
hereinafter referred to as the "Project "; and the Governor of the State of Colorado, in accordance with a
request by the Federal Transit Administration, hereinafter referred to as "FTA," has designated the State to
manage the Section 5304 program, including the responsibility to evaluate and select public transportation
projects proposed by State agencies, local public bodies and agencies thereof (including Indian Tribes), and
nonprofit operators of public transportation services in areas other than urbanized.
C. Purpose
The purpose of this Contract is to state the terms, conditions, and mutual understandings of the Parties as
to the manner in which the Project will be undertaken and completed. Section 5304 of 49 U.S.C. §§
5301 et seq., as amended, hereinafter referred to as the "Act ", institutes a program offering federal
assistance for public transportation for statewide transportation planning by way of a formula grant
program administered by the State. The terms and conditions of the Project and the Act are incorporated
herein by reference to the extent consistent herewith.
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 incorporated pursuant to Colorado State Fiscal Rules and Policies.
B. Budget
"Budget" means the budget for the Work described in Exhibit A.
C. Evaluation
"Evaluation" means the process of examining GRANTEE's Work and rating based on criteria established
in this Agreement.
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D. Exhibits and other Attachments
The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of
Work), Exhibit B (Grantee Payment Checklist), Exhibit C (Option Letter), Exhibit D (Federal Funding
Accountability and Transparency Act (FFATA)). Not used for this grant: Exhibit E (Guidance for Audit),
Exhibit F (Security Agreement), Exhibit G (Procurement Authorization), Exhibit H (Notice of
Acceptance/Non- Acceptance).
E. Goods
"Goods" means tangible material acquired, produced, or delivered by GRANTEE either separately or in
conjunction with the Services GRANTEE renders hereunder.
F. Notice: to FTA or the State
Notice for FTA shall be provided to the Region VIII office c/o the Community Planner or authorized
personnel at: 12300 W. Dakota Ave., Suite 300, Lakewood CO 80228.
Notice for the State shall be provided to the CDOT Transit Manager at: 4201 E. Arkansas Ave.- Shumate
Building, Denver, CO 80222.
G. Party and Parties
"Party" means CDOT or GRANTEE and "Parties" means both CDOT and GRANTEE.
H. Project Period
Means the period for which the Work listed in Exhibit A is performed, which is from the Effective Date
through the duration of the Agreement.
I. Services
"Services" means the required services to be performed by GRANTEE pursuant to this Agreement.
J. Subcontractor or Subgrantee
"Subcontractor" or "Subgrantee" means third - parties, if any, engaged by GRANTEE to aid in performance
of its obligations.
K. Work
"Work" means the tasks and activities GRANTEE is required to perform to fulfill its obligations under this
Agreement and Exhibit A, including the performance of the Services and delivery of the Goods.
L. Work Product
"Work Product" means the tangible or intangible results of GRANTEE' 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. FEDERAL FUNDING
This Contract is subject to and contingent upon the continuing availability of Federal funds for the purposes
hereof.The Parties hereto expressly recognize that the Grantee is to be paid, reimbursed, or otherwise
compensated with funds provide to the State by the United States Department of Transportation, Federal
Transit Administration under the National Capital Transportation Act of 1969, as amended, the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, the Transportation Equity
Act for the 21 Century, as amended, or other Federal laws that FTA administers, and therefore, the Grantee
expressly understands and agrees that all it right, demands, and claims to compensation arising under this
contact are contingent upon receipt of such funds by the State. In the event that such funds or any part
thereof are not received by the State, the State may immediately terminate this contract without liability,
including liability for termination costs.
6. PROJECT IMPLEMENTATION
a. General. The Grantee agrees to carry out the Project as follows:
(1) Project Description. Because the "Project Description" in the Scope of Work (Exhibit A) section
of the Contract provides a brief description of the Project or Projects to be funded, the Grantee
agrees to perform the work as described in the "Project Description" in the Scope of Work
(Exhibit A) and in its Application that is incorporated by reference in the approved Contract for
the Project.
(2) Effective Date. The effective date of the Contract, Option Letter (Exhibit C), or amendments
thereto is the date on which the State Controller or designee executes this Contract for Federal
assistance as shown on the Contract, Option Letter (Exhibit C), or amendments thereto. The
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Grantee agrees to undertake Project work promptly after receiving notice that the State has
executed the contract for Federal assistance for the Project.
(3) Grantee's Capacity. The Grantee agrees to maintain sufficient legal, financial, technical, and
managerial capacity to: (a) plan, manage, and complete the Project and provide for the use of
Project property; (b) carry out the safety and security aspects of the Project and (c) comply with
the terms of its Contract providing Federal assistance for the Project, the Approved Project
Budget, the Project schedules, the Grantee's annual Certifications and Assurances to the State,
and applicable Federal, State and/or Local laws, regulations, and directives, except to the extent
that FTA or the State determines otherwise in writing.
(4) Completion Dates. The Grantee agrees to complete the Project in a timely manner. Nevertheless,
the time period to be covered by this Contract shall begin on January 1, 2012, or the date the State
Controller, or designee, executes this contract, whichever is later, shall be undertaken and
performed in the sequence and manner set forth herein, and shall end December 31, 2013. The
State may require continued performance for a period not to exceed one year for any Services at
the rates and terms specified in the Contract. The State may exercise the option by written notice
to the Grantee within 30 days prior to the end of the current Contract term in accordance with
Section 36 of this Contract. If the State exercises this option, the extended Contract will be
considered to include this option provision. The total duration of this Contract, including the
exercise of any options under this clause, shall not exceed three years.
b. U.S. DOT Administrative Requirements. The Grantee agrees to comply with the Federal administrative
requirements that apply to the category in which it belongs:
(1) U.S. DOT regulations, "Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments," 49 C.F.R. Part 18, apply to a, Grantee that is a
State, local, or Indian tribal government.
(2) U.S. DOT regulations, "Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non - Profit Organizations," 49 C.F.R.
Part 19, apply to a Grantee that is an institution of higher education or a nonprofit organization.
(3) Except to the extent that FTA determines otherwise in writing, U.S. DOT regulations, "Uniform
Administrative Requirements for Grants and Agreements with Institutions of Higher Education,
Hospitals, and Other Non - profit Organizations," 49 C.F.R. Part 19, apply to a Grantee that is a
private for - profit organization.
c. Application of Federal, State, and Local Laws, Regulations, and Directives.
(1) Federal Laws, Regulations, and Directives. The Grantee agrees that Federal laws and regulations
control Project award and implementation. The Grantee also agrees that Federal directives as
defined in this Contract, provide Federal guidance applicable to the Project, except to the extent
that FTA or the State determines otherwise in writing. Thus, FTA strongly encourages adherence
to applicable Federal directives. The Grantee understands and agrees that unless it requests FTA
or State written approval, the Grantee may incur a violation of Federal laws or regulations, or the
terms of its Contract if it implements an alternative procedure or course of action not approved by
FTA or the State.
The Grantee understands and agrees that Federal and State laws, regulations, and directives
applicable to the Project and to the Grantee on the date on which the State Controller or designee
executes Federal assistance for the Project may be modified from time to time. In particular, new
Federal laws, regulations, and directives may become effective after the date on which the
Grantee executes the Contract for the Project, and might apply to that Contract. The Grantee
agrees that the most recent of such Federal laws, regulations, and directives will govern the
Page 4 of 51
administration of the Project at any particular time, except to the extent that FTA or the State
determines otherwise in writing.
FTA's and the State's written determination may take the form of a Special Condition, Special
Requirement, Special Provision (Federal and/or State), or Condition of Award within the Contract
for the Project, a change to an FTA directive, or a letter to the Grantee signed by the Federal
Transit Administrator or his or her duly authorized designee, the text of which modifies or
otherwise conditions a specific provision of the Contract for the Project. To accommodate
changing Federal requirements, the Grantee agrees to include in each agreement with each
Subgrantee and each third party contract implementing the Project notice that Federal laws,
regulations, and directives may change and that the changed requirements will apply to the
Project, except to the extent that FTA or the State determines otherwise in writing. All standards
or limits in the Contract for the Project are minimum requirements, unless modified by FTA or the
State.
(2) State, Territorial, and Local Law. Should a Federal law preempt a State, territorial, or local law,
regulation, or ordinance, the Grantee must comply with the Federal law and implementing
regulations. Nevertheless, no provision of the Contract for the Project requires the Grantee to
observe or enforce compliance with any provision, perform any other act, or do any other thing in
contravention of State, territorial, or local law, regulation, or ordinance. Thus if compliance with
any provision of the Contract for the Project violates or would require the Grantee to violate any
State, territorial, or local law, regulation, or ordinance, the Grantee agrees to notify FTA or the
State immediately in writing. Should this occur, FTA, the State and the Grantee agree that they
will make appropriate arrangements to proceed with or, if necessary, terminate the Project
expeditiously.
d. Grantee's Primary Responsibility to Comply with Federal Requirements. Irrespective of involvement by
any other entity in the Project, the Grantee agrees that it, rather than any other entity, is ultimately
responsible for compliance with all applicable Federal laws and regulations, the Grant Agreement or
Cooperative Agreement for the Project, and this Master Agreement, in accordance with applicable Federal
directives, except to the extent that FTA determines otherwise in writing.
(1) Significant Participation by a Subgrantee. Although the Grantee may delegate any or almost all
Project responsibilities to one or more Subgrantees, the Grantee agrees that it, rather than any
Subgrantee, is ultimately responsible for compliance with all applicable Federal laws, and
regulations, in accordance with applicable Federal directives, except to the extent that FTA
determines otherwise in writing.
(2) Significant Participation by a Lessee of a Grantee. Although the Grantee may lease Project
property and delegate some or many Project responsibilities to one or more lessees, the Grantee
agrees that it, rather than any lessee, is ultimately responsible for compliance with all applicable
Federal laws and regulations, in accordance with applicable Federal directives, except to the
extent that FTA determines otherwise in writing.
(3) Significant Participation by a Third Party Contractor. Although the Grantee may enter into a third
party contract in which the third party contractor agrees to provide property or services in support
of the Project, or even carry out Project activities normally performed by the Grantee (such as in a
turnkey contract), the Grantee agrees that it, rather than the third party contractor, is ultimately
responsible to FTA for compliance with all applicable Federal laws and regulations, in accordance
with applicable Federal directives, except to the extent that FTA determines otherwise in writing.
(4) Exceptions. The Grantee, however, is relieved of the requirement to comply with Federal
requirements in the following two circumstances:
Page 5 of 51
(a) When the Designated Grantee of Urbanized Area Formula Program assistance as defined at
49 U.S.C. § 5307(a)(2) has entered into a Supplemental Agreement with FTA and a Grant
Grantee or Grantee covering the Project, the Designated Grantee is not responsible for
compliance with Federal requirements in connection with the Project, or
(b) When the Federal Government, through appropriate official action, relieves the Grantee of a
portion of or all responsibility to the Federal Government
e. Grantee's Responsibility to Extend Federal Requirements to Other Entities.
(1) Entities Affected. Only entities that are signatories to this Contract for the Project are Parties to
this Contract. To achieve compliance with certain Federal laws, regulations, or directives,
however, other entities participating in the Project through their involvement with the Grantee
(such as Subgrantees and third party grantees) will necessarily be affected. Accordingly, the
Grantee agrees to take the appropriate measures necessary to ensure that all Project participants
comply with applicable Federal laws, regulations, and directives affecting Project implementation,
except to the extent FTA or the State determines otherwise in writing. In addition, if any entity
other than the Grantee is expected to fulfill responsibilities typically performed by the Grantee,
the Grantee agrees to assure that the entity carries out the Grantee's responsibilities as set forth in
the Contract.
(2) Documents Affected. The applicability provisions of Federal laws, regulations, and directives
determine the extent to which those provisions affect an entity (such as a Subgrantee, lessee, or
other) participating in the Project through the Grantee. Thus, the Grantee agrees to use a written
document to ensure that each entity participating in the Project complies with applicable Federal
laws, regulations, and directives, except to the extent that FTA determines otherwise in writing.
(a) Third Party Contracts. Because Project activities performed by a third party grantee must
comply with all applicable Federal laws, regulations, and directives, except to the extent FTA
determines otherwise in writing, the Grantee agrees to include appropriate clauses in each
third party contract stating the third party grantee's responsibilities under Federal laws,
regulations, and directives, including any provisions directing the third party grantee to extend
applicable requirements to its Subgrantees at the lowest tier necessary. When the third party
contract requires the third party grantee to undertake responsibilities for the Project usually
performed by the Grantee, the Grantee agrees to include in that third party contract those
requirements applicable to the Grantee imposed by the Contract for the Project and extend
those requirements throughout each tier except as FTA determines otherwise in writing.
Additional guidance pertaining to third party contracting is contained in the FTA's "Best
Practices Procurement Manual." FTA cautions, however, that its "Best Practices Procurement
Manual" focuses mainly on third party procurement processes and may omit certain other
Federal requirements applicable to the work to be performed.
(b) Subcontracts. Because Project activities performed by a Subgrantee must comply with all
applicable Federal laws, regulations, and directives except to the extent that the State
determines otherwise in writing, the Grantee agrees as follows:
(1) Written Subcontract. The Grantee agrees to enter into a written agreement with each
Subgrantee (subcontract) stating the terms and conditions of assistance by which the
Project will be undertaken and completed.
(2) Compliance with Federal Requirements. The Grantee agrees to implement the Project in a
manner that will not compromise the Grantee's compliance with Federal laws, regulations,
and directives applicable to the Project and the Grantee's obligations under this Contract
for the Project. Therefore, the Grantee agrees to include in each subcontract appropriate
clauses directing the Subgrantee to comply with those requirements applicable to the
Grantee imposed by the Contract for the Project and extend those requirements as
Page 6 of 51
necessary to any lower level subcontract or any third party grantee at each tier, except as
FTA or the State determines otherwise in writing.
e. No Federal Government Obligations to Third Parties. In connection with performance of the Project, the
Grantee agrees that, absent the Federal Government's express written consent, the Federal Government
shall not be subject to any obligations or liabilities to any Subgrantee, lessee, third party grantee, or other
person or entity that is not a party to this Contract for the Project. Notwithstanding that the Federal
Government may have concurred in or approved any solicitation, subcontract, lease, or third party contract
at any tier, the Federal Government has no obligations or liabilities to entity, other than the Grantee, lessee,
or third party grantee at any tier.
f. Changes in Project Performance (i.e., Disputes, Breaches, Defaults, or Litigation). The Grantee agrees to
notify FTA and the State immediately, in writing, of any change in local law, conditions (including its
legal, financial, or technical capacity), or any other event that may adversely affect the Grantee's ability to
perform the Project in accordance with the terms of this Contract for the Project. The Grantee also agrees
to notify the State and FTA immediately, in writing, of any current or prospective major dispute, breach,
default, or litigation that may adversely affect the Federal Government's interests in the Project or the
Federal Government's administration or enforcement of Federal laws or regulations; and agrees to inform
FTA, also in writing, before naming the Federal Government as a party to litigation for any reason, in any
forum. At a minimum, the Grantee agrees to send each notice to FTA required by this subsection to the
FTA Regional Counsel within whose Region the grantee operates its public transportation system or
implements the Project.
7. ETHICS
a. Code of Ethics. The Grantee agrees to maintain a written code or standards of conduct that shall govern
the actions of its officers, employees, board members, or agents engaged in the award or administration of
subagreements, leases, or third party contracts supported with Federal assistance. The Grantee agrees that
its code or standards of conduct shall specify that its officers, employees, board members, or agents may
neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential
Subgrantee, lessee, or third party grantee at any tier or agent thereof. Such a conflict would arise when an
employee, officer, board member, or agent, including any member of his or her immediate family, partner,
or organization that employs, or intends to employ, any of the parties listed herein has a financial interest in
the firm selected for award. The Grantee may set de minimis rules where the financial interest is not
substantial, or the gift is an unsolicited item of nominal intrinsic value. The Grantee agrees that its code or
standards shall also prohibit the its officers, employees, board members, or agents from using their
respective positions in a manner that presents a real or apparent personal or organizational conflict of
interest or personal gain. As permitted by State or local law or regulations, the Grantee agrees that its code
or standards of conduct shall include penalties, sanctions, or other disciplinary actions for violations by its
officers, employees, board members, or their agents, or its third party grantees or Subgrantees or their
agents.
(1) Personal Conflicts of Interest. The Grantee agrees that its code or standards of conduct shall prohibit
the Grantee's employees, officers, board members, or agents from participating in the selection,
award, or administration of any third party contract or subcontract supported by Federal assistance if
a real or apparent conflict of interest would be involved. Such a conflict would arise when an
employee, officer, board member, or agent, including any member of his or her immediate family,
partner, or organization that employs, or intends to employ, any of the parties listed herein has a
financial interest in the firm selected for award.
(2) Organizational Conflicts of Interest. The Grantee agrees that its code or standards of conduct shall
include procedures for identifying and preventing real and apparent organizational conflicts of
interest. An organizational conflict of interest exists when the nature of the work to be performed
under a proposed third party contract or subcontract may, without some restrictions on future
activities, result in an unfair competitive advantage to the third party grantee or Subgrantee or impair
its objectivity in performing the contract work.
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b. Debarment and Suspension. The Grantee agrees to comply, and assures the compliance of each
Subgrantee, lessee, or third party grantee at any tier, with Executive Orders Nos. 12549 and 12689,
"Debarment and Suspension," 31 U.S.C. § 6101 note, and U.S. DOT regulations, "Governmentwide
Debarment and Suspension (Nonprocurement)," 49 C.F.R. Part 29. The Grantee agrees to, and assures that
its Subgrantees, lessees, and third party grantees will review the "Excluded Parties Listing System" at
http: / /epls.arnet.gov/ before entering into any third party contract or subagreement.
c. Bonus or Commission. The Grantee affirms that it has not paid, and agrees not to pay, any bonus or
commission to obtain approval of its Federal assistance application for the Project.
d. Lobbying Restrictions. The Grantee agrees that:
(1) In compliance with 31 U.S.C. 1352(a), it will not use Federal assistance to pay the costs of influencing
any officer or employee of a Federal agency, Member of Congress, officer of Congress or employee
of a member of Congress, in connection with making or extending the Contract;
(2) In addition, it will comply with other applicable Federal laws and regulations prohibiting the use of
Federal assistance for activities designed to influence Congress or a State legislature with respect to
legislation or appropriations, except through proper, official channels; and
(3) It will comply, and will assure the compliance of each Subgrantee, lessee, or third party contractor at
any tier, with U.S. DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20, modified as
necessary by 31 U.S.C. § 1352.
e. Employee Political Activity. To the extent applicable, the Grantee agrees to comply with the provisions of
the Hatch Act, 5 U.S.C. §§ 1501 through 1508, and 7324 through 7326, and U.S. Office of Personnel
Management regulations, "Political Activity of State or Local Officers or Employees," 5 C.F.R. Part 151.
The Hatch Act limits the political activities of State and local agencies and their officers and employees,
whose principal employment activities are financed in whole or part with Federal funds including a Federal
grant, cooperative agreement, or loan. Nevertheless, in accordance with 49 U.S.C. § 5307(k)(2)(B) and
23 U.S.C. § 142(g), the Hatch Act does not apply to a nonsupervisory employee of a public transportation
system (or of any other agency or entity performing related functions) receiving FTA assistance to whom
the Hatch Act would not otherwise apply.
f. False or Fraudulent Statements or Claims. The Grantee acknowledges and agrees that:
(1) Civil Fraud. The Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801 et seq.
and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to Grantee's
activities in connection with the Project. By executing the Contract for the Project, the Grantee
certifies or affirms the truthfulness and accuracy of each statement it has made, it makes, or it may
make in connection with the Project. In addition to other penalties that may apply, the Grantee also
acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission,
certification, assurance, or representation to the Federal Government, the Federal Government reserves
the right to impose on the Grantee the penalties of the Program Fraud Civil Remedies Act of 1986, as
amended, to the extent the Federal Government deems appropriate.
(2) Criminal Fraud. If the Grantee makes a false, fictitious, or fraudulent claim, statement, submission,
certification, assurance, or representation to the Federal Government or includes a false, fictitious, or
fraudulent statement or representation in any agreement with the Federal Government in connection
with a Project authorized under 49 U.S.C. chapter 53 or any other Federal law, the Federal
Government reserves the right to impose on the Grantee the penalties of 49 U.S.C. § 5323(1), 18 U.S.C.
§ 1001 or other applicable Federal law to the extent the Federal Government deems appropriate.
g. Trafficking in Persons. To the extent applicable, the Grantee agrees to comply with, and assures the
compliance of each Subgrantee with, the requirements of the subsection 106(g) of the Trafficking Victims
Protection Act of 2000 (TVPA), as amended, 22 U.S.C. § 7104(g), and the provisions of this Subsection
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3.g of this Master Agreement consistent with U.S. OMB guidance, "Trafficking in Persons: Grants and
Cooperative Agreements," 2 C.F.R. Part 175:
(1) Definitions. For purposes of this Subsection 3.g, the Grantee agrees that:
(a) Employee means either:
1. An individual who is employed by the Grantee or a Subgrantee, and who is participating in the
Grant Agreement or Cooperative Agreement for the Project; or
2. Another person who is participating in the Grant Agreement or Cooperative Agreement for the
Project and who is not compensated by the Grantee including, but not limited to, a volunteer or
individual whose services are contributed by a third party as an in -kind contribution toward cost
sharing or matching requirements of the Grant Agreement or Cooperative Agreement and this
Master Agreement.
(b) Forced labor means labor obtained by any of the following methods: the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or
slavery.
(c) Private entity:
1. Means any entity other than a State, local government, Indian tribe, or foreign public entity, as
those terms are defined in 2 C.F.R. § 175.25.
2. Includes a for - profit organization, and also a nonprofit organization, including any nonprofit
institution of higher education, hospital, or tribal organization other than one included in the
definition of Indian tribe at 2 C.F.R. § 175.25(b).
(d) Severe forms of trafficking in persons has the meaning given at section 103 of the TVPA, as
amended, 22 U.S.C. § 7102.
(e) Commercial sex act has the meaning given at section 103 of the TVPA, as amended, 22 U.S.C. §
7102.
(f) Coercion has the meaning given at section 103 of the TVPA, as amended, 22 U.S.C. § 7102.
(2) Provisions Applicable to Each Grantee. The Grantee agrees:
(a) To inform FTA immediately of any information it receives from any source alleging a violation of
a prohibition in Subsection 3.g(3)(a) of this Master Agreement below.
(b) That FTA may unilaterally terminate its Federal assistance for the Grant Agreement or Cooperative
Agreement for the Project as provided in Subsection 3.g(3)(b) or (4) of this Master Agreement.
FTA's right to terminate unilaterally:
1. Implements subsection 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as
amended, 22 U.S.C. § 7104(g), and
2. Is in addition to all other remedies for noncompliance that are available to the Federal Government
under this Master Agreement.
(c) To include the requirements of Subsection 3.g(3)(a) of this Master Agreement in any subagreement
it enters into with a private entity, as defined in Subsection 3.g(1)(c) of this Master Agreement.
(3) Provisions Applicable to a Grantee that is a Private Entity. A Grantee that is a private entity as defined
in Subsection 3.g(1)(c) of this Master Agreement agrees that:
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(a) It, its employees, its Subgrantees and its Subgrantees' employees that participate in the Grant
Agreement or Cooperative Agreement for the Project, may not- -
1. Engage in severe forms of trafficking in persons during the period of time that the Grant
Agreement or Cooperative Agreement for the Project is in effect;
2. Procure a commercial sex act during the period of time that the Grant Agreement or Cooperative
Agreement for the Project is in effect; or
3. Use forced labor in the performance of the Grant Agreement or Cooperative Agreement or
subagreements for the Project.
(b) FTA may unilaterally terminate the Grant Agreement or Cooperative Agreement for the Project,
without penalty to the Federal Government, if the Grantee or a Subgrantee that is a private entity- -
1. Is determined to have violated a prohibition in Subsection 3.g(3)(a) of this Master Agreement, or
2. Has an employee who is determined by an FTA official authorized to terminate the Grant
Agreement or Cooperative Agreement for the Project to have violated a prohibition in Subsection
3.g(3)(a) of this Master Agreement through conduct that is either- -
a. Associated with his or her participation in the Grant Agreement or Cooperative Agreement for
the Project; or
b. Imputed to the Grantee or the Subgrantee using the standards and due process for imputing the
conduct of an individual to an organization that are provided in the U.S. OMB "Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement)," 2 C.F.R. Part
180, as implemented by U.S. DOT regulations, "Nonprocurement Suspension and Debarment,"
2 C.F.R. Part 1200.
(4) Provision Applicable to a Grantee Other Than a Private Entity. FTA may unilaterally terminate the
Grant Agreement or Cooperative Agreement for the Project, without penalty to the Federal
Government, if a Subgrantee that is a private entity- -
(a) Is determined to have violated an applicable prohibition in Subsection 3.g(3)(a) of this Master
Agreement; or
(b) Has an employee who is determined by an FTA official authorized to terminate the Grant
Agreement or Cooperative Agreement for the Project to have violated an applicable prohibition in
Subsection 3.g(3)(a) of this Master Agreement through conduct that is either- -
1. Associated with his or her participation in the Grant Agreement or Cooperative Agreement for the
Project, or
2. Imputed to the subgrantee using the standards and due process for imputing the conduct of an
individual to an organization that are provided in the U.S. OMB "Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement)," 2 C.F.R. Part 180, as
implemented by U.S. DOT regulations, "Nonprocurement Suspension and Debarment," 2 C.F.R.
Part 1200.
8. FEDERAL ASSISTANCE
The Grantee agrees that the State will provide FTA Federal assistance for the Project equal to the
smallest of the following amounts: (a) the maximum amount permitted by Federal law or regulations,
(b) the "Maximum FTA Amount Approved," set forth in this Contract for the Project, or (c) the
amount calculated in accordance with the "Maximum Percentage(s) of FTA Participation," as may be
modified by the Conditions of Award or other Special Conditions, Special Requirements, or Special
Provisions (Federal and/or State) of the Contract for the Project. The State's responsibility to make
Federal assistance payments is limited to the amounts listed in the Approved Project Budget for the
Page 10 of 51
Project. The "Estimated Total Eligible Cost" in the Contract for the Project is the amount that forms
the basis on which the State determines the "Maximum FTA Amount Awarded."
a. "Net Project Cost ". For any Project required by Federal law or FTA to be financed on the basis of its "Net
Project Cost" as defined by 49 U.S.C. § 5302(a)(8), FTA intends to provide Federal assistance to the
Grantee for that portion of the Project that cannot reasonably be financed from the Grantee's revenues, i.e.,
Net Project Cost" of the Project. Therefore, the amount stated as the "Estimated Total Eligible Cost" on
the Contract is the "Estimated Net Project Cost" and is the amount that forms the basis on which FTA will
calculate the amount of Federal assistance that will be awarded for the Project.
b. Other Basis for FTA Participation. For any Project not required by Federal law or FTA to be financed on
the basis of its Net Project Cost" as defined by 49 U.S.C. § 5302(a)(8), FTA intends to provide Federal
assistance to the Grantee for all or part of the total Project cost that is eligible for Federal assistance.
Therefore, the amount stated as the "Estimated Total Eligible Cost" on the Contract for the Project is the
amount that forms the basis on which FTA will calculate the amount of Federal assistance that will be
awarded for the Project.
9. LOCAL SHARE
A Grantee that is required to provide a local share for the Project agrees as follows:
a. Restrictions on the Source of the Local Share. The Grantee agrees to provide sufficient funds or approved
in -kind resources, together with the Federal assistance awarded, that will assure payment of the actual cost
of each Project activity covered by the Contract for the Project. The Grantee agrees that no local share
funds provided will be derived from receipts from the use of Project facilities or equipment, revenues of the
public transportation system in which such facilities or equipment are used, or other Federal funds, except
as permitted by Federal law or regulation.
b. Duty to Obtain the Local Share. The Grantee agrees to complete all proceedings necessary to provide the
local share of the Project costs at or before the time the local share is needed for Project costs, except to the
extent that the State or FTA determines otherwise in writing.
c. Prompt Payment of the Local Share. The Grantee agrees to provide the proportionate amount of the local
share promptly as Project costs are incurred or become due, except to the extent that the Federal
Government determines otherwise in writing.
d. Reduction of the Local Share. The Grantee agrees that no refund or reduction of the local share may be
made unless, at the same time, a refund of the proportional amount of the Federal assistance provided is
made to the Federal Government.
10. APPROVED PROJECT BUDGET
Except to the extent that the State determines otherwise in writing, the Grantee agrees as follows: The Grantee
will prepare a Project Budget which, upon approval by the State is designated the "Approved Project Budget."
The Grantee will incur obligations and make disbursements of Project funds only as authorized by the latest
Approved Project Budget, which will be incorporated by reference and made part the underlying Contract for
the Project. An amendment to the Approved Project Budget requires the issuance of a formal amendment to
the underlying Contract, except that re- allocation of funds among budget items or fiscal years that does not
increase the total amount of the Federal assistance awarded for the Project may be made consistent with
applicable Federal laws, regulations and directives. An award of additional Federal assistance will require a
new Approved Project Budget. If the Grantee estimates that it will have unobligated funds remaining after the
end of the performance period of the Project, the Grantee agrees to report this to the State at the earliest
possible time and ask for disposition instructions.
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11. ACCOUNTING RECORDS
In compliance with applicable Federal laws, regulations, and directives, and except to the extent that the State
or FTA determines otherwise in writing, the Grantee agrees as follows:
a. Project Accounts. The Grantee agrees to establish and maintain for the Project either a separate set of
accounts or separate accounts within the framework of an established accounting system that can be
identified with the Project. The Grantee also agrees to maintain all checks, payrolls, invoices, contracts,
vouchers, orders, or other accounting documents related in whole or part to the Project so that they may be
clearly identified, readily accessible, and available to the State upon request and, to the extent feasible, kept
separate from documents not related to the Project.
b. Funds Received or Made Available for the Project. The Grantee agrees to deposit in a financial institution
all advance Project payments it receives from the Federal Government and to record in the Project Account
all amounts provided by the Federal Government for the Project and all other funds provided for, accruing
to, or otherwise received on account of the Project (Project funds) in compliance with Federal laws and
regulations, in accordance with applicable Federal directives, except to the extent that the State or FTA
determines otherwise in writing. Use of financial institutions owned at least fifty (50) percent by minority
group members is encouraged.
c. Documentation of Project Costs and Program Income. The Grantee agrees to support all costs charged to
the Project, including any approved services or property contributed by the Grantee or others, with properly
executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and
propriety of the charges. The Grantee also agrees to maintain accurate records of all program income
derived from Project implementation, except certain income the State or FTA determines to be exempt
from the Federal program income requirements.
•
12. REPORTING, RECORD RETENTION, AND ACCESS
The Grantee shall maintain a complete file of all records, documents, communications, and other written
materials which pertain to the operation of programs or the delivery of services under this contract, and shall
maintain such records for a period of three (3) years after the date of termination of this contract or final
payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters
which may be pending. All such records, documents, communications and other materials shall be the property
of the State, and shall be maintained by the Grantee in a central location and the Grantee shall be custodian on
behalf of the State.
a. Types of Reports. The Grantee agrees to submit to the State all reports required by Federal laws and
regulations, and directives, the Contract for the Project, and any other reports FTA may specify, except to
the extent that the State determines otherwise in writing.
b. Report Formats. The Grantee agrees that all reports and other documents or information intended for
public availability developed in the course of the Project and required to be submitted to the State must be
prepared and submitted in electronic and or typewritten hard copy formats as the State may specify. The
State reserves the right to require records to be submitted in other formats.
c. Record Retention. During the course of the Project and for three years thereafter from the date of
transmission of the final expenditure report, the Grantee agrees to maintain intact and readily accessible all
data, documents, reports, records, contracts, and supporting materials relating to the Project as the Federal
Government may require.
d. Access to Records of Grantees and Subgrantees. The Grantee agrees to permit, and require its Subgrantees
to permit, the U.S. Secretary of Transportation, the Comptroller General of the United States, and, to the
extent appropriate, the State, or their authorized representatives, upon their request to inspect all Project
work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Grantee and
its Subgrantees pertaining to the Project, as required by 49 U.S.C. § 5325(g).
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e. Project Closeout. The Grantee agrees that Project closeout does not alter the reporting and record retention
requirements of this Section 12 of the Contract.
13. PAYMENTS
The Grantee agrees that it will not seek payment from the State for Project costs until it has executed the
Contract for the Project.
a. Grantee's Request for Payment. Except to the extent that the State determines otherwise in writing, to
obtain a payment for Project expenses from the State, the Grantee agrees to:
(1) Demonstrate or certify that it will provide adequate local funds that, when combined with Federal
payments, will cover all costs to be incurred for the Project. Except to the extent that the Federal
Government determines in writing that the Grantee may defer its local share for the Project, a Grantee
required under the terms of federal law, regulation, or Contract to provide a local share for the Project
agrees that it will not:
(a) Request or obtain Federal funds exceeding the amount justified by the local share provided, and
(b) Take any action that would cause the proportion of Federal funds made available to the Project at
any time to exceed the percentage authorized by the Contract for the Project,
(2) Submit to the State all financial and progress reports required to date by the Contract for the Project,
and
(3) Identify the source(s) of Federal assistance provided for the Project from which the payment is to be
derived.
b. Payment by the State
Costs Reimbursed. The Grantee agrees that Project costs eligible for Federal participation must comply
with all the following requirements. Except to the extent that the State or FTA determines otherwise in
writing, to be eligible for reimbursement, Project costs must be:
(1) Consistent with the Project Description, the Approved Project Budget, and other provisions of the
Contract for the Project,
(2) Necessary in order to accomplish the Project,
(3) Reasonable for the goods or services purchased,
(4) Actual net costs to the Grantee (i.e., the price paid minus any refunds, rebates, or other items of value
received by the Grantee that have the effect of reducing the cost actually incurred, excluding program
income),
(5) Incurred for work performed after the Effective Date of the Contract for the Project, except to the
extent that the Federal Government determines otherwise in writing,
(6) Satisfactorily documented,
(7) Treated consistently in accordance with accounting principles and procedures approved by the Federal
Government for the Grantee, and with accounting principles and procedures approved by the Grantee
for its third party grantees and Subgrantees,
(8) Eligible for Federal participation under Federal law, regulations, or directives, and
(9) In compliance with U.S. DOT regulations pertaining to allowable costs at 49 C.F.R. § 18.22(b) or
49 C.F.R. § 19.27, which regulations specify the applicability of U.S. Office of Management and
Budget (U.S. OMB) circulars and Federal Acquisition Regulation (FAR) provisions as follows:
(a) U.S. OMB Guidance for Grants and Agreements, "Cost Principles for State, Local, and Indian
Tribal Governments (OMB Circular A -87)," 2 C.F.R. Part 225, applies to Project costs incurred
by a Grantee that is a State, local, or Indian tribal government.
(b) U.S. OMB Guidance for Grants and Agreements, "Cost Principles for Educational Institutions
(OMB Circular A -21)," 2 C.F.R. Part 220, applies to Project costs incurred by a Grantee that is an
institution of higher education.
Page 13 of 51
(c) U.S. OMB Guidance for Grants and Agreements "Cost Principles for Non - profit Organizations
(OMB Circular A- 122)," 2 C.F.R. Part 230, applies to Project costs incurred by a Grantee that is a
private nonprofit organization.
(d) FAR, at 48 C.F.R. Chapter I, Subpart 31.2, "Contracts with Commercial Organizations" applies to
Project costs incurred by a Grantee that is a for - profit organization.
c. Excluded Costs. The Grantee understands and agrees that, except to the extent FTA or the State
determines otherwise in writing, ineligible costs will be treated as follows:
(1) In determining the amount of Federal assistance the State will provide for the Project, the State will
exclude:
(a) Any Project cost incurred by the Grantee before the Effective Date of the Contract, Option Letter
(Exhibit C), or amendment, unless otherwise permitted by Federal or State law, regulation, or
directive, or unless an authorized State official states in writing to the contrary;
(b) Any cost that is not included in the latest Approved Project Budget;
(c) Any cost for Project property or services received in connection with a subcontract, lease, third
party contract or other arrangement that is required to be, but has not been, concurred in or
approved in writing by the State;
(d) Any ordinary governmental or nonproject operating cost, consistent with the prohibitions of
49 U.S.C. § 5323(h); and
(e) Any cost ineligible for FTA participation as provided by applicable Federal laws, regulations, or
directives, except to the extent the Federal Government determines otherwise in writing.
(2) The Grantee understands and agrees that payment to the Grantee for any Project cost does not
constitute the State's final decision about whether that cost is allowable and eligible for payment and
does not constitute a waiver of any violation by the Grantee of the terms of the Contract for the Project.
The Grantee acknowledges that the State will not make a final determination about the allowability and
eligibility of any cost until an audit of the Project has been completed. If the State determines that the
Grantee is not entitled to receive any portion of the Federal assistance requested or provided, the State
will notify the Grantee in writing, stating its reasons. The Grantee agrees that Project closeout will not
alter the Grantee's responsibility to return any funds due to the State as a result of later refunds,
corrections, or other transactions; nor will Project closeout alter the State's right to disallow costs and
recover Federal assistance provided for the project on the basis of a later audit or other review. Unless
prohibited by Federal or State law or regulation, the State may recover any Federal financial assistance
made available for the Project as necessary to satisfy any outstanding monetary claims that the State
may have against the Grantee.
d. Claims, Excess Payments, Disallowed Costs, including Interest.
(1) Grantee's Responsibility to Pay. Upon notification to the Grantee that specific amounts are owed to the
State, whether for excess payments of Federal assistance, disallowed costs, or funds recovered from
third parties or elsewhere, the Grantee agrees to remit to the State promptly the amounts owed,
including applicable interest, penalties and administrative charges.
(2) Amount of Interest. The Grantee agrees that whether the amount due the State is treated as a claim or
is treated as a debt determines how interest is calculated thereon and becomes due. Thus, Grantee
agrees to remit interest to the State in accordance with the following:
(a) Claims against the Grantee. For claims pursuant to the Debt Collection Act of 1982, as amended,
31 U.S.C. §§ 3701 et seq., the Grantee agrees that the amount of interest owed to the State will be
determined in accordance with the provisions of joint U.S. Treasury/U.S. DOJ regulations,
"Standards for the Administrative Collection of Claims," at 31 C.F.R. § 901.9(a) through (g) or
common law interest authorized by 31 C.F.R. § 901.9 (i), whichever is applicable.
Page 14 of 51
(b) Excess Payments or Disallowed Costs. For excess payments or disallowed cost payments made
by the Federal Government to the Recipient for which claims procedures have not been initiated
under the Debt Collection Act of 1982, as amended, 31 U.S.C. §§ 3701 et seq. and implementing
regulations, the Recipient agrees that common law interest owed to the Federal Government will
be determined in accordance with joint U.S. Treasury/U.S. DOJ regulations, "Standards for the
Administrative Collection of Claims," at 31 C.F.R. § 901.9(i), or otherwise as FTA may
determine.
e. De- obligation of Funds. The Grantee agrees that the State may de- obligate unexpended Federal funds
before Project closeout.
14. PROJECT COMPLETION, AUDIT, SETTLEMENT, AND CLOSEOUT
a. Project Completion. Within ninety (90) calendar days following Project completion date or termination by
the State, the Grantee agrees to submit a final certification of Project expenses, and third party audit
reports, as applicable.
b. Audit of Grantees. Except to the extent the State determines otherwise in writing, the Grantee
acknowledges and agrees as follows:
(1) Audit Requirements. The Grantee agrees to have financial and compliance audits performed as
required by the Single Audit Act Amendments of 1996, 31 U.S.C. §§ 7501 et seq. As provided by
49 C.F.R. § 19.26, these financial and compliance audits must comply with the provisions of OMB
Circular A -133, Revised, "Audits of States, Local Governments, and Non - Profit Organizations," the
latest OMB A -133 Compliance Supplement for U.S. DOT, and any further revision or supplement
thereto. The Grantee also agrees to obtain any other audits required by the State. Such audits shall test
compliance with the items specified in Guidance for Audit of Grantee Compliance with FTA
Requirements (Exhibit D; if used) and shall be completed by the Grantee if it is a State or local
government, Indian Tribal government or private nonprofit organization. The Grantee agrees that these
audits will be conducted in accordance with U.S. Government Accountability Office, (U.S. GAO)
"Government Auditing Standards." The Grantee agrees that Project closeout will not alter the
Grantee's audit responsibilities.
(2) Audit Costs. Audit costs for Project administration and management are allowable to the extent
authorized by OMB Circular A -87, OMB Circular A -21, OMB Circular A -122, or the FAR at
48 C.F.R. Chapter I, Subpart 31.2, whichever is applicable.
c. Funds Owed to the State. The Grantee agrees to remit to the State any excess payments made to the
Grantee, any costs disallowed by the State, and any amounts recovered by the Grantee from third parties or
from other sources, as well as any penalties and any interest required by Subsection 13.d(2) of this Contract.
d. Project Closeout. Project closeout occurs when the State notifies the Grantee that the State has closed the
Project, and either forwards the final Federal assistance payment or acknowledges that the Grantee has
remitted the proper refund. The Grantee agrees that Project closeout by the State does not invalidate any
continuing requirements imposed by the Contract for the Project, or any unmet requirements set forth in the
Federal Government's final notification or acknowledgment.
15. RIGHT OF THE STATE TO TERMINATE
a. Breach
(1) Defined:
In addition to any breaches specified in other sections of this Grant, 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. The institution of proceedings under any bankruptcy, insolvency, reorganization or
similar law, by or against Grantee, or the appointment of a receiver or similar officer for Grantee or any
of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence
thereof, shall also constitute a breach.
Page 15 of 51
(2) Notice and Cure Period:
In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other
Party in the manner provided in §15(c). 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(b).
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 Grant in whole or in part if
reasonably necessary to preserve public safety or to prevent immediate public crisis.
b. Remedies
If Grantee is in breach under any provision of this Grant, 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 Grant following the notice and
cure period set forth in §15(a)(2). The State may exercise any or all of the remedies available to it, in its sole
discretion, concurrently or consecutively.
(1) Termination for Cause andBreach
If Grantee 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 Grant and in a timely manner, the State may
notify Grantee of such non - performance in accordance with the provisions herein. If Grantee thereafter
fails to promptly cure such non - performance within the cure period, the State, at its option, may
terminate this entire Grant or such part of this Grant 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. Grantee shall continue performance of this Grant to the extent not terminated, if any.
i. Obligations and Rights
To the extent specified in any termination notice, Grantee shall not incur further obligations or
render further performance hereunder past the effective date of such notice, and shall terminate
outstanding orders and sub - Grants with third parties. However, Grantee 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 Grant's terms. At the sole discretion
of the State, Grantee shall assign to the State all of Grantee's right, title, and interest under such
terminated orders or sub - Grants. Upon termination, Grantee shall take timely, reasonable and
necessary action to protect and preserve property in the possession of Grantee in which the State
has an interest. All materials owned by the State in the possession of Grantee shall be
immediately returned to the State. All Work Product, at the option of the State, shall be delivered
by Grantee to the State and shall become the State's property.
ii. Payments
The State shall reimburse Grantee only for accepted performance up to the date of termination.
If, after termination by the State, it is determined that Grantee was not in breach or that Grantee'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 Grant had been
terminated in the public interest, as described herein.
iii. Damages and Witholding
Notwithstanding any other remedial action by the State, Grantee also shall remain liable to the
State for any damages sustained by the State by virtue of any breach under this Grant by Grantee
and the State may withhold any payment to Grantee for the purpose of mitigating the State's
damages, until such time as the exact amount of damages due to the State from Grantee is
determined. The State may withhold any amount that may be due to Grantee 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. Grantee shall be liable for excess costs incurred by the State in procuring from third
parties replacement Work, Services or substitute Goods as cover.
(2) Early Termination in the Public Interest
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The State is entering into this Grant 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 Grant ceases to
further the public policy of the State, the State, in its sole discretion, may terminate this Grant 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 Grant by the State for cause or breach
by Grantee, which shall be governed by §15 or as otherwise specifically provided for herein.
i. Method and Content
The State shall notify Grantee of such termination in accordance with §15. The notice shall
specify the effective date of the termination and whether it affects all or a portion of this Grant.
ii. Obligations and Rights
Upon receipt of a termination notice, Grantee shall be subject to and comply with the same
obligations and rights set forth in §15(b)(i).
iii. Payments
If this Grant is terminated by the State pursuant to this §15, Grantee shall be paid an amount
which bears the same ratio to the total reimbursement under this Grant as the Services
satisfactorily performed bear to the total Services covered by this Grant, less payments
previously made. Additionally, if this Grant is less than 60% completed, the State may reimburse
Grantee for a portion of actual out -of- pocket expenses (not otherwise reimbursed under this
Grant) incurred by Grantee which are directly attributable to the uncompleted portion of
Grantee's obligations hereunder; provided that the sum of any and all reimbursement shall not
exceed the maximum amount payable to Grantee hereunder.
(3) 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 Grantee's performance with respect to all or any portion of this Grant pending
necessary corrective action as specified by the State without entitling Grantee to an adjustment in
price /cost or performance schedule. Grantee 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 Grantee after the suspension of performance under this provision.
ii. Withold Payment
Withhold payment to Grantee until corrections in until corrections in Grantee's performance are
satisfactorily made and completed.
iii. Deny Payment
Deny payment for those obligations not performed, that due to Grantee'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 Grantee's employees, agents, or Sub - grantees whom the State deems
incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued
relation to this Grant is deemed to be contrary to the public interest or not in the State's best
interest.
v. Intellectual Property
If Grantee infringes on a patent, copyright, trademark, trade secret or other intellectual property
right while performing its obligations under this Grant, Grantee shall, at the State's option (a)
obtain for the State or Grantee the right to use such products and services; (b) replace any Goods,
Services, or other product involved with non- infringing products or modify them so that they
become non - infringing; or, (c) if neither of the foregoing alternatives are reasonably available,
remove any infringing Goods, Services, or products and refund the price paid therefore to the
State.
Page 17 of 51
c. 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.
(1) State:
John Valerio
Colorado Department of Transportation
4201 E. Arkansas Ave.
Shumate Building
Denver, CO 80222
John.Valerio@dot.state.co.us
(2) Grantee:
Kelley Collier
Director of Transportation
3289 Cooley Mesa Rd
PO Box 1070
Gypsum, CO 81637
Kelley.collier@eaglecounty.us
16. CIVIL RIGHTS
The Grantee agrees to comply with all applicable civil rights laws, regulations and directives, except to the
extent that the Federal Government determines otherwise in writing. These include, but are not limited to, the
following:
a. Nondiscrimination in Federal Public Transportation Programs. The Grantee agrees to comply, and assures
the compliance of each third party grantee at any tier and each Subgrantee at any tier of the Project, with
the provisions of 49 U.S.C. § 5332, which prohibit discrimination on the basis of race, color, creed,
national origin, sex, or age, and prohibits discrimination in employment or business opportunity.
b. Nondiscrimination — Title VI of the Civil Rights Act. The Grantee agrees to comply, and assures the
compliance of each third party grantee at any tier and each Subgrantee or other participant at any tier of the
Project, with all provisions prohibiting discrimination on the basis of race, color, or national origin of
Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., and with U.S. DOT
regulations, "Nondiscrimination in Federally- Assisted Programs of the Department of Transportation —
Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part 21. Except to the extent FTA determines
otherwise in writing, the Grantee also agrees to comply with any applicable implementing Federal
directives that may be issued.
c. Equal Employment Opportunity. The Grantee agrees to comply, and assures the compliance of each third
party grantee at any tier of the Project and each Subgrantee at any tier of the Project, with all equal
employment opportunity (EEO) provisions of 49 U.S.C. § 5332, with Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, and implementing Federal regulations and any later amendments
thereto. Except to the extent FTA determines otherwise in writing, the Grantee also agrees to follow all
applicable Federal EEO directives that may be issued. Accordingly:
(1) General: The Grantee agrees that it will not discriminate against any employee or applicant for
employment because of race, color, creed, sex, disability, age, or national origin. The Grantee
agrees to take affirmative action to ensure that applicants are employed and that employees are
treated during employment without regard to their race, color, creed, sex, disability, age, or national
origin. Such action shall include, but not be limited to, employment, upgrading, demotions or
transfers, recruitment or recruitment advertising, layoffs or terminations; rates of pay or other forms
of compensation; and selection for training, including apprenticeship.
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(2) Equal Employment Opportunity Requirements for Construction Activities. For activities determined
by the U.S. Department of Labor (U.S. DOL) to qualify as "construction," the Recipient agrees to
comply and assures the compliance of each subrecipient, lessee, or third party contractor, or other
participant, at any tier of the Project, with all applicable equal employment opportunity
requirements of U.S. DOL regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order
No. 11375, "Amending Executive Order No. 11246 Relating to Equal Employment Opportunity,"
42 U.S.C. § 2000e note, and also with any Federal laws, and regulations, and in accordance with
applicable Federal directives affecting construction undertaken as part of the Project.
d. Disadvantaged Business Enterprise. To the extent authorized by Federal law, the Grantee agrees to
facilitate participation by Disadvantaged Business Enterprises (DBE) in the Project and assures that each
third party grantee at any tier of the Project and each Subgrantee at any tier of the Project will facilitate
participation by DBEs in the Project to the extent applicable. Therefore:
(1) The Grantee agrees and assures that it will comply with section 1101(b) of SAFETEA -LU, 23 U.S.C.
§ 101 note, and U.S. DOT regulations, "Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs," 49 C.F.R. Part 26.
(2) The Grantee agrees and assures that it shall not discriminate on the basis of race, color, sex, or national
origin in the award and performance of any third party contract, or subcontract supported with Federal
assistance derived from U.S. DOT in the administration of its DBE program and shall comply with the
requirements of 49 C.F.R. Part 26. The Grantee agrees to take all necessary and reasonable steps set
forth in 49 C.F.R. Part 26 to ensure nondiscrimination in the award and administration of all third party
contracts and subcontracts supported with Federal assistance derived from U.S.DOT. As required by
49 C.F.R. Part 26 and approved by U.S. DOT, the Grantee's DBE program, if any, is incorporated by
reference and made part of the Contract for the Project. The Grantee agrees that implementation of this
DBE program is a legal obligation, and that failure to carry out that DBE program shall be treated as a
violation of the Contract for the Project. Upon notification by U.S. DOT to the Grantee of its failure to
implement its approved DBE program, U.S. DOT may impose sanctions as set forth in 49 C.F.R.
Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. § 1001, or the
Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801 et seq., or both.
e. Nondiscrimination on the Basis of Sex. The Grantee agrees to comply with all applicable requirements of
Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 et seq., and with
implementing Federal regulations that prohibit discrimination on the basis of sex that may be applicable.
f. Nondiscrimination on the Basis of Age. The Grantee agrees to comply with all applicable requirements of:
(1) The Age Discrimination Act of 1975, as amended, 42 U.S.C. §§ 6101 et seq., and with implementing
U.S. Health and Human Services regulations, "Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance, 45 C.F.R. Part 90 which prohibit discrimination
against individuals on the basis of age.
(2) The Age Discrimination in Employment Act (ADEA) 29 U.S.C. §§ 621 through 634 and with
implementing U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age
Discrimination in Employment Act," 29 C.F.R. Part 1625.
g. Access for Individuals with Disabilities. The Grantee agrees to comply with 49 U.S.C. § 5301(d), which
states the Federal policy that elderly individuals and individuals with disabilities have the same right as
other individuals to use public transportation services and facilities, and that special efforts shall be made
in planning and designing those services and facilities to implement transportation accessibility rights for
elderly individuals and individuals with disabilities. The Grantee also agrees to comply with all applicable
provisions of section 504 of the Rehabilitation Act of 1973, as amended, with 29 U.S.C. § 794, which
prohibits discrimination on the basis of disability; with the Americans with Disabilities Act of 1990
(ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires that accessible facilities and services be
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made available to individuals with disabilities; and with the Architectural Barriers Act of 1968, as
amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be
accessible to individuals with disabilities; and with other laws and amendments thereto pertaining to
access for individuals with disabilities that may be applicable. In addition, the Grantee agrees to comply
with applicable implementing Federal regulations and any later amendments thereto, and agrees to follow
applicable Federal directives except to the extent FTA approves otherwise in writing. Among those
regulations and directives are:
(1) U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R.
Part 37;
(2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities
Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27;
(3) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB)/U.S. DOT
regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation
Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38;
(4) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government
Services," 28 C.F.R. Part 35;
(5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in
Commercial Facilities," 28 C.F.R. Part 36;
(6) U.S. General Services Administration (U.S. GSA) regulations, "Accommodations for the Physically
Handicapped," 41 C.F.R. Subpart 101 -19;
(7) U.S. EEOC, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630;
(8) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and
Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64,
Subpart F; and
(9) U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R.
Part 1194;
(10) FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and
(11) Federal civil rights and nondiscrimination directives implementing the foregoing regulations, except to
the extent the Federal Government determines otherwise in writing.
h. Drug or Alcohol Abuse - Confidentiality and Other Civil Rights Protections. To the extent applicable, the
Grantee agrees to comply with the confidentiality and other civil rights protections of the Drug Abuse
Office and Treatment Act of 1972, as amended, 21 U.S.C. §§ 1101 et seq., with the Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended,
42 U.S.C. §§ 4541 et seq., and with the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 201
et seq., and any amendments thereto.
i. Access to Services for Persons with Limited English Proficiency. To the extent applicable and except to
the extent that FTA determines otherwise in writing, the Grantee agrees to comply with the policies of
Executive Order No. 13166, "Improving Access to Services for Persons with Limited English Proficiency,"
42 U.S.C. § 2000d -1 note, and with the provisions of U.S. DOT Notice, "DOT Policy Guidance
Concerning Recipient's (Grantee's) to Limited English Proficiency (LEP) Persons," 70 Fed. Reg. 74087,
December 14, 2005.
j. Environmental Justice. The Grantee agrees to comply with the policies of Executive Order No. 12898,
"Federal Actions to Address Environmental Justice in Minority Populations and Low - Income Populations,"
42 U.S.C. § 4321 note, except to the extent that the Federal Government determines otherwise in writing.
k. Other Nondiscrimination Laws. The Grantee agrees to comply with all applicable provisions of other
Federal laws, regulations, and directives pertaining to and prohibiting discrimination, except to the extent
the Federal Government determines otherwise in writing.
17. PREFERENCE FOR UNITED STATES PRODUCTS AND SERVICES
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To the extent applicable, the Grantee agrees to comply with the following U.S. domestic preference
requirements:
Buy America. The Grantee agrees to comply with 49 U.S.C. § 5323(j) and FTA regulations, "Buy America
Requirements," 49 C.F.R. Part 661, and any later amendments thereto.
18. PROCUREMENT
To the extent applicable, the Grantee agrees to comply with the following third party procurement provisions:
a. Federal Standards. The Grantee agrees to comply with the third party procurement requirements of
49 U.S.C. chapter 53 and other procurement requirements of Federal laws in effect now or as amended to
the extent applicable; with U.S. DOT third party procurement regulations of 49 C.F.R. § 18.36 or at
49 C.F.R. §§ 19.40 through 19.48 and with other applicable Federal regulations pertaining to third party
procurements and later amendments thereto. The Grantee also agrees to follow the provisions of FTA
Circular 4220.1F, "Third Party Contracting Guidance," November 1, 2008, and any later revisions thereto,
except to the extent FTA determines otherwise in writing. Although the FTA `Best Practices Procurement
Manual" provides additional third party contracting information, the Grantee understands and agrees that
the FTA "Best Practices Procurement Manual" is focused on third party procurement processes and may
omit certain Federal requirements applicable to the third party contract work to be performed.
b. Full and Open Competition. In accordance with 49 U.S.C. § 5325(a), the Grantee agrees to conduct all
procurement transactions in a manner that provides full and open competition as determined by FTA.
c. Exclusionary or Discriminatory Specifications. Apart from inconsistent requirements imposed by Federal
laws or regulations, the Grantee agrees to comply with the requirements of 49 U.S.C. § 5325(h) by not
using any Federal assistance awarded by FTA to support a procurement using exclusionary or
discriminatory specifications.
d. Geographic Restrictions. The Grantee agrees that it will not use any State or local geographic preference,
except State or local geographic preferences expressly mandated or as permitted by FTA. For example, in
procuring architectural, engineering, or related services, the grantee's geographic location may be a
selection criterion, provided that a sufficient number of qualified firms are eligible to compete.
e. In -State Bus Dealer Restrictions. In accordance with 49 U.S.C. § 5325(i), the Grantee agrees that any State
law requiring buses to be purchased through in -State dealers will not apply to acquisitions of vehicles
financed with Federal assistance authorized under 49 U.S.C. chapter 53.
f. Neutrality in Labor Relations. To the extent permitted by law, the Grantee agrees to follow Executive
Order No. 13202, "Preservation of Open Competition and Government Neutrality Towards Government
Grantees' Labor Relations on Federal and Federally Funded Construction Projects," as amended by
Executive Order No. 13208, 41 U.S.C. § 251 note, which among other things provides that the Grantee
may neither impose requirements for nor prohibit affiliations with a labor organization (such as project
labor agreements) as a condition for award of any third party contract or subcontract for construction or
construction management services, except to the extent that the Federal Government determines otherwise
in writing.
g. Federal Supply Schedules. State, local, or nonprofit Grantees may not use Federal Supply Schedules to
acquire federally assisted property or services except to the extent permitted by U.S. GSA, U.S. DOT,
FTA, or other Federal laws or regulations in accordance with applicable Federal directives or
determinations.
h. Force Account. The Grantee agrees that FTA may determine the extent to which Federal assistance may be
used to participate in force account costs.
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FTA Technical Review. The Grantee agrees to permit FTA to review and approve the Grantee's technical
specifications and requirements to the extent FTA believes necessary to ensure proper Project
administration.
j. Project Approval/Third Party Contract Approval. Except to the extent the State determines otherwise in
writing, the Grantee agrees that the State's award of Federal assistance for the Project does not, by itself,
constitute pre - approval of any non - competitive third party contract associated with the Project.
k. Preference for Recycled Products. To the extent applicable, the Grantee agrees to comply with
U.S. Environmental Protection Agency (U.S. EPA), "Comprehensive Procurement Guidelines for Products
Containing Recovered Materials," 40 C.F.R. Part 247, which implements section 6002 of the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. § 6962. Accordingly, the Grantee agrees to
provide a competitive preference for products and services that conserve natural resources, protect the
environment, and are energy efficient, except to the extent that the Federal Government determines
otherwise in writing.
1. Clean Air and Clean Water. The Grantee agrees to include in each third party contract or each subcontract
exceeding $100,000 adequate provisions to ensure that each Project participant will agree to
(1) Report the use of facilities placed on or likely to be placed on the U.S. Environmental Protection Agency
(U.S. EPA) "List of Violating Facilities,"
(2) Refrain from using any violating facilities,
(3) Report violations to FTA and the Regional U.S. EPA Office, and
(4) Comply with the inspection and other applicable requirements of:
(a) Section 306 of the Clean Air Act, as amended, 42 U.S.C. § 7414, and other applicable provisions of
the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through 7671q; and
(b) Section 508 of the Clean Water Act, as amended, 33 U.S.C. § 1368, and other applicable
requirements of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377.
m. National Intelligent Transportation Systems Architecture and Standards. To the extent applicable, the
Grantee agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and
Standards as required by SAFETEA -LU § 5307(c), 23 U.S.C. § 512 note, and comply follow the provisions
of FTA Notice, "FTA National ITS Architecture Policy on Transit Projects," 66 Fed. Reg. 1455 et seq.,
January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent
FTA determines otherwise in writing.
n. Rolling Stock. In acquiring rolling stock, the Grantee agrees as follows:
(1) Method of Acquisition. In compliance with 49 U.S.C. § 5325(0, the Grantee agrees that any third
party contract award it makes for rolling stock will be based on initial capital costs, or on performance,
standardization, life cycle costs, and other factors, or on a competitive procurement process.
(2) Multi -year Options. In accordance with 49 U.S.C. § 5325(e)(1), a Grantee procuring rolling stock
financed with Federal assistance under 49 U.S.C. chapter 53 may not enter into a multi -year contract
with options, exceeding five (5) years after the date of the original contract, to purchase additional
rolling stock and replacement parts.
(3) Pre -Award and Post - Delivery Requirements. The Grantee agrees to comply with the requirements of
49 U.S.C. § 5323(m) and FTA regulations, "Pre -Award and Post - Delivery Audits of Rolling Stock
Purchases," 49 C.F.R. Part 663 and, when promulgated, any amendments to those regulations. The
Grantee agrees to verify and complete the Post Delivery Certification Form once verification of Buy
America (if applicable), Purchaser's Requirements, and Federal Motor Vehicle Safety Standards
(FMVSS) have been provided by vendor. In addition, the Grantee agrees to submit Procurement
Authorization (Exhibit F -if used) prior to procuring capital equipment and to complete Notice of
Acceptance/Non- Acceptance (Exhibit G -if used) after delivery of capital equipment.
(4) Bus Testing. To the extent applicable, the Grantee agrees to comply with the requirements of
49 U.S.C. § 5318(e) and FTA regulations, "Bus Testing," 49 C.F.R. Part 665, and any amendments to
those regulations that may be promulgated.
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o. Bonding. Except to the extent that FTA determines otherwise in writing, the Grantee agrees to comply
with the following bonding provisions, as applicable:
(1) Construction Activities. The Grantee agrees to provide bid guarantee, Contract performance, and
payment bonds to the extent determined adequate by FTA in writing, and follow any other construction
bonding provisions in FTA directives except to the extent that FTA determines otherwise in writing.
(2) Other Activities. The Grantee agrees to follow FTA guidance on bonding restrictions for projects not
involving construction, except to the extent that FTA determines otherwise in writing.
p. Award to Other than the Lowest Bidder. In accordance with 49 U.S.C. § 5325(c), a Grantee may award a
third party contract to other than the lowest bidder, if the award furthers an objective (such as improved
long -term operating efficiency and lower long -term costs) consistent with the purposes of 49 U.S.C.
chapter 53, and any implementing Federal regulations or directives that FTA may issue, except to the
extent FTA determines otherwise in writing.
q. Award to Responsible Grantees. In compliance with 49 U.S.C. § 5325(j), the Grantee agrees to award third
party contracts only to those grantees possessing the ability to successfully perform under the terms of the
proposed procurement, and before awarding a third party contract, the Grantee agrees to consider:
(1) The the third party grantee's integrity,
(2) The third party grantee's compliance with public policy,
(3) The third party grantee's past performance, including the performance reported in Grantee
Performance Assessment Reports required by 49 U.S.C. § 5309(1)(2), if any, and
(4) The third party grantee's financial and technical resources.
r. Access to Third Party Contract Records. The Grantee agrees to require its third party grantees and third
party subgrantees, at each tier to provide to the U.S. Secretary of Transportation and the Comptroller
General of the United States or their duly authorized representatives, access to all third party contract
records to the extent required by 49 U.S.C. § 5325(g). The Grantee further agrees to require its third party
grantees and third party subgrantees, to provide sufficient access to third party procurement records as
needed for compliance with Federal laws and regulations or to assure proper Project management as
determined by FTA.
s. Electronic and Information Technology. When using Federal assistance to procure reports or information
for distribution to the State, among others, the Grantee agrees to include in its specifications a requirement
that the reports or information will be prepared using electronic or information technology capable of
assuring that the reports or information, when provided to the State, will meet the applicable accessibility
standards of section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794d, and
U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R.
Part 1194.
t. Procurement Using State Price Agreement. The State may establish price agreements with vendors for the
purchase of certain vehicle types. If the Grantee is procuring a vehicle for which the State has executed a
price agreement, as set forth in Exhibit A, the Grantee agrees it will procure the vehicle from the vendor
with whom the State has executed the appropriate price agreement, unless otherwise exempted by the State
in writing to the Grantee. When such price agreements are used, the State shall be responsible for ensuring
compliance with provisions A through S above.
19. LEASES
a. Capital Leases. To the extent applicable, the Grantee agrees to comply with FTA regulations, "Capital
Leases," 49 C.F.R. Part 639, and any revision thereto.
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b. Leases Involving Certificates of Participation. The Grantee agrees to obtain FTA concurrence before
entering into any leasing arrangement involving the issuance of certificates of participation in connection
with the acquisition of any capital asset.
20. PATENT RIGHTS
a. General. If any invention, improvement, or discovery of the Grantee or of any Subgrantee, any third party
grantee or other participant at any tier of the Project is conceived or first actually reduced to practice in the
course of or under the Project, and that invention, improvement, or discovery is patentable under the laws
of the United States of America or any foreign country, the Grantee agrees to notify FTA or the State
immediately and provide a detailed report in a format satisfactory to FTA.
b. Federal Rights. The Grantee agrees that its rights and responsibilities, and those of each Subgrantee and
each third party grantee at any tier, pertaining to that invention, improvement, or discovery will be
determined in accordance with applicable Federal laws and regulations, including any waiver thereof.
Absent a determination in writing to the contrary by the Federal Government, the Grantee agrees to
transmit to FTA those rights due the Federal Government in any invention, improvement, or discovery
resulting from that third party contract, third party subcontract, or subcontract as specified in
U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and
Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R.
Part 401 (implementing 35 U.S.C. §§ 200 et seq.), irrespective of the status of the Grantee, Subgrantee, or
third party grantee in the project (i.e., a large business, small business, State government, State
instrumentality, local government, Indian tribe, nonprofit organization, institution of higher education,
individual, etc.).
21. RIGHTS IN DATA AND COPYRIGHTS
a. Definition. The term "subject data," as used in this Section 21 of this Contract means recorded
information, whether or not copyrighted, that is delivered or specified to be delivered under the Contract
for the Project. Examples include, but are not limited to: computer software, standards, specifications,
engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item
identifications, and related information. "Subject data" does not include financial reports, cost analyses, or
similar information used for Project administration.
b. General. The following restrictions apply to all subject data first produced in the performance of the
Contract for the Project:
(1) Except for its own internal use, the Grantee may not publish or reproduce subject data in whole or in
part, or in any manner or form, nor may the Grantee authorize others to do so, without the prior written
consent of the Federal Government, unless the Federal Government has previously released or
approved the release of such data to the public.
(2) The restrictions on publication of Subsection 21.b(1) of this Contract, however, do not apply to a
Contract with an institution of higher learning.
c. Federal Rights in Data and Copyrights. The Grantee agrees to provide to the Federal Government a
royalty -free, non - exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize
others to use, for Federal Government purposes the subject data described in this Subsection 21.c of this
Contract. As used herein, "for Federal Government purposes," means use only for the direct purposes of
the Federal Government. Without the copyright owner's consent, the Federal Government may not provide
or otherwise extend to other parties the Federal Government's license to:
(1) Any subject data developed under the Contract for the Project, subcontract or third party contract
supported with Federal assistance derived from the Contract for the Project, whether or not a copyright
has been obtained; and
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(2) Any rights of copyright to which a Grantee, Subgrantee, or a third party grantee at any tier of the
Project purchases ownership with Federal assistance.
d. Hold Harmless. Except as prohibited or otherwise limited by State law or except to the extent that FTA
determines otherwise in writing, upon request by the Federal Government, the Grantee agrees to
indemnify, save, and hold harmless the Federal and State Government and its officers, agents, and
employees acting within the scope of their official duties against any liability, including costs and
expenses, resulting from any willful or intentional violation by the Grantee of proprietary rights,
copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or
disposition of any data furnished under the Project. The Grantee shall not be required to indemnify the
Federal or State Government for any such liability caused by the wrongful acts of Federal or State
employees or agents.
e. Restrictions on Access to Patent Rights. Nothing in Section 21 of this Contract pertaining to rights in data
shall either imply a license to the Federal Government under any patent or be construed to affect the scope
of any license or other right otherwise granted to the Federal Government under any patent.
f. Data Developed Without Federal Funding or Support. In connection with the Project, the Grantee may find
it necessary to provide data to FTA/the State developed without any Federal funding or support by the
Federal Government. The requirements of Subsections 21.b, 21.c, and 21.d of this Contract do not apply to
data developed without Federal funding or support, even though that data may have been used in
connection with the Project. Nevertheless, the Grantee understands and agrees that the Federal
Government will not be able to protect data from unauthorized disclosure unless that data is clearly marked
"Proprietary" or "Confidential."
g. Requirements to Release Data. To the extent required by U.S. DOT regulations, "Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other
Non - Profit Organizations," at 49 C.F.R. § 19.36(d), or subsequent Federal laws or regulations, the Grantee
understands and agrees that the data and information it submits to the Federal Government may be required
to be released in accordance with the Freedom of Information Act (or another Federal law providing access
to such records).
22. USE OF REAL PROPERTY, EQUIPMENT, AND SUPPLIES
The Grantee understands and agrees that the Federal Government retains a Federal interest in any real property,
equipment, and supplies financed with Federal assistance (Project property) until, and to the extent, that the
Federal Government relinquishes its Federal interest in that Project property. With respect to any Project
property financed with Federal assistance under the Contract, the Grantee agrees to comply with the following
provisions of this Contract except to the extent FTA determines otherwise in writing:
a. Use of Project Property. The Grantee agrees to maintain continuing control of the use of Project property
to the extent satisfactory to FTA. The Grantee agrees to use Project property for appropriate Project
purposes (which may include joint development purposes that generate program income, both during and
after the award period and used to support public transportation activities) for the duration of the useful life
of that property, as required by FTA. Should the Grantee unreasonably delay or fail to use Project property
during the useful life of that property, the Grantee agrees that it may be required to return the entire amount
of the Federal assistance expended on that property. The Grantee further agrees to notify FTA or the State
immediately when any Project property is withdrawn from Project use or when any Project property is used
in a manner substantially different from the representations the Grantee has made in its Application or in
the Project Description for the Contract for the Project.
b. General. A Grantee that is a State, local, or Indian tribal government agrees to comply with the property
management standards of 49 C.F.R. §§ 18.31 through 18.34, including any amendments thereto, and with
other applicable Federal regulations and directives. A Grantee that is an institution of higher education or
private nonprofit entity, agrees to comply with the property management standards of 49 C.F.R. §§ 19.30
Page 25 of 51
through 19.37, including any amendments thereto, and with other applicable Federal regulations and
directives. Any exception to the requirements of 49 C.F.R. §§ 18.31 through 18.34, or the requirements of
49 C.F.R. §§ 19.30 through 19.37, requires the express approval of the Federal Government in writing. A
Grantee that is a for - profit entity agrees to comply with property management standards satisfactory to
FTA. The Grantee also agrees to comply with ETA's reimbursement requirements for premature
dispositions of certain Project equipment, as set forth in Subsection 22.g of this Contract.
c. Maintenance. The Grantee agrees to maintain Project property in good operating order, in compliance with
any applicable Federal laws and regulations in accordance with applicable Federal directives, except to the
extent that FTA determines otherwise in writing.
d. Records. The Grantee agrees to keep satisfactory records pertaining to the use of Project property, and
submit to the State upon request such information as may be required to assure compliance with this
Section 22 of this Contract.
e. Incidental Use. The Grantee agrees that:
(1) General. Any incidental use of Project property will not exceed that permitted under applicable
Federal laws or regulations, in accordance with applicable Federal directives.
(2) Alternative Fueling Facilities. In accordance with 49 U.S.C. § 5323(p), any incidental use of its
federally financed alternative fueling facilities and equipment by nontransit public entities and private
entities will be permitted, only if the:
(a) The incidental use does not interfere with the Grantee's Project or public transportation operations;
(b) The Grantee fully recaptures all costs related to the incidental use from the nontransit public entity
or private entity;
(c) The Grantee uses revenues received from the incidental use in excess of costs for planning, capital,
and operating expenses that are incurred in providing public transportation; and
(d) Private entities pay all applicable excise taxes on fuel.
f. Encumbrance of Project Property. Unless FTA approves otherwise in writing, the Grantee agrees to
maintain satisfactory continuing control of Project property as follows:
(1) Written Transactions. Absent the express consent of the Federal Government, the Grantee agrees that
it will not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, third party contract,
subcontract, grant anticipation note, alienation, innovative finance arrangement (such as a cross border
lease, leveraged lease, or otherwise), or any other obligation pertaining to Project property, that in any
way would affect the continuing Federal interest in that Project property.
(2) Oral Transactions. Absent the express consent of the Federal Government, the Grantee agrees that it
will not obligate itself to any third party with respect to Project property in any manner that would
adversely affect the continuing Federal interest in any Project property.
(3) Other Actions. The Grantee agrees that it will not take any action that would either adversely affect the
Federal interest or adversely impair the Grantee's continuing control of the use of Project property.
g. Transfer of Project Property. The Grantee understands and agrees as follows:
(1) Grantee Request. The Grantee may transfer any Project property financed with Federal assistance
authorized under 49 U.S.C. chapter 53 to a local government authority to be used for any public
purpose with no further obligation to the Federal Government, provided the transfer is approved by the
Federal Transit Administrator and conforms with the requirements of 49 U.S.C. §§ 5334(h)(1) through
5334(h)(3).
(2) Federal Government Direction. The Grantee agrees that the Federal Government may direct the
disposition of, and even require the Grantee to transfer, title to any Project property financed with
Federal assistance awarded under the Contract.
(3) Leasing Project Property to Another Party. Unless FTA has determined or determines otherwise in
writing, if the Grantee leases any Project property to another party, the Grantee agrees to retain
Page 26 of 51
ownership of the leased Project property, and assures that the lessee will use the Project property
appropriately, either through a written lease between the Grantee and lessee, or another similar
document. Upon request by FTA, the Grantee agrees to provide a copy of any relevant documents.
h. Disposition of Project Property. With prior FTA approval, the Grantee may sell, transfer, or lease Project
property and use the proceeds to reduce the gross project cost of other eligible capital public transportation
projects to the extent permitted by 49 U.S.C. § 5334(h)(4). The Grantee also agrees that FTA may
establish the useful life of Project property, and that it will use Project property continuously and
appropriately throughout the useful life of that property. The Grantee shall comply with the provisions of
the Security Agreement set forth in Exhibit E; if used.
(1) Project Property Whose Useful Life Has Expired. When the useful life of Project property has
expired, the Grantee agrees to comply with FTA's disposition requirements.
(2) Project Property Prematurely Withdrawn from Use. For Project property withdrawn from appropriate
use before its useful life has expired, the Grantee agrees as follows:
(a) Notification Requirement. The Grantee agrees to have the State notify FTA on behalf of the
Grantee immediately when any Project property is prematurely withdrawn from appropriate use,
whether by planned withdrawal, misuse, or casualty loss.
(b) Calculating the Fair Market Value of Prematurely Withdrawn Project Property. The Grantee
agrees that the Federal Government retains a Federal interest in the fair market value of Project
property prematurely withdrawn from appropriate use. The amount of the Federal interest in the
Project property shall be determined on the basis of the ratio of the Federal assistance made
available for the property to the actual cost of the property. The Grantee agrees that the fair
market value of Project property prematurely withdrawn from use will be calculated as follows:
1. Equipment and Supplies. Unless otherwise determined in writing by FTA, the Grantee
agrees that the fair market value of Project equipment and supplies shall be calculated by
straight -line depreciation, based on the useful life of the equipment or supplies as established
or approved by FTA. The fair market value of Project equipment and supplies shall be the
value immediately before the occurrence prompting the withdrawal of the equipment or
supplies from appropriate use. In the case of Project equipment or supplies lost or damaged
by fire, casualty, or natural disaster, the fair market value shall be calculated on the basis of
the condition of the equipment or supplies immediately before the fire, casualty, or natural
disaster, irrespective of the extent of insurance coverage. As authorized by 49 C.F.R.
§ 18.32(b), a State may use its own disposition procedures, provided that those procedures
comply with the laws of that State.
2. Real Property. The Grantee agrees that the fair market value of real property financed under
the Project shall be determined by FTA either on the basis of competent appraisal based on
an appropriate date approved by FTA, as provided by 49 C.F.R. Part 24, by straight line
depreciation of improvements to real property coupled with the value of the land as
determined by FTA on the basis of appraisal, or other Federal law or regulations that may be
applicable.
3. Exceptional Circumstances. The Grantee agrees that the Federal Government may require
the use of another method to determine the fair market value of Project property. In unusual
circumstances, the Grantee may request that another reasonable method including, but not
limited to, accelerated depreciation, comparable sales, or established market values. In
determining whether to approve such a request, the Federal Government may consider any
action taken, omission made, or unfortunate occurrence suffered by the Grantee pertaining to
the preservation of Project property no longer used for appropriate purposes.
Page 27 of 51
(c) Financial Obligations to the Federal Government. Unless otherwise approved in writing by the
Federal Government, the Grantee agrees to remit to the Federal Government the Federal interest
in the fair market value of any Project property prematurely withdrawn from appropriate use. In
the case of fire, casualty, or natural disaster, the Grantee may fulfill its obligations to remit the
Federal interest by either:
1. Investing an amount equal to the remaining Federal interest in like -kind property that is
eligible for assistance within the scope of the Project that provided Federal assistance for the
property that has been prematurely withdrawn from use; or
2. Returning to the Federal Government an amount equal to the remaining Federal interest in the
withdrawn Project property.
i. Insurance Proceeds. If the Grantee receives insurance proceeds as a result of damage or destruction to the
Project property, the Grantee agrees to:
(1) Apply those insurance proceeds to the cost of replacing the damaged or destroyed Project property
taken out of service, or
(2) Return to the Federal Government an amount equal to the remaining Federal interest in the damaged or
destroyed Project property.
j. Transportation - Hazardous Materials. The Grantee agrees to comply with applicable requirements of
U.S. Pipeline and Hazardous Materials Safety Administration regulations, "Shippers - General
Requirements for Shipments and Packagings," 49 C.F.R. Part 173, in connection with the transportation of
any hazardous materials.
k. Misused or Damaged Project Property. If any damage to Project property results from abuse or misuse
occurring with the Grantee's knowledge and consent, the Grantee agrees to restore the Project property to
its original condition or refund the value of the Federal interest in that property, as the Federal Government
may require.
1. Responsibilities After Project Closeout. The Grantee agrees that Project closeout will not change the
Grantee's Project property management responsibilities as stated in Section 22 of this Contract, and as may
be set forth in Federal laws, regulations, and directives, except to the extent the Federal Government
determines otherwise in writing.
23. INSURANCE
In addition to other insurance requirements that may apply, the Grantee agrees as follows:
a. Minimum Requirements. At a minimum, the Grantee agrees to comply with the insurance requirements
normally imposed by its State and local laws, regulations, and ordinances, except to the extent that the
Federal Government determines otherwise in writing.
1. The Grantee shall obtain, and maintain at all times during the term of this Contract, and to require
Subgrantees to carry, insurance in the following kinds and amounts:
a) Standard Worker's Compensation and Employer Liability as required by State statute, including
occupational disease, covering all employee on or off the work site, acting within the course of their
employment.
b) General, Personal Injury, and Automobile Liability (including bodily injury, personal injury, and
property damage) minimum coverage:
i) Combined single limit of $1,000,000 if written on an occurrence basis.
ii) Any aggregate limit will not be less than $1,000,000.
iii) Combined single limit of $1,000,000 for policies written on a claims -made basis. The
policy shall include an endorsement, certificate, or other evidence that coverage extends
two years beyond the performance period of the agreement.
iv) If any aggregate limits are reduced below $1,000,000 because of the claims made or
paid during the required policy period, the Grantee shall immediately obtain additional
Page 28 of 51
insurance to restore the full aggregate limit and furnish a certificate or other document
showing compliance with this provision.
2. The State of Colorado shall be named as additional insured on all liability policies.
3. The insurance shall include provisions preventing cancellation without 60 days prior notice to the State
by certified mail.
4. The Grantee shall provide certificates showing adequate insurance coverage to the State within seven
working days of award or contract execution, unless otherwise provided.
5. If the Grantee is a "public entity" within the meaning of the Colorado Governmental Immunity Act,
CRS 24 -10 -101, et seq. ( "Act "), the Grantee shall at all times during the term of this agreement
maintain such liability insurance, by commercial policy or self- insurance, as is necessary to meet its
liabilities under the Act. Upon request by the State, the Grantee shall show proof of such insurance.
6. Proof of insurance is also required where appropriate the Grantee agrees to comply with the flood
insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, 42
U.S.C. Section 4012(a), with respect to any Project activity involving construction or acquisition.
24. REAL PROPERTY
For real property acquired with Federal assistance, the Grantee agrees as follows:
a. Land Acquisition. The Grantee agrees to comply with 49 U.S.C. § 5324(a), which requires compliance
with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended,
42 U.S.C. §§ 4601 et seq.; and with U.S. DOT regulations, "Uniform Relocation Assistance and Real
Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. These requirements
apply to all interests in real property acquired for Project purposes regardless of Federal participation in the
cost of that real property.
b. Covenant Assuring Nondiscrimination. The Grantee agrees to include a covenant in the title of the real
property acquired for the Project to assure nondiscrimination during the useful life of the Project.
c. Recording Title to Real Property. To the extent required by FTA, the Grantee agrees to record the Federal
interest in title to real property used in connection with the Project.
d. FTA Approval of Changes in Real Property Ownership. The Grantee agrees that it will not dispose of,
modify the use of, or change the terms of the real property title or any other interest in the site and facilities
used in the Project without permission and instructions from FTA.
25. EMPLOYEE PROTECTIONS
a. Construction Activities. The Grantee agrees to comply, and assures the compliance of each third party
grantee and each Subgrantee at any tier of the Project, with the following laws and regulations providing
protections for construction employees:
(1) Davis -Bacon Act, as amended, 40 U.S.C. §§ 3141 et seq., pursuant to FTA enabling legislation
requiring compliance with the Davis -Bacon Act, 49 U.S.C. § 5333(a), and implementing U.S. DOL
regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and
Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts
Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5;
(2) Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. §§ 3701 et seq., specifically,
the wage and hour requirements of section 102 of that Act at 40 U.S.C. § 3702, and implementing
U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally
Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction
Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5; and the
safety requirements of section 107 of that Act at 40 U.S.C. § 3704, and implementing U.S. DOL
regulations, "Safety and Health Regulations for Construction," 29 C.F.R. Part 1926; and
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(3) Copeland "Anti- Kickback" Act, as amended, 18 U.S.C. § 874, and implementing U.S. DOL
regulations, "Grantees and Subgrantees on Public Building or Public Work Financed in Whole or in
part by Loans or Grants from the United States," 29 C.F.R. Part 3.
b. Activities Not Involving Construction. The Grantee agrees to comply, and assures the compliance of each
third party grantee and each Subgrantee at any tier of the Project, with the employee protection
requirements for nonconstruction employees of the Contract Work Hours and Safety Standards Act, as
amended, 40 U.S.C. §§ 3701 et seq., in particular with the wage and hour requirements of section 102 of
that Act at 40 U.S.C. § 3702, and with U.S. DOL regulations, "Labor Standards Provisions Applicable to
Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions
Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),"
29 C.F.R. Part 5.
c. Activities Involving Commerce. The Grantee agrees that the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq., applies to employees performing Project work involving commerce.
d. Public Transportation Employee Protective Arrangements. If the Contract for the Project indicates that
public transportation employee protective arrangements required by U.S. DOL apply to public
transportation operations performed in connection with the Project, the Grantee agrees to comply with the
applicable requirements for its Project as follows:
(1) Standard Public Transportation Employee Protective Arrangements. To the extent that the Project
involves public transportation operations and as required by Federal law, the Grantee agrees to
implement the Project in accordance with the terms and conditions that the U.S. Secretary of Labor has
determined to be fair and equitable to protect the interests of any employees affected by the Project and
that comply with the requirements of 49 U.S.C. § 5333(b), and with the U.S. DOL guidelines,
"Section 5333(b), Federal Transit Law," 29 C.F.R. Part 215 and any amendments thereto. These terms
and conditions are identified in U.S. DOL's certification of public transportation employee protective
arrangements to FTA, the date of which appears in the Contract for the Project. The Grantee agrees to
implement the Project in accordance with the conditions stated in that U.S. DOL certification. That
certification and any documents cited therein are incorporated by reference and made part of the
Contract for the Project. The requirements of this Subsection 21.d(1) of this Contract do not apply to
Projects for elderly individuals or individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2) or
subsection 3012(b) of SAFETEA -LU, Projects for nonurbanized areas authorized by 49 U.S.C. § 5311;
separator Projects for the over - the -road bus accessibility program authorized by section 3038 of TEA -
21, as amended by section 3039 of SAFETEA -LU, 49 U.S.C. § 5310 note. Separate requirements for
those Projects are contained in Subsections 24.d(2) and), (3), respectively, of this Contract.
[Amendments to U.S. DOL guidelines, "Section 5333(b), Federal Transit Law," 29 C.F.R. Part 215,
were published at 73 Fed. Reg. 47046 et seq., August 13, 2008].
(2) Public Transportation Employee Protective Arrangements for Elderly Individuals and Individuals with
Disabilities for the Elderly Individuals and Individuals with Disabilities Formula Program and Pilot
Program. To the extent that the U.S. Secretary of Transportation has determined or determines in the
future that employee protective arrangements required by 49 U.S.C. § 5333(b) are necessary or
appropriate for a governmental authority Subgrantee participating a Project authorized by 49 U.S.C.
§ 5310(b)(2) or subsection 3012(b) of SAFETEA -LU, 49 U.S.C. § 5310 note, the Grantee agrees to
carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of
Labor necessary to comply with the requirements of 49 U.S.C. § 5333(b), and the U.S. DOL
guidelines, "Section 5333(b), Federal Transit Law," at 29 C.F.R. Part 215, and any amendments
thereto. These terms and conditions are identified in the U.S. DOL's certification of public
transportation employee protective arrangements to FTA, the date of which appears in the Grant
Agreement. The Grantee agrees to implement the Project in compliance with the conditions stated in
that U.S. DOL certification. That U.S. DOL certification and any documents cited therein are
incorporated by reference and made part of the Grant Agreement.
Page 30 of 51
(3) Public Transportation Employee Protective Arrangements for Projects in Nonurbanized Areas
Authorized by 49 U.S.C. § 5311. The Grantee agrees to comply with the terms and conditions of the
Special Warranty for the Nonurbanized Area Program that is most current as of the date of execution of
the Grant Agreement or Cooperative Agreement for the Project, and any alternative comparable
arrangements specified by U.S. DOL for application to the Recipient's project, in accordance with U.S.
DOL guidelines, "Section 5333(b), Federal Transit Law," 29 C.F.R. Part 215, and any revisions
thereto. [New amendments to U.S. DOL guidelines, "Section 5333(b), Federal Transit Law," 29
C.F.R. Part 215, were published at 73 Fed. Reg. 47046 et seq., August 13, 2008.]
26. ENVIRONMENTAL PROTECTIONS
The Grantee recognizes that many Federal and State laws imposing environmental and resource conservation
requirements may apply to the Project. Some, but not all, of the major Federal laws that may affect the Project
include: the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 through 4335; the
Clean Air Act, as amended, 42 U.S.C. §§ 7401 through7671q and scattered sections of Title 29, United States
Code; the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. §§ 6901 through 6992k; the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601 through 9675, as well as environmental
provisions within Title 23, United States Code, and 49 U.S.C. chapter 53. The Grantee also recognizes that
U.S. EPA, FHWA and other Federal agencies have issued, and are expected to issue, Federal regulations and
directives that may affect the Project. Thus, the Grantee agrees to comply, and assures the compliance of each
Subgrantee and each third party grantee, with any applicable Federal laws, regulations and directives in effect
now or become effective in the future, except to the extent the Federal Government determines otherwise in
writing. Listed below are environmental provisions of particular concern to FTA, the State and the Grantee.
The Grantee understands and agrees that those laws and regulations, and directives may not constitute the
Grantee's entire obligation to meet all Federal environmental and resource conservation requirements.
a. National Environmental Policy. Federal assistance is contingent upon the Grantee's facilitating FTA's
compliance with all applicable requirements and implementing regulations of the National Environmental
Policy Act of 1969, as amended, (NEPA) 42 U.S.C. §§ 4321 through 4335 (as restricted by 42 U.S.C.
§ 5159, if applicable); Executive Order No. 11514, as amended, "Protection and Enhancement of
Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements at 49 U.S.C. § 5324(b);
U.S. Council on Environmental Quality regulations pertaining to compliance with NEPA, 40 C.F.R.
Parts 1500 through 1508; and joint FHWA/FTA regulations, "Environmental Impact and Related
Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622, and Federal environmental protection regulations
that may be promulgated at a later date. The Grantee agrees to comply with 23 U.S.C. §§ 139 and 326 as
applicable, and implement those requirements in accordance with the provisions of joint FHWA/FTA final
guidance, "SAFETEA -LU Environmental Review Process (Public Law 109 -59)," 71 Fed. Reg. 66576 et
seq., November 15, 2006, and any subsequent applicable Federal directives that may be issued at a later
date, except to the extent that FTA determines otherwise in writing.
b. Air Quality. Except to the extent the Federal Government determines otherwise in writing, the Grantee
agrees to comply with all applicable Federal laws and regulations in accordance with applicable Federal
directives implementing the Clean Air Act, as amended, 42 U.S.C. §§ 7401 through 7671q. Specifically:
(1) The Grantee agrees to comply with the applicable requirements of section 176(c) of the Clean Air Act,
42 U.S.C. § 7506(c), consistent with the joint FHWA/F1'A document, "Interim Guidance for
Implementing Key SAFETEA -LU Provisions on Planning, Environment, and Air Quality for Joint
FHWA/PTA Authorities," dated September 2, 2005, and in accordance with any applicable Federal
directives that may be issued at a later date; to comply with U.S. EPA regulations, "Conformity to State
or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded
or Approved Under Title 23 US.C. or the Federal Transit Act," 40 C.F.R. Part 51, Subpart T; and
"Determining Conformity of Federal Actions to State or Federal Implementation Plans," 40 C.F.R.
Page 31 of 51
Part 93, and any subsequent Federal conformity regulations that may be promulgated. To support the
requisite air quality conformity finding for the Project, the Grantee agrees to implement each air
quality mitigation or control measure incorporated in the Project. The Grantee further agrees that any
Project identified in an applicable State Implementation Plan (SIP) as a Transportation Control
Measure will be wholly consistent with the design concept and scope of the Project described in the
SIP.
(2) U.S. EPA also imposes requirements implementing the Clean Air Act, as amended, which may apply
to public transportation operators, particularly operators of large public transportation bus fleets.
Accordingly, the Grantee agrees to comply with the following U.S. EPA regulations to the extent they
apply to the Project: "Control of Air Pollution from Mobile Sources," 40 C.F.R. Part 85; "Control of
Air Pollution from New and In -Use Motor Vehicles and New and In -Use Motor Vehicle Engines,"
40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600.
(3) The Grantee agrees to comply with the notice of violating facility provisions of Section 306 of the
Clean Air Act, as amended, 42 U.S.C. § 7414, and facilitate compliance with Executive Order
No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with
Respect to Federal Contracts, Grants, or Loans," 42 U.S.C. § 7606 note.
c. Clean Water. Except to the extent the Federal Government determines otherwise in writing, the Grantee
agrees to comply with all applicable Federal laws and regulations accordance with applicable Federal
directives implementing the Clean Water Act, as amended, 33 U.S.C. §§ 1251 through 1377. Specifically:
(1) The Grantee agrees to protect underground sources of drinking water consistent with the provisions of
the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. §§ 300f through 300j -6.
(2) The Grantee agrees to comply with the notice of violating facility provisions of Section 508 of the
Clean Water Act, as amended, 33 U.S.C. § 1368, and facilitate compliance with Executive Order
No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with
Respect to Federal Contracts, Grants, or Loans," 42 U.S.C. § 7606 note.
d. Wild and Scenic Rivers. The Grantee agrees to comply with applicable provisions of the Wild and Scenic
Rivers Act of 1968, as amended, 16 U.S.C. §§ 1271 through 1287, relating to protecting components of the
national wild and scenic rivers system; and to the extent applicable, with U.S. Forest Service regulations,
"Wild and Scenic Rivers," 36 C.F.R. Part 297, and with U.S. Bureau of Land Management regulations,
"Management Areas," 43 C.F.R. Part 8350.
e. Endangered Species and Fisheries Conservation. The Grantee agrees to comply with protections for
endangered species the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531 through 1544,
and the Magnuson Stevens Fisheries Conservation Act, as amended, 16 U.S.C. §§ 1801 et seq.
f. Historic Preservation.
(1) The Grantee agrees that in implementing its Project, it will not use any land from a historic site that is
on or eligible for inclusion on the National Register of Historic Places, unless the Federal Government
makes the findings required by 49 U.S.C. § 303.
(2) The Grantee agrees to encourage compliance with the Federal historic and archaeological preservation
requirements of section 106 of the National Historic Preservation Act, as amended, 16 U.S.C. § 470f;
Executive Order No. 11593, "Protection and Enhancement of the Cultural Environment," 16 U.S.C.
§ 470 note; and the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C.
§§ 469a through 469c, as follows:
(a) In accordance with U.S. Advisory Council on Historic Preservation regulations, "Protection of Historic
and Cultural Properties," 36 C.F.R. Part 800, the Grantee agrees to consult with the State Historic
Preservation Officer concerning investigations to identify properties and resources included or eligible
Page 32 of 51
for inclusion in the National Register of Historic Places that may be affected by the Project, and agrees
to notify FTA of affected properties.
(b) The Grantee agrees to comply with all applicable Federal regulations and directives to avoid or
mitigate adverse effects on those historic properties, except to the extent the Federal Government
determines otherwise in writing.
g. Indian Sacred Sites. The Grantee agrees to facilitate compliance with the preservation of places and
objects of religious importance to American Indians, Eskimos, Aleuts, and Native Hawaiians, pursuant to
the American Indian Religious Freedom Act, 42 U.S.C. § 1996, and with Executive Order No. 13007,
"Indian Sacred Sites," 42 U.S.C. § 1996 note, except to the extent that the Federal Government determines
otherwise in writing.
27. ENERGY CONSERVATION
The Grantee agrees to comply with any mandatory energy efficiency standards and policies of applicable State
energy conservation plans issued in accordance with the Energy Policy and Conservation Act, as amended,
42 U.S.C. §§ 6321 et seq. except to the extent that the Federal Government determines otherwise in writing.
To the extent applicable, the Grantee agrees to perform an energy assessment for any building constructed,
reconstructed, or modified with FTA assistance, as provided in FTA regulations, "Requirements for Energy
Assessments," 49 C.F.R. Part 622, Subpart C.
28. CHARTER SERVICE OPERATIONS
The Grantee agrees that neither it nor any public transportation operator performing Work in connection with a
Project financed under 49 U.S.C. chapter 53 or under 23 U.S.C. §§ 133 or 142 will engage in charter service
operations, except as authorized by 49 U.S.C. § 5323(d) and FTA regulations, "Charter Service," 49 C.F.R.
Part 604, and any Charter Service regulations or FTA directives that may be issued, except to the extent that
FTA determines otherwise in writing. Any charter service agreement required by FTA regulations is
incorporated by reference and made part of the Contract for the Project. The Grantee understands and agrees
that in addition to any remedy specified in the charter service agreement, if a pattern of violations of that
agreement is found, the violator will be barred from receiving Federal transit assistance in an amount to be
determined by FTA or U.S. DOT.
29. SCHOOL TRANSPORTATION OPERATIONS
The Grantee agrees that neither it nor any public transportation operator performing Work in connection with a
Project financed under 49 U.S.C. chapter 53, or under 23 U.S.C. §§ 133 or 142 will engage in school
transportation operations for the transportation of students or school personnel exclusively in competition with
private school transportation operators, except as authorized by 49 U.S.C. §§ 5323(0 or (g), as applicable, and
FTA regulations, "School Bus Operations," 49 C.F.R. Part 605, and any subsequent School Transportation
Operations regulations or FTA directives that may be issued, except to the extent that FTA determines
otherwise in writing. Any school transportation operations agreement required by FTA regulations is
incorporated by reference and made part of the Contract for the Project. The Grantee understands and agrees
that if it or an operator violates that school transportation operations agreement, the violator will be barred from
receiving Federal transit assistance in an amount FTA considers appropriate.
30. METRIC SYSTEM
To the extent U.S. DOT or FTA directs, the Grantee agrees to use the metric system of measurement in its
Project activities, in accordance with the Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act, 15 U.S.C. §§ 205a et seq.; Executive Order No. 12770, "Metric Usage in Federal
Government Programs," 15 U.S.C. § 205a note; and U.S. DOT or FTA regulations and directives. As
practicable and feasible, the Grantee agrees to accept products and services with dimensions expressed in the
metric system of measurement.
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31. SUBSTANCE ABUSE
To the extent applicable, the Grantee agrees to comply with the following Federal regulations:
a. Drug -Free Workplace. U.S. DOT regulations, "Government wide Requirements for Drug -Free
Workplace (Financial Assistance), 49 C.F.R. Part 32, that implement the Drug -Free Workplace Act of
1988, 41 U.S.C. §§ 701 et seq.
b. Alcohol Misuse and Prohibited Drug Use. FTA regulations, "Prevention of Alcohol Misuse and Prohibited
Drug Use in Transit Operations," 49 C.F.R. Part 655, that implement 49 U.S.C. § 5331.
32. FEDERAL "$1 COIN" REQUIREMENTS
To the extent required by the Federal Government, the Grantee agrees to comply with the provisions of Section
104 of the Presidential $1 Coin Act of 2005, 31 U.S.C. § 5112(p), in that the Grantee's property requiring the
use of coins or currency will be fully capable of accepting and dispensing $1 coins in connection with that use.
The Grantee also agrees to display signs and notices denoting the capability of its equipment and facilities on
the premises where coins or currency are accepted or dispensed, including on each vending machine.
33. SEAT BELT USE
In accordance with Executive Order No. 13043, "Increasing Seat Belt Use in the United States," April 16,
1997, 23 U.S.C. § 402 note, the Grantee is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company- owned, rented, or
personally operated vehicles, and to include this provision in any third party contracts, third party subcontracts,
or subcontracts involving the Project.
34. PROTECTION OF SENSITIVE SECURITY INFORMATION
To the extent applicable, the Grantee agrees to comply with 49 U.S.C. § 40119(b) and implementing U.S. DOT
regulations, "Protection of Sensitive Security Information," 49 C.F.R. Part 15, and with 49 U.S.C. § 114(s) and
implementing Department of Homeland Security, Transportation Security Administration regulations,
"Protection of Sensitive Security Information," 49 C.F.R. Part 1520.
35. DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION
The Grantee agrees that FTA has a vested interest in the settlement of any dispute, breach, default, or litigation
involving the Project. Accordingly:
a. Notification to FTA. The Grantee agrees to notify FTA in writing of any current or prospective major
dispute, breach, default, or litigation that may affect the Federal Government's interests in the Project or the
Federal Government's administration or enforcement of Federal laws or regulations. If the Grantee seeks to
name the Federal Government as a party to litigation for any reason, in any forum, the Grantee agrees to
inform FTA in writing before doing so. Each notice to FTA under this Section shall be sent, at a minimum,
to the FTA Regional Counsel within whose Region the grantee operates its public transportation system or
implements the Project.
b. Federal Interest in Recovery. The Federal Government retains the right to a proportionate share, based on
the percentage of the Federal share awarded for the Project, of proceeds derived from any third party
recovery, except that the Grantee may return any liquidated damages recovered to its Project Account in
lieu of returning the Federal share to the Federal Government.
c. Enforcement. The Grantee agrees to pursue all legal rights provided within any third party contract.
Page 34 of 51
d. FTA Concurrence. FTA reserves the right to concur in any compromise or settlement of any claim
involving the Project and the Grantee.
e. Alternative Dispute Resolution. FTA encourages the Grantee to use alternative dispute resolution
procedures, as may be appropriate.
36. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Grantee under this Agreement is $100,000 or greater, either on the
Effective Date or at anytime thereafter, this §36 applies.
Grantee 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 contracts
and inclusion of contract performance information in a statewide contract management system.
GRANTEE performance shall be subject to Evaluation and Review in accordance with the terms and
conditions of this Contract, State law, including CRS §24- 103.5 -101, and State Fiscal Rules, Policies and
Guidance. Evaluation and Review of GRANTEE performance shall be part of the normal contract
administration process and GRANTEE performance will be systematically recorded in the statewide
Contract 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 GRANTEE
obligations under this Contract shall be determined by the specific requirements of such obligations and
shall include factors tailored to match the requirements of GRANTEE obligations. Such performance
information shall be entered into the statewide Contract Management System at intervals established herein
and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Contract term.
GRANTEE 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 GRANTEE 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 the Grantee, and
showing of good cause, may debar GRANTEE and prohibit GRANTEE from bidding on future contracts.
GRANTEE 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 GRANTEE, by the Executive
Director, upon showing of good cause.
37. OPTION LETTER TO EXTEND PROVISIONS
i. Option to Extend
The State may unilaterally require continued performance for an additional one year period at the same
rates and same terms specified in the Grant. If the State exercises this option, it shall provide written
notice to Grantee at least 30 days prior to the end of the current Grant term in form substantially
equivalent to Exhibit B. If exercised, the provisions of the Option Letter shall become part of and be
incorporated into this Grant. The total duration of this Grant, including the exercise of any options
under this clause, shall not exceed three years.
ii. Option for Phased Performance
The State may unilaterally require the Grantee to begin performance on the next phase of the Project as
outlined in Scope of Work in Exhibit A at the same rates and same terms specified in the Grant. If the
State exercises this option, it shall provide written notice to Grantee in a form substantially equivalent
to Exhibit B. If exercised, the provisions of the Option Letter shall become part of and be incorporated
into this Grant.
38. CONFLICTS OF INTEREST
Grantee 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 Grantee's obligations hereunder. Grantee
acknowledges that with respect to this Grant, even the appearance of a conflict of interest is harmful to the
Page 35 of 51
State's interests. Absent the State's prior written approval, Grantee shall refrain from any practices,
activities or relationships that reasonably appear to be in conflict with the full performance of Grantee's
obligations to the State hereunder. If a conflict or appearance exists, or if Grantee is uncertain whether a
conflict or the appearance of a conflict of interest exists, Grantee 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 Grant.
39. REPRESENTATIONS AND WARRANTIES
Grantee makes the following specific representations and warranties, each of which was relied on by the
State in entering into this Grant.
A. Standard and Manner of Performance
Grantee shall perform its obligations hereunder in accordance with the highest standards of care, skill
and diligence in the industry, trades or profession and in the sequence and manner set forth in this Grant.
B. Legal Authority — Grantee and Grantees Signatory
Grantee warrants that it possesses the legal authority to enter into this Grant 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 Grant, or any part thereof, and to bind
Grantee to its terms. If requested by the State, Grantee shall provide the State with proof of Grantee's
authority to enter into this Grant within 15 days of receiving such request.
C. Licenses, Permits, Etc.
Grantee 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. Grantee warrants that it shall
maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations
required to properly perform this Grant, without reimbursement by the State or other adjustment in
Grant Funds. Additionally, all employees and agents of Grantee performing Services under this Grant
shall hold all required licenses or certifications, if any, to perform their responsibilities. Grantee, 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 Grantee to properly perform the terms of this
Grant shall be deemed to be a material breach by Grantee and constitute grounds for termination of this
Grant.
40. 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.
41. GENERAL PROVISIONS
A. Assignment and Subgrants
Grantee's rights and obligations hereunder are personal and may not be transferred, assigned or subgranted
without the prior, written consent of the State. Any attempt at assignment, transfer, subgranting without
such consent shall be void. All assignments, subgrants, or Subgrantees approved by Grantee or the State
are subject to all of the provisions hereof. Grantee shall be solely responsible for all aspects of subgranting
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.
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C. Captions
The captions and headings in this Grant are for convenience of reference only, and shall not be used to
interpret, define, or limit its provisions.
D. Counterparts
This Grant may be executed in multiple identical original counterparts, all of which shall constitute one
agreement.
E. Entire Understanding
This Grant 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 additions,
deletions, or other changes hereto shall not have any force or affect whatsoever, unless embodied herein.
F. Indemnification - General
Grantee 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 Grantee, or its employees, agents, Subgrantees, or assignees
pursuant to the terms of this Grant; however, the provisions hereof shall not be construed or interpreted as 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., or the Federal Tort Claims Act, 28 U.S.C.
2671 et seq., as applicable, as now or hereafter amended.
G. Jurisdction and Venue
All suits, actions, or proceedings related to this Grant shall be held in the State of Colorado and exclusive
venue shall be in the City and County of Denver.
H. Modification
i. By the Parties
Except as specifically provided in this Grant, modifications of this Grant shall not be effective unless
agreed to in writing by both parties in an amendment to this Grant, 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 GRANTS - TOOLS
AND FORMS.
ii. By Operation of Law
This Grant 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 Grant on the effective date of such change, as if fully set forth
herein.
I. Order of Precedence
The provisions of this Grant shall govern the relationship of the State and Grantee. In the event of conflicts
or inconsistencies between this Grant and its exhibits and attachments including, but not limited to, those
provided by Grantee, such conflicts or inconsistencies shall be resolved by reference to the documents in
the following order of priority:
i. Federal Laws and regulations,
ii. Colorado Special Provisions,
iii. The provisions of main body of this Agreement,
iv. Exhibit A (Scope of Work and Budget),
v. Exhibit C (Option Letter)
vi. Other exhibits in descending order of their attachment (if used).
J. Severability
Provided this Grant 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.
K. Survival of Certain Grant Terms
Notwithstanding anything herein to the contrary, provisions of this Grant requiring continued performance,
compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by
the State if Grantee fails to perform or comply as required.
L. Taxes
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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. Grantee shall be solely liable for paying such taxes as the State
is prohibited from paying for or reimbursing Grantee for them.
M. Third Party Beneficiaries
Enforcement of this Grant 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 Grant are
incidental to the Grant, and do not create any rights for such third parties.
N. Waiver
Waiver of any breach of a term, provision, or requirement of this Grant, 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.
O. CORA Disclosure
To the extent not prohibited by federal law, this Grant and the performance measures and standards under
CRS § 24- 103.5 -101, if any, are subject to public release through the Colorado Open Records Act, CRS §
24 -72 -101 et seq.
q
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Page 38 of 51
42. 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 Grantee shall perform its duties hereunder as an independent contractor and not as an employee.
Neither Grantee nor any agent or employee of Grantee shall be deemed to be an agent or employee of the
State. The Grantee 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 Grantee or any of its agents or employees. Unemployment insurance benefits shall be available to
the Grantee and its employees and agents only if such coverage is made available by the Grantee or a third
party. The Grantee shall pay when due all applicable employment taxes and income taxes and local head
taxes incurred pursuant to this Agreement. The Grantee shall not have authorization, express or implied, to
bind the State to any Agreement, liability or understanding, except as expressly set forth herein. The
Grantee 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 Grantee 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 Grantee hereby certifies and warrants that, during the term of this Agreement and any
extensions, The Grantee has and shall maintain in place appropriate systems and controls to prevent such
improper use of public funds. If the State determines that Grantee is in violation of this provision, the State
may exercise any remedy available at law or in equity or under this Agreement, including, without
limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws
or applicable licensing restrictions.
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9. EMPLOYEE FINANCIAL INTEREST. CRS § §24 -18 -201 and 24 -50 -507.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial
interest whatsoever in the service or property described in this Agreement. The Grantee has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the
performance of Grantee's services and Grantee 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 Grantee 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 Grantee 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 Grantee that the Subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. The Grantee (a) shall not use E- Verify
Program or State program procedures to undertake pre- employment screening of job applicants while this
Agreement is being performed, (b) shall notify the Subcontractor and the contracting State agency within
three days if the Grantee 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 Grantee participates in the State
program, the Grantee shall deliver to the contracting State agency, Institution of Higher Education or
political subdivision, a written, notarized affirmation, affirming that the Grantee has examined the legal
work status of such employee, and shall comply with all of the other requirements of the State program. If
the Grantee 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 Grantee shall be liable for damages.
12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24- 76.5 -101.
The Grantee, if a natural person eighteen (18) years of age or older, hereby swears and affirms under
penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant
to federal law, (b) shall comply with the provisions of CRS §24- 76.5 -101 et seq., and (c) has produced one
form of identification required by CRS §24- 76.5 -103 prior to the effective date of this Agreement.
SPs Effective 1/1/09
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Page 40 of 51
43. SIGNATURE PAGE
CMS: 12- HTR- 41296/SAP PO #: 291001220
THE.PARTIES HERETO HAVE EXECUTED THIS INTERAGENCY AGREEMENT
* Persons signing for the Grantee hereby swear and affirm that they are authorized to act on the Grantee's behalf and
acknowledge that the State is relying on their representations to that effect.
THE GRANTEE STATE OF COLORADO
EAGLE COUNTY " ti NA LA t
i Ct. l'ktAtt..i'n r• John W. Hickenlooper, GOVERNOR
By: L�LWANI AIFAINIVAIM•I:00!1'd'tll't
Name of Authorized Individual Colorado Department of Transportation
(for) Donald E. Hunt, Executive Director
Title: M A 0 1 L #I ) Al a (fin I
O itl of Auth � riz d Individual B y .
i Name and Title:
AM V;t1 1I1
I Signature'+
*Signature
Date:
Date:
2nd Grantee Signature if Needed LEGAL REVIEW
By: John W. Suthers, Attorney General
Name of Authorized Individual
By:
Title: Signature - Assistant Attorney General
Official Title of Authorized Individual
Date:
*Signature
Date:
ALL CONTRACTS 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 Grantee 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 Grantee for such performance or
for anv goods and/or services provided hereunder.
STATE CONTROLLER
David J. McDermott, CPA
By:
Controller- Colorado Department of Transporation
Date:
Page 41 of 51
EXHIBIT A -SCOPE OF WORK AND BUDGET
ECO Transit
ECO Transit — Transit Hub and Park and Ride Study
February, 2012
Background:
The Eagle County Regional Transportation Authority (ECO Transit), a department of the Eagle County government, will
utilize awarded FY 2011 FTA Section 5304 funds for the purpose of hiring a transit consultant to conduct a hub and park
and ride study along the I -70 corridor between Dotsero on the west and Vail on the east. This valley wide transit hub and
park and ride study will assist local jurisdictions in planning a seamless, cost effective, and efficient means of connecting
local bus services to ECO Transit's regional bus system. Currently, ECO Transit is conducting a feeder /circulator
feasibility study and needs assessment. With the findings of that study, ECO Transit will work with a consulting firm to
complete a valley wide assessment identifying transit hubs, transfer locations, park and rides, or drop off points to best
connect feeder systems to the regional spine. These hubs and park and rides will allow passengers to access the regional
transit system along a 40 mile corridor (Colorado Highway 6 and I -70) in a rural setting allowing workers access to work
centers in the corridor.
Project Objectives:
This project will identify preferred locations, conceptual design including scope and size, and place making for regional
transit facilities along the service area corridor.
The selection of a transit consultant (project coordinator) will be carried out through a competitive bid process on the
project. The consultant will work under contract with ECO Transit staff beginning September 2012 and complete the
project by April 2013.
The results of the Transit Hub/Park and Ride study and needs assessment will be shared with the local governments of each
of the representative jurisdictions as a planning document and cost analysis to build facilities necessary to make regional
transit successful. Following completion of the study and needs assessment ECO Transit will schedule a presentation to the
local town councils and/or metro boards named in the study group and offer technical assistance where applicable.
Project Tasks:
The scope of work for this study will include the following tasks to be completed by a consultant. When the feasibility
study is complete, stakeholders will be notified of the study's key findings and availability.
Project Oversight by ECO Transit: A contracted consulting team will be chosen by ECO Transit, a department of Eagle
County government, through a competitive bid process adhering to FTA and CDOT rules and regulations. ECO Transit
planning staff will execute and manage the RFP process, as well as facilitate contracts, submit invoices to CDOT, and
manage all consulting team matters.
Task 1: Working Group: ECO Transit and the consultant will establish a project Working Group to provide input and
oversee this study effort. This Working Group will include ECO Transit staff and all appropriate parties from the affected
communities. Other partners such as CDOT will be invited to participate. The Working Group will develop a vision
statement or policy of the desired outcomes, and identify a timeline for results and implementation.
Task 2: Demand Analysis: This study will determine the level of demand for transit facilities along the US 6 / I -70
corridor. Existing ridership data will be collected from various sources such as ECO Transit Automated Passenger
Counting data, current ridership patterns and facility usage, and other relevant transportation data and studies. This demand
estimation will identify how best to locate and size facilities along the corridor. The final outcome of this task will be a
mapping of proposed locations of transit facilities.
Task 3: Conceptual Design: Based on the demand analysis in Task 2, the consultant will propose conceptual design
options for facilities, including a place making component and location - specific considerations.
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Task 4: Capital Costs: Based on the recommendations of Task 3, the consultant will assess and estimate the capital costs
associated with each proposed facility. The cost estimates will be general but informed by recently constructed projects of
similar size and function.
Task 5: Prepare Draft Report: The consultant will deliver a Draft Report detailing location, size and scope, and
conceptual design of each proposed facility for review by Working Group. Comments or changes to this Draft Report will
then be incorporated into a Final Report.
Task 6: Final Report and Dissemination: The consultants will provide ECO Transit and the Working Group with
electronic and a bound Final Report documenting the work in each of the identified tasks. A copy of the final report will
also be posted on the ECO Transit website and similar copies will also be provided to CDOT. The Grantee may also be
asked to present the results of this study at the next CASTA/CDOT Fall Conference.
Deliverables: Deliverables will include route maps with identified facility locations, conceptual design, capital costs for
each facility, and a final report with all information from the above tasks clearly presented.
Project Schedule:
This study will take an estimated seven months to complete once a consultant is chosen through a competitive bid process.
It is estimated that a consultant will be selected by the end of February, 2012. A final report for this project will be
completed by September, 2012.
Project Budget:
WBS: CO- 80- DB19.ECOR
Federal (5304): $30,000
Local Match: $7,500
Total Project Cost: $37,500
The estimated cost of this project is $37,500. CDOT's financial contribution to this study is limited to $30,000 in 2011
Section 5304 funds. Any additional costs incurred for this study will be the responsibility of ECO Transit, a department of
the Eagle County government. The requisite 20% cash match for this project ($7,500) will be provided by ECO Transit.
All of the 5304 funds of $30,000 and the local cash match of $7,500, totaling $37,500, will be used to pay consultant
expenses.
Retroactive Payments: The State shall pay Grantee for costs or expenses incurred or performance by the
Grantee prior to the Effective Date, only if (1) the Grant Funds involve Federal funding and (2) Federal laws,
rules and regulations applicable to the Work provide for such retroactive payments to the Grantee. Any such
retroactive payments shall comply with State Fiscal Rules and be made in accordance with the provisions of this
Grant or such Exhibit. Grantee shall initiate any payment requests by submitting invoices to the State in the
form and manner set forth and approved by the State.
As authorized by the FTA, such Grantee share (local match) may include costs or expenses incurred or
performance by the Grantee prior to the Effective Date.
The contacts for this project are:
Kelley Collier, Director of Transportation
ECO Transit
PO Box 1070
Gypsum, CO 81637
Ph: 970 - 328 -3533
FAX: 970 - 328 -3539
Kelley.collier@eaglecounty.us
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EXHIBIT B — GRANTEE PAYMENT CHECKLIST
Grantee Payment Checklist 01/19/2011
This checklist is to assist the Grantee in preparation of its billing packets to CDOT. All items may not
apply to your particular entity. Our goal is to reimburse Grantees as quickly as possible and a well
organized and complete billing packet helps to expedite payment.
❑ Information to be included on the Invoice from the Grantee:
✓ PO Number
✓ WBS
✓ Section/Program Number
✓ Name
✓ Address
✓ Phone Number
✓ Invoice Number
✓ Billing Period
✓ Total Amount of Contract, Previous Contract Balance, Total Eligible Expenses, Federal Share,
Local Share, New Contract Balance and Total Amount to be Reimbursed to Grantee
✓ Signature of Grantee Financial Representative
❑ Copies of invoices from the Grantee Subgrantees (Tier I and some Tier IIs)
✓ Include a copy of the specific document the Subgrantee used to invoice the Grantee. The Grantee is
responsible for ensuring that the backup matches the invoice and is eligible for reimbursement.
✓ The CDOT grant manager will review and determine if the Grantee expenses are eligible for
reimbursement.
✓ If the Grantee pays the Subgrantees a discounted amount, the full amount cannot be reimbursed to
the Grantee. The Grantee will only be reimbursed up to the actual amount paid to the Grantee's
Subgrantee.
✓ Please ensure that all payment vouchers include some notation of when it was paid or approved for
payment.
✓ Invoice(s) should match the check amount. An additional explanation and documentation is required
for any variances.
✓ Estimates, statements and emails are not acceptable in lieu of an invoice copy.
❑ Copies of checks (All Tiers)
✓ All of the following are acceptable - copies of checks, check registers, approved accounting system
generated expenditure ledgers showing the amount paid, the check number or electronic funds
transfer (EFT) and the date paid.
✓ CDOT needs to ensure that expenditures incurred by the Grantee have been paid by the Grantee
before CDOT is invoiced by the Grantee.
❑ Expenditure ledger (All Tiers)
✓ An expenditure ledger needs to be submitted from the Grantee's financial accounting system. The
report should display the accounting system information, date of the report, accounting period,
current period transactions, and the account coding for all incurred expenditures. Excel spreadsheets
are not approved expenditure reports. However, an additional excel spreadsheet may be required in
order to explain any variances between the expenditure and the amount eligible for reimbursement.
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✓ CFR 49 part 18 Section 18.20 Standards for Financial Management Systems, requires theGrantee to
have approved accounting systems so this should not be difficult to generate by cost center specific
to the reimbursable project. The expenditure report is a good summary page if there is substantial
documentation.
✓ If the Grantee has copies of the invoice(s) and check(s), you do not need the expenditure ledger
also, but the invoices must be marked as approved for payment.
❑ Time sheets (Tier I and some Tier Ils)
✓ Timesheets should show a breakdown of all hours and all projects worked for the day, week, month
or time collection period. The timesheet must also be signed or approved either in ink or
electronically. If an electronic approval occurs, the supervisors' signature will be required on the
electronic time report submitted for reimbursement. .
✓ Backup documentation for payroll expenses includes the timesheet, an hourly or salary rate and a
payroll ledger indicating total hours, wages, and benefits. If there is sensitive information such as
social security numbers or addresses, please block or delete that information prior to submitting it.
❑ In kind match — If a grantee wishes to use in -kind match, it must be approved by CDOT prior to
any work taking place. (All Tiers)
✓ If an in kind match is being used for the local match the in -kind portion of the project must be
included in the project application and scope of work attached to the contract or purchase order.
FTA does not require pre - approval of in -kind, but CDOT does.
✓ Documentation such as an invoice copy, time sheet, etc. is still required for all in -kind transactions.
The documentation varies depending on the source of the in -kind.
✓ Expenditure ledger from the Grantee must also show the in kind match in their general ledger.
✓ If the Grantee is using in kind match, they also need to attach a drawdown schedule indicating how
much in -kind match was received, the date they received it, how much has been applied to the
current invoice and how much has been carried forward. The carry forward balance for in -kind
expires when the Grant term expires.
✓ Full documentation will be required on the use of in -kind match, regardless of the Tier held by the
grantee.
❑ Indirect costs - If an entity wishes to use indirect costs, the rate must be approved by CDOT prior
to applying it to the reimbursements (All Tiers)
✓ If indirect costs are being requested, please submit an approved indirect letter provided by either
CDOT or another State of Colorado agency. The letter must state what indirect costs are allowed,
the approved rate and the time period for the approval. The indirect cost plan must be reconciled
annually and an updated letter submitted each year thereafter..
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EXHIBIT C- OPTION LETTER
NOTE: This option is limited to the specific scenarios listed below AND cannot be used in place of exercising a
formal amendment.
SAP PO # Original CMS Option Letter No. CMS #
Contractor / Grantee :
A. SUBJECT: (Choose applicable options listed below AND in section B and delete the rest)
1. Option to renew (for an additional term); this renewal cannot be used to make any change to the original
scope of work; and
2. Option to initiate next phase to include Design, Construction, Environmental, Utilities, ROW ONLY
(does not apply to Acquisition/Relocation or Railroads);
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 Paragraph(s) of grant
routing number (insert FY, Agency code, & CLIN routing #), between the State of Colorado, Department of
Transportation, and (insert Grantees name) the State hereby exercises the option for an additional term of (insert
performance period here) at a cost/price specified in Paragraph/Section /Provision of the
original grant, AND /OR an increase in the amount of goods /services at the same rate(s) as specified in Paragraph
of the original grant.
(Insert the following language for use with Option #2): In accordance with the terms of the original grant
(insert FY, Agency code & CLIN routing #) between the State of Colorado, Department of Transportation and
(insert Grantee's name here), the State hereby exercises the option to initiate the 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 Grant remain the same
(indicate total dollars here) as referenced in Paragraph /Section/Provision /Exhibit of the
original grant.
(The following language must be included on all options): The amount of the current Fiscal Year grant value
is (increased/decreased) by ($ amount of change) to a new Grant value of ($ ) to satisfy
services /goods ordered under the grant for the current fiscal year (indicate Fiscal Year). The first sentence in
Paragraph/Section /Provision is hereby modified accordingly. The total grant 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, whichever is later.
State of Colorado:
John W. Hickenlooper, Governor
By: Date:
Executive Director, Colorado Department of Transportation
ALL GRANTS REQUIRE APPROVAL BY THE STATE CONTROLLER
CRS §24 -30 -202 requires the State Controller to approve all State Amendments. This Amendment is not valid until signed and
dated below by the State Controller or delegate. Grantee is not authorized to begin performance until such time. Except as
specified herein, if Grantee begins performing prior thereto, the State of Colorado is not obligated to pay Grantee for such
performance or for any goods and/or services provided hereunder.
STATE CONTROLLER
David J. McDermott, CPA
By:
Controller - Colorado Department of Transportation
Date:
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EXHIBIT D- FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA)
State of Colorado
Supplemental Provisions for
Federally Funded Contracts, Grants, and Purchase Orders
Subject to
The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended
As of 10 -15 -10
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in
whole or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these
Supplemental Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into
and made a part of the contract, the provisions of these Supplemental Provisions shall control.
1. Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the
meanings ascribed to them below.
1.1. "Award" means an award of Federal financial assistance that a non - Federal Entity receives or
administers in the form of:
1.1.1. Grants;
1.1.2. Contracts;
1.1.3. Cooperative agreements, which do not include cooperative research and development
agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended
(15 U.S.C. 3710);
1.1.4. Loans;
1.1.5. Loan Guarantees;
1.1.6. Subsidies;
1.1.7. Insurance;
1.1.8. Food commodities;
1.1.9. Direct appropriations;
1.1.10. Assessed and voluntary contributions; and
1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by
non - Federal Entities.
Award does not include:
1.1.12. Technical assistance, which provides services in lieu of money;
1.1.13. A transfer of title to Federally -owned property provided in lieu of money; even if the award
is called a grant;
1.1.14. Any award classified for security purposes; or
1.1.15. Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the
American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law 111 -5).
1.2. "Central Contractor Registration (CCR)" means the Federal repository into which an Entity must
enter the information required under the Transparency Act, which may be found at
http: / /www.bpn.gov /ccr.
1.3. "Contract" means the contract to which these Supplemental Provisions are attached and includes all
Award types in §1.1.1 through 1.1.11 above.
1.4. "Contractor" means the party or parties to a Contract funded, in whole or in part, with Federal
financial assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients,
and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors.
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1.5. "Data Universal Numbering System (DUNS) Number" means the nine -digit number established
and assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet's
website may be found at: http: / /fedgov.dnb.com/webform.
1.6. "Entity" means all of the following as defined at 2 CFR part 25, subpart C;
1.6.1. A governmental organization, which is a State, local government, or Indian Tribe;
1.6.2. A foreign public entity;
1.6.3. A domestic or foreign non - profit organization;
1.6.4. A domestic or foreign for - profit organization; and
1.6.5. A Federal agency, but only a Subrecipient under an Award or Subaward to a non - Federal
entity.
1.7. "Executive" means an officer, managing partner or any other employee in a management position.
1.8. "Federal Award Identification Number (FAIN)" means an Award number assigned by a Federal
agency to a Prime Recipient.
1.9. " FFATA" means the Federal Funding Accountability and Transparency Act of 2006 (Public Law
109 -282), as amended by §6202 of Public Law 110 -252. FFATA, as amended, also is referred to as
the "Transparency Act."
1.10. "Prime Recipient" means a Colorado State agency or institution of higher education that receives an
Award.
1.11. "Subaward" means a legal instrument pursuant to which a Prime Recipient of Award funds awards
all or a portion of such funds to a Subrecipient, in exchange for the Subrecipient's support in the
performance of all or any portion of the substantive project or program for which the Award was
granted.
1.12. " Subrecipient" means a non - Federal Entity (or a Federal agency under an Award or Subaward to a
non - Federal Entity) receiving Federal funds through a Prime Recipient to support the performance of
the Federal project or program for which the Federal funds were awarded. A Subrecipient is subject to
the terms and conditions of the Federal Award to the Prime Recipient, including program compliance
requirements. The term "Subrecipient" includes and may be referred to as Subgrantee.
1.13. "Subrecipient Parent DUNS Number" means the subrecipient parent organization's 9 -digit Data
Universal Numbering System (DUNS) number that appears in the subrecipient's Central Contractor
Registration (CCR) profile, if applicable.
1.14. "Supplemental Provisions" means these Supplemental Provisions for Federally Funded Contracts,
Grants, and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of
2006, As Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or
State of Colorado agency or institution of higher education.
1.15. "Total Compensation" means the cash and noncash dollar value earned by an Executive during the
Prime Recipient's or Subrecipient's preceding fiscal year and includes the following:
1.15.1. Salary and bonus;
1.15.2. Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005)
(FAS 123R), Shared Based Payments;
1.15.3. Earnings for services under non - equity incentive plans, not including group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of
Executives and are available generally to all salaried employees;
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1.15.4. Change in present value of defined benefit and actuarial pension plans;
1.15.5. Above - market earnings on deferred compensation which is not tax - qualified;
1.15.6. Other compensation, if the aggregate value of all such other compensation (e.g. severance,
termination payments, value of life insurance paid on behalf of the employee, perquisites or
property) for the Executive exceeds $10,000.
1.16. "Transparency Act" means the Federal Funding Accountability and Transparency Act of 2006
(Public Law 109 -282), as amended by §6202 of Public Law 110 -252. The Transparency Act also is
referred to as FFATA.
1.17. "Vendor" means a dealer, distributor, merchant or other seller providing property or services required
for a project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient
and is not subject to the terms and conditions of the Federal award. Program compliance requirements
do not pass through to a Vendor.
2. Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the
regulations issued pursuant thereto, including but not limited to these Supplemental Provisions. Any
revisions to such provisions or regulations shall automatically become a part of these Supplemental
Provisions, without the necessity of either party executing any further instrument. The State of Colorado
may provide written notification to Contractor of such revisions, but such notice shall not be a condition
precedent to the effectiveness of such revisions.
3. Central Contractor Registration (CCR) and Data Universal Numbering System (DUNS)
Requirements.
3.1. CCR. Contractor shall maintain the currency of its information in the CCR until the Contractor
submits the final financial report required under the Award or receives final payment, whichever is
later. Contractor shall review and update the CCR information at least annually after the initial
registration, and more frequently if required by changes in its information.
3.2. DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update
Contractor's information in Dun & Bradstreet, Inc. at least annually after the initial registration, and
more frequently if required by changes in Contractor's information.
4. Total Compensation. Contractor shall include Total Compensation in CCR for each of its five most highly
compensated Executives for the preceding fiscal year if:
4.1. The total Federal funding authorized to date under the Award is $25,000 or more; and
4.2. In the preceding fiscal year, Contractor received:
4.2.1. 80% or more of its annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act; and
4.3. The public does not have access to information about the compensation of such Executives through
periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d) or § 6104 of the Internal Revenue Code of 1986.
5. Reporting. Contractor shall report data elements to CCR and to the Prime Recipient as required in §7 below
if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be
made to Contractor for providing any reports required under these Supplemental Provisions and the cost of
producing such reports shall be included in the Contract price. The reporting requirements in §7 below are
based on guidance from the US Office of Management and Budget (OMB), and as such are subject to
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change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and
shall become part of Contractor's obligations under this Contract, as provided in §2 above. The Colorado
Office of the State Controller will provide summaries of revised OMB reporting requirements at
http://www.colorado.gov/dpa/dfp/sco/FFATA.htm.
6. Effective Date and Dollar Threshold for Reporting. The effective date of these supplemental provisions
apply to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as
of October 1, 2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but
subsequent Award modifications result in a total Award of $25,000 or more, the Award is subject to the
reporting requirements as of the date the Award exceeds $25,000. If the initial Award is $25,000 or more,
but funding is subsequently de- obligated such that the total award amount falls below $25,000, the Award
shall continue to be subject to the reporting requirements.
7. Subrecipient Reporting Requirements. If Contractor is a Subrecipient, Contractor shall report as set forth
below.
7.1. To CCR. A Subrecipient shall register in CCR and report the following data elements in CCR for
each Federal Award Identification Number no later than the end of the month following the month in
which the Subaward was made:
7.1.1. Subrecipient DUNS Number;
7.1.2. Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account;
7.1.3. Subrecipient Parent DUNS Number;
7.1.4. Subrecipient's address, including: Street Address, City, State, Country, Zip + 4, and
Congressional District;
7.1.5. Subrecipient's top 5 most highly compensated Executives if the criteria in §4 above are
met; and
7.1.6. Subrecipient's Total Compensation of top 5 most highly compensated Executives if criteria
in §4 above met.
7.2. To Prime Recipient. A Subrecipient shall report to its Prime Recipient, upon the effective date of the
Contract, the following data elements:
7.2.1. Subrecipient's DUNS Number as registered in CCR.
7.2.2. Primary Place of Performance Information, including: Street Address, City, State, Country,
Zip code + 4, and Congressional District.
8. Exemptions.
8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural
person, unrelated to any business or non - profit organization he or she may own or operate in his or her
name.
8.2. A Contractor with gross income from all sources of less than $300,000 in the previous tax year is
exempt from the requirements to report Subawards and the Total Compensation of its most highly
compensated Executives.
8.3. Effective October 1, 2010, "Award" currently means a grant, cooperative agreement, or other
arrangement as defined in Section 1.1 of these Special Provisions. On future dates "Award" may
include other items to be specified by OMB in policy memoranda available at the OMB Web site;
Award also will include other types of Awards subject to the Transparency Act.
8.4. There are no Transparency Act reporting requirements for Vendors.
9. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default
under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if
the default remains uncured five calendar days following the termination of the 30 day notice period. This
remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law
or in equity
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Not used for this agreement
Exhibit E (Guidance for Audit), Exhibit F (Security Agreement), Exhibit G (Procurement Authorization),
Exhibit H (Notice of Acceptance/Non- Acceptance)
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