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HomeMy WebLinkAboutC13-287 CDOT Cedar Drive Grant Agreement CONTRACT AMENDMENT Amendment #1 Original Contract CMS # 13 HA3 48872 Amendment CMS # 14 HA3 60400 Project# SHO 0821-097 (18265) PO 271001747 1) PARTIES This Amendment to the above-referenced Original Contract(hereinafter called the Contract) is entered into by and between Eagle County (hereinafter called "Local Agency"), and the STATE OF COLORADO (hereinafter called the "State")acting by and through the Department of Transportation, (hereinafter called "CDOT"). 2) EFFECTIVE DATE AND ENFORCEABILITY This Amendment shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or reimburse Contractor 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) FACTUAL RECITALS The Parties entered into the Contract to design and construct safety enhancements on Cedar Drive, located in unincorporated Eagle County, northeast of Basalt, Colorado. Work will involve resurfacing, guardrail installation, signage and widening for the 0.9 mile section of Cedar Drive. The Parties now agree to transfer ROW incidental funds in the amount of$5,000.00 to the Design Phase. The Parties agree to transfer funds in the amount of$5,535.00 originally budgeted for Construction to the Design Phase. Finally, the Parties desire to update Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended as of March 20, 2013. 4) CONSIDERATION-COLORADO SPECIAL PROVISIONS The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Amendment. The Parties agree to replacing the Colorado Special Provisions with the most recent version (if such have been updated since the Contract and any modification thereto were effective) as part consideration for this Amendment. If applicable, such Special Provisions are attached hereto and incorporated by reference herein as Section 26. 5) LIMITS OF EFFECT This Amendment is incorporated by reference into the Contract, and the Contract and all prior amendments thereto, if any, remain in full force and effect except as specifically modified herein. 6) MODIFICATIONS The Amendment and all prior amendments thereto, if any, are modified as follows: a. Exhibit C-1 Exhibit C to the Basic Contract shall be removed and replaced in its entirety by Exhibit C-1 attached hereto and incorporated herein by this reference. All references in the Basic Contract to Exhibit C shall be removed and replaced by Exhibit C-1. b. Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA) Page 1 of 4 b2)°/),E ri Exhibit K to the Basic Contract shall be removed and replaced in its entirety by Exhibit K-1 attached hereto and incorporated herein by this reference. All references in the Basic Contract to Exhibit K shall be removed and replaced by Exhibit K-1. 7) START DATE This Amendment shall take effect upon the date of the State Controller's Signature. 8) ORDER OF PRECEDENCE Except for the Special Provisions, in the event of any conflict, inconsistency, variance, or contradiction between the provisions of this Amendment and any of the provisions of the Contract, the provisions of this Amendment shall in all respects supersede, govern, and control. The most recent version of the Special Provisions incorporated into the Contract or any amendment shall always control other provisions in the Contract or any amendments. 9) AVAILABLE FUNDS Financial obligations of the state payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, or otherwise made available. Fint=" 73k tai TALC_ entlfr7=77 Page2of4 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT *Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf and acknowledge that the State is relying on their representations to that effect. - THE LOCAL AGENCY STATE OF COLORADO g County Eagle Coun John W.Hickenlooper,GOVERNOR Colorado Department of Transportation By: /*1 • ni) r^w Donald E. Hunt, Executive Director Title: (A)10/1/1/1a,0 jaaa.. By: imothy J. Harris,P.E. Chief Engineer *Signature Signature Date: "// 9���'� Date: 13 /( �I � 2nd Local Agency Signature if needed LEGAL REVIEW John W. Suthers, Attorney General By: By: /U A— Title: Signatu -Assistant Attorney General Date: *Signature Date: ALL AGREEMENTS REOUIRE APPROVAL BY THE STATE CONTROLLER CRS§24-30-202 requires the State Controller to approve all State Agreements.This Agreement is not valid until signed and dated below by the State Controller or delegate..The Local Agency is not authorized to begin performance until such time.If The Local Agency begins performing prior thereto,the State of Colorado is not obligated to pay The Local Agency for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER Robert s, P• , I,t A .1 By. r Colorado Dep.; ment of Transportation Date: I o 12-� I 1 7j II Page 3 of 4 30. EXHIBIT C-1—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: 1 BUDGETED FUNDS a. Federal Funds $1,169,893.00 (80% of Participating Costs) b. Local Agency Matching Funds $129,989.00 (20% of Participating Costs) c. State Matching Funds $0.00 (_% 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 (la) $1,169,893.00 b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $0.00 • 4 FOR CDOT ENCUMBRANCE PURPOSES Total Budgeted Funds $1,299,882.00 Less ROW Acquisition 3111 and/or ROW Relocation 3109 $27,332.00 TOTAL ENCUMBRANCE $1,272,550.00 Note:Construction phase funds will be made available by Option Letter or Amendment when authorized Net to be encumbered as follows: WBS Element 18265.10.30 Design 3020 $115,285.00 WBS Element 18265.10.10 ROW 3114 $20,000.00 WBS Element 18265.20.10 Const 3301 $0.00 Exhibit C-1 -Page 1 of 2 • B. Matching Funds The matching ratio for the federal participating funds for this Work is 90% federal-aid funds (CFDA #20.205)to 10% Local Agency funds, it being understood that such ratio applies only to the $1,299,882.00 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 $1,299,882.00, 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 $1,299,882.00, 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, minus ROW Acquisition and/or Relocation funds of$27,332.00 will be encumbered for a total encumbrance of$1,272,550.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. Note: Construction phase funds will be made available by Option Letter or Amendment when authorized. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence)agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non-profit organizations receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of OMB Circular A-133 (Audits of States, Local Governments and Non-Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i. Expenditure less than $500,000 The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure exceeding than $500,000-Highway Funds Only The Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial" procedures and processes for this program area. iii. Expenditure exceeding than $500,000-Multiple Funding Sources The Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.)then the Single Audit Act applies, which is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Exhibit C-1 -Page 2 of 2 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 Revised as of 3-20-13 The contract,grant,or purchase order to which these Supplemental Provisions are attached has been funded,in whole or in part,with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental Provisions, the Special Provisions,the contract or any attachments or exhibits incorporated into and made a part of the contract,the provisions of these Supplemental Provisions shall control. 1. Definitions.For the purposes of these Supplemental Provisions,the following terms shall have the meanings ascribed to them below. 1.1. "Award"means an award of Federal financial assistance that a non-Federal Entity receives or administers in the form of: 1.1.1. Grants: 1.1.2. Contracts; 1.1.3. Cooperative agreements,which do not include cooperative research and development agreements (CRDA)pursuant to the Federal Technology Transfer Act of 1986,as amended(15 U.S.C. 3710); 1.1.4. Loans: 1.1.5. Loan Guarantees; 1.1.6. Subsidies; 1.1.7. Insurance; 1.1.8. Food commodities; 1.1.9. Direct appropriations; 1.1.10. Assessed and voluntary contributions;and 1.1.11. Other financial assistance transactions that authorize the expenditure of Federal funds by non Federal Entities. Award does not include: 1.1.12. Technical assistance,which provides services in lieu of money; 1.1.13. A transfer of title to Federally-owned property provided in lieu of money;even if the award is called a grant; 1.1.14. Any award classified for security purposes;or 1.1.15. Any award funded in whole or in part with Recovery funds,as defined in section 1512 of the American Recovery and Reinvestment Act(ARRA)of 2009(Public Law 111-5). 1.2. "Contract"means the contract to which these Supplemental Provisions are attached and includes all Award types in 1.1.1 through 1.1.11 above. 13. "Contractor"means the party or parties to a Contract funded,in whole or in part,with Federal fmancial assistance,other than the Prime Recipient,and includes grantees,subgrantees, Subrecipients,and borrowers. For purposes of Transparency Act reporting,Contractor does not include Vendors. 1.4. "Data Universal Numbering System(DUNS)Number"means the nine-digit number established and assigned by Dun and Bradstreet,Inc.to uniquely identify a business entity. Dun and Bradstreet's website may be found at:http://fedgov.dnb.com/webform. 1.5. "Entity"means all of the following as defined at 2 CFR part 25,subpart C: 1.5.1. A governmental organization,which is a State,local government,or Indian Tribe; 1.5.2. A foreign public entity; 1.5.3. A domestic or foreign non-profit organization; 1.5.4. A domestic or foreign for-profit organization;and 1.5.5. A Federal agency,but only a Subrecipient under an Award or Subaward to a non-Federal entity. 1.6. "Executive"means an officer,managing partner or any other employee in a management position. Exhibit K—Page 1 of 4 1.7. "Federal Award Identification Number(FAIN)"means an Award number assigned by a Federal agency to a Prime Recipient. 1.8. "FFATA"means the Federal Funding Accountability and Transparency Act of 2006(Public Law 109-282),as amended by&6202 of Public Law 110-252. FFATA,as amended,also is referred to as the"Transparency Act." 1.9. "Prime Recipient"means a Colorado State agency or institution of higher education that receives an Award. 1.10. "Subaward"means a legal instrumentpursuant to which a Prime Recipient of Award funds awards all or a portion of such funds to a Subrecipient,in exchange for the Subrecipient's support in the performance of all or any portion of the substantive project or program for which the Award was granted. 1.11. "Subrecipient"means a non-Federal Entity(or a Federal agency under an Award or Subaward to a non-Federal Entity)receiving Federal funds through a Prime Recipient to support the performance of the Federal project or program for which the Federal funds were awarded.A Subrecipient is subject to the terms and conditions of the Federal Award to the Prime Recipient,including program compliance requirements.The term"Subrecipient" includes and may be referred to as Subgrantee. 1.12. "Subrecipient Parent DUNS Number"means the subrecipient parent organization's 9-digit Data Universal Numbering System(DUNS)number that appears in the subrecipient's System for Award Management(SAM) profile,if applicable. 1.13. "Supplemental Provisions"means these Supplemental Provisions for Federally Funded Contracts,Grants,and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006,As Amended,as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado agency or institution of higher education. 1.14. "System for Award Management(SAM)"means the Federal repository into which an Entity must enter the information required under the Transparency Act,which may be found at http://www.sam.gov. 1.15. "Total Compensation"means the cash and noncash dollar value earned by an Executive during the Prime Recipient's or Subrecipient's preceding fiscal year and includes the following_ 1.15.1. Salary and bonus; 1.15.2. Awards of stock,stock options,and stock appreciation rights,using the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123(Revised 2005)(FAS 123R),Shared Based Payments; 1.15.3. Earnings for services under non-equity incentive plans,not including group life,health, hospitalization or medical reimbursement plans that do not discriminate in favor of Executives and are available generally to all salaried employees; 1.15.4. Change in present value of defined benefit and actuarial pension plans; 1.15.5. Above-market earnings on deferred compensation which is not tax-qualified; 1.15.6. Other compensation,if the aggregate value of all such other compensation(e.g.severance, termination payments,value of life insurance paid on behalf of the employee,perquisites or property)for the Executive exceeds$10,000. 1.16. "Transparency Act"means the Federal Funding Accountability and Transparency Act of 2006(Public Law 109-282),as amended by..6202 of Public Law 110-252. The Transparency Act also is referred to as FFATA. 1.17 "Vendor"means a dealer,distributor,merchant or other seller providing property or services required for a project or program funded by an Award.A Vendor is not a Prime Recipient or a Subrecipient and is not subject to the terms and conditions of the Federal award. Program compliance requirements do not pass through to a Vendor. 2. Compliance.Contractor shall comply with all applicable provisions of the Transparency Act and the regulations issued pursuant thereto,including but not limited to these Supplemental Provisions.Any revisions to such provisions or regulations shall automatically become a part of these Supplemental Provisions,without the necessity of either party executing any further instrument.The State of Colorado Exhibit K—Page 2 of 4 may provide written notification to Contractor of such revisions,but such notice shall not be a condition precedent to the effectiveness of such revisions. 3. System for Award Management(SAM)and Data Universal Numbering System(DUNS)Requirements. 3.1. SAM.Contractor shall maintain the currency of its information in SAM until the Contractor submits the fmal financial report required under the Award or receives fmal payment,whichever is later. Contractor shall review and update SAM information at least annually after the initial registration,and more frequently if required by changes in its information. 3.2. DUNS.Contractor shall provide its DUNS number to its Prime Recipient,and shall update Contractor's information in Dun&Bradstreet,Inc. at least annually after the initial registration,and more frequently if required by changes in Contractor's information. 4. Total Compensation.Contractor shall include Total Compensation in SAM for each of its five most highly compensated Executives for the preceding fiscal year if: 4.1. The total Federal funding authorized to date under the Award is$25,000 or more;and 4.2. In the preceding fiscal year,Contractor received: 4.2.1. 80%or more of its annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act;and 4.2.2. $25,000,000 or more in annual gross revenues from Federal procurement contracts and subcontracts and/or Federal financial assistance Awards or Subawards subject to the Transparency Act:and 4.3. The public does not have access to information about the compensation of such Executives through periodic reports filed under section 13(a)or 15(d)of the Securities Exchange Act.of 1934(15 U.S.C.78m(a),78o(d)or 6104 of the Internal Revenue Code of 1986. 5. Reporting.Contractor shall report data elements to SAM and to the Prime Recipient as required in below if Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such reports shall be included in the Contract price. The reporting requirements in&7 below are based on guidance from the US Office of Management and Budget(OMB),and as such are subject to change at any time by OMB. Any such changes shall be automatically incorporated into this Contract and shall become part of Contractor's obligations under this Contract,as provided in§2 above.The Colorado Office of the State Controller will provide summaries of revised OMB reporting requirements at http://www.colorado.gov/dpa/dfp/sco/FFATA.htm. 6. Effective Date and Dollar Threshold for Reporting.The effective date of these Supplemental Provisions apply to new Awards as of October 1,2010. Reporting requirements in$7 below apply to new Awards as of October 1,2010,if the initial award is$25,000 or more. If the initial Award is below$25,000 but subsequent Award modifications result in a total Award of$25,000 or more,the Award is subject to the reporting requirements as of the date the Award exceeds$25,000. If the initial Award is$25,000 or more,but funding is subsequently de-obligated such that the total award amount falls below$25,000,the Award shall continue to be subject to the reporting requirements. 7. Subrecipient Reporting Requirements.If Contractor is a Subrecipient,Contractor shall report as set forth below. 7.1 ToSAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each Federal Award Identification Number no later than the end of the month following the month in which the Subaward was made: 7.1.1 Subrecipient DUNS Number; 7.1.2 Subrecipient DUNS Number+4 if more than one electronic funds transfer(EFT)account; 7.1.3 Subrecipient Parent DUNS Number; Exhibit K—Page 3 of 4 • 7.1.4 Subrecipient's address,including: Street Address,City,State,Country,Zip+4,and Congressional District; 7.1.5 Subrecipient's top 5 most highly compensated Executives if the criteria in§4 above are met;and 7.1.6 Subrecipient's Total Compensation of top 5 most highly compensated Executives if criteria in§4 above met. 7.2 To Prime Recipient. A Subrecipient shall report to its Prime Recipient,upon the effective date of the Contract,the following data elements: 7.2.1 Subrecipient's DUNS Number as registered in SAM. 7.2.2 Primary Place of Performance Information,including: Street Address,City,State,Country,Zip code+ 4,and Congressional District. 8. Exemptions. 8.1. These Supplemental Provisions do not apply to an individual who receives an Award as a natural person,unrelated to any business or non-profit organization he or she may own or operate in his or her name. 8.2 A Contractor with gross income from all sources of less than$300,000 in the previous tax year is exempt from the requirements to report Subawards and the Total Compensation of its most highly compensated Executives. 8.3 Effective October 1,2010,"Award"currently means a grant,cooperative agreement,or other arrangement as defined in Section 1.1 of these Special Provisions. On future dates"Award"may include other items to be specified by OMB in policy memoranda available at the OMB Web site;Award also will include other types of Awards subject to the Transparency Act. 8.4 There are no Transparency Act reporting requirements for Vendors. Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the Contract and the State of Colorado may terminate the Contract upon 30 days prior written notice if the default remains uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under the Contract, at law or in equity. Exhibit K—Page 4 of 4