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HomeMy WebLinkAboutC13-110 Schmueser Gordon Meyer - Cedar Drive RoadAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND SCHMUESER GORDON MEYER (SGM), INC. FOR PROFESSIONAL DESIGN SERVICES FOR CEDAR DRIVE ROAD IMPROVEMENT THIS AGRE MENT for Professional Services ( "Agreement ") is made and entered into effective as of the .. 0 day of a4, , 2013 by and between Schmueser Gordon Meyer (SGM), Inc., a Colorado corporation (` ereinafter "Consultant" or "Contractor ") and Eagle County, Colorado a body corporate and politic ( "County "). RECITALS WHEREAS, County desires to improve Cedar Drive by performing road resurfacing, guardrail installation, warning signage, and other mitigation measures to increase the safety and operations on a 0.9 mile length of Cedar Drive, located in the unincorporated area of El Jebel, County of Eagle, State of Colorado (the "Project "); and WHEREAS, the Colorado Department of Transportation (hereinafter "CDOT ") has selected this Project as eligible for Federal funding through the Hazard Elimination Safety Program (hereinafter " HES Program ") administered by CDOT; and WHEREAS, County entered into an Inter- Governmental Agreement with CDOT (Project Number SHO 0821 - 097(18265) for HES Program funding of the Project (the "Grant Agreement "); and WHEREAS, County issued a Request for Qualifications for professional engineering services (the "RFQ ") in order to solicit proposals from consultants willing and able to provide, among other services, engineering and design services and construction administration for the Project; and WHEREAS, after review of proposals submitted in response to the RFQ, County wishes to hire Consultant to provide the services described in Section 1 hereunder; and WHEREAS, Consultant is authorized to do business in the State of Colorado and has represented that it has the experience and knowledge in the subject matter necessary to provide said services to County; and WHEREAS, Consultant and County intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the Services (as defined below) and related terms and conditions to govern the relationship between Consultant and County in connection with the Services. 013_110 AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Consultant and County agree as follows: 1) Services a) Consultant agrees to furnish all services, labor, personnel and materials necessary to perform and complete the services described in Consultant's Scope of Work entitled "Cedar Drive Improvement Project, Project Scope /Budge /Schedule, 2013- 2014" dated April 23, 2013 and associated sub - consultant proposals, attached hereto as Exhibit A, and incorporated herein by this reference (the " Services "). Consultant additionally agrees to comply with all design requirements of the Grant Agreement between County and CDOT, attached hereto as Exhibit B and incorporated herein by this reference. If no completion date is specified in Exhibit A, Consultant agrees to furnish the Services in a timely and expeditious manner consistent with the applicable professional standard of care. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. b) This Agreement shall commence on the date first written above and, subject to the provisions of Section 10 hereof, shall continue in full force and effect until the Services are satisfactorily completed. c) The design work under this Agreement shall be compatible with the requirements of the Grant Agreement between Eagle County and CDOT, attached hereto as Exhibit B, for the design/construction of the Project. CDOT is an intended third -party beneficiary of this Agreement for that purpose. d) Upon advertisement of the Project work for construction, the Consultant shall make available services requested by CDOT to assist CDOT in the evaluation of construction and resolution of construction problems that may arise during the construction of the Project. e) The Consultant shall review the construction contractor's shop drawings for conformance with the Contract Documents and compliance with the provisions of the CDOT's publication, Standard Specifications for Road and Bridge Construction in connection with this Project. 2) Compensation a) County shall compensate Consultant for the performance of the Services as set forth herein and in Consultant's Fee Proposal dated April 23, 2013, and associated sub - consultant proposals attached hereto as Exhibit A ( " Compensation "). The Compensation agreed to and set forth in Exhibit A shall be paid by County in monthly payments equal to the cost for each task performed or completed by Consultant. All out -of- pocket expenses are included in the fees set forth in Exhibit A . All invoices shall include the percentage of completion by task with detail regarding hours spent, tasks performed and who performed each task. Each invoice shall cover a calendar month beginning on the 1 St of the month and ending on the last day of the month. Invoices shall be submitted to County by Consultant by the 15 of the month following the month in which the Services are rendered and shall be accompanied by invoices or other documentation as may be required by County, and such other documentation as may be required by CDOT or other government agencies processing invoices for payment or reimbursement to County, if any, and as may be required by County. Consultant's invoices shall be paid within thirty days of receipt provided that all of Consultant's invoices and insurance certificates on file with County are current and all Services have been satisfactorily performed. Original invoices with accompanying support documentation should be forwarded to: Greg Schroeder, Senior Project Engineer, Eagle County Engineering, Post Office Box 850, Eagle, CO 81631 by US Mail or electronically to g_reg.schroeder(a,ea le�y.us The compensation for the performance of Services described in Exhibit A shall not exceed $124,705. b) Notwithstanding the foregoing, if, prior to payment of compensation or reimbursement for services but after submission to the County of a request therefore by Consultant, the County reasonably determines that payment as requested would be improper because the services were not performed as prescribed by the provisions of this Agreement, the County shall have no obligation to make such payment. If, at any time after or during the term of this Agreement or after termination of this Agreement as hereinafter provided or expiration of this Agreement, the County reasonably determines that any payment theretofore paid by the County to Consultant was improper because the services for which payment was made were not performed as prescribed by the provisions of this Agreement, then upon written notice of such determination and request for reimbursement from the County, Consultant shall forthwith return such payment to the County. Upon termination of this Agreement as hereinafter provided or expiration of the Term, any unexpended funds advanced by the County to Consultant shall forthwith be returned to County. c) The County will not withhold any taxes from monies paid to the Consultant hereunder and Consultant agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d) Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after, December 31 of the calendar year of the term of this Agreement without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29 -1 -101 et.seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 3) Additional Services Any services in addition to the Services ( " Additional Services ") shall be performed by Consultant only upon the written request of County. Orders for Additional Services shall be acknowledged by County and Consultant in writing, prior to any such work identified as Additional Services is performed by Consultant. Failure by Consultant to obtain written authorization and acknowledgement by County for Additional Services shall result in non - payment for any such Additional Services or work performed. Except as otherwise agreed in writing by Consultant and County, all Additional Services shall be subject to the terms and conditions of this Agreement. County may also by written notice to Consultant make any reasonable reductions to the scope of the Services and the compensation payable to Consultant shall be reduced in a fair and reasonable amount on account thereof. 3 4) Assignment & Sub - consultants a) County hereby consents to Yeh & Associates, ERO Resources, A Project Resource, and Jonathan Lengel performing portions of the Services as a sub - consultant to Consultant. Consultant shall be responsible for the performance of Services by sub - consultants as set forth herein. Consultant shall be responsible for compensating sub - consultants for any Services or Additional Services performed by such sub - consultants. County shall only be responsible for compensation to Consultant as set forth herein. Nothing contained in this Agreement shall be deemed to create any contractual relationship between any sub - consultant or subcontractor of any tier and the County. b) All subcontracts shall conform to provisions of this Agreement. Consultant shall require its sub - consultants to the extent of the Services to be performed by the sub - consultant, to assume toward Consultant all the obligation and responsibility which Consultant, by this Agreement, assumes towards County. Said agreement shall preserve and protect the rights of the County with respect to the Services to be performed by the sub - consultant so that the subcontracting thereof will not prejudice such rights. Consultant shall require each sub - consultant to enter into similar agreements with its subcontractors. Before permitting any of its sub - consultants to perform any Work under this Agreement, Consultant shall require each of its sub - consultants to procure and maintain such insurance as set forth in Section 6 below. c) Notwithstanding the foregoing, Consultant acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Consultant. Consultant shall not enter into any other or alternative sub - consultant agreements for the performance of any of the Services or Additional Services without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Consultant shall require each sub - consultant, as approved by County and to the extent of the Services to be performed by the sub - consultant, to be bound to Consultant by the terms of this Agreement, and to assume toward Consultant all the obligations and responsibilities which Consultant, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any sub - consultant hired by Consultant and Consultant shall cooperate in such process. 5) Insurance Unless otherwise agreed to in writing by County, Consultant agrees to provide and maintain, at Consultant's sole cost and expense, and to require its subcontractor to maintain the following insurance coverage: a) Types of Insurance i) Workers' Compensation as required by State statute, and Employer's liability insurance coverage covering all of the Consultant's employees acting within the course and scope of their employment. ii) 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. iii) Commercial General Liability insurance written on ISO occurrence form CG 00 01 10/93 4 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 per occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, Consultant shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the County a certificate or other document satisfactory to the County showing compliance with this provision. iv) Professional Liability Insurance with limits of liability of not less than $1,000,000 per occurrence. b) Other Requirements i) Consultant shall maintain the foregoing coverage in effect until the Services and any Additional Services are completed. In addition, to the extent commercially available at reasonable rates, all such policies shall be kept in force by Consultant until the applicable statute of limitations for the Project has expired. ii) All policies must be written by insurance companies whose rating in the most recent Best's rating guide is not less than A- (VII). iii) Consultant shall provide certificates of insurance with the required endorsements evidencing the coverage to the County prior to commencement of any Services under this Agreement and such certificates must be provided on an annual basis commencing on the first (1 anniversary of the policy year and continuing thereafter. No later than 15 days prior to the expiration date of any such coverage, the Consultant shall deliver to CDOT or to the County certificates of insurance evidencing renewals thereof. In addition, upon request by CDOT at any other time during the term of this Agreement, the Consultant shall within ten (10) days of such request, supply to CDOT evidence satisfactory to CDOT of compliance with the provisions of this Paragraph 5. iv) If Consultant fails to secure and maintain the insurance required by this Agreement and provide satisfactory evidence thereof to County, County shall be entitled to immediately terminate this Agreement. v) Consultant's insurance shall be primary and non - contributory to any insurance held by County or CDOT. vi) All insurance policies in any way related to this Agreement and secured and maintained by Consultant shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the County or CDOT, its agencies, institutions, organizations, officers, agents, employees and volunteers. vii) The County and CDOT shall be named as additional insured on the Commercial General Liability policies. viii) The above insurance policies shall include provisions preventing cancellation or non - renewal without at least 45 days prior notice to the County and to CDOT by certified mail. 6) Indemnification To the fullest extent permitted by law, Consultant agrees to indemnify, defend and hold harmless Eagle County, its officers, directors, agents and employees, (collectively, "County Indemnities ") from and against any and all claims, demands, losses, liabilities, damages, disbursements, obligations, fines, penalties, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) and costs of every kind and character ( "Claims ") to the extent actually or allegedly caused by or attributable to (in whole or in part) this Agreement or the performance or non - performance of the Services (including any Additional Services) provided by Consultant and its agents, employees, sub - consultants and/or suppliers, and/or any negligent or otherwise wrongful statement, act or omissions of Consultant or any person or entity under Consultant's control; and Consultant shall reimburse County for any and all expenses, including attorney fees, incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. The indemnity and hold harmless provisions of this Agreement shall survive expiration or termination hereof. County and Consultant hereby certify and agree that the indemnity and hold harmless provisions of this Agreement have been freely and mutually negotiated. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Contractor. 7) Ownership of Documents All documents prepared by Consultant or Consultant's sub - consultants in connection with Consultant's performance under this Agreement shall become the property of County, and Consultant or Consultant's sub - consultants shall execute written assignments to County of all rights (including common law, statutory, and other rights, including copyrights) to the same as County shall from time to time request. For purposes of this paragraph, the term "documents" shall mean and include all surveys, reports, plans, studies, tape or other electronic recordings, drawings, sketches, estimates, data sheets, maps and work sheets produced, or prepared by or for Consultant (including any employee or sub - consultant in connection with the performance of the Services and Additional Services under this Agreement). The County acknowledges that the use of documents prepared by Consultant or Consultant's sub - consultants for other than the Project shall be at County's sole risk and without liability to Consultant. 8) Notices All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2) calendar days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below their signatures, or (iv) when sent via facsimile so long as the sending party can provide a facsimile machine or other confirmation showing the date, time, and receiving facsimile number for the transmission. Either party may change its address for the purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. County: Eagle County Government Attention: Greg Schroeder 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3560 Facsimile: 970 - 328 -8789 E- mail: greg.schroeder @eaglecounty.us And a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8685 Facsimile: 970 - 328 -8699 Consultant: Schmueser Gordon Meyer (SGM), Inc. Attention: Dan Cokley 118 W Sixth St, Suite 200 Glenwood Springs, CO 81601 Telephone: 970-384-9009 Facsimile: 970 - 945 -5948 E -mail: danc @sgm- inc.com 9) Coordination Consultant acknowledges that the development and processing of the Services or Additional Services for the Project may require close coordination between various consultants. Consultant shall coordinate the Services required hereunder with the other consultants that are identified by County to Consultant from time to time, and Consultant shall immediately notify such other consultants, in writing, of any changes or revisions to Consultant's work product that might affect the work of other consultants providing services for the Project and concurrently provide County with a copy of such notification. Consultant shall not knowingly cause other consultants extra work without obtaining prior written approval from County. If such prior approval is not obtained, Consultant shall be subject to any offset for the costs of such extra work. 10) Termination a) The County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause. In the event the Consultant files for bankruptcy or is declared bankrupt or dissolves, the County may declare in writing that this Agreement is immediately terminated, and all rights of Consultant and obligations of the County are terminated, except payment of accrued but unpaid fees as set forth in Section 10(b) hereof. b) Upon termination of this Agreement as set forth in Section 10(a) above, County shall pay to Consultant as payment in full for all labor, work and services performed, all materials supplied, and expenses incurred by Consultant as follows: (i) the agreed compensation for all Services and approved Additional Services satisfactorily performed by Consultant under this Agreement up to the effective date of termination. Concurrent with Consultant's receipt of such payment, Consultant shall sign and deliver to County true and complete copies of Consultant's work product. As used herein, the "effective date of termination" shall be that date which is seven (7) calendar days after receipt of the notice of termination. 11) Venue and Jurisdiction Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. 12) General Conditions a) Consultant shall be responsible for the completeness and accuracy of the Services and any Additional Services, including all supporting data and other documents prepared or compiled in performance of the Services or Additional Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Services or Additional Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services and Additional Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to consultants, with respect to similar services, in this area at this time. Consultant represents and warrants that it has the experience and personnel necessary to properly perform the Services. b) This Agreement and Exhibits A - B (the "Contract Documents ") represent the entire Agreement between the parties hereto. There are no Contract Documents other than this Agreement and Exhibits A and B. The Agreement may only be altered, amended, or repealed in writing. c) Consultant agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. By executing the Agreement, Consultant confirms that the time limitations set forth herein are reasonable period(s) for performing the Services. d) This Agreement shall be construed and interpreted under and shall be governed and enforced according to the domestic laws of the State of Colorado (without reference to the doctrine of conflicts of law). e) Consultant represents and warrants that at all times in the performance of the Services Consultant shall comply with any and all applicable federal and state laws, and their implementing regulations, codes, rules and regulations as they currently exist and may hereafter be amended. f) Consultant and its employees are not entitled to workers' compensation benefits through the County. Consultant is solely responsible for necessary and adequate workers' compensation insurance and shall be responsible for withholding and paying all federal and state taxes. The Consultant and its employees are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by an entity other than County. The Consultant hereby acknowledges full and complete liability for and shall timely pay all taxes imposed by any federal, state or local taxing authority on all payrolls and compensation of its employees and subcontractors and any other taxes, fees and charges levied against Consultant on account of this Agreement. g) This Agreement constitutes an agreement for the performance of work and services by Consultant as an independent contractor and not as an employee of County. Nothing 8 contained in this Agreement shall be deemed to create a relationship of employer - employee, master - servant, partnership, joint venture or any other relationship between County and Consultant except that of independent contractor. Consultant shall have no authority to bind County or to approve any Additional Services, unless specifically approved by County in writing. h) This Agreement may not be amended or supplemented, nor may any obligations hereunder be waived, except by a written instrument signed by the party to be charged. Notwithstanding the foregoing sentence, Consultant agrees to make such revisions to this Agreement as may be reasonably required by County, and Consultant agrees to comply with customary requirements of construction and permanent lenders which may be imposed including, but not limited to, execution of a subordination agreement(s). i) This Agreement and the covenants contained herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors -in- interest. j) No failure or delay by either party in the exercise of any right given to such party hereunder shall constitute a waiver thereof. No waiver of any breach of any agreement or provision contained herein shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision contained herein. k) Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female and the neuter, and vice versa. 1) The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. m) Consultant shall maintain for a minimum of three years, adequate financial and other records for reporting to County. Consultant shall be subject to financial audit by federal, state or county auditors or their designees. Consultant authorizes County to perform audits or to make inspections of records during normal business hours, upon 48 hours' notice to Consultant. Consultant shall fully cooperate with County representatives during such audit or inspections. n) Consultant acknowledges that this Agreement is subject to all of the provisions of the Grant Agreement between the County and CDOT, attached hereto as Exhibit B , and agrees to comply with said Agreement. Consultant shall insert a clause containing the terms of this Section 12(n) in all contracts or sub - contracts for performance of Services under this Agreement. o) Consultant shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, sexual orientation, age, political affiliation, or family responsibility. Consultant shall require all sub - consultants to agree to the provisions of this subparagraph. 13) Prohibitions on Government Contracts If Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. § 8- 17.5 -101, et seq., regarding Illegal Aliens — Public 9 Contracts for Services, and this Contract. By execution of this Contract, Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Consultant will participate in the E -verify Program or other Department of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services or Additional Services under this Contract. a) Consultant shall not: (i) Knowingly employ or contract with an illegal alien to perform Services or Additional Services under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. b) Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services or Additional Services under this Contract through participation in the E -verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E- verify program can be found at: hqp: / /www.dhs. ov /xpreyprot/pro rage 1185221678150.shtm C) Consultant shall not use either the E -verify program or other Department Program procedures to undertake pre - employment screening of job applicants while the public contract for services is being performed. d) If Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, Consultant shall be required to: (i) Notify the subcontractor and County within three days that Consultant has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (D) the subcontractor does not stop employing or contracting with the illegal alien; except that Consultant shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e) Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8 -17.5- 102(5). f) If Consultant violates these prohibitions, County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, Consultant shall be liable for actual and consequential 10 damages to County as required by law. g) County will notify the office of the Colorado Secretary of State if Consultant violates this provision of this Contract and the County terminates the Contract for such breach. [REST OF PAGE INTENTIONALLY LEFT BLANK] 11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the--5 ✓ 2013. day of ATTEST: COUNTY OF EAGLE, STATE OF Lo ty Commissio c -____ i 0 019v i^ COLORADO, by throggh�it RD s BOA OF rnrnvrr�nN X4 1QQTl�irt�uc. Clerk to the Board of C Jor( Stav)ney, Chairman SCHMUESER GORDON MEYER, INC. By: Its: Principal STATE OF COLORADO ) ) ss. COUNTY OF d ) G� T was acknowledged before me by a 1 , this ,G 2013. The foregoi g instru day of My otary .. s a• r s s 12 Exhibit A - Page I • EXHIBIT Exhibit A - Page 2 Scope of Work Budget Date: 4/23/2013 Page 2 Page 8 Schedule Page 12 Exhibit A - Page 3 Date: 4/23/2013 SCOPE OF WORK — Cedar Drive Improvements Eagle County, Colorado Project Location: Cedar Drive is located to the northeast of the Town of Basalt in unincorporated Eagle County, Colorado. Cedar Drive accesses approximately twenty -eight (28) residential parcels. This scope shall encompass the approximately 0.9 mile section of Cedar Drive starting at the intersection of Cedar Drive and Pinion Drive, heading to the east for the 0.9 mile section, where the road forks with northbound and eastbound spurs. Background: Much of Cedar Drive consists of a narrow unsurfaced road. Two -way traffic utilizes the road, but there are numerous stretches that do not provide adequate width for vehicles to safely pass. In these areas the road functions as a one way road. Many of the horizontal curves are tight, m inimiz ing sight distance. There is minimal width for road shoulders, and there is extreme exposure on the southern side of the road, which is extremely hazardous to vehicles leaving the road platform. Fatalities have occurred to vehicles leaving the road platform. The Project Scope passes through four (4) private parcels and one parcel of land owned by the Colorado Parks and Wildlife ( "CPW '). From examination of available plats and legal descriptions, three of the four private parcels appear to have a 40' legal easement. The fourth parcel does not have any right -of -way. The DPW parcel does not appear to have either right -of -way or easements. The Cedar Drive Improvement Project presents some distinctive challenges for vehicular hazard mitigation due to the geographical and geological conditions of the existing roadway segment. The ultimate goal of this project is to provide Eagle County with a viable cost - effective design to increase roadway functionality and vehicular safety while reducing future maintenance costs and minimizing environmental impacts. Planned Improvements: Safety improvements to Cedar Drive including, but not limited to, guardrail installation, signage, widening and resurfacing. Due to the terrain and geographical conditions of the roadway, it is understood that the improvements may not meet all County and CDOT standards. Given that the roadway has a low traffic volume, design standards may be supplemented from the "Guidelines for Geometric Design of Very Low - Volume Local Roads (ADT < 400) " manual published by AASHTO, in addition to other applicable industry standards. Justification will need to be provided to all review agencies on the design standards that will be utilized. It is understood that a Variance from Improvement Standards will need to be obtained from the Eagle County Board of County Commissioners and that a CDOT Design Waiver(s) will need to be obtained for any deviation from the CDOT Design Standards. Schedule: The County has a goal of having Construction Documents completed by September 2013. Scope of Work: SGM will be responsible for planning, coordination, and public relations during the initial project development, then full PS &E design, and construction management for the project. Exhibit A - Page 4 Date: 4/23/2013 We anticipate the following phases of work for this project: 1. Feasibility Analysis and ROW / Environmental Investigations Timeframe: 8 Weeks Objective: During this phase, SGM will review existing information and establish the transportation needs of the area by analyzing safety alternatives and assessing the feasibility of individual design components. We will build a consensus with the Reviewing Agencies and outline a plan to streamline the permitting process in order to optimize design costs for the project. a. Review Available Project Information b. Provide Communication and Coordination with Affected Agencies • Eagle County • Colorado Dept. of Transportation (CDOT) • Federal Highway Administration (FHWA) • Colorado Parks and Wildlife (CPW) • Town of Basalt • Basalt & Rural Fire Protection District • Cedar Drive Road Maintenance Association • Utilities c. Establish Transportation Needs of the Area d. Analyze Feasibility of Safety Alternatives and Individual Design Components e. Determine Impacts of Alternatives and Components f. Conduct preliminary ROW and Environmental Investigations g. Provide Weekly Updates to Eagle County PM 2. Initial Project Development Timeframe: 4 Weeks Objective: Clarity of stakeholder goals and priorities is critical to any design task. Once these have been established, the objective is to develop a clear understanding on the three key elements of successful projects: Scope, Schedule and Budget and to initiate data collection and permitting activities. a. Provide Notification Letter to Cedar Drive Road Maintenance Association & Residents b. Collect Traffic Volume Counts c. Perform Existing Conditions and Boundary Survey d. Initiate ROW/Easement Transfer Process e. Initiate Geotechnical Investigation £ Environmental Clearances (CDOT will provide Archaeology and History, Consultant will perform Wetland Delineation and Permitting). g. Utility Coordination (meetings, locating and other adjustments) N Exhibit A - Page 5 Date: 4/23/2013 h. Submit Design Memo to ECO and CDOT i. Provide Weekly Updates to Eagle County PM 3. Design Development (30% Design, FIR) Timeframe: 8 Weeks Objective: Develop a set of preliminary design plans based on accepted design criteria as well as the roadway geometry, geotechnical recommendations, hydrology . patterns, site constraints, and costs. a. Plan and Profile Plans b. Preliminary Right of Way Plans (inc. appraisals, acquisition and title services in accordance with CDOT and FHWA standards) c. Submit CPW Easement documents for CPW Board approval. d. Preliminary Geotechnical Report e. Kickoff CDOT Environmental Investigation £ Preliminary Hydrology Report for Stormwater Permit (if necessary) g. Preliminary Quantities and Opinion of Probable Cost h. Public Meeting with BoCC for Variance from Improvement Standards i. Public Open House with Stakeholders at El Jebel Community Center j. Provide Weekly Updates to Eagle County PM 4. Design Development (90% Design, FOR) Timeframe: 12 -16 Weeks Objective: Provide a complete Plans, Specifications & Estimate (PS &E) package that is essentially bid -ready for the County Review submittal prior to advertisement. a. Final Reports b. Roadway Plans c. Drainage Plans d. Erosion Control Plans e. Retaining or Structural Plans f. Signage Plans g. Standard Plans h. Project Special Provisions i. Detailed Traffic Control Plans j. Contingent 2 nd Public Open House with Stakeholders at Town of Basalt 5. Right of Way Acquisition (if necessary) Timeframe: 16 -20 Weeks Objective: If necessary, finalize right of way acquisition per the Uniform Land Act. Exhibit A - Page 6 a. Finalize Right of Way Plans b. Notice to Property Owner c. Property Valuation d. Offer / Negotiation e. Closing f. Monumentation (if necessary) 6. Construction Documents Timeframe: 2 Weeks Date: 4/23/2013 Objective: Provide a complete Plans, Specifications & Estimate (PS &E) package that is bid - ready. a. Construction Plans b. Project Special Provisions and Standard Special Provisions c. Final Opinion of Probable Project Cost 7. Bid Administration Support Timeframe: 6 Weeks Objective: Provide a continuation of technical support to the County PM throughout the bid solicitation period, shop drawing review and project award. a., Mandatory Pre -Bid meeting attendance b. Addenda, if required c. Project Award 8. Construction Management Timeframe: 12 -14 Weeks Objective: Provide Eagle County with professional construction management throughout the life of the project. a. Preconstruction and construction contract administration b. Geotechnical Testing support c. Construction Survey Support d. Management of construction activities including scheduling, contract interpretation, contractor interim payment preparation, daily diaries, daily quantities preparation, testing, inspection, surveying and other engineering as determined. Additional information is provided below from the County Scope of Work that identifies specific requirements for several tasks mentioned above but provided in more detail below: Exhibit A - Page 7 Date: 4/23/2013 Project Coordination. Coordination maybe required with all the following: • Utilities • Utility Notification Center of Colorado • Colorado Parks and Wildlife (CPW) • Colorado Dept. of Public Health and Environment • Colorado Department of Transportation (CDOT) • Federal Highway Administration (FHWA) • Town of Basalt • Basalt & Rural Fire Protection District Utility Coordination. Utility Survey • Coordinate with CDOT Utilities • Arrange for field locates of all underground utilities. • Survey all above and below ground utilities, including poles, manholes, valves, pedestals, guy wires, markers, fiber optic lines, telephone lines, gas lines, electric lines, sewer lines, etc. • If necessary, pothole all underground utilities in areas of potential conflict with construction. • Obtain all necessary permits to perform on -site surveys of utilities. Utility Coordination • Obtain maps from utility companies. • Create / maintain utility company contact lists. • Conduct any necessary field reviews / investigations with the utility companies • Conduct periodic meetings with individual utility companies, as design progresses. • Distribute plans and cross sections to utility companies as design progresses, including FIR, FOR, and construction. • Make recommendations regarding utility relocations. • Coordinate utility relocations with the utility companies. Utility Owners • Holy Cross • Source Gas • Telephone — Century Link • Fiber — Century Link • Comcast Irrigation Ditches • None known Exhibit A - Page 8 Date: 4/23/2013 This Scope of Work includes the utilization of a utility locating service to provide locates as needed for engineering design. UNCC is only legally obligated to provide locates in advance of excavation. SGM anticipates that a design, which affects any agency, will have to be accepted by that agency prior to its acceptance by the County. Submittals to affected agencies will be coordinated with County. Exhibit A - Page 9 Date: 4/23/2013 SGM ESTIMATED BY: Dan Cokley PROJECT: Cedar Drive Improvements DATE: 4/19/2013 CLIENT: Eagle County REVISION: Current IGA , i itie T Exhibit A - Page 10 Date: 4/29/2013 Cedar Drive Improvements SCHEDULE OF FEES 6SGM SGM 1.1 Review and Analyze existing traffic data 10 10 20 $2,550 1.1 Coordinate with Affected Agencies 14 14 $1,540 1.2 Establish Transportation Needs of Area (Walk thru) 8 8 8 24 $3,040 1.3 Analyze Safety Alternatives and Design Components 8 8 16 $2,040 1.4 Determine Impacts of Alts /Components (ROW / Enviro) 8 2 10 $1,150 1.5 Preliminary ROW Assessment 4 4 4 8 20 $2,380 1.6 Weekly Updates 4 4 $440 Subtotal: Phasi 'I 22 Tab 10 a 4 6 106 ¢13,149 2.1 Notification Letter to Road Association and Residents 8 2 1 10 $1,010 2.2 Intemal Project Kickoff Meeting 2 2 2 2 2 2 2 14 $1,660 2.3 Collect Traffic Volume Counts 4 4 $440 2.4 Boundary Survey 4 10 14 - 28 $4,360 2.5 Topographic Survey 24 24 $4,800 2.6 Base Mapping 4 10 14 $1,560 2.7 Utility Coordination 2 4 6 $680 2.8 Geotechnical Investigation 2 2 $270 2.9 Wetland Delineation 4 4 $440 2.10 Design Memo to Eagle County and CDOT 4 8 12 $1,460 2.11 Weekly Updates 4 4 $440 Subtotal: Phase 2 . „ a. 6 32 4 6 2 2 d 22 38 2 122 317120 3.1 Roadway Design and Roadside Development 8 16 24 $2,920 3.2 Preliminary Right of Way Plans 2 8 10 $1,080 33 Preliminary Geotech Report 3.4 Preliminary Enviromental Report 3.5 Preliminary Drainage Report 16 16 $2,160 3.6 Utility Coordination 3.7 Deliverables 30% Plans 6 13 32 78 129 $13,645 1. Title Sheet 2 2 $180 2. Standards Plans List 2 2 $180 3. Typical Sections 2 4 6 $590 4. General Notes (Project) 1 2 3 $295 5. Summary of Approximate Quantites 1 4 5 $475 6. Survey Tabulation 2 2 $180 7. Storm Drainage Plan 4 8 12 $1,260 8. Stormwater Management Plan 2 4 6 $630 9. Project Control Map 2 4 s $590 10. Removal Plans 2 2 $180 11. Utility Plans 1 4 5 $475 12. Plan and Profile Sheets 4 32 36 $3,340 13. Cross Sections 2 8 10 $950 14. Detour Traffic Control Plan 15. Structures 32 32 $4,320 3.8 Preliminary Quantities 6 2 8 16 $1,610 3.9 Preliminary Opinion of Probable Cost 4 4 $440 3.10 Preliminary TCE Descriptions and Exhibits 4 4 $360 3.11 Quality Assurance Memo 4 2 2 8 $1,030 3.13 Public Information Meeting 2 4 2 8 $860 3.14 Eagle County BOCC Meeting 4 4 8 $1,020 3.14 30% Design Review Meeting 2 4 2 2 10 $1,060 Subtotal: Phase 3 20 49 22 1 17, 1 32 1 90 1 2 10 4 237 X26 16 e Exhibit A - Page it Date: 4/23/2013 Cedar Drive Improvements SCHEDULE OF FEES 6SGM M PHASES AND TASKS _ _ _ _ e _ I I I Sabtatat "`Design 4.1 Roadway Design and Roadside Development 4 24 28 $2,700 4.2 Right -of -Way and Easements 2 8 7 18 35 $3,990 4.3 Utility Coordination 8 8 $880 4.4 Deliverables 90% Plans 10 6 32 28 76 $8,750 1. Title Sheet 2. Standards Plans List 3. Typical Sections 4. General Notes (Project) 5. Summary of Approximate Quantites 8 8 16 $1,600 6. Survey Tabulation - 7.Storm Drainage Plan 4 4 8 $900 8. Stormwater Management Plan k 2 4 6 $630 9. Project Control Map 2 2 $180 10. Removal Plans 11. Utility Plans 2 8 10 $940 12. Plan and Profile Sheets 2 2 $180 13. Cross Sections 14. Detour Traffic Control Plan 15. Structures 32 32 $4,320 Draft Project Special Provisions 12 2 14 $1,590 Draft Standard Provisions 4 2 6 $710 Draft Engineer's Opinion of Probable Cost 8 8 $880 Draft Construction Bid Schedule 8 8 $880 TCE Descriptions and Exhibits 2 2 $220 Quality Assurance Memo 2 2 4 $350 4.5 Final Geotech Report 4.6 Final Enviromentai Report (ERO Wetland Permitting) 4.7 Final Drainage Report a 4 $540 4.8 Quality Assurance Memo 4 4 $440 4.9 Public Information Meeting 4 4 4 2 14 $1,510 4.10 90% Design Review Meeting 2 4 2 8 $1,000 Subtotal: Phase 4 ' 8 so: 12' 8 38 50 7 18 4 199 $22,140 a a 5.1 Finalize ROW Plans (Amend Plats if Necessary) 1 2 2 5 15 25 $2,745 5.2 Notice to Property Owners 1 2 4 7 $625 5.3 Property Valuation 5.4 Offer / Negotiation 8 8 16 $1,600 5.5 Closing 1 4 8 13 $1,305 5.6 Monumentation 4 Monuments 4 8 1 6 19 $2,460 Subtotal: Phase 5 3 20 26 5 18 8 4 ab ;8,738 6.1 100% Construction Plans 6.2 Final Project Special Provisions & Standard Provisions 6.3 Final Opinion of Probable Cost Subtotal: Phase 6 7.1 Bid Phase Coordination w /County 7.2 Mandatory Pre -Bid Meeting 7.3 Bidding Addenda 7.4 Project Award Subtotal: Phase 7 8.1 Pre - Construction Meeting 8.2 Progress Meetings (weekly) 8.3 Review of Shop Drawings 8.4 RFI Responses Subtotal: Phase 8 TOTAL: Phases 1 -8 1 59 198 48 31 78 174 26 74 44 14 746 $87,320 Exhibit A - Page 12 Date: 4/23/2013 I Cedar Drive Improvements ISSGM Other Direct x erases •n. ffi Mileage (from GJ office) $0.70 1 per mile 0 0.00 Plotting, 24x36, BM 2.00 per plot 80 $160.00 Plotting, 24x36, Color $4.00 1 per plot 10 $40.00 Reproductions, 8'/2x11, BM/ $0.15; per copy 500 $75.00 Reproductions, 11x17, BMW $0.15' per copy 400 $60.00 Reproductions, 8'/2x11, Color 0.251 per copy 0 0.00 Reproductions, 11 x17, Color $0.501 per copy 0 $0.00 Newsletters, Tri -fold, Color $0.75 per copy 200 $150.00 Daily Sentinel Notice $1,000.00 per week 0 $0.00 Poster Board Exhibits $ 50.00 j each 8 $400.00 I i i u tota O N m Q i O i =}• w a s - ----- --- .... .. _ _.. _.... ._....._....._. __;. _............ ------ -- - o! u D F ._......g.. g U W a o G U G s � n � g o Eat 3 o vo � amN , 2 W E _ � n rri-T- _ I - � 2 V P V L7 L'7 V L•] M V V V M V V V [•'1 t2 V M V V 17 V V M L•'1 Lh M M �_ M t7 17 V V M v O ?_ 710 fD t� m N a m Z O V ;;i N M m a0 O P N' 4 r IO OI O W — — — — — O a r 75 tD tz O 4 N m O - << V N�� N M< N N N r z N t7 n N N Ip O •C O N N N N LO t0 ED 1� . 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Ii N N U 01 m m m y tc U m 2 m� m c C U m p m o a. m s ❑ m a LU a: T p1 CC 01 m a' V Z C C , , � -- pC1 C LL mC W y .Ai si > C ° C m g a O G O G 2 N a p J 'Q V m E C C d C C W ¢ C C � 01 t 3> N Q E � Y C> C ¢ c o 0 0 a 0 m o m a . m o m w u1 ❑ 01 .. m o w °i. ° °' s c a a o U m a> o M: — O ° m a kL w > �+• �(/1 3� N U m U a y ` �:�F �� Up U� C�CI (J m �L(J � �m (j 0 � 1 r� C��� °F N� ULL F. �m -mGO mo �F1mmo o mo�o`c a °1o� m0ood m(n Wa'Ua'Ua W LL W FQ CZUmm U' �70 b1 W t+ILLLL LOW a'Urn W mNL) Lr z¢z n.oU�� W UUUU &n �T -o�- LL C LL 0 N U - S I s V: Exhibit B - Page 1 (FMLAWRK) Rev 718109 PROJECT# SHO 0821- 097(18265) Routing # 13 HA3 48872 REGION 3 (PCO) SAP PO# 271001747 STATE OF COLORADO Department of Transportation Agreement with Eagle County TABLE OF CONTENTS 1 . PARTIES .................................................................................................:......... ..............................2 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY ...................................... ............................:.. 2 3 . RECITALS ...................................,............,......................... ............_1................. ......,.................2 4 . DEFINITIONS .............................................. ................. ............... ..,............... ............................... 2 5. TERM and EARLY TERMINATION ............................................................... ............................... 3 6 . SCOPE OF WORK ........................................................................................ ............................... 3 7. OPTION LETTER MODIFICATION .................................................................. ............................... 7 & PAYMENTS ...................................................................................................... ..............................8 9 . ACCOUNTING ................................................... ............................... ..........: .............................10 10. REPORTING NOTIFICATION ....................................................................... .............................10 11. LOCAL AGENCY RECORDS ....................................................................... ..............:................ 11 12. CONFIDENTIAL INFORMATION -STATE RECORDS ..... .....I ..................... 13. CONFLICT OF INTEREST ........................................................................... ............................... 12 14. REPRESENTATIONS AND WARRANTIES ................................................. ............................... 12 15 INSURANCE ................................................................................................ ............................... 13 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 .................................. ............................... 17 22. FEDERAL REQUIREMENTS ................................ I". ............... . ..... ....................................... 18 23. DISADVANTAGED BUSINESS ENTERPRISE ( DBE) .................................. ............................... 18 24. DISPUTES ....................... :.......................................................................................................... 18 25. GENERAL PROVISIONS ............................................................................. ....................:.......... 18. 26. COLORADO SPECIAL PROVISIONS AND UPRR SPECIAL PROVISIONS .............................. 21. 27. SIGNATURE PAGE ...................................................................................... .................. .............. 23 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 l - FEDERAL -AID CONTRACT PROVISIONS .................................. ..............................1 37. EXHIBIT J - FEDERAL REQUIREMENTS ...................................................... ..............................1 38. EXHIBIT K-- SUPPLEMENTAL FEDERAL PROVISIONS ............................... ..............................1 Exhibit B - Page 2 1. PARTIES THIS AGREEMENT is entered into by and between, Eagle County, (hereinafter called the "Local Agency "), and the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the "State" or "CDOT "). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. This Agreementshall not be effective or enforceable until it is approved and signed by the Colorado State Controller or their designee (hereinafter called the "Effective Date "). The State shall not be liable to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date. 3. RECITALS A. Authority, Appropriation, And Approval Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval, clearance and coordination have been accomplished from and with appropriate agencies. Federal Authority Pursuant to Title I, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21St Century" of 1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA -LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the "Federal Provisions "), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and.eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ( "FHWA" ). State Authority Pursuant to CRS §43 -1 -223 and to applicable portions the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS § §29 -1 -203, 43 -1 -110; 43 -1 -116, 43- 2- 101(4)(c) and 43- 2- 104.5. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant; to CDOT's Stewardship Agreement with the FHWA. CDOT will reimburse Eagle County for a Hazard Elimination project in accordance with the HES Program. 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 Exhibit B - Page 3 "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. t. 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 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 Exhibit S - Page 4 B. Goods and Services The Local shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered the Local Agency's, Consultants' or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Commitments i. Design If 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. H. 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 performancelprovision 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 Exhibit B - Page 5 (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use CDOT procedures described in Exhibit H to administer the Consultant contract. (6) Local Agency may expedite any CDOT approval of its procurement process and/or Consultant contract by submitting a letter to CDOT from the local Agency's attorney /authorized representative certifying compliance with Exhibit. H and 23 C.F.R. 172.5(b)and (d). (6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim: - (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the-design /construction of the project. The State is an intended third -party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist.the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction in connection with this work. d) The State, in Its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. 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 (CAPE), to perform engineering administration. The CAPE 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 Exhibit B - Page 6 C.F.R. Parts 633 and 635 and C.R.S._§ 24 -92 -101 et seq. Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit 1) in its entirety verbatim into any subcontract(s) for those services as terms and con_ ditions 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)(ili)(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 635, Subpart B, f=orce 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) Ah 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 4109.04. (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 Exhibit B - Page 7 d) The Parties' respective responsibilities -under each level in CDOT's Right of Way Manual (located at hft:UNv%v�v.dot.state.co.iis /ROW ManuWo 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 Exhibit B - Page 8 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 a. If the State exercises this option, the contract will be considered to include this option provision. C. Option 3 - To update funding (increases and /or decreases) with a new Exhibit C. This option can be used to increase and /or decrease the overall contract dollars (state, federal, local match, local agency overmatch) to date, by replacing the original funding exhibit (Exhibit C) in the Original Contract with an updated Exhibit C -1 (subsequent exhibits to Exhibit C -1 shall be labeled C -2, C -3, etc). The State may have a need to update changes to state, federal, local match and local agency overmatch funds as outlined in Exhibit C -1, which will be attached to the option form. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (34) 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 ordinancelresolution or authority letter is attached hereto as Exhibit B. B. Payment i. Advance, Interim and Final Payments Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fiscal Rules and be made in accordance with the provisions of this Contract or such Exhibit. The Local Agency shall initiate any payment requests by submitting invoices to the State in the form and manner, approved by the State. 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 Exhibit B - Page 9 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: 1. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goods and Services provided. it. 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 Exhibit B - Page 10 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 casts 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 Stete 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 Exhibit B - Page 11 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: (1) a period of three years after the date this Agreement is completed or terminated, or (il) 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 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. 92. CONFIDENTIAL INFORMATION -STATE RECORDS Page 11 of 23 Exhibit B - Page 12 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 at 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 Xl, 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 Exhibit B - Page 13 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. WSURANCE 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 §16(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 10193 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 Exhibit B - Page 14. any one tire. 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. !it. 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 11185, 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 Exhibit B - Page 15 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, coricurrently or consecutively. A. Termination for Cause and/or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non- performanc6 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 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. 1. Method and Content Page 15 of 23 Exhibit B - Page 16 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: 1. 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 Exhibit B - Page 17 A. State Sean Yates Resident Engineer CDOT - Region 3 222 So 6 Street, Room 100 Grand Junction, CO 81501 ( 970)683-6276 B. Local Age nc : Eva Wilson Engineer Eagle Count PO Box 850 Eagle, CO 81631 ( 970)328-3560 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agencys`S obligations hereunder without the prior written consent of the State. 20. GOVERNMENTAL IMMUNITY Notwithstanding a other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immu s, 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 §2430 -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, §24103.5 -101 and §24 -105 -102 concerning the monitoring of vendor performance on state agreements /contracts and inclusion of agreementicontract perfonnance 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 Exhibit B - Page 18 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- 106 - 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 (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question.of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of CDOT. in connection with.any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action. This dispute clause'does not preclude consideration of questions of law in connection with decisions provided for herein. Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative, or board on a question of law. 25. GENERAL PROVISIONS A. Assignment The Local Agency's rights and obligations hereunder are personal and may not be transferred, assigned or subcontracted without the prior written consent of the State. Any attempt at assignment, transfer, or subcontracting without such consent shall be void. All assignments and subcontracts approved by the Local Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely responsible for all aspects of subcontracting arrangements and performance. B. Binding Effect 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 Exhibit B - Page 19 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. E. 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. Jurisdetion and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and /or damages in favor of the Local Agency contained in any . document attached to and /or incorporated by reference. into this Agreement, whether referred to as an exhibit, attachment, schedule, or any other name, are void and of no effect. This includes, but is not necessarily limited to, limitations on (i) the types of liabilities, (ii) the types of damages, (111) 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 Exhibit B - Page 20 declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms . Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required. M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84- 730123K) and from all State and local government sales and use taxes under CRS § §39 -26 -101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them. N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. O. Waiver Waiver of any breach of a term, provision, or. requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 20 of 23 Exhibit B - Page 21 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24.30 -202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24 -30- 202(5,5). Financial obligations of the State payable after the current fiscal year are contingent upon 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 avallable by The 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. S. 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 § §2418 -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 Exhibit B - Page 22 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. [NotApplicable to Intergovernmental agreements] Subject-to CRS §24 -30 -202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8 -17.5 -101. [Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental Agreements, or information technology services or products and services] The Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and. shall confirm the employment eligibility of all employees who are newly hired for employment in. the United States to perform work under this Agreement, through participation in the E- Verify Program or the State program established pursuant to CRS §8- 17.5- 102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter Into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall 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 Erimployment. 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 -17.6 -101 et seq., the contracting State agency, Institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS, CRS §24 -76.5 -101. The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) Is a citizen or otherwise lawfully present in the United States pursuant to federal law, (by shall comply with the provisions of CRS §24 -76.5 -101 et seq., and (c) has produced one form of identification required by CRS §24 -76.5 -103 prior to the effective date of this Agreement. SPs Effective 1/1/09 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 22 of 23 Exhibit B - Page 23 27. SIGNATURE PAGE Agreement Routing Number 1 3 HA3 48$72 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 EAGLE COUNTY By 1 IrTGR F. 'l� vl��� QN Name of- Authorized Individual ' - M Afj Official Title of P *Signature Date: Title: 2nd The Local Agency Signature if Needed Name of Authorized Individual Official Title of Authorized Individual STATE OF COLORADO John W. Hickenlooper, GOVERNOR Colorado Department of Transportation Donald E. Hunt, Executive Director By: Timothy,(. Hams, P.E., CDOT Chief Engineer Date: LEGAL REVIEW .John W. Suthers, Attorney General By: ou Signature - Attorney General Date: *Signature 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. STROLLER l J , PA By: Colora epartment of Transportation Date: Page 23 of 23 Exhibit B - Page 24 28, EXHIBIT A - SCOPE OF WORK Exhibit B - Page 25 COLORADO DEPARTMENT OF TRANSPORTATION Orig.Date:12/i012010 DESIGN DATA Rev.Datm Revision #: 0 Page 1 to 3 Region #: 03 Status: El Preliminary ❑ Final ❑ Revised Submitted By PM: HARBERTK Approved by Program Engineer. Date: Revised by: Date: Geographic Location: CEDAR DRIVE FROM PINON DR TO 0.9 MI. EAST, EAGLE Project Code # (SAN). 18265 STIP#: SR36693 Project #: SHO 0821 -097 PE Project Code: Project Description: SH 82 Cedar Drive Improvements County. 037 System code: z -Not on any Federal -Ald Highwa Oversight By: Delegated/Locally Administered (Planned Lemath: 0.900 I Description of Proposed Constructionnmprovement(Attach map shoving site location) SAFETY IMPROVEMENTS OF A ONE -LANE GRAVEL ROAD Project Characteristics (Proposed) Median (Type): ❑ Depressed Q Painted L Raised Q . None Lighting Q Handicap Ramps ❑ Traffic Control Signals Q Stripin E Curb and Gutter El Curb Only ❑ Left Turn Slots El Continuous Width= ❑ Sldwalk Wkth- Bikeway Width= Right-Turn Slots f Continuous Wldih= ❑ Parking Lane Width = ❑ Detours Signing ❑ Construction ❑ Permanent ❑ Landscaping requirements (description): ❑ Other (description): Right of Way Yes/No Est. # Utilities (list names of known utility companies) ROW Wor Perm, Easement Required No Relocation Required No Temporary Easement Required: No Changes In Access: No Changes to Connecting Roads: No Crossings # of Crossings: R=mmendallons J Railroad Environmental Type: Approved On: Project Code # Cleared Under. Project # Cleared Under. None 1 1 ments: Coordination ❑ Whhdravm Lands (Power Sites, Reservoirs, Etc.) Cleared through BLM or Forest Ser0w Office Irrigation Ditch Name: ❑ New Traffic Ordinance Required Q Modify Schedule of Existing Ordinance Munc'pality: Basalt Other. Construction Method Advertised By: NoAd Reason: Entity/ Agency Contact Name: Phone #: Local Safety Considerations Project Under Guardrail meets current standards: No Comments: ❑ Variance in Minimum Design Standards Required ❑ Safety project not all standards ❑ Justification Attached ❑ Request to be Submitte addressed ❑ Bridge (see item 12) ❑ See Remarks Stage Construction explain in remarks) 3R projects Safe Evaluation Complete (date): Exhibit B - Page 26 f $ § On % j } 2 � } .$ /Q \ . JR I OO ! k\ P � oo ) $ � $ _ _ 2 � i \ • ) 22 a $ $ 7 \ k§ § \ t � - ■ § / \ & % § ` 2 § 01 § % �@ � 2 2 \ e « k ) / 0 E £ i /] g � § ; /« OO /2 == «k 2 . / 7 & ) \ 2 } , 3 _ 2 ■ . & f w % } 7 _ t. J & 5 § »« { f a s 2§ I §C /$§ 2` a i J e\ e « J2a «z$o• ■�_cq�s��a�#_ i a Exhibit B - Page 27 Page 3 of 3 Project Coda #(SA#): ject #: ISH Revue Date: 18265 0 0821-097 Major Structures S= to stay, R= to be removed, P= proposed now structure Referanoe I Standard Structure Structural Horizontal Vertical Year Structure (D# • Length Point Feature Intersected Width Roadway capacity Clearance Clearance Built Proposed Treamant of Bridges to Remain in Ptace(address bridge rail, capacity, and allowable surfacing thickness): Remarks Project Description Safety enhancements to approxlmatety 450OLF of Cedar Drive, located in unincorporated Eagle County <( >, <)> northeast of Basalt, CO, The grant will involve resurfacing, guardrail installation, slgnage, and widening for the 0.9 mile section of Cedar Drive. ROW Category There are a total of 5 parcels that may need additional ROW, as shorn on the attached map #Cedar Drive Parcels#, along with the table #Cedar Drive # Apprordmate ROW Areas# that details the amount of ROW that may be necessary. Four of the parcels are private, and the fifth Is owned by the Division of Parks and Recreation (DOPR). Estimates for ROW are based upon the 2011 Land Value Assessment from the Eagle County Assessors Office. it Is assumed that an additional 10-20# of ROW maybe needed from these 4 private parcels beyond the wdsting ROW (40 #) as shown on the plats and legal descriptions. This is probably a generous amount and it is anticipated that the actual amount of ROW required from these four parcels will be less. Engineering Category This is based upon the overall construction costs as an assumed 5,0% of total construction oasts <( >, <)> including plan preparation, construction document creation, and all associated design meetings and coordination. Construction managementand testing Includes actual management of the project, plus any gectechnicai testing of materials or existing site conditions encountered during design and construction. Construction Category Construction is assumed to consist of road resurfacing, guardrail installation, additional warning and widantng where appropriate for lane pulloffs. Traffic control and an altemative access is also included as a preferred method of being able to divert traffic from Cedar Drive onto an alternative route to maximize consiructabllity. Exhibit B - Page 28 ti C: O U- 01 C3 to 9 1 LM m LM cl Lo cu 0 4 6 sisn c V418 Exhibit B - Page 29 W m L d O a B a E X G. CL a �L 0 L m u [:Ul papaaN 41PIM ln In .' n r �. Iso:) MOH le4ol rn dp4S MO2! p91ewRS3 o a :: uz r-i W (Moil .00 [is] Moa Vi � o ri cq dS aad lso� paj4BIem 0 0 0 0 0 0 algepene 10 Junouay „`,; OAV % p014218M Li N r ii a M N ^ N d N to }sod moll Lq o �► a LM H ['Il laaaed ui/guole 41Bu91 Moa ° N O O M �Q � dS aad 4so: 0 to 0 o L w V). 4A 4A. a leBal/leld uo Mou [ad] a o o0 Li i a� M N a� .. m o - a H 0 C m 00 tiiazl r4 0) Ln W ei C1 H } Z H >- N to juawssassb anjeA puel r+ N to Z Z td < [is) moll .09 ° 0 ° 0 Cl ao junowv leuoillppb a N ��,- cc m r ,, J Q z ki '6 s to r i [:Ul papaaN 41PIM dp4S MO2! p91ewRS3 o a r-i W (Moil .00 [is] Moa m o rn N 0 algepene 10 Junouay „`,; tn M o LM m ['Il laaaed ui/guole 41Bu91 Moa ° N o°o (.0 C c uondinsap leBal/leld uo Mou N t N . 4� O cc N 0 - a m o - a m o il O ;; O } Z H >- N to N to Z Z td < a o?S Ln a Q z cc O J Q z ki '6 s to p L a ` w o?S ”' z H U ° o u > w 5 cl cc 2 w= -1 a w X o- o c a D 0 n O z 0� a U t- 0 CC w O o D ac a O O ,� > o co 06 L m ( U i 0. u G1 ° o ° o 0 0 L m 00 0 0 N N N N Z p 0 0 O i to tD to to d N N N N Exhibit B - Page 30 29. EXHIBIT B - LOCAL AGENCY RESOLUTION LOCAL AGENCY ORDINANCE or RESOLUTION Exhibit B - Page 31 Commissioner�- moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2012- 1 RESOLUTION SUPPORTING THE AGREEMENT BETWEEN EAGLE COUNTY AND THE COLORADO DEPARTMENT OF TRANSPORTATION FOR DISBURSEMENT OF FUNDS FOR THE ROW, DESIGN & CONSTRUCTION OF THE CEDAR DRIVE IMPROVEMENTS WHEREAS, Eagle County desires to improve Cedar Drive by performing road resurfacing, guardrail installation, warning signage, and other mitigation measures to increase the safety and operations on a 0.9 mile length of Cedar Drive,. located in Section 8, Township 8 South, Range 86 West of the 6' Principal Meridian, County of Eagle, State of Colorado; and WHEREAS, the Colorado Department of Transportation (hereinafter "CDOT ") has selected this Project as eligible for Federal funding through the Hazard Elimination Safety Program (hereinafter "HES ") administered by CDOT; and WHEREAS, the total Project cost including right -of -way, design and construction is estimated at $1,299,882; and WHEREAS, ninety percent (90 %) of the participating costs ($1,169,893) are funded from the HES; and WHEREAS, Eagle County is providing the remaining ten percent (10 %) of the participating costs ($129,989), through the Local Improvement District formed pursuant to Eagle County Resolutions 2011 -084 and 2011 -116; and WHEREAS, Eagle County agrees to assume the responsibilities of the Local Agency as defined by the Grant Agreement (hereinafter the "Grant Agreement ") between CDOT and Eagle County for the Project. // REMAINDER OF PAGE INTENTIONALLY LEFT BLAND // Exhibit B - Page 32 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO: THAT, the Board of Eagle County Commissioners hereby authorizes the Chairman of the Board to sign the Grant Agreement with CDOT. THAT, this resolution is to be in full force and effect from and after its passage and approval. THAT, the board hereby finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the residents of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Board of County Commmissioners of the County of Eagle, State of Colorado, at its regular meeting held this day of � 2012. COUNTY OF EAGLE, STATE OF COLORADO By and Through its Board of County Coinndssioners xnti�� ATTEST: o r By. 0 ,,� ''yter\F. Runyon, the Boarlyof County Commissioners �. P 1�V7► Jo Sta ney, Commissioner Sara J. Fisher, Cdirumissi Commissioner �4 5 w k-'o seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner Peter F. Runyon 0111 N Commissioner Jon Stavney " Commissioner Sara J. Fisher " This Resolution passed by vote of the Board of County Commissioners of the County of Eagle, State of Colorado. 2 Exhibit B - Page 33 30. EXHIBIT C — FUNDING PROVISIONS A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $1,299,882.00 which is to be.funded as follows: I BUDGETED FUNDS a. Federal Funds $1,169,893.00 (90% of Participating Costs), b. Local Agency Matching Funds $129,989.00 (10% of Participating Costs) TOTAL BUDGETED FUNDS $1,299,882.00 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 (1a) $1,169,893.00 b. Less Estimated Federal Share of CDOT - Incurred Costs (26) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $1,169,893.00 FOR CDOT ENCUMBRANCE PURPOSES Total Encumbrance Amount ($0.00 divided by __ %) $1,299,882.00 Less ROW Acquisition 3111 and /or ROW Relocation 3109 $27,332.00 Net to be encumbered as follows: $1,272,550.00 WBS Element 18265.10.30 Design 3020 $104 WBS Element 18265.10.10 ROW 3114 $25,000.00 Page 9 of 2 Exhibit B - Page 34 B. Matching Funds The matching ratio for the federal participating funds for this Work is 90% federal -aid funds (CF DA #20.205) to 10% Local Agency funds, it being understood that such ratio applies only to the $1,169,893.00 that is eligible for federal participation, it being further understood that all non - participating costs are borne by the Local Agency at 100 %. If the total participating cost of performance of the Work exceeds $1,169,893.00, and additional federal funds are made available for the Work, the Local Agency shall pay 10% of all such costs eligible for federal participation 'and 100% of all non- participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $1,169,893.00, then the amounts of Local Agency and federal -aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $1,169,893.00 (For CDOT accounting purposes, the federal funds of $1,169,893.00 and the Local Agency matching funds of $129,989.00 will be encumbered for a total encumbrance of $1,299,882.00 and a net encumbrance of $1,272,550.00), "Note, $129,750.00 is currently encumbered, the remaining funds will be encumbered in the future by either 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: 1. Expenditure less than $600,000 If the Local Agency expends less than $500,000 in Federal funds (all federal sources, not just'Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure exceeding than $500,000- Highway Funds Only If the Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial" procedures and processes for this program area. iii. Expenditure exceeding than $500,000 - Multiple Funding Sources If the Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization /entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Page 2 of 2 Exhibit B - Page 35 31. EXHIBIT D — OPTION LETTER SAMPLE IGA OPTION LETTER (This option has been created by the Office of the State Controller for CDOT use only) NOTE: This option is limited to the specific contract scenarios listed below AND may be used in place of exercising a formal amendment. A. SUBJECT: (Choose applicable options listed below AND in section Band delete the rest) 1. Level of service change within current term due to an unexpected Local overmatch on an overbid situation ONLY; 2. Option to add phasing to include Design, Construction, Environmental, Utilities, ROW incidentals or Miscellaneous ONLY (does not apply to Acquisition /Relocation or Railroads); 3. Option to update funding (a new Exhibit C must be attached with the option letter and shall be labeled C -1 (future changes for this option shall be labeled as follows: C -2, C -3, C -4, etc.) B. REQUIRED PROVISIONS. All Option Letters shall contain the appropriate provisions set forth below: (Insert the following language for use with Option #1): In accordance with the terms of the original Agreement (insert FY, Agency code & 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 he as referenced in Paragraph /Section /Provision /Exhibit of the original Agreement. (,Insert the following language for use with Option #3): In accordance with the terms of the original Agreement (insert FY, Agency code & CLIN routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here) the State hereby exercises the option to update funding based on changes from state, federal, local match and /or local agency overmatch funds. The Agreement is now select one: increased and/or decreased) by (insert dollars here specified in Paragraph/- Section /- Provision /Exhibit of the original Agreement. A new Exhibit C -1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when Page 1 of 2 Vendor name: Exhibit B - Page 36 using this option: future changes for this option for Exhibit C shall be labeled as follows: C -2, C-3, CA 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: 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 Form Updated: June 12, 2008 0 Date: Page 2 of 2 Exhibit B - Page 37 32. EXHIBIT E - LOCAL. AGENCY CONTRACT ADMINISTRATION CHECKLIST Exhibit B - Page 38 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. Exhibit B - Page 39 COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No. STIP No. Project Code Region SHE 0821.097 4.1 Authorize funding by phases (CDOT Form 418 - Federal -aid Program Data. Requires FHWA con cu rrencefinvolvement SR36993.024 18265 3 Project Location Date Cedar Dr. in Basalt Colorado, Eagle Count 10/19/11 Project Description construction of safety improvements Local Agency Local Agency Project Manager Eagle County Greg Schroeder CDOT Resident Engineer CDOT Project Manager Sean Yeates Sean Yeates INSTRUCTIONS: This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters of the CDOT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The "X° denotes the party responsible for initiating and executing the task. Only one responsible party should be selected. When neither CDOT nor the Local Agency is responsible for a task, not applicable (NA) shall be In addition, a "V will denote that CDOT must concur or approve. Tasks that will be performed by headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the CDOT Resident Engineer, in cooperation with the Local A gena Project Manager, will prepare and distribute a revised checklist. NO. DESCRIPTION OF TASK RESPONSIBLE PARTY LA CDOT TIP FSTEP AND LONG -RANGE PLANS 2.1 1 Review Pra'ect to ensure it is consist with STIP and amendments thereto X FEDERAL FUNDING OBLIGATION AND AUTHORIZATION 4.1 Authorize funding by phases (CDOT Form 418 - Federal -aid Program Data. Requires FHWA con cu rrencefinvolvement X PROJECT DEVELOPMENT 5.1 Prepare Desi n Data- CDOT Form 463 X 5.2 Prepare Local A enc ICDOT Inter - Governmental Agreement see also Chapter 3 X 5.3 Conduct Consultant Selection /Execute Consultant Agreement X 5.4 Conduct Design Scoping Review Meeting X 6.5 Conduct Public Involvement X 5.6 Conduct Field Inspection Review FIR X 5.7 Conduct Environmental Processes (may require FHWA concurrencelinvolvement X 5.8 Acquire f ht- of - -Wa y (may require FHWA concurrencernvolvement X 5.9 Obtain Ufilit 'and Railroad Agreements X 5.10 Conduct Final Office Review FOR X 5.11 Justif y Force Account Work by the Local Agency X 5.12 Justify Proprietary, Sole Source or Local Agengy 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 COOT Form 1243 09106 Pagel of 4 Previous editions are obsolete and may not be used Exhibit B - Page 40 COOT Form 1243 09/06 Paget of 4 Previous editions are obsolete and may not be used RESPONSIBLE NO, DESCRIPTION OF TASK PARTY LA CDOT PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE 6.1 Set Underutilized Disadvantaged Business Enterprise (UBDE) Goals for Consultant and X Construction Contracts CDOT Region EEO /Civil Rights Specialist) 6.2 Determine Applicability of Davis -Bacon Act X This project ❑ is ® Is not exempt from Davis -Bacon requirements as determined by the functional classification of the project location (Projects located on local roads and rural minor collectors may be exempt.) Sean Yeates 10/19/11 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 Speci 6.4 Title VI Assurances X ric3 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 ;f .4 Contract {CDOT Resident Engineer X ADVERTISE, BID AND AWARD 7.1 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 7A Review Worksite and Plan Details with Prospective Bidders While Project Is Under X Advertisement 7.5 Open Bids X 7.6 Process Bids for Compliance Check CDOT Form 715 - Certificate of Proposed Underutilized DBE Participation when the E 'I _�. low bidder meets UDBE oafs L X F;- ` Evaluate CDOT Form 718 - Underutilized DBE Good Faith Effort Documentation and . determine if the Contractor has made a good faith effort when the low bidder does not meet X �v DBE g oats 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 (Ap pendix B) X Pre- survey • Construction staking X • Monumentation X Partnering (Optional) X Structural Concrete Pre -Pour A ends is in CDOT Construction Manual) X _ Concrete Pavement Pre - Pavia ( Agenda Is in CDOT Construction Manuag X HMA Pre -Pavia Agenda is in CDOT Construalion Manuao X 8A Develop and distribute Public Notice of Planned Construction to media and local residents x 8.5 Supervise Construction `T A Professional Engineer (PE) registered in Colorado, who will be "in responsible charge of �,- I - construction supervision. -V; Gran Schroeder 970- 328 -3567 Local Agency Professional Engineer or Phone number C �X ,fig CDOT Resident Engineer COOT Form 1243 09/06 Paget of 4 Previous editions are obsolete and may not be used Exhibit B - Page 41 CDOT Form 1243 09106 Page3 of 4 Previous editions are obsolete and may not be used RESPONSIBLE NO. DESCRIPTION OF TASK PARTY LA CDOT Provide competent, experienced staff who will ensure the Contract work is constructed in ' -1 accordance with the plans andspecifications X Construction inspection and documentation X 8,6 Approve Shop Drawings X X 8.7 Perform Traffic Control Inspections X 8.8 Perform Construction Surveying X 8.9 Monument Right-of-Way X 8.10 Prepare and Approve Interim and Final Contractor Pay.Estimates X Provide the name and phone number of the person authorized for this task. Gres Schroeder 970 -328 -3567 Local 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 Prepare and Authorize Change Orders X 8.14 Approve All Change Orders X 8.15 Monitor Project Financial Status X 8.16 Prepare and Submit Monthly Progress Reports X 8.17 Resolve Contractor Claims and Disputes X 8.18 Conduct Routine and Random Project Reviews Provide the name and phone number of the person responsible for this task. X Sean yeates 970- 683 -6276 CDOT Resident Engineer Phone number MATERIALS 9.1 Conduct Matedals.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 worts progresses X • Complete and distribute form after work is completed X 9.3 Perform Pro ect Acceptance Samples and Tests X 9.4 Perform Laboratory Verification Tests X 9.5 Accept Manufactured Products X Inspection of structural components; • Fabrication of structural steel and pre - stressed concrete structural components X • Bridge modular expansion devices (0° to 6° or greater) X • Fabrication of bearing devices X 9.6 Approve Sources of Materials X 9.7 independent Assurance Testing (IAT), Local Agency Procedures ❑ CDOT Procedures • Generate IAT schedule X • Schedule and provide notification X • Conduct IAT X 9.8 Approve mix designs • Concrete X • Hot mix asphalt X 9.9 Check Final Materials Documentation X 9.10 1 Complete and Distribute Final Materials Documentation X CDOT Form 1243 09106 Page3 of 4 Previous editions are obsolete and may not be used Exhibit B - Page 42 CONSTRUCTION CIVIL RIGHTS AND -LABOR COMPLIANCE 10.1. Fulfill Project Bulletin Board and Pre- Construction Packet Re uirements X 10.2 Process CDOT Form 205 - Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to EEO /Civil Rights Specialist X 10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee Interviews, Complete CDOT Form 280 X 10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the 'Commercially Useful Fun ction .R equirements X 10.5 Conduct Interviews When Project Utilizes On4he -Job Trainees. Complete CDOT Form 200 - OJT Training Questionnaire X 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 Acceptance Report (Resident Engineer with mandatory Local Agency participation.) X 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 Final Certifications X 11.7 Check Material Documentation and Accept Final Material Certification See Chapter 9 X 11.8 Obtain COOT Form 17 from the Contractor and Submit to the Resident Engineer X 11.9 Obtain FHWA Form 47 - Statement of Materials and Labor Used ... from the Contractor NIA 1 i.10 Complete and Submit CDOT Form 1212 — Final Acceptance Report (b y 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 09106 Pege4 of 4 Previous editions are obsolete and may not be used Exhibit B - Page 43 33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to any person for influencing or attempting to influence. an officer or employee of any Federal agency,. a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Agreement, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or of Congress, or an employee of a Member of Congress in connection with this Federal contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub - recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 Page 1 of'1 Exhibit B - Page 44 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 GDOT 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 Exhibit B - Page 45 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 Page 1 of 2 Exhibit B - Page 46 e. Alternative methods of approach for furnishing the professional services. 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 Exhibit B - Page 47 36. EXHIBIT I - FEDERAL -- AID CONTRACT PROVISIONS Exhibit B - Page 48 FHWA -1273— Revised May 1, 2012 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS I. General 11. Nondiscrimination III. Nonsegregated Facilities iV. Davis -Bacon and Related Act Provisions V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting orAsslgning the Contract VII. Safety: Accident Prevention VIII. False Statements Concerning Highway Projects IX. Implementation of Clean Air Act and Federal Water Pollution Control Act X. Compliance with Govemmentwide Suspension and Debarment Requirements Xl. Certification Regarding Use of Contract Funds for Lobbying ATTACHMENTS 3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA. 4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal -aid highway unless it Is labor performed by convicts who are on parole, supervised release, or probation. The term Federal -aid highway does not Include roadways functionally classified as local roads or rural minor collectors. if. NONDiSCRIMINATION A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only) 1. GENERAL I. Form FF WA -1273 must be physically incorporated In each construction contract funded under Title 23 (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must Insert this form In each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). The applicable requirements of Form FHWA -1273 are Incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tler subcontractor or service provider. Form FHWA -1273 must be included in all Federal -aid design - build contracts, In all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services). The design - builder shall be responsible for compliance by any subcontractor, lower -tier subcontractor or service provider. Contracting agencies may reference Form FF WA 1273 In bid proposal or request for proposal documents, however, the Form FHWA -1273 must be physically incorporated (not referenced) in ail contracts, subcontracts and lower -tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract). 2. Subject to the applicability criteria noted In the following sections, these contract provisions shall apply to all work performed on the contract by the contractors own organization and with the assistance of workers under the contractor's Immediate superintendence and to all work performed on the contract-by piecework, station work, or by subcontract. The provisions of this section related to 23 CFR Part 230 are applicable to all Federal -aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts. in addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR 60, 29 CFR 1625 -1627, Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), Title VI of the Civil Rights Act of 1964, as amended, and related regulations Including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications In 41 CFR 60 -4.3. Note: The U.S. Department of Labor has exclusive authority to determine compliance vi th Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625 -1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USG 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The following provision Is adopted-from 23 CFR 230, Appendix A, wfth appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements. 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630,29 CFR 1626-1627.41 CFR 60 and 49 CFR 27) and orders of the Secretary of tabor as modified by the provisions prescribed herein, and Imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards fo'r the contractor`s project activities under Exhibit B - Page 49. this contract. The provisions of the Americans with Disabilities Act of 9990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 11330 are incorporated by reference in this contract In the execution of this Contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. b. The contractor writ1 accept as its operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment. without regard to their race, religion, sex, color, national origin, age or disability. Such action shall Include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre - apprenticeship, and/or on -the- job training." 2, EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do So. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and Us Implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include In all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women In the area from which the project work force would normally be derived. a. The contractor wvill, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such Identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor Is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance vath EEO contract provisions. Where Implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions. c. The contractorwill encourage Its present employees to refer minorities and women as applicants for employment. information and procedures with regard to referring such applicants will be discussed with employees. 6, Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractorwili conduct periodic inspections of project sites to insure that working conditions and employee facifilies do not Indicate discriminatory treatment of project site personnel . b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review selected personnel actions In depth to determine whether there Is evidence of discrimination. Where evidence Is found, the contractor will promptly take corrective action. If the review Indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly Investigate all complaints of alleged discrimination made to the contractor In connection with Its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. It the investigation indicates that the dlscdminafion may affect persons other than the complainant, such corrective action shall Include such other persons. Upon completion of each investigation, the contractor will inform every complainanf.of all of their avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are Exhibit B - Page 50 applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved. b. Consistent with the contractor's workforce requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on- the -job training programs for the geographical area of contract performance. In the -event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a). c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor vriil periodically review the training and promotion potential of employees vrho are minorities and women and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor reties in whole or in part upon unions as a source of employees, the contractorwill use good faith efforts to obtain the cooperation of such unions to ' Increase opportunities for minorities and women. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below: a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership In the unions and Increasing the skills of minorities and women so that they may qualify for higher paying employment. b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information Is within the exclusive possession of the labor union and such labor union refuses to fumish such Information to the contractor, the contractor shag so certify to the contracting agency and shalt set forth what efforts have been made to obtain such information, d. in the event the union Is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through Independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability, making full efforts to obtain quaffed and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective, bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency. 8. Reasonable Accommodation for Applicants Employees with bisablI ties: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and ail roles and regulations established there under. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship. 9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability In the selection and retention of subcontractors, including procurement of materials and leases of equipment The contractor shall take all necessary and reasonable steps to ensure nondiscrimination In the administration of this contract a. The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract. b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations. 19. Assurance Required by 49 CFR 26.13(b): a. The requirements of 49 CFR Part 26 and the State DOTS U.S. DOT- approved DBE program are incorporated by reference. b. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT- asslsied contracts. Failure by the contractor to carry out these requirements Is a material breach of this contract, which may result In the termination of this contract or such other remedy as the contracting agency deems appropriate. 11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO . requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA. a. The records kept by the contractor shall document the following: (1) The number and work hours of minority and non - minority group members and women employed In each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women: and (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women; b. The contractors and subcontractors Wit submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and non- mfnan'ly -group employees currently engaged in each work classification required by the contract work. This information Is to be reported on Form FHWA -1391 The staffing data should represent the project work force on board In all or any part of the last payroll period preceding the end of July. If on- the -job training Is being required by special provision, the contractor Exhibit B - Page 51 will be required to collect and report training data. The employriient data should reflect the work force on board during . all or any part of the last payroll period preceding the end of July. 111. NONSEGREGATED FACILITIES This provision is applicable to all Federal -aid construction contracts and to all related construction subcontracts of $1000 or more. The contractor must ensure that facilities provided for employees are provided In such a manner that segregation on the basis of race, color, religion, sex, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. The term 'facilities" includes waiting rooms, work areas, restaurants and other'eating areas, time clocks, restrooms, washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single -user restrooms and necessary dressing or sleeping areas to assure privacy between sexes. IV. DAVIS -BACON AND RELATED ACT PROVISIONS This section Is applicable to all Federal -aid construction projects exceeding $2,000 and to ail related subcontracts and lower -tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right -of- way of a roadway that Is functionally classified as Federal -aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects. The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 'Contract provisions and related matters °with minor revisions to conform to the FHWA- 1273 format and FHWA program requirements. 11. Minimum wages a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copefend.Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Laborwhich Is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Acton behalf of laborers or mechanics are considered.wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or Incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of worts actually performed, without regard to still, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the Ilme actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.6. of this section) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and Its subcontractors at the site of the work In a prominent and accessible place where it can be easily seen by the workers. b.(1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which Is not listed In the wage determination and which Is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (i) The work to be performed by the classification requested Is not performed by a classification In the wage determination; and (1€) The classification is utilized in the area by the construction Industry; and OID The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the contractor and the laborers and mechanics to be employed In the classficatlon (if knowm), or their representatives, and the contracting officer agree on the classification and wage rate (Including the amount designated for fringe benefits where appropriate), a report of the action taken shall tie sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time Is necessary. (3) In the event the contractor, the laborers or mechanics to be employed In the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will Issue a determination within 30 days of receipt and so advise the contracting officer or 4 Exhibit B - Page 52 *11 notify the contracting officer within tit* 30-day period that additional time is necessary. (4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or f .b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. c. Whenever the minimum wage rate prescribed In the contract for a class of laborers or mechanics includes a fringe benefit which Is not expressed as an hourly rate, the contractor shall either pay the benefit as stated In the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costa reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 2. Withholding The contracting agency shall upon its win action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally - assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to laborers and iechanics, Including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 3. Payrolls and basic records a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (Including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described In section 1(b)(2)(B) of the Davis -Bacon Act), dally and weekly number of hours worked, deductions made and actual wages paid. Wheneverthe secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic Include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis- Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. b.(1) The contractor shall submit weekly for each week in which any contract work Is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the Information required to be maintained under 29 CFR 5.5(a)(3)0), except that full social security numbers and home addresses shall not be included on weekly transmittals. instead the payrolls shall only need to Include an individually identifying number for each employee e.g. , the last four digits of the employee's social security number). The required weekly payroll Information may be submitted in any form desired. Optional Form WH -347 Is available for this purpose from the Wage and Hour Division Web site at httpJ/%% vw. dol. gov /esetvhid/fomishvh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an Investigation or audit of compliance with prevailing wage requirements. It Is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for Its own records, without weekly submission to the contracting agency.. (2) Each payroll submitted shall be accompanied by a "Statement of Compliance; signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: 0) That the payroll for the payroll period contains the Information required to be provided under §6.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information Is being maintained under §5.5 (a)(3)(0 of Regulations, 29 CFR part 5, and that such Information is correct and complete; (it) That each laborer or mechanic (Including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or Indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other then permissible deductions as set forth In Regulations, 29 CFR part 3; (II§ That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. Exhibit B - Page 53 (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance' required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 10D1 of title 18 and section 231 of title 31 of the United States Code. c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during marking hours on the job, If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5,12. 4. Apprentices and trainees a. Apprentices {programs of the USDOL). Apprentices well be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or If a person Is employed in his or her first 90 days of probationary employment as an apprentice In such an apprenticeship program, who is not individually registered In the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shalt not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or othervAse employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project In a locality other than that In which its program is registered, the ratios and wage rates (expressed in percentages of ft journeyman's hourly rate) specked In the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified In the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. if the apprenticeship program does not specify fringe benefits, apprentices must paid the full amount of fringe benefits listed on the wage determination for the applicable. classification. if the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer .and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. b. Trainees (programs of the USDOL). Except as provided In 29 CFR trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and Individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified In the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance wdth the provisions of the trainee program. if the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there Is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and partioipating In a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration vthdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed untg an acceptable program is approved. c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. Exhibit B - Page 54 d. Apprentices and Trainees (programs of the U.S. DOT). Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal -aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 5. Compliance with Copeland Act requirements. The contractor shall comply vdth the requirements of 29 CFR part 3, which are Incorporated by reference In this contract. 6. Subcontracts. The contractor or subcontractor shall. insert Form FMAfA -1273 in any subcontracts and also require the subcontractors to include Form FMA- 12731n any lovrer tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses In 29 CFR 5.5. 7. Contract termination: debarment A breach of the contract clauses in 29 CFR 55 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis -Bacon and Related Act requirements. Ail rulings and interpretations of the Davis - Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause Include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of tabor, or the employees or their representatives. 10. Certification of eligibility. a. By entering Into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an Interest In the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.G. 1001. V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT The following clauses apply to any Federal -aid construction contract in an amount In excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall he Inserted In addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics Include watchmen and guards. 1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours In such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such woftvek. 2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth In paragraph (1.) of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addltlon, such contractor and subcontractor shall be liable to the United States On the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, Including watchmen and guards, employed in violation of the clause set forth in paragraph (i.) of this section, in the sum of $10 for each calendar day on which such Individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1.) of this section. 3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, Mich is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided In the clause set forth In paragraph (2.) of this section. 4. Subcontracts. The contractor or subcontractor shall insert In any subcontracts the clauses set forth in paragraph (1) through (4.)'of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this section. Exhibit B - Page 55 VI. SUBLETTING ORASSIGNiNGTHE CONTRACT This provision Is applicable to ail Federal -aid construction contracts on the National Highway System. 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in.the contract) of the total original contract price, excluding any specialty Items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specially items performed may be deducted from the total original contract price before computing Ilia amount of worts required to be performed by the contractor's own organization (23 CFR 635.116). a. The term "perform work with its own organization" refers to workers employed or ]eased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not Include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring [eased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be Included In this term if the prime contractor meets all of the following conditions: (1) the prime contractor maintains control over the supervision of the day - today activities of the leased employees; (2) the prime contractor remains responsible for the quality of the work of the leased employees; (3) the prime contractor retains all power to accept or exclude Individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements. b. "Specialty items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available In the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and In general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth' In paragraph (1) of Section VI 1s computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and Is In charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. 5. The 30% self - performance requirement of paragraph (1) is not applicable to design -build contracts; however, contracting agencies may establish their own self - performance requirements. VII. SAFETY: ACCIDENT PREVENTION T h i s p r o v i s i o n i s applicable to all Federal -aid construction contracts and to all related subcontracts. 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on (lie job and the safety of the public and to protect property in connection with the performance of the work covered by the contract 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, In performance of the contract, to work In surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safely, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 3. Pursuant to 29 CFR 1926.3, It Is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to Inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.3704). VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS T h I s p r o v i s i o n 1 s applicable to all Federal -aid construction contracts and to all related subcontracts. In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal - aid highway projects, It is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as posslble. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation bf Federal lavi. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA -1022 shall be posted on each Federal -aid highway project (23 CFR 635) In or more places v4iere it Is readily available to all persons concerned with the project: 18 U.S.C. 1020 reads as follows: Exhibit B - Page 56 Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement. false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, In connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemented; Shall be fined under this title or Imprisoned not more than 5 years or both." IX. IMPLEMENTATION OF CLEAN AiR ACT AND FEDERAL WATER POLLUTION CONTROL ACT This provision Is applicable to all Federal -aid construction contracts and to all related subcontracts. By submission of this bidfpropmal or the execution of this contract, or subcontract, as appropriate, the bidder, proposer, Federal -aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any person who Is or well be utilized in the performance of this contract is not prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act. 2. That the contractor agrees to Include or cause to be Included the requirements of paragraph (1) of this Section X In every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION This provision is applicable to all Federal -aid construction contracts, design -build contracts, subcontracts, lower -tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that Is estimated to cost $26,000 or more — as defined In 2 CFR Parts 180 and 1200. 1. Instructions for Certification — First Tier Participants: a. By signing and submitting this proposal, the prospective first tier participant is providing the cartification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation In this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification In this clause Is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. if it Is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," " suspended" "ineligible,° ^participant," "person," "principal," and "voluntarily excluded" as used in this clause, are defined In 2 CFR Parts 180 and 1200. "First Ter Covered Transactions" refers to any covered transaction between a grantee or subgranlee of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Her Covered Transaction (such as subcontracts). "First Tier Participant refers to the participant who has entered into a covered transaction with a grantee or subgranlee of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered Into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who Is debarred, suspended, declared ineligible, or voluntarily excluded from pariiglpation in this covered transaction, unless authorized by the department or'agency entering into this transaction, g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause tilled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions," provided by the department or contracting agency, entering Into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that Is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that,the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or othervdse Ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower Uer prospective participants, each participant may, but Is not required to, check the Excluded Parties List System website thttasJfwmnv.eois.eo , which is compiled by the General Services Administration. Exhibit B - Page 57 I, Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification requ €red by this clause. The knovriedge and Information of the prospective participant Is not required to exceed that which is normally possessed by a prudent person In the ordinary course of business dealings. j, Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters Into a lower tier covered transaction with a person who is suspended, debarred ineligible, or voluntarily excluded from participation In this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. A N t I 2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — First Tier Participants: a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and Its principals: (1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency; (2) Have not wtithin a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, iheff, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (3) Are not presently Indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated In paragraph (a)(2) of this cerfification; and (4) Have not within a three -year period preceding this application /proposal had one or more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective 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 Participants: (Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification In this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. if it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, In addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, Including suspension and/or debarment. c. The prospective lower tier participant shall provide Immediate written notice to the person to which this proposal is submitted If at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transact €on" "debarred," suspended;' "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. "First Tier Covered Transactions' refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Ter Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered Into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered Into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter Into any lower tier covered transaction with a person who Is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower Her participant further agrees by submitting this proposal that It will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transaction," without modification, In all lower tier covered transactions and In all solicitations for lower tier covered transactions exceeding the $25,000 threshold. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that'Is not debarred, suspended, Ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification Is erroneous. A participant is responsible for ensuring that Its principals are not suspended, debarred, or otherwise ineligible to participate In covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (https:l/wwr.eols.00v/i which is compiled by the General Services Administration. h. Nothing contained In the foregoing shaft be construed to require establishment of a system of records In order to render in good faith the cerH€icaHon required by this clause. The knowledge and Information of participant is not required to exceed that which is normally possessed by a prudent person In the ordinary course of business dealings. I. Except for transactions authorized under paragraph a of these Instructions, if a participant in a covered transaction knowingly enters Into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participatlon in this transaction, in addition to other remedies available to the Federal Government, the Exhibit.B - Page 58 department or agency with which this transaction originated may pursue available remedies. including suspension and/or debarment Certiffcation Regarding debarment, Suspension, Ineligibility and Voluntary Exclusion - -Lower Tier Participants: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency. 2. Where the prospective lower tier participant Is unable to certify to any of the statements In this certification, such prospective participant shall attach an explanation to this proposal XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision is applicable to all Federal -aid construction contracts and to all related subcontracts which exceed $100,000 (49 CFR 20). 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for Influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering Into of any cooperative agreement, and the extension, continuation, renewal amendment, or modification of any Federal contract, grant, loan, or cooperative agreement, b. if any funds other than Federal appropriated funds have been paid or%vill be paid to any person for Influencing or attempting to Influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress In connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, 'Disclosure Form to Report Lobbying," in accordance with Its Instructions. 2. This certification Is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submimlon of this certification Is a prerequisite for making or entering into this transaction Imposed by 31 U.S.C. 1352. Any person who falls to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting Its bid or proposal that the participant, shall require that the language of this certification be induded in ail lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly. Exhibit B - Page 59 ATTACHMENT A.- EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS This provision is applicable to all Federal -ald projects funded under the Appalachian Regional Development Act of 1965. 1. During the performance of this contract, the contractor undertaking to do work which is, or reasonably may be, done as on -site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except: a. To the extent that qualified persons regularly residing In the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c. For the obligation of the contractor to offer employment to present orformer employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below. 2. The contractor shall place a job order with the State Employment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required In each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent Information required by the State Employment Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. -If during the course of the contract work, the information submitted by the contractor In the original job order Is substantially modified, the participant shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor Is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required. 4. If, within one week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service Is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service will forward a certificate to the contractor Indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notyAthstanding the provisions of subparagraph (16) above. 6. The provisions of 23 CFR 533.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region. 6. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which Is, or reasonably may be, done as on -site work. Exhibit B - Page 60 37. EXHIBIT J — FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule) The Unifon Administrative Requirements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the extent that other applicable federal requirements (including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than provisions of Part 18 and therefore supersede such Part 18 provisions. The requirements of 49 CFR 18 include, without limitation: the Local Agency/Contractor shall follow applicable procurement procedures, as required by section 18.36(d }; the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the manner, and. to the extent required by, applicable provisions of section 18.30; the Local Agency/Contractor shall comply with section 18.37 concerning any sub - Agreements; to expedite any CDOT approval, the Local Agency /Contractor's attorney, or other authorized representative, shall also submit a letter to CDOT certifying Local Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d) procurement procedures, and with 18.37 sub - Agreement procedures, as applicable; the Local Agency/Contractor shall incorporate the specific contract provisions described in 18.36(i) (which are also deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts. B. Executive Order 11246 Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (All construction contracts awarded in excess of $10,000 by the Local Agencys and their contractors or sub -the Local Agencys. C. Copeland "Anti- Kickback" Act 'The Copeland "Anti- Kickback' Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3) (All contracts and sub - Agreements for construction or repair). D. Davis -Bacon Act The Davis -Bacon Act (40 U.S.C. 276a to a -7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and sub -the Local Agencys when required. by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub - contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). E. Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327- 330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agencys and sub -the Local Agencys in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). F. Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub - Agreements of amounts in excess of $100,000). G. Energy Policy and Conservation'Act Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163). H. OMB Circulars Pace 1 of 3 Exhibit B - Page 61 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 se . 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. sea. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. K. ADA The Americans with Disabilities Act (Public Law 101336; 42 USC 12101, 12102, 12111 - 12117, 12131-12134,12141-12150, 12161-12165,12181-12189, 1 2201 -1 221 3 47 USC 225 and 47 USC 611. L. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91 -646, as amended and Public Law 100 -17, 101 Stat. 246 -256). (if the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). M. drug -f=ree Workplace Act The Drug Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et_ sea, N. Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. se 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(x) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973: The requirements -for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. S. Nondiscrimination Provisions: S. Nondiscrimination Provisions: In compliance with Title V1 of the Contractor, for itself, it 1964 and d essors #nterest Aid Highway Act of 1973, the Co , agree as follows: i. Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations "), which are herein incorporated by reference and made a part of this Agreement. 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 D­ 0 of q Exhibit B - Page 62 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 2'1.5 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 622 The Contractor will include the provisions of paragraphs A through F in every subcontract, including procurement of materials and leases of equipment, unless exempt. by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. Exhibit B - Page 63 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; 1.1.8. 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 1.1.16. 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/cc . 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, Subreciplents, and borrowers. For purposes of Transparency Act reporting, Contractor does not include Vendors. 1.6. "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 Exhibit B - Page 64 1.6.3. A domestic or foreign non- profit'organization; 1.6.4. A domestic or foreign for - profit organization; and 1.6.6. A Federal agency, but oniy a Subreciplent 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 subrecip €ent 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. 1.16. "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 Iife 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 Exhibit S - Page 65 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 0. 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 http:// www. col orado .gov /dpaldfp /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 asset 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 Exhibit B - Page 66 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 Subrecipleffs. 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. 8. 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