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HomeMy WebLinkAboutC12-312 CDOT IGA Catamount Bridge ROW Design and Contruction -. �,:.xa..:t'n.^.r..�rwm T.��.�a w'i� -�+:+t .,.::� -:mss_ .c:.�.zzrr.,;<.a.:;� . �.�. ^.r:Y�am 'a.,a �^*�w.. a. �r�;�•<- :':��.: :.<.us.�- x..:.� ",., ..M. �:� s `i Rev 718109 (FMLAWRK) Routing # 13 HA3 47107 N. PROJECT BRO C440- 007(18601) SAP p0 # 271001726fD REGION #3 (PCO) S TATE OF COLORADO Department of Transportation Agreement With EAGLE COUNTY _.... TABLE OF CONTENTS 2 1. PARTIES 2 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY 2 3. RECITALS 2 4. DEFINITIONS 2 5. TERM and EARLY TERMINATION. 3 6. SCOPE OF WORK 3 7. OPTION .LETTER MODIFICATION g 8. PAYMENTS 10 9. ACCOUNTING 10. REPORTING - NOTIFICATION 10 1 11. LOCAL AGENCY RECORDS 12. CONFIDENTIAL INFORMATION -STATE RECORDS 11 1 13. CONFLICT OF INTEREST 12 14. REPRESENTATIONS AND WARRANTIES 13 15. INSURANCE 14 16. DEFAULT - BREACH 14 17. REMEDIES 14 18. NOTICES and REPRESENTATIVES 16 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE 17 20. GOVERNMENTAL IMMUNITY 17 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM 18 22. FEDERAL REQUIREMENTS 18 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 18 24. DISPUTES 18 25. GENERAL PROVISIONS 21 26. COLORADO SPECIAL PROVISIONS 27. SIGNATURE PAGE 23 3 1 28. EXHIBIT A - SCOPE OF WORK 1 29. EXHIBIT B - LOCAL AGENCY RESOLUTION 1 30. EXHIBIT C - FUNDING PROVISIONS 1 31. EXHIBIT D - OPTION LETTER 1 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST 1 33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS 1 34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE 1 35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES 1 36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS 1 37. EXHIBIT J - FEDERAL REQUIREMENTS y 1 38. EXHIBIT K - SUPPLEMENTAL FEDERAL PROVISIONS 1 , 1 M a rte ." ' .- n r _ v. ,:. ` 2. .r..'. ss` Y. �.3.Y.f�3^'...'.i+Ya"a?Y?Ya.P+C - .:.�'.52�;�,..,..,:.,. yra�i P, ��. e:' ak" F 3. .+ � J vesur 1. PARTIES THIS the STATE OF into by and through the E Departm Department of Transportation Agency"), tation and th called the e STATE "State" or "CDOT "). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State reimb se the their Local A y ( for a a n y perfoorrna ce hereunder, including, but State ot shall not be to liable expenses reimbr the Loal Aenc for any p incurred, or be bound by any provision hereof prior to the Effective Date. 3. RECITALS A. Authority, Appropriation, And Approval Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval, clearance and coordination have been accomplished from and with appropriate agencies. Federal Authority Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21 Century" of 1 998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA -LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the "Federal Provisions "), certain federal funds have been and are expected to continue to be allocated for transportation requested by the Local that has been proposed eligible under the Surface State and approved by Transportatton Imp the Federal Highway Administration ( "FHWA "). State Authority Pursuant to CRS §43 -1 -223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS § §29 -1 -203, 43 -1 -110; 43 -1 -116, 43- 2- 101(4)(c) and 43- 2- 104.5. B. Consideration The Par valuable cco are u suffi lent and adequate to covenants upport this other h s Agrreem nt good and C. Purpose The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT's Stewardship Agreement with the FHWA. This contract is for the purpose of a bridge replacement project located on Colorado River Road (301), mile marker 27.7. D. References All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows: A. Agreement or Contract "Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits, attachments or references that are incorporated pursuant to Colorado State Fiscal Rules and Policies. B. Agreement Funds Page 2 of 23 "Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement. C. Budget "Budget" means the budget for the Work described in Exhibit C. D. Consultant and Contractor "Consultant" means a professional engineer or designer hired by Local Agency to design the Work and "Contractor" means the general construction contractor hired by Local Agency to construct the Work. E. Evaluation 'Evaluation" means the process of examining the Local Agency's Work and rating it based on criteria established in §6 and Exhibits A and E. F. Exhibits and Other Attachments The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E (Checklist), Exhibit F (Certification for Federal -Aid Funds), Exhibit G (Disadvantaged Business Enterprise), Exhibit H (Local Agency Procedures), Exhibit I (Federal - Aid Contract Provisions), Exhibit J (Federal Requirements) and Exhibit K (Supplemental Federal Provisions). G. Goods "Goods" means tangible material acquired, produced, or delivered by the Local Agency either separately or in conjunction with the Services the Local Agency renders hereunder. H. Oversight "Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and the Federal Highway Administration ( "FHWA ") and as it is defined in the Local Agency Manual. I. Party or Parties "Party" means the State or the Local Agency and "Parties" means both the State and the Local Agency J. Work Budget Work Budget means the budget described in Exhibit C. K. Services "Services" means the required services to be performed by the Local Agency pursuant to this Contract. L. Work "Work" means the tasks and activities the Local Agency is required to perform to fulfill its obligations under this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods. M. Work Product "Work Product" means the tangible or intangible results of the Local Agency's Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts. 5. TERM and EARLY TERMINATION. The Parties' respective performances under this Agreement shall commence on the Effective Date. This Agreement shall terminate after five (5) years of state controllers signature in section 27, unless sooner terminated or completed as demonstrated by final payment and final audit. 6. SCOPE OF WORK A. Completion The Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. Page 3 of 23 J B. Goods and Services The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered the Local Agency's, Consultants' or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Commitments L Design If the Work includes preliminary design or final design or design work sheets, or special provisions and estimates (collectively referred to as the "Plans "), the Local Agency shall comply with and be responsible for satisfying the following requirements: a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c) Prepare provisions and estimates in accordance with the most current version of the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d) Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e) Stamp the Plans produced by a Colorado Registered Professional Engineer. f) Provide final assembly of Plans and all other necessary documents. g) Be responsible for the Plans' accuracy and completeness. h) Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT and when final they shall be incorporated herein. ii. Local Agency Work a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document "ADA Accessibility Requirements in CDOT Transportation Projects ". b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements. c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and /or of construction administration. Provided, however, if federal -aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance /provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with a Consultant for the Work: (1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State's approval. If not approved by the State, the Local Agency shall not enter into such Consultant contract. (2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. Immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. (3) Local Agency shall require that all billings under the Consultant contract comply with the State's standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office. Page 4 of 23 (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the COOT procedures described in Exhibit H to administer the Consultant contract. (5) Local Agency may expedite any CDOT approval of its procurement process and /or Consultant contract by submitting a fetter to CDOT from the Local Agency's attorney /authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). (6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design /construction of the project. The State is an intended third -party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. Construction a) If the Work includes construction, the Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing Construction Contractor claims; construction supervision; and meeting the Quality Control requirements of the FHWA/CDOT Stewardship Agreement, as described in the Local Agency Contract Administration Checklist. b) If the Local Agency is performing the Work, the State may, after providing written notice of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. c) The Local Agency shall be responsible for the following: (1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures. (2) For the construction of the Work, advertising the call for bids upon approval by the State and awarding the construction contract(s) to the low responsible bidder(s). (a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23 Page 5 of 23 C.F.R. Parts 633 and 635 and C.R.S. § 24 -92 -101 et seq. Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefor, as required by 23 C.F.R. 633.102(e). (b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. The Local Agency must accept or reject such bid within three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, necessary to complete the Work if no additional federal -aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) If all or part of the Work is to be accomplished by the Local Agency's personnel (i.e. by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (b) An alternative to the preceeding subsection is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 C.F.R. Part 31. (c) If the State provides matching funds under this Agreement, rental rates for publicly owned equipment shall be determined in accordance with the State's Standard Specifications for Road and Bridge Construction §109.04. (d) All Work being paid under force account shall have prior approval of the State and /or FHWA and shall not be initiated until the State has issued a written notice to proceed. State's Commitments a) The State will perform a final project inspection of the Work as a quality control /assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. b) Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any major structures designed by, or that are the responsibility of, the Local Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E, ROW and Acquistion /Relocation a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local Agency shall immediately convey title to such right of way to CDOT after the Local Agency obtains title. b) Any acquisition /relocation activities shall comply with all applicable federal and state statutes and regulations, including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs as amended (49 C.F.R. Part 24), CDOT's Right of Way Manual, and CDOT's Policy and Procedural Directives. c) The Parties' respective compliance responsibilities depend on the level of federal participation; provided however, that the State always retains Oversight responsibilities. Page 6 of 23 i s d) The Parties' respective responsibilities under each level in CDOT's Right of Way Manual (located at htto://www.dastate.co.us/ROW_Manuall) and reimbursement for the levels will be under the following categories: (1) Right of way acquisition (3111) for federal participation and non- participation; (2) Relocation activities, if applicable (3109); (3) Right of way incidentals, if applicable (expenses incidental to acquisition /relocation of right of way — 3114). Utilities If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company which may become involved in the Work. Prior to the Work being advertised for bids, the Local Agency shall certify in writing to the State that all such clearances have been obtained. Railroads If the Work involves modification of a railroad company's facilities and such modification will be accomplished by the railroad company, the Local Agency shall make timely application to the Public Utilities commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the Work without compliance. The Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C.F.R. 646, subpart B, concerning federal -aid projects involving railroad facilities and: a) Execute an agreement setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. b) Obtain the railroad's detailed estimate of the cost of the Work. c) Establish future maintenance responsibilities for the proposed installation. d) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. e) Establish future repair and /or replacement responsibilities in the event of accidental destruction or damage to the installation. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. 7. OPTION LETTER MODIFICATION Option Letters may be used to extend Agreement terms, change the level of service within the current term due to unexpected overmatch, add a phase without increasing contract dollars, or increase or decrease the amount of funding. These options are limited to the specific scenarios listed below. The Option Letter shall not be deemed valid until signed by the State Controller or an authorized delegate. Following are the applications for the individual options under the Option Letter form: A. Option 1- Level of service change within current term due to unexpected overmatch in an overbid situation only. in the event the State has contracted all project funding and the Local Agency's construction bid is higher than expected, this option allows for additional Local Overmatch dollars to be provided by the Local Agency to be added to the contract. This option is only applicable for Local Overmatch on an overbid situation and shall not be intended for any other Local Overmatch funding. The State may unilaterally increase the total dollars of this contract as stipulated by the Page 7 of 23 executed Option Letter (Exhibit D), which will bring the maximum amount payable under this contract to the amount indicated in Exhibit C -1 attached to the executed Option Letter (future changes to Exhibit C shall be labeled as C -2, C -3, etc, as applicable). Performance of the services shall continue under the same terms as established in the contract. The State will use the Financial Statement submitted by the Local Agency for "Concurrence to Advertise" as evidence of the Local Agency's intent to award and it will also provide the additional amount required to exercise this option. If the State exercises this option, the contract will be considered to include this option provision. B. Option 2 — Option to add overlapping phase without increasing contract dollars. The State may require the Local Agency to begin a phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition /Relocation or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original contract with the contract dollars remaining the same. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. C. Option 3 - To update funding (increases andlor decreases) with a new Exhibit C. This option can be used to increase andlor decrease the overall contract dollars (state, federal, local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit C) in the Original Contract with an updated Exhibit C -1 (subsequent exhibits to Exhibit C -1 shall be labeled C -2, C -3, etc). The State may have a need to update changes to state, federal, local match and local agency overmatch funds as outlined in Exhibit C -1, which will be attached to the option form. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days after the State has received notice of funding changes, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. 8. PAYMENTS The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the methods set forth below: A. Maximum Amount The maximum amount payable is set forth in Exhibit C as determined by the State from available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance /resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work. A copy of such ordinance /resolution or authority letter is attached hereto as Exhibit B. B. Payment L Advance, Interim and Final Payments Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall initiate any payment requests by submitting invoices to the State in the form and manner, approved by the State. Interest The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State separately for accrued interest Page 8 of 23 on delinquent amounts. The billing shall reference the delinquent payment, the number of days interest to be paid and the interest rate. Available Funds- Contingency - Termination The State is prohibited by law from making commitments beyond the term of the State's current fiscal year. Therefore, the Local Agency's compensation beyond the State's current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. The State's performance hereunder is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may terminate this Contract immediately, in whole or in part, without further liability in accordance with the provisions hereof. Erroneous Payments At the State's sole discretion, payments made to the Local Agency in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under this Contract or other contracts, Agreements or agreements between the State and the Local Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Contract Funds shall be used only for eligible costs identified herein. D. Matching Funds The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. The Local Agency's obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local Agency's treasury. The Local Agency represents to the State that the amount designated "Local Agency Matching Funds" in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. The Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in future fiscal years, and this Agreement is not intended to create a multiple- fiscal year debt of the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the Local Agency's laws or policies. E. Reimbursement of Local Agency Costs The State shall reimburse the Local Agency's allowable costs, not exceeding the maximum total amount described in Exhibit C and §8. The applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the State's obligation to reimburse all costs incurred by the Local Agency and submitted to the State for reimubursement hereunder, and the Local Agency shall comply with all such principles. The State shall reimburse the Local Agency for the federal -aid share of properly documented costs related to the Work after review and approval thereof, subject to the provisions of this Agreement and Exhibit C. However, any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof. Costs shall be: i. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goads and Services provided. ii. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred); Page 9 of 23 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows: A. Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers, and other applicable records. B. Local Agency - Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents shall be on file in the office of the Local Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other Work documents. C. State- Administrative Services The State may perform any necessary administrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to the Work being approved or completed, then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency's sole expense. D. Local Agency - Invoices The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices within 60 days after the date for which payment is requested, including final invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency. F. Reimbursement of State Costs CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to CDOT. Interim funds shall be payable from the State Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail the reimbursable costs incurred, the dates incurred and the amounts thereof, and shall not be submitted more often than monthly. 10. REPORTING - NOTIFICATION Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §18, if applicable. A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency's performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Page 10 of 23 • Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of CDOT. C. Noncompliance The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with this §10 may result in the delay of payment of funds and /or termination as provided under this Agreement. D. Documents Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies of all documents, including contracts and subcontracts, in its possession related to the Work. 11. LOCAL AGENCY RECORDS A. Maintenance The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. The Local Agency shall maintain such records until the last to occur of the following: (t) a period of three years after the date this Agreement is completed or terminated, or (ii) three years after final payment is made hereunder, whichever is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (collectively, the "Record Retention Period "). B. Inspection The Local Agency shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and /or transcribe the Local Agency's records related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Agreement, including any extension. If the Work fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring the Work into conformity with Agreement requirements, at the Local Agency's sole expense. If the Work cannot be brought into conformance by re- performance or other corrective measures, the State may require the Local Agency to take necessary action to ensure that future performance conforms to Agreement requirements and may exercise the remedies available under this Agreement at law or in equity in lieu of or in conjunction with such corrective measures. C. Monitoring The Local Agency also shall permit the State, the federal government or any other duly authorized agent of a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on -site checking, formal audit examinations, or any other procedures. All such monitoring shall be performed in a manner that shall not unduly interfere with the Local Agency's performance hereunder. D. Final Audit Report If an audit is performed on the Local Agency's records for any fiscal year covering a portion of the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 12. CONFIDENTIAL INFORMATION -STATE RECORDS Page 11 of 23 • The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to, state records, personnel records, and information concerning individuals. Nothing in this §12 shall be construed to require the Local Agency to violate the Colorado Open Records Act, C.R.S. §§ 24 -72 -1001 et seq. A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State's principal representative. B. Notification The Local Agency shall notify its agents, employees and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure - Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency is prohibited from providing indemnification to the State pursuant to the Constitution of the State of Colorado, Article XI, Section 1, however, the Local Agency shall be responsible for any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees pursuant to this §12. 13. CONFLICT OF INTEREST The Local Agency shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of the Local Agency's obligations hereunder. The Local Agency acknowledges that with respect to this Agreement even the appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, the Local Agency shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of the Local Agency's obligations to the State hereunder. If a conflict or appearance exists, or if the Local Agency is uncertain whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the apparent conflict constitutes a breach of this Agreement. 14. REPRESENTATIONS AND WARRANTIES The Local Agency makes the following specific representations and warranties, each of which was relied on by the State in entering into this Agreement. A. Standard and Manner of Performance The Local Agency shall perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. B. Legal Authority — The Local Agency and the Local Agency's Signatory The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by -laws, and /or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the Page 12 of 23 State, the Local Agency shall provide the State with proof of the Local Agency's authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non - renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for the Local Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for termination of this Agreement. 15. INSURANCE The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State. A. The Local Agency i. Public Entities If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq., as amended (the "GIA "), then the Local Agency shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self - insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance requirements necessary to meet Consultant or Contractor liabilities under the GIA. ii. Non - Public Entities If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and policies meeting the same requirements set forth in §15(B) with respect to sub- contractors that are not "public entities ". B. Contractors The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than those that are public entities, providing Goods or Services in connection with this Agreement, to include insurance requirements substantially similar to the following: i. Worker's Compensation Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance covering all of the Local Agency's Contractors, Subcontractors, or Consultant's employees acting within the course and scope of their employment. ii. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket liability, personal injury, and advertising liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 Page 13 of 23 A any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, contractors, subcontractors, and consultants shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or other document satisfactory to the Local Agency showing compliance with this provision. iii. Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Additional Insured The Local Agency and the State shall be named as additional insured on the Commercial General Liability policies (leases and construction contracts require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). v. Primacy of Coverage ` Coverage required of the Consultants or Contractors shall be primary over any insurance or self - insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non - renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in -any way related to this Agreement and secured and maintained by the Local Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Agreement or any sub- contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §15. 16. DEFAULT - BREACH A. Defined In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner constitutes a breach. B. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §18. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §17. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis. 17. REMEDIES If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the remedies listed in this §17 in addition to all other remedies set forth in other sections of this Agreement following the Page 14 of 23 notice and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause andlor Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non- performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non- performance within the cure period, the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if any. 1. Obligations and Rights To the extent specified in any termination notice, the Local Agency shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub - Agreements with third parties. However, the Local Agency shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Agreement's terms. At the sole discretion of the State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under such terminated orders or sub - Agreements. Upon termination, the Local Agency shall take timely, reasonable and necessary action to protect and preserve property in the possession of the Local Agency in which the State has an interest. All materials owned by the State in the possession of the Local Agency shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by the Local Agency to the State and shall become the State's property. 2. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination. If, after termination by the State, it is determined that the Local Agency was not in default or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein. 3. Damages and Witholding Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Agreement by the Local Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from the Local Agency is determined. The State may withhold any amount that may be due to the Local Agency as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services. The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover. B. Early Termination in the Public Interest The State is entering into this Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the Local Agency, which shall be governed by §17(A) or as otherwise specifically provided for herein. i, Method and Content Page 15 of 23 The State shall notify the Local Agency of the termination in accordance with §18, specifying the effective date of the termination and whether it affects all or a portion of this Agreement. Obligations and Rights Upon receipt of a termination notice, the Local Agency shall be subject to and comply with the same obligations and rights set forth in §17(A)(i). Payments If this Agreement is terminated by the State pursuant to this §17(B), the Local Agency shall be paid an amount which bears the same ratio to the total reimbursement under this Agreement as the Services satisfactorily performed bear to the total Services covered by this Agreement, less payments previously made. Additionally, if this Agreement is less than 60% completed, the State may reimburse the Local Agency for a portion of actual out -of- pocket expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local Agency's obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to the Local Agency hereunder. C. Remedies Not Involving Termination The State, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: i. Suspend Performance Suspend the Local Agency's performance with respect to all or any portion of this Agreement pending necessary corrective action as specified by the State without entitling the Local Agency to an adjustment in price /cost or performance schedule. The Local Agency shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by the Local Agency after the suspension of performance under this provision. Withold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed. Deny Payment Deny payment for those obligations not performed that due to the Local Agency's actions or inactions cannot be performed or, if performed, would be of no value to the State; provided that any denial of payment shall be reasonably related to the value to the State of the obligations not performed. Removal Demand removal of any of the Local Agency's employees, agents, or contractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Agreement is deemed to be contrary to the public interest or not in the State's best interest. Intellectual Property If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Agreement, the Local Agency shall, at the State's option (a) obtain for the State or the Local Agency the right to use such products and services; (b) replace any Goods, Services, or other product involved with non - infringing products or modify them so that they become non - infringing; or, (c) if neither of the forgegoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State. 18. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Party's principal representative at the address set forth below. In addition to but not in lieu of a hard -copy notice, notice also may be sent by e -mail to the e -mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. Page 16 of 23 A. State: Peter Lombardi, P.E. Resident Engineer CDOT Region 3 714 Grand Avenue Eagle, Colorado 81631 (970)328 -3560 B. Local Agency: Eva Wilson P.E. County Engineer Eagle County PO Box 850 Eagle, Colorado 81631 (970)328 -9962 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agencys's obligations hereunder without the prior written consent of the State. 20. GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees and of the Local Agency is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24 -30 -1501, et seq., as amended. 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §21 applies. The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24- 102 -205, §24- 102 -206, §24 -103 - 601, §24 -103.5 -101 and §24 -105 -102 concerning the monitoring of vendor performance on state agreements /contracts and inclusion of agreement/contract performance information in a statewide contract management system. The Local Agency's performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Agreement, State law, including CRS §24 -103.5 -101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be part of the normal Agreement administration process and the Local Agency's performance will be systematically recorded in the statewide Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of the Local Agency's obligations under this Agreement shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of the Local Agency's obligations. Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final. Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good Page 17 of 23 Ask cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24 -105- 102(6)), or (b) under CRS §24- 105 - 102(6), exercising the debarment protest and appeal rights provided in CRS § §24- 109 -106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause. 22. FEDERAL REQUIREMENTS The Local Agency and /or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing regulations, as they currently exist and may hereafter be amended. A listing of certain federal and state laws that may be applicable are described in Exhibit J and Exhibit K. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (ft provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 25. GENERAL PROVISIONS A. Assignment The Local Agency's rights and obligations hereunder are personal and may not be transferred, assigned or subcontracted without the prior written consent of the State. Any attempt at assignment, transfer, or subcontracting without such consent shall be void. All assignments and subcontracts approved by the Local Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely responsible for all aspects of subcontracting arrangements and performance. B. Binding Effect Except as otherwise provided in §25(A), all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors, and assigns. C. Captions The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. D. Counterparts This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one agreement. Page 18 of 23 E. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition, deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein. F. Indemnification - General If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq. G. Jurisdction and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and /or damages in favor of the Local Agency contained in any document attached to and /or incorporated by reference into this Agreement, whether referred to as an exhibit, attachment, schedule, any other her name are void and of no Y effect. This includes, but is not necessarily limited to, limitations on (1) the types of liabilities, (ii) the types of damages, (iii) the amount of damages, and (iv) the source of payment for damages. I. Modification i. By the Parties Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law, State Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the policy entitled MODIFICATIONS OF AGREEMENTS- TOOLS AND FORMS. By Operation of Law This Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth herein. J. Order of Precedence The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions, The provisions of the main body of this Agreement, Exhibit A (Scope of Work), Exhibit B (Local Agency Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E (Local Agency Contract Administration Checklist), Other exhibits in descending order of their attachment. K. Severability Provided this Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is Page 19 of 23 declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required. M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84- 730123K) and from all State and local government sales and use taxes under CRS § §39 -26 -101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them. N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. 0. Waiver Waiver of any breach of a term, provision, or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 20 of 23 1 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24 -30 -202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24 -30- 202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. § §1346(b) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance benefits shall be available to The Local Agency and its employees and agents only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution. 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra - judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions,The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that The Local Agency is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST. CRS § §24 -18 -201 and 24 -50 -507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree Page 21 of 23 VaigifflillieL with the performance of The Local Agency's services and The Local Agency shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24- 30- 202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24 -30 -202,4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State a agencies for: unpaid child support debts or child support g (a) p pp pport 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 r4 services or fund management services, sponsored projects, intergovernmental Agreements, or information technology services or products and services] The Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under F< this Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E- Verify Program or the State program established pursuant to CRS §8- 17.5- 102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E- Verify Program or State program procedures to undertake pre - employment screening of job applicants while this Agreement is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8- 17.5- 102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If The Local Agency fails to comply with any requirement of this provision or CRS §8 -17.5 -101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages. 12. • UBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24 -76.5 -101. The Local Agency, if a natural person eighteen (18) ear P 9 ( ) Y s 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 greement. SPs Effective 1/1/09 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK • Page 22 of 23 glEMBEZZffigegE 27. SIGNATURE PAGE Agreement Routing Number 13 HA3 47107 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT * Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf and acknowledge that the State is relying on their representations to that effect. THE LOCAL AGENCY STATE OF COLORADO EAGLE COUNTY John W. Hickenlooper, GOVERNOR By: I v 0, d Colorado Department of Transportation Name of Authorized Individual Donald E. Hunt, Executive Director Title: • icial itle ofAut'�� •.• . vidual i By: Ti'rnoth J. Harris P. CDOT Y T Chlef Engineer I ll 1. • 4. L �.. , ,/' *Sig ‘-ture Date: Date: 1 2 . 2nd The Local Agency Signature if Needed LEGAL REVIEW John W. Suthers, Attorney General By: Name of Authorized Individual N/A By: Title: Signature - Assistant Attorney General Official Title of Authorized Individual *Signature Date: Date: ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS §24 -30 -202 requires the State Controller to approve all State Agreements. This Agreement is not valid until signed and dated below by the State Controller or delegate. The Local Agency is not authorized to begin performance until such time. If The Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay The Local Agency for such performance or for any goods and /or services provided hereunder. STATE ON R e ER ' tt, PA By: c,425;1,110 ' I i Colorado iartment of Transportation Date: 6079A PI Page 23 of 23 4 28. EXHIBIT A - SCOPE OF WORK x 1 k 1 5 k . iv f ' 1 1 4 'F , F 9 ■ 4 1. 4 G - 4 k } a i. C 1 P . •?yY.a, .„. , ,12' ,, ,,,,.....b�.:': ". :: 1 . - -. .- NY' a-4. x „,, ,,,,, 0 ,,, l,. £i ' nN Z55 r`2 ..' B' �.A. --,-1, ia . ' , I COLORADO DEPARTMENT OF TRANSPORTATION Orfg.Date: 06/03/2011 Project Code # (SA#): 18601 I STIP #: SR35771 DESIGN DATA Rev.Date: Protect #: BRO C440 -007 Revision #: 0 PE Project Code: Page 1 to 3 Region #; 03 Project Description: Eagle County Bridge Status: Q Preliminary ❑ Final ❑ Revised (EAG 301 - 27.7) - Burns -- County: 037 Submitted By PM: KILLIANB Approved by Program Engineer: Date: Municipality: Burns System Code: Z-Not on any Federal -Aid Highway Revised by: Oversight By Delegated /Locally Administered Date: Planned Length: 0.500 Geographic Location: EAGLE COUNTY ON THE COLORADO RIVER RD. Type of Terrain: Mountainous Description of Proposed Construction /lmprovement(Attach map showing site location) REPLACEMENT OF OFF - SYSTEM BRIDGE STR. EAG -301 -27.7 Project Characteristics (Proposed) Median (Type): ❑ Depressed ❑ Painted ❑ Raised C] None ❑ Lighting ❑ Handicap Ramps ❑ Traffic Control Signals ❑ Striping p g ❑ Curb and Gutter ❑ Curb Only ❑ Left-Turn Slots ❑ Continuous Width= ❑ Sidwalk Width= ❑ Bikeway Width = ❑ Right -Tum Slots ❑ Continuous Width= ❑ Parking Lane Width= ❑ Detours Signing $ $ El Construction ❑ Permanent ❑ Landscaping requirements (description): [] Other (description): ® Right of Way Yes /No Est. # 111 Utilities (list names of known utility companies) ROW Nor Perm. Easement Required No Unknown • Relocation Required No Temporary Easement Required; No Changes in Access: No Changes to Connecting Roads: No in Railroad Crossings # of Crossings: Recommendations Environmental Type: Approved On: Project Code # Cleared Under. Project # Cleared Under: N - CE Nonprogrammatic Comments: Coordination ❑ Withdrawn Lands (Power Sites, Reservoirs, Etc.) Cleared through BIM or Forest Service Office Irrigation Ditch Name: ❑ New Traffic Ordinance Required ❑ Modify Schedule of Existing Ordinance Muncipality: Burns Other. NI Construction Method Advertised 3y: NoAd Reason: Entity /Agency Contact Name: Phone #:— Local Pete Lombardi (970)328 - 6385 Safety Considerations Project Under: Guardrail meets current standards: No ❑ Variance in Minimum Design Standards Required ❑ Safety project not all standards Comments: ❑ Justification Attached L) Request to be Submitted addressed ❑ Bridge(see item 12) ❑ See Remarks ❑ Stage Construction (explain In remarks) 3R projects Safs Evaluation Complete (date): i... >. .. 1 .... (. • 11 E1 1 1111111111 N i,•5 11001111 ® I 1110 1 01111111111 il h ®1111111111 01111111111 N a 0111111111 0 1111111111 11111 ❑ CI 01111111111 00 m E r ❑ 0101111111 3 Ll1Il0I0I IIII _� � X11 11111111 3 d 111111111111111.111111 1 N. ❑ n 1 ;1111111111 1 11111111111111i N , LIlIlIlIlIll , i am _.. 0IIlIIIIlI11 ❑❑ 011111111119I1111 A-2 LE 11111111114 d c '1177;2 ❑❑ o CI 1111111111a v w V N Ft V � Q' C � 7 n J d K N f N In � 2 1 L '�" 'O N +�- E ,N O g N .L. a E' u m - 3 a o_ � N 0 v� o v ° m ` a� ❑ m> U E '� m m a ' - s v c E, m f1 S> U` rn u H N N N O 2 R �" } -8 0 '6 U N N N 9 O N O x C C C % N fA U D N N j f a o ` m c 3 m r m u' a� m m y >, `o -o ° o d' LC w w w ❑ VJ V) ❑ U F- 3! (fl a N i 3 O> N Q. rn 0 It Page 3 of 3 Project Code #(SA#): Project #: Revise Date: 18601 BRO C440 - 007 12 Major S tructures 8= to stay, R= to be removed, P= proposed new structure Reference l Standard Structure Structural Horizontal Vertical Structure ID# e I Length I Point I Feature Intersected fl i Year Proposed Treament of Bridges to Remain in Place(address bridge rail, capacity, and allowable surfacing thickness dwa I C apacity I Clearance I Clearance I Built 13 Remarks EAG -301 -27.7 Catamount Bridge Replacement Scope of Work The Catamount Bridge is located 27.7 miles northeast of Dotsero on the Colorado River Road In Eagle County. The existing structure was constructed In 1945 and is a single lane (14.6 41 wide), three -span (119.5 -ft long) steel bridge over the Colorado River. The current Bridge Inspection Report (2010) rates the existing bridge as Structurally Deficient with a Sufficiency Rating of 42.2. Eagle County proposes to replace the existing bridge with a new two -lane bridge. The existing bridge will remain in service during the construction of the new bridge. Once at least one lane of the new bridge is constructed the existing bridge will be removed. The new bridge may be constructed one half at a time near the existing alignment or could be constructed on a new alignment that would allow the bridge to be full constructed in one phase. All work will be in accordance to FHWA and CDOT rules and regulations. Federal funds will be used for design, ROW and construction phases of this project • lak.._ 4, 6.4. . I ,.. ..113. 4 2 ' : , ... '" _. m' z.✓... ,...Wi.= ,F? #r'^' ✓_ ` ^ ii#.£: bA : .)%.J....rb .'4:445"'"M: yA -�'S' Ch. `T;- L 3 f 29. EXHIBIT B - LOCAL AGENCY RESOLUTION .'.. LOCAL AGENCY O x or RESOLUTION t 4 R * i,, 4 } S it 4 Y r - . i k? +% :4 '..44.40, - -4 k1 G. W.V =4.4,:N.t;'+.,, 2 4:V 4" dN&d#.m" :r A.5.? 4,5A - Arcf,A,rATA : Tav , 1A4 de , ,x 4, 1�' 44 1 44. a, e , ,AA∎ . ,Offi+3r., ;i rks :04,,.e .3, 4.A ..., A Q4 . 4 04%X ' :" .4 -. --: 30. EXHIBIT C — FUNDING PROVISIONS A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $2,252,250.00 which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds $1,801,800.00 (___80_% of Participating Costs) b. Local Agency Matching Funds $450,450.00 (_20_% of Participating Costs) TOTAL BUDGETED FUNDS $2,252,250.00 2 ESTIMATED CDOT - INCURRED COSTS a. Federal Share $0.00 (_ of Participating Costs) b. Local Agency Local Agency Share of Participating Costs $0.00 Non - Participating Costs (Including Non - Participating Indirects) $0.00 Estimated to be Billed to Local Agency $0.00 TOTAL ESTIMATED CDOT- INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (la) $1,801,800.00 b. Less Estimated Federal Share of CDOT - Incurred Costs (2a) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $1,801,800.00 FOR CDOT ENCUMBRANCE PURPOSES Total Encumbrance Amount ($1,801,800.00 divided by 80 %) $2,252,250.00 Less ROW Acquisition 3111 and /or ROW Relocation 3109 $6,000.00 Net to be encumbered as follows: $2,246,250.00 *'Nate - Only $387,550,00 will be encumbered at this time; remaining funds will be encumbered in the future by OptionLetter or Amendment . WBS Element 18601.10.30 Design 3020 $343,550.00 WBS Element 18601.10.10 ROW 3100 $44,000.00 B. Matching Funds The matching ratio for the federal participating funds for this Work is 80% federal -aid funds (CFDA #20.205) to 20% Local Agency funds, it being understood that such ratio applies only to the $2,246,250.00 that is eligible for federal participation, it being further understood that all non- participating costs are borne by the Local Agency at 100 %. If the total participating cost of performance of the Work exceeds $2,246,250.00 and additional federal funds are made available for the Work, the Local Agency shall pay 0% of all such costs eligible for federal participation and 100% of all non - participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $2,246,250.00 then the amounts of Local Agency and federal -aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shalt be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $1,801,800.00,(For CDOT accounting purposes, the federal funds of $1,801,800.00, the Local Agency matching funds of $450,450.00 less the ROW Aqusition of $6,000.00 will be encumbered for a total encumbrance of $2,246,250.00), * *Please note, only the Design Funds in amount of $343,550.00 and the ROW Incidentals in amount of $44,000.00 are currently available, the remainder funds will be encumbered in the future by Option Letter or Amendment **, unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non - profit organizations receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of OMB Circular A -133 (Audits of States, Local Governments and Non - Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i, Expenditure less than $500,000 The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply, ii. Expenditure exceeding than $500,000- Highway Funds Only The Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial" procedures and processes for this program area. iii. Expenditure exceeding than $500,000 - Multiple Funding Sources The Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization /entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Page 1 of 4 31. EXHIBIT D — OPTION LETTER SAMPLE iGA OPTION LETTER (This option has been created by the Office of the State Controller for COOT use only) NOTE: This option is limited to the specific contract scenarios listed below AND may be used in place of exercising a formal amendment. Date: State Fiscal Year: Option Letter No. CLIN Routing # Original Contract CMS # Option Letter CMS # Original Contract SAP # Option Letter SAP # Vendor name: A. SUBJECT: (Choose applicable options listed below AND in section B and delete the rest) 1. Level of service change within current term due to an unexpected Local overmatch on an overbid situation ONLY; 2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition /Relocation or Railroads); 3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be labeled C -1 (future changes for this option shall be labeled as follows: C -2, C -3, C -4, etc.) B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below: (Insert the following language for use with Option #1): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to record a level of service change due to unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by (indicate additional dollars here) specified in Paragraph /Section /Provision of the original Agreement. (Insert the following language for use with Option #2): In accordance with the terms of the original Agreement (insert FY, Agency code & CLiN routing # Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to add an overlapping phase in (indicate Fiscal Year here) that will include (describe which phase will be added and include all that apply — Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous). Total funds for this Agreement remain the same (indicate total dollars here) as referenced in Paragraph /Section /Provision /Exhibit of the original Agreement. (Insert the following language for use with Option #3): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to update funding based on changes from state, federal, local match and /or local agency overmatch funds. The Agreement is now (select one: increased and /or decreased) by (insert dollars here) specified in Paragraph/- Section /- Provision /Exhibit of the original Agreement. A new Exhibit C -1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when Page 1 of 2 using this option: future changes for this option for Exhibit C shall be labeled as follows: C -2, C -3, C -4, etc.) (The following language must be included on ALL options): The amount of the current Fiscal Year contract value is (increased /decreased) by ($ amount of change) to a new Agreement value of ($ ) to satisfy services /goods ordered under the Agreement for the current fiscal year (indicate Fiscal Year). The first sentence in Paragraph /Section /Provision is hereby modified accordingly. The total Agreement value to include all previous amendments, option letters, etc. is ($ ). The effective date of this Option Letter is upon approval of the State Controller or delegate. APPROVALS: For the The Local Agency: Legal Name of the Local Agency By: Print Name of Authorized Individual Signature: Date: Title: Official Title of Authorized Individual State of Colorado: John W. Hickenlooper, Governor By: Date: Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24 -30 -202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services provided hereunder. State Controller David J. McDermott, CPA By: Date: Form Updated: June 12, 2008 Page 2 of 2 6142311 rmmr N • • 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST • • 1 1 1 - f SU- -?M. 'Akf?7i."kEa'- '.. ": " ": '✓3. x.: °. ..'.; ''C.' ��::', "'.fffiY„ ,.. �YSY.K£`:,'3'.'0... . ^G, .: LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST The following checklist has been developed to ensure that all required aspects of a project approved for Federal funding have been addressed and a responsible party assigned for each task. After a project has been approved for Federal funding in the Statewide Transportation Improvement Program, the Colorado Department of Transportation (CDOT) Project Manager, Local Agency project manager, and CDOT Resident Engineer prepare the checklist. It becomes a part of the contractual agreement between the Local Agency and CDOT. The CDOT Agreements Unit will not process a Local Agency agreement without this completed checklist. It will be reviewed at the Final Office Review meeting to ensure that all parties remain in agreement as to who is responsible for performing individual tasks. xvi F CCLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No STIP No. Project Code Region BRO C440 -007 TBD 19601 3 Project Location Date Eagle Cty 3ridge (EAG301 -27.7) - Catamount 12/14/11 Project Description Replacement of off system bridge on Eagle County Road 301 Local Agency Local Agency Project Manager Eagle County Ben Gerdes CDOT Ref. ident Engineer • CDOT Project Manager Peter Lom )ardi Brian Killian/Barry Andersen INSTRUC — IONS: This checldist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The check ist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters of the CDQT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The "X" denotes the party responsible for initiating and executing the task. Only one responsible party should be selected. When neither CDOT nor the Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a " #" will denote that CDOT must concur or approve. Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the COOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the COOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist. RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT TIP / ST P AND LONG -RANGE PLANS 2.1 1 eview Project to ensure it is consist with STIP and amendments thereto 1 X FEDER L FUNDING OBLIGATION AND AUTHORIZATION 4.1 uthorize funding by phases (COOT Form 418 - Federal -aid Program Data. Requires FHWA X concurrence /involvement) PROJECT DEVELOPMENT 5.1 Prepare Design Data - CDOT Form 463 X 5.2 Prepare Local Agency /CDOT Inter - Govemmental Agreement (see also Chapter 3) X 5.3 onduct Consultant Selection /Execute Consultant Agreement X 5.4 onduct Design Scoping Review Meeting X 5.5 onduct Public Involvement X 5.6 onduct Field Inspection Review (FIR) X 5,7 Conduct Environmental Processes (may require FHWAconcurrence/iinvolvement) X 5.8 Acquire Right - - Way (may require FI concurrence/involvement) X 5.9 Obtain Utility and Railroad Agreements X 5.10 Conduct Final Office Review (FOR) X 5.11 Justify Force Account Work by the Local Agency X 5.12 Justify Proprietary, Sole Source, or Local Agency Furnished Items X 5.13 Document Design Exceptions - CDOT Form 464 X 5.14 Prepare Plans, Specifications and Construction Cost Estimates X 5.15 Ensure Authorization of Funds for Construction X CDOT Form 1243 09/06 Pagel of 4 Previous editions are obsolete and may not be used RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6.1 Set Underutilized Disadvantaged Business Enterprise (UBDE) Goals for Consultant arid X Construction Contracts (CDOT Region EEO /Civil Rights Specialist) 6.2 Determine Applicability of Davis -Bacon Act X This project ❑ is ® is not exempt from Davis -Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt.) Peter Lombardi 12/14/11 CDOT Resident Engineer (Signature on File) Date 6.3 Set On- the -Job Training Goals. Goal is zero if total construction is less than $1 million (CDOT X Region EEO /Civil Rights Specialist) 6.4 Title VI Assurances X , ikV4 Ensure the correct Federal Wage Decision, all required Disadvantaged Business Enterprise /On- the -Job Training special provisions and FHWA Form 1273 are included in the 5 114 Mr= Contract (CDOT Resident Engineer) X ADVERTISE, BID AND AWARD 7.1 Obtain Approval for Advertisement Period of Less Than Three Weeks X 7.2 Advertise for Bids X 7.3 Distribute "Advertisement Set" of Plans and Specifications X 7.4 Review Worksite and Plan Details with Prospective Bidders While Project Is Under X Advertisement 7.5 Open Bids X 7.6 Process Bids for Compliance Mviµ r r _ "taw ^ Check CDOT Form 715 - Certificate of Proposed Underutilized DBE Participation when the ..„ low bidder meets UDBE goals x Wel Evaluate CDOT Form 718 - Underutilized DBE Good Faith Effort Documentation and l b, determine if the Contractor has made a good faith effort when the low bidder does not meet X .,,-,l, DBE foals :'7;4r Submit required documentation for CDOT award concurrence X 7.7 Concurrence from CDOT to Award X 7.8 Approve Rejection of Low Bidder x 7.9 Award Contract X — 7.10 Provide "Award" and "Record" Sets of Plans and Specifications X CONSTRUCTION MANAGEMENT 8.1 Issue Notice to Proceed to the Contractor X 8.2 Project Safety X 8.3 Conduct Conferences: Pre Construction Conference (Appendix B) X W Pre - survey • Construction staking X .._." N X ,r te; • Monumentation k Partnering (Optional) s' Structural Concrete Pre -Pour (Agenda is in CDOT Construction Manual) X Concrete Pavement Pre - Payin ( Agenda is in CDOT Construction Manual) X _" . HMA Pre - Paving (Agenda is in CDOT Construction Manual) X 8.4 Develop and distribute Public Notice of Planned Construction to media and local residents X 8.5 Supervise Construction I A Professional Engineer (PE) registered in Colorado, who will be in responsible charge of • = � 3: $ construction supervision." , °ice. . ' 0:Ai, Ben Gerdes , PE ::;:, ° = i. 970 - 328 3560 xj_4.: Local Agency Professional Engineer or Phone number X =:':ti, CDOT Resident Engineer CDOT Form 1243 09106 Page2 of 4 Previous editions are obsolete and may not be used RESPONSIBLE NO. )ESCRIPTION OF TASK PARTY LA CDOT ›rovide competent, experienced staff who will ensure the Contract work is constructed in ,ccordance with the plans and specifications X Construction inspection and documentation X 8.6 'approve Shop Drawings X 8.7 'erform Traffic Control Inspections X 8.8 erform Construction Surveying X 8.9 Monument Right -of -Way X 8.10 Prepare and Approve Interim and Final Contractor Pay Estimates X Provide the name and phone number of the person authorized for this task. TBD TBD _ t .ocal Agency Representative Phone number 8.11 Prepare and Approve Interim and Final Utility and Railroad Billings X 8.12 Prepare Local Agency Reimbursement Requests X 8.13 . 'repare and Authorize Change Orders X 8.14 approve All Change Orders X 8.15 Jlonitor Project Financial Status X • 8.16 'repare and Submit Monthly Progress Reports X 8.17 Resolve Contractor Claims and Disputes X 8.18 Conduct Routine and Random Project Reviews rovide the name and phone number of the person responsible for this task. X Peter ombardi 970- 328 -9962 CDOT Resident Engineer Phone number MATERIALS 9.1 Conduct Materials Pre - Construction Meeting X 9.2 Complete CDOT Form 250 - Materials Documentation Record • Generate form, which includes determining the minimum number of required tests and X applicable material submittals for all materials placed on the project Update the form as work progresses X • Complete and distribute form after work is completed X 9.3 erform Project Acceptance Samples and Tests X 9.4 Perform Laboratory Verification Tests X 9.5 Accept Manufactured Products X Inspection of structural components: • Fabrication of structural steel and pre - stressed concrete structural components • X Bridge modular expansion devices (0" to 6" or greater) X Fabrication of bearing devices X 9.6 pprove Sources of Materials X 9.7 ndependent Assurance Testing (IAT), Local Agency Procedures ❑ CDOT Procedures EI t Generate IAT schedule X Schedule and provide notification X • Conduct IAT X 9.8 .approve mix designs Concrete X • Hot mix asphalt X 9.9 heck Final Materials Documentation X r 9.10 complete and Distribute Final Materials Documentation 1 X CDOT Form 1243 09106 Page3 of 4 Previous editions are obsolete and may not be used CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10.1 Fulfill Project Bulletin Board and Pre - Construction Packet Requirements X 10.2 Process CDOT Form 205 - Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to X X EEO /Civil Rights Specialist 10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee X Interviews. Complete CDOT Form 280 10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the X "Commercially Useful Function" Requirements 10.5 Conduct Interviews When Project Utilizes On- the -Job Trainees. Complete CDOT Form 200 - X OJT Training Questionnaire 10.6 Check Certified Payrolls (Contact the Region EEO /Civil Rights Specialists for training requirements.) X 10.7 _ Submit FHWA Form 1391 - Highway Construction Contractor's Annual EEO Report X FINALS 11.1 Conduct Final Project Inspection. Complete and submit CDOT Form 1212 - Final X Acceptance Report (Resident Engineer with mandatory Local Agency participation.) 11.2 Write Final Project Acceptance Letter X 11.3 Advertise for Final Settlement X 11.4 Prepare and Distribute Final As- Constructed Plans X 11.5 Prepare EEO Certification X 11.6 Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit X Final Certifications 11.7 Check Material Documentation and Accept Final Material Certification (See Chapter 9) X 11.8 Obtain CDOT Form 17 from the Contractor and Submit to the Resident Engineer X 11.9 Obtain FHWA Form 47 - Statement of Materials and Labor Used ... from the Contractor NIA 11.10 Complete and Submit CDOT Form 1212 — Final Acceptance Report (by CDOT) X 11.11 Process Final Payment X 11.12 Complete and Submit CDOT Form 950 - Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X 11.14 Retain Final Version of Local Agency Contract Administration Checklist X cc: CDOT Resident Engineer /Project Manager CDOT Region Program Engineer CDOT Region EEO /Civil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager CDOT Form 1243 09/06 Page4 of 4 Previous editions are obsolete and may not be used 33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, ban, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not Tess than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub- recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 Page 1 of 1 4 i 34. EXHIBIT G — DISADVANTAGED BUSINESS ENTERPRISE SECTION 1. Policy. It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterprises shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23. Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement. SECTION 2. DBE Obligation. The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of CDOT assisted contracts. SECTION 3 DBE Program. The Local Agency (sub - recipient) shall be responsible for obtaining the Disadvantaged Business Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall comply with the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the Local Agency upon request: Business Programs Office Colorado Department of Transportation 4201 East Arkansas Avenue, Room 287 Denver, Colorado 80222 -3400 Phone: (303) 757 -9234 revised 1/22/98 Required by 49 CFR Part 23.41 Page 1 of 1 mew vansuossmasu *1%. 35. EXHIBIT H — LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 172.1 states "The policies and procedures involve federally funded contracts for engineering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23 CFR 172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services ". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24 -30 -1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short -hand guide to CDOT procedures that a local agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting local agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24 -30 -1403_ Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24 -30 -1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The request for consultant services should include the scope of work, the evaluation factors and their relative importance, the method of payment, and the goal of 10% for Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5. The analysis and selection of the consultants shall be done in accordance with CRS §24 -30- 1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre - qualified prime consultants and their team. It also shows which criteria are used to short - list and to make a final selection. The short -list is based on the following evaluation factors: a. Qualifications, b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Page 1 of 2 a Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, c. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre- negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. 8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kept at least three years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three years after the case has been settled. CRS § §24 -30 -1401 through 24-30 -1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the preceeding eight (8) steps. Page 2 of 2 assomeasi ,.:". sVotkevM ..3i`t: ,,J tes; : ".,. ,fi: ".,,,, " . ..-1e.S; P.'c r.,r,": aFCC'rn s{s« , ::..S ,... .f.,. .'SK..Y01 . - . r», ..,,,'m.9.�+.;,,, _,,, '.'.YC .,z, St j: S 36. EXHIBIT i - FEDERAL -AID CONTRACT PROVISIONS FHWA -1273 Electronic version •- March 10, 1994 FHWA Form 1273 REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS I. Gene al 1 (Applicable to all Federal - aid construction contracts and to all related II. Nondi crimination 1 subcontracts of $10,000 or more.) • III. Non - segregated Facilities . 3 IV.Paym ant of Predetermined Minimum Wage 3 1. Equal Employment Opportunity: Equal employment opportunity; V.Statenents and Payrolls • 6 (EEO) requirements not to discriminate and to take affirmative action to ir VI.Record of Materials, Supplies, and Labor 6 assure equal opportunity as set forth under laws, executive orders, VII. Subletting or Assigning the Contract 7 rules, regulations (28 CFR 35, 29. CFR 1630 and 41 CFR 60) and orders • VIII. Safety: Accident Prevention 7 of the Secretary of Labor as modified by the provisions prescribed IX. False Statements Concerning Hlghway Projects 7 herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO X.Imple,nentation of Clean Air Act and Federal and specific affirmative action standards for the contractor's project • Water Pollution Control Act 8 activities under this Agreement The Equal Opportunity Construction XI.Certithation Regarding Debarment, Suspension, Contract Specifications set forth under 41 CFR 60-4.3 and the Ineligibility, and Voluntary Exclusion 8 provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et X11. Certification Regarding Use of Contract Funds for seq.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by Lobbying 9 reference in this Agreement. In the execution of this Agreement, the contractor agrees to comply with the following minimum specific ATTACHMENTS requirement activities of EEO: A.Employment Preference for Appalachian Contracts a. The contractor will work with the State highway agency (SHA) (incfu ed in Appalachian contracts only) and the Federal Government in carrying out EEO obligations and in their review of his/her activities under the contract. I. GENE L . b. The contractor will accept as his operating policy the following 1. These contract provisions shall apply to all work performed on the statement: contract by the contractor's own organization and with the assistance of workers ender the contractor's immediate superintendence and to all "It is the policy of this Company to assure that applicants are work peformed on the contract by piecework, station work, or by employed, and that employees are treated during employment, subcontrt ct. without regard to their race, religion, sex, color, national origin, age _ or disability. Such action shall include: employment, upgrading, 2. Except as otherwise provided for in each section, the contractor demotion, or transfer; recruitment or recruitment advertising; layoff shall insert in each subcontract all of the stipulations contained in these or termination; rates of pay or other forms of compensation; and Required Contract Provisions, and further require their inclusion In any selection for training, including apprenticeship, pre - apprenticeship, lower tier subcontract or purchase order that may in turn be made. The and/or on -the -job training." Required Contract Provisions shall not be incorporated by reference in any case The prime contractor shall be responsible for compliance by 2. EEO Officer: The contractor will designate and make known to the any subcontractor or lower tier subcontractor with these Required SHA contracting officers an EEO Officer who will have the responsibility Contract rovisions. for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate 3. A each of any of the stipulations contained in these Required authority and responsibility to do so. Contract rovisions shall be sufficient grounds for termination of the contract. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge 4. A reach of the following clauses of the Required Contract employees, or who recommend such action, or who are substantially Provision may also be grounds for debarment as provided in 29 CFR involved in such action, will be made fully cognizant of, and will 5.12: implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment To ction I, paragraph 2; ensure that the above agreement will be met, the following actions will ction IV, paragraphs 1, 2, 3, 4, and 7; be taken as a minimum: ction V, paragraphs 1 and 2a through 2g. a. Periodic meetings of supervisory and personnel office 5. Dis utes arising out of the labor standards provisions of Section IV employees will be conducted before the start of work and then not less (except aragraph 5) and Section V of these Required Contract often than once every six months, at which time the contractor's EEO Provision shall not be subject to the general disputes clause of this policy and its implementation will be reviewed and explained. The Agreeme t. Such disputes shall be resolved in accordance with the meetings will be conducted by the EEO Officer. procedures of the U.S, Department of Labor (DOL) as set forth In 29 CFR 5, 6, and 7. Disputes within the meaning of this clause include b. All new supervisory or personnel office employees will be disputes between the contractor (or any of its subcontractors) and the given a thorough Indoctrination by the EEO Officer, covering all major contracting agency, the DOL, or the contractor's employees or their aspects of the contractor's EEO obligations within thirty days following representatives. their reporting for duty with the contractor. x 6. Selection of Labor During the performance of this Agreement, c. All personnel who are engaged in direct recruitment for the the contractor shall not: project will be instructed by the EEO Officer in the contractor's ii procedures for locating and hiring minority group employees. f a. discriminate against labor from any other State, possession, or territory of the United States (except for employment preference for d. Notices and posters setting forth the contractor's EEO policy Appalachian contracts, when applicable, as specified in Attachment A), will be placed in areas readily accessible to employees, applicants for or employment and potential employees. • b employ convict labor for any purpose within the limits of the e. The contractor's EEO policy and the procedures to implement ii project unless fl is labor performed by convicts who are on parole, such policy will be brought to the attention of employees by means of r supervised release, or probation. meetings, employee handbooks, or other appropriate means. ' i" 11. NONDISCRIMINATION 4. Recruitment: When advertising for employees, the contractor will it include In all advertisements for employees the notation: "An Equal Page 1 of 8 R EQUIRED BY 23 CFR 633.102 -- L A ; AZSBUTEE PM-t ;�'a 'itz .W.re i "G4 '?,t, fi W'1f.3�id'troat 4 _ . '. 1 7 4._ " K:': � K:: i C:... r T o, . 5 .'' d". i au�Sa. tii' 9[ X M1'«4'?\= fT7:'<.✓'d?12'e'F.Y a'+'."Y..hL" _.._ }.:",�: Yro'".e�?. ._':.d': - S^X. "x'✓:,.� »a, J?: ..,...: j. ::: ...t. .:7: 3• ,.. Opportunity Employer." All such advertisements will be placed in either directly or through a contractor's association acting as agent will publications having a large circulation among minority groups in the area include the procedures set forth below: from which the project work force would normally be derived. a. The contractor will use best efforts to develop, in cooperation a. The contractor will, unless precluded by a valid bargaining with the unions, Joint training programs aimed toward qualifying more 1 agreement, conduct systematic and direct recruitment through public minority group members and women for membership in the unions and and private employee referral sources likely to yield qualified minority increasing the skills of minority group employees and women so that group applicants. To meet this requirement, the contractor will identify they may qualify for higher paying employment. sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be b. The contractor will use best efforts to incorporate an EEO referred to the contractor for employment consideration. clause Into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, b. In the event the contractor has a valid bargaining agreement religion, sex, national origin, age or disability. providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the c. The contractor is to obtain information as to the referral contractor's compliance with EEO contract provisions. (The IDOL has practices and policies of the labor union except that to the extent such held that where implementations of such agreements have the effect of information is within the exclusive possession of the labor union and discriminating against minorities or women, or obligates the contractor to such labor union refuses to furnish such information to the contractor, do the same, such implementation violates Executive Order 11246, as • the contractor shall so certify to the SHA and shall set forth what efforts amended.) have been made to obtain such information, i. • c. The contractor will encourage his present employees to refer d. in the event the union is unable to provide the contractor with a minority group applicants for employment Information and procedures reasonable flow of minority and women referrals within the time limit set with regard to referring minority group applicants will be discussed with forth in the collective bargaining agreement, the contractor will, through employees. independent recruitment efforts, fill the employment vacancies without 3 regard to race, color, religion, sex, national origin, age or disability; 5. Personnel Actions: Wages, working conditions, and employee making full efforts to obtain qualified and /or qualifiable minority group benefits shall be established and administered, and personnel actions of persons and women. (The DOL has held that it shall be no excuse that every type, including hiring, upgrading, promotion, transfer, demotion, the union with which the contractor has a collective bargaining layoff, and termination, shall be taken without regard to race, color, agreement providing for exclusive referral failed to refer minority religion, sex, national origin, age or disability. The following procedures employees.) In the event the union referral practice prevents the shall be followed: contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall a. The contractor will conduct periodic inspections of project sites immediately notify the SHA. to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. • 8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the b. The contractor will periodically evaluate the spread of wages grounds of race, color, religion, sex, national origin, age or disability In paid within each classification to determine any evidence of the selection and retention of subcontractors, including procurement of discriminatory wage practices. materials and leases of equipment c. The contractor will periodically review selected personnel a. The contractor shall notify all potential subcontractors and actions in depth to determine whether there is evidence of discrimi- suppliers of his/her EEO obligations under this Agreement. nation. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may b. Disadvantaged business enterprises (DBE), as defined in 49 extend beyond the actions reviewed, such corrective action shall include CFR 23, shall have equal opportunity to compete for and perform all affected persons. subcontracts which the contractor enters Into pursuant to this Agreement. The contractor will use his best efforts to solicit bids from d. The contractor will promptly investigate all complaints of alleged and to utilize DBE subcontractors or subcontractors with meaningful discrimination made to the contractor in connection with his obligations minority group and female representation among their employees. under this Agreement, will attempt to resolve such complaints, and will Contractors shall obtain lists of DBE construction firms from SHA take appropriate corrective action within a. reasonable time. If the personnel. investigation Indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other c. The contractor will use his best efforts to ensure subcontractor persons. Upon completion of each investigation, the contractor will compliance with their EEO obligations. inform every complainant of all of his avenues of appeal. 9. Records and Reports: The contractor shall keep such records as 8. Training and Promotion: necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion a. The contractor will assist In locating, qualifying, and increasing of the contract work and shall be available at reasonable times and the skills of minority group and women employees, and applicants for places for inspection by authorized representatives of the SHA and the employment FHWA. b. Consistent with the contractor's work force requirements and a. The records kept by the contractor shall document the (1) The number of minority and non -minority group members as permissible under Federal and Stale regulations, the contractor shall following: make full use of training programs, i.e., apprenticeship, and on- the-job training programs for the geographical area of contract performance. rs ir- Where feasible, 25 percent of apprentices or trainees in each occupation and women employed in each work classification on the project shall be in their first year of apprenticeship or training. in the event a special provision for training is provided under this Agreement, this (2) The progress and efforts being made in cooperation with subparagraph will be superseded as indicated in the special provision. unions, when applicable, to increase employment opportunities for minorities and women; c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements (3) The progress and efforts being made In locating, hiring, for each. training, qualifying, and upgrading minority and female employees; and d. The contractor will periodically review the training and (4) The progress and efforts being made In securing the promotion potential of minority group and women employees and will services of DBE subcontractors or subcontractors with meaningful encourage eligible employees to apply for such training and promotion. minority and female representation among their employees. 7. Unions: If the contractor relies in whole or in part upon unions as a b. The contractors will submit an annual report to the SHA each it source of employees, the contractor will use his/her best efforts to obtain July for the duration of the project, indicating the number of minority, the cooperation of such unions to increase opportunities for minority women, and non - minority group employees currently engaged in each groups and women within the unions, and to effect referrals by such work classification required by the contract work. This information is to unions of minority and female employees. Actions by the contractor Ifse Page 2 of 8 REQUIRED BY 23 CFR 633.102 -- y a . +dam° be reported on Form FHWA -1391. If on -the job training is being required c. All rulings and interpretations of the Davis -Bacon Act and by special provision, the contractor will be required to collect and report related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by training deta. reference in this Agreement. III, NONSEGREGATED FACILITIES 2. Classification: ( Applicable to all Federal -aid construction contracts and to all related a. The SHA contracting officer shall require that any class of subcontr. cts of $10,000 or more.) laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the a. :y submission of this bid, the execution of this Agreement or wage determination. subcontr ct, or the consummation of this material supply agreement or purchas - order, as appropriate, the bidder, Federal -aid construction b. The contracting officer 'shall approve an additional contrac • , subcontractor, material supplier, or vendor, as appropriate, classification, wage rate and fringe benefits only when the following G certifies r at the firm does not maintain or provide for its employees any criteria have been met x segregat d facilities at any of its establishments, and that the firm does notperm Its employees to perform their services at any location, under (1) the work to be performed by the additional classification its contr. , where segregated facilities are maintained. The firm agrees requested is not performed by a classification in the wage determination; that a br -ch of this certification is a violation of the EEO provisions of iii this Agre ment. The firm further certifies that no employee will be denied (2) the additional classification is utilized in the area by the a access t• adequate facilities on the basis of sex or disability. construction industry; b. As used in this certification, the term "segregated facilities" (3) the proposed wage rate, including any bona fide fringe f means y waiting rooms, work areas, restrooms and washrooms, benefits, bears a reasonable relationship to the wage rates contained in restaura s and other eating areas, timeclocks, locker rooms, and other the wage determination; and storage . dressing areas, parking lots, drinking fountains, recreation or entertain ant areas, transportation, and housing facilities provided for (4) with respect to helpers, when such a classification employe. which are segregated by explicit directive, or are, in fact, prevails in the area in which the work is performed. segregat d on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only c. If the contractor or subcontractors, as appropriate, the laborers exceptio will be for the disabled When the demands for accessibility and mechanics (if known) to be employed in the additional classification override .g. disabled parking). or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe c. Th. contractor agrees that It has obtained or will obtain identical benefits where appropriate), a report of the action taken shall be sent by certificati n from proposed subcontractors or material suppliers prior to the contracting officer to the DOL, Administrator of the Wage and Hour award of - ubcontracts or consummation of material supply agreements Division, Employment Standards Administration, Washington, D.C. of $10,0.1 or more and that It will retain such certifications in Its files. 20210. The Wage and Hour Administrator, or an authorized representa- tive, will approve, modify, or disapprove every additional classification IV. PAYMENT OF PREDETERMINED MINIMUM WAGE action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional (Applicable to all Federal -aid construction contracts exceeding time is necessary. $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are d. In the event the contractor or subcontractors, as appropriate, exempt.) the laborers or mechanics to be employed in the additional classification ' or their representatives, and the contracting officer do not agree on the 1. Ge ral: proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer a. Il mechanics and laborers employed or working upon the site the questions, including the views of all Interested parties and the ii of the k will be paid unconditionally and not less often than once a recommendation of the contracting officer, to the Wage and Flour week an without subsequent deduction or rebate on any account Administrator for determination. Said Administrator, or an authorized [except such payroll deductions as are permitted by regulations (29 CFR representative, will issue a determination within 30 days of receipt and 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. so advise the contracting officer or will notify the contracting officer 2760)) the full amounts of wages and bona fide fringe benefits (or cash within the 30-day period that additional time is necessary equivale s thereof) due at time of payment. The payment shall be compute at wage rates not less than those contained in the wage e. The wage rate (including fringe benefits where appropriate) determin tion of the Secretary of Labor (hereinafter "the wage determi- determined pursuant to paragraph 2c or 2d of this Section IV shall be nation ") ich is attached hereto and made a part hereof, regardless of paid to all workers performing work in the additional classification from any con ctual relatlonship which may be alleged to exist between the the first day on which work Is performed in the classification. contract or its subcontractors and such laborers and mechanics. The wage de rmination (including any additional classifications and wage 3. Payment of Fringe Benefits: rates conformed under paragraph 2 of this Section IV and the DOL poster (WH -1321) or Form FHWA -1495) shall be posted at all times by a. Whenever the minimum wage rate prescribed in the contract the contractor and its subcontractors at the site of the work in a for a class of laborers or mechanics includes a fringe benefit which is not prominent and accessible place where it can be easily seen by the expressed as an hourly rate, the contractor or subcontractors, as workers. For the purpose of this Section, contributions made or costs appropriate, shall either pay the benefit as stated in the wage reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) determination or shall pay another bona fide fringe benefit or an hourly of the vis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or case equivalent thereof. mechanic are considered wages paid to such laborers or mechanics, subject t the provisions of Section IV, paragraph 3b, hereof. Also, for b. If the contractor or subcontractor, as appropriate, does not the purpose of this Section, regular contributions made or costs Incurred make payments to a trustee or other third person, he/she may consider for more than a weekly period (but not less often than quarterly) under as a part of the wages of any laborer or mechanic the amount of any plans, funds, or programs, which cover the particular weekly period, are costs reasonably anticipated in providing bona fide fringe benefits under deemed to be constructively made or incurred during such weekly a plan or program, provided, that the Secretary of Labor has found, upon period. Such laborers and mechanics shall be paid the appropriate wage the written request of the contractor, that the applicable standards of the ji rate and fringe benefits on the wage determination for the classification Davis -Bacon Act have been met. The Secretary of Labor may require of work actually performed, without regard to skill, except as provided in the contractor to set aside in a separate account assets for the meeting paragraphs 4 and 5 of this Section IV. of obligations under the plan or program. b. Laborers or mechanics performing work in more than one . 4. Apprentices and Trainees (Programs of the U.S. DOL) and classification may be compensated at the rate specified for each Helpers: classificat on for the time actually worked therein, provided, that the employer; payroll records accurately set forth the time spent in each a. Apprentices: dassifrcat on in which work is performed. (1) Apprentices will be permitted to work at less than the I P predetermined rate for the work they performed when they are employed _ A Page 3 of 8 REQUIRED BY 23 CFR 633.102 -- ~ o"., .w +4s..1tt. il:.G -:.�, .., . r; �. _fo4_"^ n ..S 3C vu:.5°i .i..w%'st T:.^. " ��.45 KwY:c+• F»a.. , d:': .V... -v fifi�sY+M iztiE i' K. -r r' �- '3.tti5 £rY•£ . .s.a.,cs. - .wv, ,. ,...a:.rw , , v ..:w::atvvtia.&x".3 i^ #'e'` 4, - 4 _ y ti s pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training c. Helpers: ^' Administration, Bureau of Apprenticeship and Training, or with a State is apprenticeship agency recognized by the Bureau, or if a person is ' Helpers will be permitted to work on a project if the helper employed in his/her first 90 days of probationary employment as an classification is specified and defined on the applicable wage determine- - apprentice in such an apprenticeship program, who is not individually tion or is approved pursuant to the conformance procedure set forth in , registered in the program, but who has been certified by the Bureau of Section iV.2_ Any worker listed on a payroll at a helper wage rate, who is Apprenticeship and Training or a State apprenticeship agency (where not a helper under a approved definition, shall be paid not less than the appropriate) to be eligible for probationary employment as an applicable wage rate on the wage determination for the classification of apprentice. work actually performed. (2) The allowable ratio of apprentices to Joumeyman -level 5. Apprentices and Trainees (Programs of the U.S. DOT): employees on the Job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force Apprentices and trainees working under apprenticeship and skill under the registered program. Any employee fisted on a payroll at an training programs which have been certified by the Secretary of apprentice wage rate, who is not registered or otherwise employed as Transportation as promoting EEO in connection with Federal -aid stated above, shall be paid not less than the applicable wage rate listed highway construction programs are not subject to the requirements of in the wage determination for the classification of work actually paragraph 4 of this Section IV, The straight time hourly wage rates for performed. In addition, any apprentice performing work on the job site in apprentices and trainees under such programs will be established by the excess of the ratio permitted under the registered program shall be paid particular programs. The ratio of apprentices and trainees to Journeymen not less than the applicable wage rate on the wage determination for the shall not be greater than permitted by the terms of the particular work actually performed. Where a contractor or subcontractor is program. performing construction on a protect in a locality other than that in which its program is registered, the ratios and wage rates (expressed in 6. Withholding: percentages of the journeyman -level hourly rate) specified in the contractors or subcontractor's registered program shall be observed. The SHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, (3) Every apprentice must be pald at not less than the rate from the contractor or subcontractor under this Agreement or any other specified In the registered program for the apprentice's revel of progress, Federal contract with the same prime contractor, or any other Federally - expressed as a percentage of the joumeyman -level hourly rate specified assisted contract subject to Davis -Bacon prevailing wage requirements in the applicable wage determination. Apprentices shall be paid fringe which is held by the same prime contractor, as much of the accrued benefits In accordance with the provisions of the apprenticeship payments or advances as may be considered necessary to pay laborers program. If the apprenticeship program does not specify fringe benefits, and mechanics, including apprentices, trainees, and helpers, employed apprentices must be paid the full amount of fringe benefits fisted on the by the contractor or any subcontractor the full amount of wages required wage determination for the applicable classification. If the Administrator by the contract. In the event of failure to pay any laborer or mechanic, • for the Wage and Hour Division determines that a different practice including any apprentice, trainee, or helper, employed or working on the prevails for the applicable apprentice cfasslficatioon, fringes shall be paid site of the work, all or part of the wages required by the contract, the In accordance with that determination. SHA contracting officer may, after written notice to the contractor, take ,. such action as may be necessary to cause the suspension of any further h (4) In the event the Bureau of Apprenticeship and Training, payment, advance, or guarantee of funds until such violations have r or a State apprenticeship agency recognized by the Bureau, withdraws ceased. z approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the 7. Overtime Requirements: applicable predetermined rate for the comparable work performed by • regular employees until an acceptable program is approved. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, b. Trainees: mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit (1) Except as provided in 29 CFR 5.16, trainees will not be any laborer, mechanic, watchman, or guard in any workweek in which permitted to work at less than the predetermined rate for the work he/she Is employed on such work, to work in exoess of 40 hours in such performed unless they are employed pursuant to and individually workweek unless such laborer, mechanic, watchman, or guard receives registered in a program which has received prior approval, evidenced by compensation at a rate not less than one - and - one -half times his/her formal certification by the DOL, Employment and Training basic rate of pay for all hours worked In excess of 40 hours in such Administration. workweek. (2) The ratio of trainees to Journeyman -level employees on 8. Violation: the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on Liability for Unpaid Wages; Liquidated Damages: In the event of any • the payroll at a trainee rate who Is not registered and participating in a violation of the clause set forth in paragraph 7 above, the contractor and training plan approved by the Employment and Training Administration any subcontractor responsible thereof shall be liable to the affected shall be paid not less than the applicable wage rate on the wage employee for his/her unpaid wages. In addition, such contractor and determination for the classification of work actually performed. In subcontractor shall be liable to the United States (in the case of work addition, any trainee performing work on the Job site in excess of the done under contract for the District of Columbia or a territory, to such ratio permitted under the registered program shall be paid not less than District or to such territory) for liquidated damages. Such liquidated the applicable wage rate on the wage determination for the work actually damages shall be computed with respect to each individual Iaborer, performed. mechanic, watchman, or guard employed in violation of the clause set forth In paragraph 7, In the sum of $10 for each calendar day on which (3) Every trainee must be paid at not less than the rate such employee was required or permitted to work in excess of the specified in the approved program for his/her level of progress, standard work week of 40 hours without paymentof the overtime wages expressed as a percentage of the journeyman -level hourly rate specified required by the clause set forth in paragraph 7. in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the 9. Withholding for Unpaid Wages and Liquidated Damages: trainee program does not mention fringe benefits, trainees shall be pald the full amount of fringe benefits listed on the wage determination unless The SHA shall upon its own action or upon written request of any the Administrator of the Wage and Hour Division determines that there is authorized representative of the DOL withhold, or cause to be withheld, an apprenticeship program associated with the corresponding from any monies payable on account of work performed by the journeyman -level wage rate on the wage determination which provides contractor or subcontractor under any such contract or any other for Tess than full fringe benefits for apprentices, in which case such Federal contract with the same prime contractor, or any other Federally- trainees shall receive the same fringe benefits as apprentices. ' assisted contract subject to the Contract Work Hours and Safety it Standards Act, which Is held by the same prime contractor, such sums (4) in the event the Employment and Training Administration as may be determined to be necessary to satisfy any liabilities of such withdraws approval of a training program, the contractor or contractor or subcontractor for unpaid wages and liquidated damages as subcontractor will no longer be permitted to utilize trainees at less than provided in the clause set forth in paragraph 8 above. the applicable predetermined rate for the work performed until an acceptable program is approved. z Page 4 of 8 633 102 -- REQU IRED BY 23 CFR { ...✓ay.w. .rs„r.�. :r :. '�;i;zmy^ ... <, .....«.�.9 b.._ icvc.. s.... z.....b:�di:+iiia>a�a3;+4.�."'- -'ire .V_ s, •..: .'ir:✓•Y.:tr.ZU '.�.` .:dk e.NiLttiywa, r rz r.....? ... _ ... -11-r ..."V ra,.,✓. 1S .: r ., .:.:;& rrs . , .,..: >s4,. earial' z�a:Y.A.0 �z. ,. ...., r,.4,2m, „1,, r 3 :'� _m- ::;y, s�.<,,, n.... : air fa. , t. i V. STATEMENTS AND PAYROLLS f. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and (Applicable to all Federal -aid construction contracts exceeding $2,000 31 U.S.C. 231. and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspection, 1. Co pllance with Copeland Regulations (29 CFR 3): • copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, and shall permit such representatives to interview The ntractor shall comply with the Copeland Regulations of the employees during working hours on the job. If the contractor or Secrets of Labor which are herein incorporated by reference, subcontractor fails to submit the required records or to make them _ available, the SHA, the FHWA, the DOL, or all may, after written notice 2. Pa oils and Payroll Records: to the contractor, sponsor, applicant, or owner, take such actions as may ri, be necessary to cause the suspension of any further payment, advance, a. Payrolls and basic records relating thereto shall be or guarantee of funds. Furthermore, failure to submit the required maintain by the contractor and each subcontractor during the course records upon request or to make such records available may be grounds of the work and preserved for a period of 3 years from the date of for debarment action pursuant to 29 CFR 5.12. completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR b. The payroll records shall contain the name, social security 1. On all Federal -aid contracts on the National Highway System, number, and address of each such employee; his or her correct except those which provide solely for the installation of protective classific 'on; hourly rates of wages paid (including rates of contributions devices at railroad grade crossings, those which are constructed on a or costs anticipated for bona fide fringe benefits or cash equivalent force account or direct labor basis, highway beautification contracts, and thereof e types described in Section 1(b)(2)(B) of the Davis Bacon contracts for which the total final construction cost for roadway and Act); dal and weekly number of hours worked; deductions made; and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: actual w ges paid. In addition, for Appalachian contracts, the payroll records hall contain a notation indicating whether the employee does, a. Become familiar with the list of spedfic materials and or does ot, normally reside in the labor area as defined in Attachment supplies contained in Form FHWA -47, "Statement of Materials and A, parag ph 1. Whenever the Secretary of Labor, pursuant to Section Labor Used by Contractor of Highway Construction Involving Federal IV, para aph 3b, has found that the wages of any laborerr or mechanic Funds," prior to the commencement of work under this Agreement include e amount of any costs reasonably anticipated in providing benefits nder a plan or program described in Section 1(b)(2)(B) of the b. Maintain a record of the total cost of all materials and Davis B on Act, the contractor and each subcontractor shall maintain supplies purchased for and incorporated In the work, and also of the records ich show that the commitment to provide such benefits is quantities of those specific materials and supplies listed on Form FHWA - enforcea le, that the plan or program is financially responsible, that the 47, and in the units shown on Form FHWA -47. plan or rogram has been communicated in writing to the laborers or mechani affected, and show the cost anticipated or the actual cost c. Furnish, upon the completion of the contract, to the SHA incurred n providing benefits. Contractors or subcontractors employing resident engineer on Form FHWA -47 together with the data required in apprentices or trainees under approved programs shall maintain written paragraph 1 b relative to materials and supplies, a final labor summary of evidence of the registration of apprentices and trainees, and ratios and all contract work indicating the total hours worked and the total amount wage rates prescribed In the applicable programs. earned. • c. Each contractor and subcontractor shall furnish, each week in 2. At the prime contractor's option, either a single report covering all which a contract work is performed, to the SHA resident engineer a contract work or separate reports for the contractor and for each payroll wages paid each of Its employees (including apprentices, subcontract shall be submitted. trainees, and helpers, described in Section IV, paragraphs 4 and 5, and watchm and guards engaged on work during the preceding weekly VII. SUBLETTING OR ASSIGNING THE CONTRACT payroll eriod). The payroll submitted shall set out accurately and complet all of the information required to be maintained under 1. The contractor shall perform with its own organization contract paragra 2b of this Section V. This information may be submitted in work amounting to not less than 30 percent (or a greater percentage 11 any for desired. Optional Form WH -347 is available for this purpose specified elsewhere In the contract) of the total original contract price, and may be purchased from the Superintendent of Documents (Federal excluding any specialty items designated by the State. Specialty items stock n tuber 029 -005- 0014 -1), U.S. Government Printing Office, may be performed by subcontract and the amount of any such specialty Washing n, D.C. 20402, The prime contractor Is responsible for the items performed may be deducted from the total original contract price submissi n of copies of payrolls by all subcontractors. before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). d. Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his/her a. "Its own organization" shall be construed to include only agent who pays or supervises the payment of the persons employed workers employed and paid directly by the prime contractor and under the contract and shall certify the following: equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a (1) that the payroll for the payroll period contains the subcontractor, assignee, or agent of the prime contractor. information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not (2) that such laborer or mechanic (including each helper, ordinarily available in the type of contracting organizations qualified and apprentice, and trainee) employed on the contract during the payroll expected to bid on the contract as a whole and in general are to be period has been paid the full weekly wages earned, without rebate, limited to minor components of the overall contract. either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages eamed, other than 2. The contract amount upon which the requirements set forth in permissible deductions as set forth in the Regulations, 29 CFR 3; paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the (3) that each laborer or mechanic has been paid not less that contractor under the contract provisions. the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage 3. The contractor shall furnish (a) a competent superintendent or determination incorporated into the contract. supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who e. The weekly submission of a properly executed certification set performs the work) and (b) such other of its own organizational forth on the reverse side of Optional Form WH -347 shall satisfy the resources (supervision, management, and engineering services) as the requirement for submission of the "Statement of Compliance" required SHA contracting officer determines is necessary to assure the by paragraph 2d of thls Section V. performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise Page 5 of 8 REQUIRED BY 23 CFR 633.102 -- -s_ .r, ,..�;,: :.::::: °' z 'vr :? +aa z<-iz,,-- .- mv.v -=s a,, ,t.,q,4...sz , -. ,- :,,.s. :. _ _,- .,.-.• y''..4.,,,,1 . ,..n...:= ra.•_-3.. ,,,,, _,,, ',.. 'v.,, 'far- ads "' P M =3' : .S3�a °' a:,,.:cr_T -,4. :.:� ri Laax ..::z ->.. ii y disposed of except with the wrttten consent of the SHA contracting officer, or authorized representative, and such consent when given shall By submission of this bid or the execution of this Agreement, or not be construed to relieve the contractor of any responsibility for the subcontract, as appropriate, the bidder, Federal -aid construction fulfillment of the contract. Written consent will be given only after the contractor, or subcontractor, as appropriate, will be deemed to have SHA has assured that each subcontract is evidenced in writing and that stipulated as follows: It contains all pertinent provisions and requirements of the prime contract 1. That any facility that is or will be utilized to the performance of this 4. Agreement, unless such contract is exempt under the Clean Air Act, as VIII. SAFETY: ACCIDENT PREVENTION amended (42 U.S.C. 1857 pi lag., as amended by Pub.L. 91 -604), and ii under the Federal Water Pollution Control Act, as amended (33 U.S.C. f 1. in the performance of this Agreement the contractor shall comply 1251 gi s as amended by Pub.L. 92 -500), Executive Order 11738, with all applicable Federal, State, and local laws goveming safety, and regulations in Implementation thereof (40 CFR 15) is not listed, on health, and sanitation (23 CFR 635). The contractor shall provide all the date of contract award, on the U.S. Environmental Protection safeguards, safety devices and protective equipment and take any other Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. needed actions as it determines, or as the SHA contracting officer may determine, to be reasonably necessary ry fo protect the life and health of 2. That the firm agrees to comply and remain in compliance with all the j employees on the job and the safety of the public and to protect property requirements of Section 114 of the Clean Air Act and Section 308 of the r in connection with the performance of the work covered by the contract Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 2. It is a condition of this Agreement, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this 3. That the firm shall promptly notify the SHA of the receipt of any Agreement, that the contractor and any subcontractor shall not permit communication from the Director, Office of Federal Activities, EPA, any employee, in performance of the contract, to work in surroundings or indicating that a facility that is or will be utilized for the contract is under under conditions which are unsanitary, hazardous or dangerous to consideration to be listed on the EPA List of Violating Facilities. his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, 4. That the firm agrees to include or cause to be Included the in accordance with Section 107 of the Contract Work Hours and Safety requirements of paragraph 1 through 4 of this Section X in every Standards Act (40 U.S.C. 333). nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. 3. Pursuant to 29 CFR 1926.3, it is a condition of this Agreement that the Secretary of Labor or authorized representative thereof, shall have XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, right of entry to any site of contract performance to inspect or investigate INELIGIBILITY AND VOLUNTARY EXCLUSION the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 1. instructions for Certification - Primary Covered Transactions: of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). (Applicable to all Federal -aid contracts - 49 CFR 29) IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS a. By signing and submitting this proposal, the prospective In order to assure high quality and durable construction in conformity primary participant is providing the certification set out below. with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppll- b. The inability of a person to provide the certification set out ers, and workers on Federal -aid highway projects, it is essential that all below will not necessarily result in denial of participation in this covered persons concerned with the project perform their functions as carefully, transaction. The prospective participant shall submit an explanation of thoroughly, and honestly as possible. Willful falsification, distortion, or why it cannot provide the certification set out below. The certification or misrepresentation with respect to any facts related to the project is a explanation will be considered in connection with the department or violation of Federal law. To prevent any misunderstanding regarding the agency's determination whether to enter into this transaction. However, seriousness of these and similar acts, the following notice shall be failure of the prospective primary participant to furnish a certification or posted on each Federal -aid highway project (23 CFR 635) i n one or an explanation shall disqualify such a person from participation in this more places where It is readily available to all persons concemed with transaction. the project: c. The certification in this clause is a material representation of NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID fact upon which reliance was placed when the department or agency HIGHWAY PROJECTS determined to enter into this transaction. If It Is later determined that the prospective primary participant knowingly rendered an erroneous 18 U.S.C. 1020 reads as follows: certification, in addition to other remedies available to the Federal Govemment, the department or agency may terminate this transaction "Whoever, being an officer, agent, or employee of the United States, for cause of default. or of any State or Territory, or whoever, whether a person, association, firm or corporation, knowingy makes any false statement, false d. The prospective primary participant shall provide immediate g ` representation, or false report as to the character, quality, quantity, or written notice to the department or agency to whom this proposal is x ff cost of the material used or to be used, or the quantity or quality of the submitted if any time the prospective primary participant learns that its 5 work performed or to be performed, or the cost thereof in connection certification was erroneous when submitted or has become erroneous E with the submission of plans, maps, specifications, contracts, or costs of by reason of changed circumstances. k construction on any highway or related project submitted for approval to the Secretary of Transportation; or e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," Whoever knowingly makes any false statement, fa /se rapresentatlun, "Winery covered transaction," "rind 1, p pa proposal; and "voluntarily false report or false claim with respect to the character, quality, quantity, excluded," as used In this clause, have the meanings set out in the t or cost of any work performed or to be performed, or materials furnished Definitions and Coverage sections of rules implementing Executive or to be furnished, in connection with the construction of any highway or Order 12549. You may contact the department or agency to which this related project approved by the Secretary of Transportation; or proposal is submitted for assistance in obtaining a copy of those regulations. Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report 1. The prospective primary participant agrees by submitting this submitted pursuant to provisions of the Federal -aid Roads Act approved proposal that, should the proposed covered transaction be entered into July 1, 1916, (39 Stat 355), as amended and supplemented; it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily Shall be fined not more that $10,000 or imprisoned not more than 5 excluded from participation in this covered transaction, unless years or both." authorized by the department or agency entering into this transaction. X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL g. The prospective primary participant further agrees by WATER POLLUTION CONTROL ACT submitting this proposal that it will Include the clause titled "Certification 1. Regarding Debarment, Suspension, ineligibility and Voluntary Exclusion- ( If Applicable to all Federal -aid construction contracts and to all related Lower Tier Covered Transaction," provided by the department or agency subcontracts of $100,000 or more.) Page 6 of 8 REQUIRED BY 23 CFR 633.102 -- a Y re41 au.51,,x' ,,W,,., . :..,, ,.c, »' ✓. %:.e...r.:2.W.4,.:Y,e"i'ny..s SIia:::.:.r5 w.b]n.P7 4.1Z4[ .asc;Y .u;,... .� yr -S' :t+:V.,, ',,,,VO 7rtKeZ..on, _ _"' - -: '.`So- ir' :.. ✓: f ,,,,,,. ....'v i5K entering to this covered transaction, without modification, in all lower c. The prospective lower tier participant shall provide immediate g tier cove d transactions and in all solicitations for lower tier covered written notice to the person to which this proposal is submitted if at any transacti s. time the prospective lower tier participant reams that its certification was erroneous by reason of changed circumstances. c. h. A participant in a c overed transaction may rely upon a P certification of a prospective participant in a lower tier covered d. The terms "covered transaction," "debarred;' "suspended, r transaction that is not debarred, suspended, ineligible, or voluntarily "ineligible," "primary covered transaction;' "participant," "person," excluded from the covered transaction, unless It knows that the "principal; "'proposal," and "voluntarily excluded,' as used in this clause, certificati n is erroneous. A participant may decide the method and have the meanings set out in the Definitions and Coverage sections of rg '' frequenc by which it determines the eligibility of its principals. Each rules implementing Executive Order 12549. You may contact the person participa may, but is not required to, check the non - procurement to which this proposal is submitted for assistance in obtaining a copy of portion o the "Lists of Parties Excluded From Federal Procurement or those regulations. y Non -pr rement Programs" (Non - procurement List) which is compiled = by the G eral Services Administration, e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, I. othing contained in the foregoing shall be construed to require it shall not knowingly enter into any lower tier covered transaction with a establish ent of a system of records in order to render in good faith the person who is debarred, suspended, declared ineligible, or voluntarily certificat n required by this clause. The knowledge and information of excluded from participation in this covered transaction, unless participa is not required to exceed that which is normally possessed by authorized by the department or agency with which this transaction a pruden person in the ordinary course of business dealings. originated. j. xcept for transactions authorized under paragraph f of these f. The prospective lower tier participant further agrees by instructio s, if a participant in a covered transaction knowingly enters submitting this proposal that it will include this clause titled "Certification into a to er tier covered transaction with a person who is suspended, Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - debarred, ineligible, or voluntarily excluded from participation in this Lower Tier Covered Transaction," without modification, in all lower tier transaction, in addition to other remedies available to the Federal covered transactions and in all solicitations for lower tier covered Govem nt, the department or agency may terminate this transaction transactions. forcau or default. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered • « * * * transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the Certifi•:Hon Regarding Debarment, Suspension, ineligibility and certification Is erroneous. A participant may decide the method and oluntary Exclusion -- Primary Covered Transactions frequency by which It determines the eligibility of its principals. Each participant may, but is not required to, check the Non - procurement List. 1. Th prospective primary participant certifies to the best of its knowled• = and belief, that it and its principals: h. Nothing contained in the foregoing shall be construed to require establishment of a system of records In order to render in good a. Are not presently debarred, suspended, proposed for faith the certification required by this clause. The knowledge and I debarme t, declared ineligible, or voluntarily excluded from covered information of participant is not required to exceed that which is normally transact . ns by any Federal department or agency; possessed by a prudent person in the ordinary course of business dealings. b. Have not within a 3 -year period preceding this proposal been convicte• of or had a civil judgment rendered against them for I. Except for transactions authorized under paragraph e of these commiss •n of fraud or a criminal offense in connection with obtaining, instructions, if a participant In a covered transaction knowingly enters' attempt • to obtain, or performing a public (Federal, State or local) into a lower tier covered transaction with a person who is suspended, transacti. n or contract under a public transaction; violation of Federal or debarred, ineligible, or voluntarily excluded from participation In this State an trust statutes or commission of embezzlement, theft, forgery, transaction, in addition to other remedies available to the Federal bribery, ''Isification or destruction of records, making false statements, Government, the department or agency with which this transaction or receivi g stolen property; originated may pursue available remedies, including suspension and /or • debarment. c. - not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commiss •n of any of the offenses enumerated In paragraph ib of this certificati •n; and Certification Regarding Debarment, Suspension, ineligibility and d. Have not within a 3 -year period preceding this Voluntary Exclusion- a.ower Tier Covered Transactions: application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default 1. The prospective lower Uer participant certifies, by submission of this proposal, that neither it nor its prtncpals is presently debarred, 2. Where the prospective primary participant is unable to certify to suspended, proposed for debarment, declared ineligible, or voluntarily any of the statements in this certification, such prospective participant excluded from participation in this transaction by any Federal shall attach an explanation to this proposal. department or agency. I .0 • * * 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Covered Transac- tions. ".. ` * . (Applicable to all subcontracts, purchase orders and other lower tier XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR transactions of $25,000 or more - 49 CFR 29) LOBBYING a. By signing and submitting this proposal, the prospective lower (Applicable to all Federal -aid construction contracts and to all related tier is prcviding the certification set out below. subcontracts which exceed $100,000 - 49 CFR 20) b. The certification in this clause is a material representation of 1. The prospective participant certifies, by signing and submitting this fact upon which reliance was placed where this transaction was entered bid or proposal, to the best of his or her knowledge and belief, that into. If it is later determined that the prospective lower tier participant knowing! rendered an erroneous certification, in addition to other a. No Federal appropriated funds have been paid or will be paid, remedie available to the Federal Government the department, or by or on behalf of the undersigned, to any person for influencing or agency ith which this transaction originated may pursue available attempting to influence an officer or employee of any Federal agency, a remedies, including suspension and/or debarment. Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of e I Pa 7 of 8 REQUIRED BY 23 CFR 633.102 -- I I 1 ry fi�'�;a4s. 9ZtYe;: .e_'m�.` »..... e�s"„at".�� ':' s2% c'. x 'X °!:�' .,.. . S .T.�...:..,'.n...fvN.L.�- 1.A�s' . "' «4�vF X r' �b :��r '2;�:°`Y�z� -::' v�,F cd#.:.r:>:`5�'.. Y' Yid KLr .6sGf,= ��.^✓.�.m�."sF:k:'..�' :Yndv ## �. � yL any Federal contract, the making of any Federal grant, the making of 2 This certification is a material representation of fact upon which any Federal loan, the entering into of any cooperative agreement, and reliance was placed when this transaction was made or entered into. the extension, continuation, renewal, amendment, or modification of any 2. Submission of this certification is a prerequisite for making or entering Federal contract, grant, loan, or cooperative agreement into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less b. if any funds other than Federal appropriated funds have been than $10,000 and not more than $100,000 for each such failure. paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of 3. The prospective participant also agrees by submitting his or her bid or Congress, an officer or employee of Congress, or an employee of a proposal that he or she shall require that the language of this Member of Congress in connection with this Federal contract, grant, certification be included In all lower tier subcontracts, which exceed loan, or cooperative agreement, the undersigned shall complete and $100,000 and that all such recipients shall certify and disclose submit Standard Form -LLL, "Disclosure Form to Report Lobbying," In accordingly accordance with its Instructions. if 3i Page 8 of 8 REQUIRED BY 23 R 63 4UIRED B CF 633 102 w. a.1m%3fi6.at� ,,- *,�+r`- ?.�..n .tidl?sPe aaw ra .:K: - = 3S aa %sx "=."s .44 -' stadwaZ ____- 37. EXHIBIT J— FEDERAL REQUIREMENTS Federal aws and regulations that may be appUcable to the Work include: A. Uniform Administrative Requfrements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule) The "Uniform Administrative Requrements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the extent that other app!icable federal requirements (including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation: the Local Agency/Contractor shall follow applicable procurement procedures, as required by section i8.3G(d); the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the manner, and to the extent required by, applicable provisions of section 18.30; the Local Agency/Contractor shall comply with section 18.37 concerning any sub-Agreements; to expedite any CDOT approval, the Local Agency/Contractor's attorney, or other authorized napnaean(ative, shall also submit a letter to CDOT certifying Local Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d) procurement procedures, and with 18.37 sub-Agreement procedures, as applicable; the Local Agency/Contractor shall incorporate the specific contract provisions described in 18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts. B. Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 arid as supplemented in Department of Labor reguations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or sub-the Local Agencys). C. Copeland "Anti-Kickback Act The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and subAgreements for construction or repair). D. Davis-Bacon Act The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and sub-the Local Agencys when required by Federal Agreement program legislation. This act requires that all aborers and mechanics employed by contractors or sub-contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the p ject by the Secretary of Labor). E. Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327- 330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agencys and sub Local Agencys in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). R. Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1867(h). section 5OBof the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (oontracts, subcontracts, and sub-Agreements of amounts in excess of $100.000). G. Energy Policy and Conservation Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163). B. OMB Circulars Page 1 of 3 • Office of Management and Budget Circulars A -87, A -21 or A -122, and A -102 or A -110, whichever is applicable. I. Hatch Act The Hatch Act (5 USC 1501 -1508) and Public Law 95 -454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally- assisted programs. J. Nondiscrimination 42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. seq. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. K. ADA The Americans with Disabilities Act (Public Law 101 -336; 42 USC 12101, 12102, 12111 - 12117, 12131 - 12134, 12141- 12150, 12161- 12165, 12181- 12189, 12201 -12213 47 USC 225 and 47 USC 611. L. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91 -646, as amended and Public Law 100 -17, 101 Stat. 246 -256). (If the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). M. Drug -Free Workplace Act The Drug -Free Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et seq.). N. Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing regulation 45 C.F.R. Part 84. O. 23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts ". P. 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction Contracts ". Q. 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions ". R. Title Vi of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title Vi of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. S. Nondiscrimination Provisions: S. Nondiscrimination Provisions: In compliance with Titre VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: L Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations "), which are herein incorporated by reference and made a part of this Agreement. • Nondiscrimination The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical Page 2 of 3 handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. Solicitations for Subcontracts, Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential. Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and /or b. Cancellation, termination or suspension of the contract, in whole or in part. T. Incorporation of Provisions §22 The Contractor will include the provisions of paragraphs A through Fin every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. Page 3 of 3 38. EXHIBIT K — SUPPLEMENTAL FEDERAL PROVISIONS State of Colorado Supplemental Provisions for Federally Funded Contracts, Grants, and Purchase Orders Subject to The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended 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. 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; Page 1 of 4 • 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; 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 Page 2 of 4 • 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 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 httpY /www. Colorado .qov /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: • 39. 7.1.1 Subrecipient DUNS Number; 40. 7.1.2 Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT) account; 41. 7.1.3 Subrecipient Parent DUNS Number; Page 3 of 4 42. 7.1.4 Subrecipient's address, including: Street Address, City, State, Country, Zip + 4, and Congressional District; 43.7.1.5 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: 44.7.2.1 Subrecipient's DUNS Number as registered in CCR. 45. 7.2.2 Primary Place of Performance Information, including: Street Address, City, State, Country, Zip code + 4, and Congressional District. 8. Exemptions. 46. 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. 47. 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. Page 4 of 4 derommarssamemommarer 1•• • •