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HomeMy WebLinkAboutC15-304 Schmueser Gordon Meyer, Inc.AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN EAGLE COUNTY, COLORADO AND SCHMUESER GORDON MEYER, INC. FOR EAGLE COUNTY BRIDGE EAG -301-23.5 REPLACEMENT THIS AGREEMENT ("Agreement") is effective as of the I q44> day of July, 2015 by and between Schmueser Gordon Meyer, Inc. a Colorado corporation (hereinafter "SGM", "Consultant" or "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County desires to replace a bridge on the Colorado River Road at Mile Marker 23.5 in the unincorporated area of Burns in Eagle County known as the Burns Bridge (hereinafter "Project"); and WHEREAS, the Colorado Department of Transportation (hereinafter "CDOT") has selected this Project as eligible for Federal funding through the Off -System Bridge Program (hereinafter `BRO") administered by CDOT; and WHEREAS, County entered into an Inter -Governmental Agreement with CDOT (Project Number BRO C 440-006 (17445)) for BRO funding of the Project; and WHEREAS, Consultant is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Consultant and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Consultant and County agree as follows: 1. Services. Consultant agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services described in Exhibit A ("Services") which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement and in accordance with the requirements of the Inter - Governmental Agreement between Eagle County and the State of Colorado Department of Transportation attached hereto as Exhibit C. a. Consultant agrees to furnish the Services no later than September 16, 2016 and in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Consultant agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Consultant represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. 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. Consultant agrees that it will not enter into any consulting or other arrangements with third parties that will conflict in any manner with the Services. 2. County's Representative. The Engineering Department's designee shall be Consultant's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 12 hereof, shall continue in full force and effect through the 16th day of September, 2016. 4. Extension or Modification. This Agreement may not be amended or supplemented, nor may any obligations hereunder be waived, except by agreement signed by both parties. No additional services or work performed by Consultant shall be the basis for additional compensation unless and until Consultant has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Consultant's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Consultant for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $196,851.77. Consultant shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Consultant. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. Any out-of-pocket expenses to be incurred by Consultant and reimbursed by County shall be identified on Exhibit A. Out-of-pocket expenses will be reimbursed without any additional mark-up thereon and are included in the not to exceed contract amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, bonuses or other compensation to personnel of Consultant. 2 Eagle County Prof Services Final 5/14 Consultant shall not be reimbursed for expenses that are not set forth on Exhibit A unless specifically approved in writing by County. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Consultant was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. d. 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. C. 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 Consultant in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with 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). 6. Sub -consultants. 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 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. The Consultant shall be responsible for the acts and omissions of its agents, employees and sub -consultants or sub -contractors. 7. Insurance. Consultant agrees to provide and maintain at Consultant's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: Types of Insurance. Workers' Compensation insurance as required by law. 3 Eagle County Prof Services Final 5/14 ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non -owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $2,000,000 aggregate limits. iv. Professional liability insurance with prior acts coverage for all Services required hereunder, in a form and with an insurer or insurers satisfactory to County, with limits of liability of not less than $1,000,000 per claim and $2,000,000 in the aggregate. In the event the professional liability insurance is on a claims -made basis, Consultant warrants that any retroactive date under the policy shall precede the effective date of this Agreement. Continuous coverage will be maintained during any applicable statute of limitations for the Services and Project. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. ii. Consultant's certificates of insurance shall include sub -consultants as additional insureds under its policies or Consultant shall furnish to County separate certificates and endorsements for each sub -consultant. All coverage(s) for sub -consultants shall be subject to the same minimum requirements identified above. Consultant and sub -consultants, if any, shall maintain the foregoing coverage in effect until the Services are completed. In addition, all such policies shall be kept in force by Consultant and its sub -consultants until the applicable statute of limitations for the Project and the Services has expired. iii. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of Colorado and with an "A.M. Best" rating of not less than A -VII. iv. Consultant's insurance coverage shall be primary and non-contributory with respect to all other available sources. Consultant's policy shall contain a waiver of subrogation against Eagle County. V. All policies must contain an endorsement affording an unqualified thirty (30) days notice of cancellation to County in the event of cancellation of coverage. vi. All insurers must be licensed or approved to do business within the State of Colorado and all policies must be written on a per occurrence basis unless otherwise provided herein. vii. Consultant's certificate of insurance evidencing all required coverage(s) is attached hereto as Exhibit B. Upon request, Consultant shall provide a copy of the actual insurance 4 Eagle County Prof Services Final 5/14 policy and/or required endorsements required under this Agreement within five (5) business days of a written request from County, and hereby authorizes Consultant's broker, without further notice or authorization by Consultant, to immediately comply with any written request of County for a complete copy of the policy. viii. Consultant shall advise County in the event the general aggregate or other aggregate limits are reduced below the required per occurrence limit. Consultant, at its own expense, will reinstate the aggregate limits to comply with the minimum limits and shall furnish County a new certificate of insurance showing such coverage. ix. 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. X. The insurance provisions of this Agreement shall survive expiration or termination hereof. xi. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. xii. Consultant is not entitled to workers' compensation benefits except as provided by the Consultant, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Consultant or some other entity. The Consultant is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Consultant shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Consultant or any of its sub -consultants hereunder; and Consultant shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Consultant. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents prepared by Consultant in connection with the Services shall become property of County. Consultant 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 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 - 5 Eagle County Prof Services Final 5/14 consultant in connection with the performance of the Services and additional services under this Agreement). Consultant will promptly furnish and disclose to County all materials (including but not limited to software, prototypes, drawings, artwork, documentation and any other deliverables), ideas, designs, techniques, inventions, discoveries, improvements, information, creative works and any other works discovered, prepared or developed by or for Consultant in the course of or resulting from the provision of Services under this Agreement (collectively with any works, information or other items delivered to the Consultant and all intellectual property rights and applications relating to any of the foregoing, ("Work Product"). All right, title and interest in the Work Product vests in County and is deemed to be a work made for hire; and to the extent it is not considered a work made for hire, Consultant hereby assigns (and to the extent necessary, has caused its employees, contractors and others to waive) all rights under all laws (of the United States and all other countries) now existing or hereafter permitted, with respect to any and all purposes for which the Work Product may be used, including without limitation(a) all rights under the United States Copyright Act, or any other country's copyright law, including but not limited to, any rights provided in 17 U.S.C. § 106 and 106A; (b) any rights of attribution and integrity or any other "moral rights of authors" existing under statutory, common or any other law. At no additional charge, Consultant will execute all papers (including assignments) and do all things required in order to evidence, perfect, obtain, protect, defend, convey and enforce the rights of County in the Work Product. Consultant hereby irrevocably designates and appoints County and its duly authorized officer and agent and attorney in fact, to execute documents and take any lawfully permitted action to evidence, perfect, obtain, protect, defend, convey and enforce the rights of County in the Work Product that Consultant is unable or unwilling to perform. Consultant will deliver all Work Product (as defined herein) in progress or completed as of the date of termination or expiration of this Agreement. The County acknowledges that the use of documents prepared by Consultant and Consultant's sub -consultants for other than the Project shall be at County's sole risk and without liability to Consultant. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Ben Gerdes 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3564 Facsimile: 970-328-8789 6 Eagle County Prof Services Final 5/14 E-Mail: ben.gerdes@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E -Mail: atty@eaglecounty.us CONSULTANT: SGM, Inc. Attention: Mike Fowler 118 W Sixth Street, Suite 200 Glenwood Springs, CO 81601 Telephone: 970-384-9075 E-mail: MikeF@sgm-inc.com 11. Coordination. Consultant acknowledges that the development and processing of the Services for the Project may require close coordination between various consultants and contractors. Consultant shall coordinate the Services required hereunder with the other consultants and contractors that are identified by County to Consultant from time to time, and Consultant shall immediately notify such other consultants or contractors, in writing, of any changes or revisions to Consultant's work product that might affect the work of others providing services for the Project and concurrently provide County with a copy of such notification. Consultant shall not knowingly cause other consultants or contractors 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. 12. Termination. (a) Termination for Cause: If Consultant fails to perform in the manner called for in this Agreement or if the Consultant fails to comply with any other provisions of this Agreement, County may terminate this Agreement for cause. Termination shall be effected by serving a notice of termination on Consultant setting forth the manner in which the Consultant has breached or is in default. Consultant will only be paid the contract price for the Services satisfactorily provided in accordance with the manner of performance set forth in this Agreement. Eagle County in its sole discretion may, in case of termination for cause, allow Consultant an appropriate period of time to cure the breach or default. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If Consultant fails to remedy to Eagle County's satisfaction the breach or default, Eagle County shall have the right to terminate this Contract without any further obligation to Consultant other than payment for Services satisfactorily performed prior to the date of the breach. Any such termination for breach of default shall not in any way operate to Eagle County Prof Services Final 5/14 preclude Eagle County from also pursing all available remedies against Consultant and its sureties for said breach or default. (b) Termination for Convenience: County may terminate this Agreement for its convenience at any time by giving written notice to Consultant of such termination and specifying the effective date thereof, at least five (5) business days before the effective date of such termination. If the Contract is terminated by County for convenience, Consultant will be paid compensation for those Services actually provided. Partially completed tasks will be compensated for based on a signed statement of completion to be submitted by Consultant which shall itemize each task element and briefly state what work has been completed and what work remains to be done. (c) Upon any termination of this Agreement, concurrent with Consultant's receipt of such payment, Consultant shall sign and deliver to County true and complete copies of Consultant's work product and all documents defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. 13. Venue, Jurisdiction and Applicable Law. 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. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 14. Execution by Counterparts; Electronic Signatures This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 15. Other Contract Requirements. a. Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data or other documents prepared or compiled in performance of the 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 shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to Consultants performing similar services. Consultant represents and warrants that it has the expertise and personnel necessary to properly perform the Services and covenants that its professional personnel are duly licensed to perform the Services within Colorado. This paragraph shall survive termination of this Agreement. b. 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. s Eagle County Prof Services Final 5/14 C. This Agreement constitutes an agreement for performance of the Services by Consultant as an independent contractor and not as an employee of County. Nothing 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. d. Consultant represents and warrants that at all times in the performance of the Services, Consultant shall comply with any and all applicable laws, codes, rules and regulations. e. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. f Consultant shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. g. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. h. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. i. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. J . 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 such audits and inspections of records during normal business hours, upon 48 hours' notice to Consultant. Consultant shall fully cooperate during such audit or inspections. k. The signatories to this Agreement aver to their knowledge, no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Consultant has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Consultant shall not employ any person having such known interests. 1. The Consultant, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of penury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 9 Eagle County Prof Services Final 5/14 in. The Services under this Agreement shall be compatible with the requirements of the contract between Eagle County and the State (which is incorporated herein by this reference as Exhibit C). Consultant shall further comply with 49 CFR 18.36 (i) and any design work under this Agreement shall be compatible with the requirements of Exhibit C for the design/construction of the Project. The State is an intended third -party beneficiary of this Agreement for that purpose. n. Consultant agrees that 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 the construction and the resolution of construction problems that may arise during the construction of the Project. o. If included in the Services, 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. p. In accordance with 49 C.F.R. 18.36 (i), Consultant agrees to provide the County, the State, the Federal Highway Administration ("FHWA"), the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers, and records of Consultant which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts and transcriptions. Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. Consultant agrees to maintain all books, records accounts, and reports required under this Agreement for a period of not less than three (3) years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case Consultant agrees to maintain same until the County, the State, the FHWA, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. q. Consultant agrees to comply with 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. r. Consultant agrees to comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act, section 508 of the Clean Water Act and Environmental Protection Agency regulations. Consultant agrees to report each violation to County and understands and agrees that County will, in turn, report each violation as required by law. 16. Prohibitions on Government Contracts. As used in this Section 16, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Consultant certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Consultant so Eagle County Prof services Final 5/14 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 under this Agreement. a. Consultant shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or 11. Enter into a subcontract that fails to certify to Consultant that the subcontractor shall not knowingly employ or contract with an undocumented individual 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 under this Agreement 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: htlp://www.dhs.gov/xprevprot/profzrains/gc 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 undocumented individual, Consultant shall be required to: 1. Notify the subcontractor and County within three (3) days that Consultant has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; 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 undocumented individual; except that Consultant shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. 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 Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Consultant shall be liable for actual and consequential damages to County as required by law. 11 Eagle County Prof Services Final 5/14 g. County will notify the Colorado Secretary of State if Consultant violates this provision of this Agreement and County terminates the Agreement for such breach. [REST OF PAGE INTENTIONALLY LEFT BLANK] 12 Eagle County Prof Services Final 5/14 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. Attest: By:_�. Teak J. Simonton, Clerk to the STATE OF ) ) ss. COUNTY OF COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS 1 By: Kathy andler-Henry, Chair �g CONSULTANT: SCHMUES By:� Print Name: Title: The fore of instrument was acknowledged before me by // w r this }' day of 12015. My commission expires: SHARON K. HUBER NOTARY PUBLIC STATE OF COLORADO NOTARY ID #20134030143 My Commission Expires May 13, 2017 Notary Public 13 Eagle County Prof services Final 5/14 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES 14 Eagle County Prof Services Final 5/14 Burns Bridge Replacement Project BRO C440-006 (17445) CONSTRUCTION PHASE SCOPE OF SERVICES I. PROJECT DESCRIPTION The engineering design for the replacement of the Burns Bridge (EAG 301-23.5) over the Colorado River has been completed and construction is anticipated to begin in 2015. This project was designed by AMEC with Off -System Bridge Replacement (BRO) funding through CDOT. This bridge was combined with the Catamount Bridge Replacement Project for bidding to realize overall cost savings between the two bridges. Bids were received on April 23, 2015 and the project has been award to American Civil Constructors (ACC). SGM is submitting this proposed scope of work to provide construction management for Burns Bridge Replacement project. The SGM project team will be responsible for the construction management and inspection work for the bridge. The SGM project team will consist of the same members that were on the Catamount design team — Yeh and Associates and Centennial Engineering. This proposal assumes that AMEC will be responsible for reviewing the submittals associated with the Burns Bridge. Project documentation will be in accordance with the CDOT Construction Manual and will be completed using the applicable CDOT Forms. At the end of the project, all documentation will be compiled and provided to Eagle County for their use. II. WORK TASKS A. Project Setup Project setup will include preparing for the Pre -Construction Conference, accounting setup and project documentation setup. B. Project Management Project management will be an ongoing effort through the duration of the project. This will include coordination between the field and office staff and with the County. It will also include managing the project budget and invoicing subject to the Contract documents and approval by Eagle County. C. Meetings Meetings will be conducted on a regular basis and at key milestone points. Weekly Meetings — It is anticipated that weekly meetings will be held at the project site and these meetings will be attended by the Contractor, the SGM Construction Manager and Project Manager, Eagle County and CDOT. SGM will prepare agendas and minutes for these meetings. It is anticipated that frequency of the meetings may be adjusted as the project nears completion, so we have assumed only 40 weekly meetings will require attendance by SGM office personnel. Milestone Meetings — These meetings will be held at predefined points as the construction progresses. It is anticipated that these meetings will be attended by the Contractor, the SGM Construction Manager and appropriate design staff, Eagle County and CDOT. Burns Version 1.2 Page 1 of 3 7/8/15 SSGM • Pre -Construction Conference • Pre -Erection Conference for bridge girders • Pre -Pour Conference for significant concrete pours (e.g. bridge decks) • Pre -Paving Conference for asphalt paving Additional Site Visits — This proposal assumes that AMEC will be responsible for additional site visits to address issues that may arise during construction. Therefore, no allowance has been included in the fee proposal for SGM staff to provide additional site visits for the Burns Bridge. D. Submittal Reviews This proposal assumes that AMEC will be responsible for reviewing the submittals associated with the Burns Bridge. E. Construction Management and Inspection The SGM Construction Manager will be responsible for overall construction management of the project. He will maintain close contact with the SGM Project Manager and the Eagle County Project Engineer. It is understood that although both bridges will be combined under one construction project, the actual funding sources for each bridge will remain separate. Therefore, a key aspect to the construction management task will be maintaining separate project records for each bridge. The SGM Construction Manager will be responsible for day-to-day construction inspection and documentation. Given the proximity of the two bridges and the anticipated construction sequencing, we believe that one full-time inspector will be able to provide adequate coverage for both projects for the majority of the project duration. However, there may be times when a full-time inspector is required to remain onsite at one of the bridges and will need assistance on the other bridge. An example of this situation may be when a major concrete pour is taking place on one bridge which will require full-time inspection for the duration of the concrete pour. For these instances, SGM will provide additional personnel to ensure adequate coverage for both bridges. SGM will utilize the services of Centennial Engineering to perform the QA inspections of the prestressed concrete girders. Centennial Engineering is located in Arvada within an hour's drive from all three prestressed concrete girder fabricators which allows them to be more responsive to the fabricator's production schedule. The fee proposal includes girder inspection time for both bridges, but it can be reduced if AMEC prefers to provide inspection on the Burns Bridge girders. F. Materials Testing Yeh and Associates will be responsible for all aspects of Quality Assurance (QA) materials testing. The contractor will be responsible for providing Quality Control (QC) testing and the Pile Dynamic Analysis (PDA) testing. G. Construction Engineering This proposal assumes that AMEC will be responsible for all construction items that require additional engineering or responses to Requests for Information. Burns Version 1.2 Page 2 of 3 7/8/15 GSGM H. Project Closeout The SGM Construction Manager will be responsible for compiling the project documentation and providing a Final Project Notebook to the County. This documentation can be provided in either hard copy or electronic format, or both. As -Built Plans As -Built plans can be prepared, if requested by the County or CDOT. SGM would only be responsible for providing the As -Built information as electronic markups to the original pdf plans. If the CAD files need to be updated, AMEC would be responsible for updating the electronic CAD drawings to reflect as -built conditions for the Burns Bridge. 111. DELIVERABLES 1. Meeting Agendas and Minutes 2. Daily Reports 3. CDOT Forms 4. Testing Results 5. As -Built Plans 6. Final Project Notebook IV. SCHEDULE For purposes of preparing the fee estimate, we have assumed a total construction duration of 45 weeks for the combined project. This will be completely dependent upon the contractor's schedule and performance. V. COSTS A detailed Schedule of Fees in Cost Plus Fixed Fee format has been prepared and is attached. The total costs to provide the work outlined herein will not exceed $196,851.77 without written approval from Eagle County. Burns Version 1.2 Page 3 of 3 7/8/15 SGM ESTIMATED BY: Mike Fowler PROJECT: BURNS BRIDGE - BRO C440-006 (17445) DATE: 7/8/2015 CLIENT: EAGLE COUNTY REVISION: CM 1.2 COST PLUS FIXED FEE CONTRACT FIXED FEE: 10% • 1 aae PIC ® _ da a • Principal -In -Charge Bill Swigert $150.00 • 0 $ ata a - 2 PM Project Manager Mike Fowler $122.73 137 $ 16,813.64 3 CM Construction Manager Blaine Wright $100.00 993 $ 99,300.00 4 CT Construction Technician Dave Shepard $90.91 10 $ 909.09 5 SE Structural Engineer Mike Fowler $122.73 8 $ 981.82 6 TE Transportation Engineer Dan Cokley $131.82 4 $ 527.27 7 DRA Drainage Engineer Dave Kotz $122.73 0 $ - 8 SWE Stormwater Engineer Angie Fowler $122.73 0 $ - 9 CAD CAD Drafter Diane Williams $68.18 20 $ 1,363.64 10 SPM Survey Project Manager Bob Brandeberry $90.91 0 $ - 11 FS1 Field Survey Crew (1 Man) 1 -Person Crew $136.36 0 $ - 12 ST Surve(Tech iician Kyle Tesky $68.18 0 $ - 13 1 ADM lAdmin. Assistant Joan Preisner $59.09 10 $ 590.91 TOTAL PROJECT COSTS $196,851.77 (THIS CONTRACT) Date: 7/8/2015 Page 1 of 3 SGM Confidential W, O N LO C a` BURNS BRIDGE - BRO C440-006 (17445) 6SGM OTHER DIRECT COSTS Subtotal $6,456.25 Subtotal $2,756.00 Subtotal $203.40 Date: 7/8/2015 Page 3 of 3 SGM Confidential • Per diem (CONUS Rate) $219.00 per day 0 $0.00 Mileage (from GWS office) $0.565 per mile 11250 $6,356.25 Plotting, 24x36, B/W $5.50 per plot 0 $0.00 Plotting, 24x36, Mylar $19.00 per plot 0 $0.00 Plotting, 24x36, Color $30.00 per copy 0 $0.00 Photocopies $0.25 per copy 0 $0.00 Newsletters, Tri -fold, Color $0.75 per copy 0 $0.00 Newspaper Notice $500.00 per copy 0 $0.00 Postage $5.00 each 20 $100.00 Subtotal $6,456.25 Subtotal $2,756.00 Subtotal $203.40 Date: 7/8/2015 Page 3 of 3 SGM Confidential EXHIBIT B Insurance Certificate 15 Eagle County Prof Services Final 5/14 AC 0 SGMXX-1 OP ID: KO `.,... CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) 07/10/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemPntfct PRODUCER Neil-Garing Agency, Inc. PO Box 1576 Glenwood Springs, CO 81602 Katrina Epp, CIC r,AMe:-- , I ayior Westley, CISR PHONE LA/'No Ext : 970-945-9111 FAX, Not: 970-945-2350 INSURER A: Travelers INSURED Schmueser Gordon Meyer, Inc. dba SGM INSURER 13: Plnnacol Assurance 25682 118 West 6th Street, Suite 200 INSURER C: CNA Surety Glenwood Springs, CO 81601 INSURER D: INSURER E: INSURER F COVERAGES CERTIFICATE NUMBER: 1 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR A TYPE G INSURANCE X COMMERCIAL GENERAL LIABILITY POLICY NUMBER LICY EFF POMM/OD/YYYY PO LICY EXP MM/DD/YYYY LIMITS EACH OCCURRENCE $ 1,000,00 CLAIMS -MADE 1XI OCCUR X X 6807112X252 05/01/2015 05/01/2016 PRAMAGEEM SESTo Ea occurrence) $ 1,000,00 MED EXP (Any one person) $ 10,00 PERSONAL & ADV INJURY $ 1,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY ❑X PRO ❑ JECT LOC OTHER: GENERAL AGGREGATE $ 2,000,00 PRODUCTS - COMP/OP AGG $ 2,000,00 A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS - HIREDAUTOS NON -OWNED AUTOS X X BA7524X873 - 05/01/2015 05/01/2016 COMBINED SINGLE LIMIT Ea accident $ 1,000,00 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ Per accident A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE CUP7525X138ENCE 05/01/2015 :05&/01/2;016AGGRELGATE $ 4,000,00 $ 4,000,00DED X RETENTION$ 10,000 WORKERS COMPENSATION AND EMPLOYERS'LIABILITY ANY OFFICER/MEMER EXCLUDED? ECUTIVE Y1�N (Mandatory In NH) N/A 4182378 05/01/2015 05/01/E.L. $ X ER HB EACH ACCIDENT $ - 1,000,00 E.L. DISEASE - EA EMPLOYEE $ 1,000,00 C If yes, describe under DESCRIPTION OF OPERATIONS below P Liability AEHOO6088526 12/31/2014 12/31/2015 E.L. DISEASE - POLICY LIMIT $ 1,000,00 Per Claim A rea to 99 9 1,000,00( 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Eagle County is included as Additional Insured under General & Auto Liability in respect to ongoing operations performed by insured on behalf of holder as required by written contract subject to forms CGD381 & CAT420, coverage is primary & non-contributory. Project: Bridge on the Colorado River Road at Mile Marker 23.5. SEE NOTE>>> CERTIFICATE HOLDER CANCELLATION EAGLE -9 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Eagle County THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN PO Box 850 ACCORDANCE WITH THE POLICY PROVISIONS. Eagle, CO 81631 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD 0 Client#: 1085772 YEHASC tc;vr>`ira1TM CERTIFICATE OF LIABILITY INSURANCE DATE (MWID"yYY) 5/22/2015 IFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS TE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES IS CERTIFICATE OF IPISURANCE QOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERI(S), AUTHORIZED TATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. INEW T: If the Certificate holder is an ADC7Nf1ONAL INSURED, Lh0 policy(i®s) must be endorsed. N SUBROGATION IS WAIVED, subject to nd conditions of the policy, certain poiletes may require anendorsement. A statement on this certificate does not confer rights to the hpider fn lieu of such endorsement(s). PRODUCER USI Colorado, LLC Prof Liab P.O. Box 7050 Englewood, CO 80155 N M ' — `Ext :800 873-8500 (A c� AD° 800 873.8500 INSURER(S) AFFORDING COVERAGE NAIL ar INSURER A; Travelers insurance Company uRED Yeh &Associates, Inc. INSURER B ; Hudson Insurance Company 25054 --_ 2000 Clay Street, Suite 200 INSURER C ; - INSURER 0. Denver, CO 80122 INSURER E; TO WHICH THIS ALL THE TERMS. EXCLUSIONS INSURER F: THIS IS 715 CERTIFY TFIAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED Mr-VIOILM PIUMOrK: NAMED ABOVE FOR INDICATED. NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT THE POLICY PERIOD CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED WITH RESPECT HEREIN IS SUBJECT TO TO WHICH THIS ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH — POLICIES. LIMITS SHOWN MAY HAVE BEEN ROE�DUCED BY PAID CLAIMS. ARM A TYPE OF INSURANCE GENERAL LIABILITY I. a - POLICY NUbIBER-.. . )XIX 6806120M107 MHVDD F t Po P LM _ _ —.� /13/2015 LIMITS 1 06/13/201 EACH OCCURRENCE � X COMMERCIAL GENERAL LIABILITY 'kaloccur°$1000000 �� MED EXP (Any one person) 10 000 - a CLAIMS MADE OCCUR PERSONAL&AOVINJURY _$ $1tDO0DDO: ._ _:._._-- ._ .........___..__......__...., T � GENERAL AGGREGATE PRODUCTS COMPIOP AGQ S2 � s2 0OOOD0{I,000 - OEN'L AGGREGATE LIMIT APPLIES PER: LPOLtCV T 7 _ - AUTOMOBILE LIABILITY ANY AUTO - - •-—______ . ___ ___. — (I o BIs I SING S LIM( BODILY INJURY (Per parson) $ $ _ ^- ALL OWNED SCHEDULED ®. AUTOS iAUTOS ED HIRED HIREDALITOS4 AUTOS i BODILY INJURY (Per acciderit) (�� � IP GE -- _ $ $ -� UMBRELLA LIAa OCCUR � ` EACH OCCURRENCE $ EXCESS LIAR CLAIMS -MADE � i � .AGGREGATE DEtj RETENTION $ I ! I A AND EMPLOYER ' Lt A ION nND EMPLOYERS LtaetLrrY ILII -, I X XCUS084STD61 6/13/2015 3 06/13/2016 X we STATU• OTH- j RNY RiET0WR�PpARTNERIE ECUTf iEF, flFFICERIMEMEER EXCLUDED Y 3 If yes, desa a NH)tow If yes describe urger N t A , , E.L. EACH ACCIDENT V E.L DISEASE - EA EMPLOYEE $1�QQO _-.. $1 000 000 DESCRIPTkaN pF OPERATIONS below .__`_ —� ----- _.. - E.L DISEASE - PMIC.Y LIMIT _-- __.._ $1I 0001-05 0 B Professional AEE7276803 D6/13/2015,06/13/201 $1,000,000 per claim � Liability $2,000,000 annl aggr. Claims Made i DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, B more space is required) As required by written contract or written agreement, the following provisions apply subject to the policy terms, conditions, limitations and exclusions: The Certificate Holder, and Owner are included as Automatic Additional Insured's for ongoing and completed operations under General Liability but only with respect to liability arising out of the Named Insureds work performed on behalf of the certificate holder and owner. This Insurance policies will apply on a primary, non-contributory basis. A Blanket Waiver of Subrogation (See Attached Descriptions) Schmueser Gordon Meyer, Inc. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 1110 West 61h Street ACCORDANCE WITH THE POLICY PROVISIONS, Glenwood Springs, CO 81601-0000 AUTHORIZED REPRESENTATIVE O 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) 1 of 2 The ACORD name and logo are registered marks of ACORD #S15155182/M15148221 DPGZP #S151551821M15148221 A COR& Client#: 1083281 CENTEENG CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 7/os/2o 15 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(sl. PRODUCER USI Colorado, LLC P.O. Box 7050 Englewood, CO 80155 INSURED Centennial Engineering, Inc. 5420 Ward Road, Suite 125 Arvada, CO 80002 COVERAGES CFRTIFICATF w IUMCD. 800 873-8500 INSURER(S) AFFORDING COVERAGE INSURER A: Hartford Casualty Ins. Co INSURER B: Hartford Underwriters Ins. Co INSURER C: Hartford Ins. Co of the Midwest INSURER D: Travelers Casualty and Surety C NAIC # 9038 KtVI'IVN NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. -SR IN ADDL SUB POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MM/DD MM/DDrCM LIMITS A GENERAL LIABILITY X X 34SBWVS7351 4/10/2015 04/10/201C EACH OCCURRENCE s2,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED CLAIMS -MADE FX OCCUR PREMISES Ea occurrence s300OOO MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY s2,000,000 GENERAL AGGREGATE $4,000,000 GEN 'LAGGREGATE LIMIT APPLIES PER-- PRODUCTS-COMP/OPAGG $4,000,000oTPOLICY XE LOC B AUTOMOBILE LIABILITY X x 34UEGN08508 4/10/2015 04/10/201 COBED SINGLE LIMIT Ea MacciINdent X ANY AUTO � $1,000,000 ALL OWNEDSCHEDULED BODILY INJURY (Per person) $ X AUTOS AUTOS HIREDAUTOS X NON -OWNED BODILY INJURY (Per accident) $ AUTOS PROPERTY DAMAGE Per accident $ A X UMBRELLA LIA13 X OCCUR X X 34SBWVS7351 4/10/2015 04/10/201 EACH OCCURRENCE $1,000,000 EXCESS LIAB CLAIMS -MADE AGGREGATE $1,000,000 DEDX RETENTION $10000 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY X 34WEGPA3514 4/22/2015 $ 04/22/201 X WC STATU- OTH- OFFICERIMEMBER EXCLUDED? ECUTIVE I N/A JER E.L. EACH ACCIDENT $1,000,000 (Mandatory In NH) If yes, describe under E.L. DISEASE - EA EMPLOYEE $,110-0-0— OOO D DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $1,000,000 Professional 105267356 4/10/2015 04/10/201 $2,000,000 per claim Liability $2,000,000 annl aggr. Claims Made I 1 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) As required by written contract or written agreement, the following provisions apply subject to the policy terms, conditions, limitations and exclusions: The Certificate Holder and owner are included as Automatic Additional Insured's for ongoing and completed operations under General Liability; Designated Insured under Automobile Liability; and Additional Insured under Umbrella / Excess Liability but only with respect to liability arising out of the Named Insured's work performed on behalf of the certificate holder and owner. (See Attached Descriptions) CFRTIRiftATC unI r%C0 SGM, Inc. Attn: Michael Fowler, PE 118 West 6th Street, Suite 200 Glenwood Springs, CO 81601 ACORD 25 (2010/05) 1 of 2 #S15745052/M14858813 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE v I.7tM-ZUTU ACUKU CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SSZBC 9S15745052/M14858813 EXHIBIT C INTERGOVERNMENTAL AGREEMENT BETWEEN STATE OF COLORADO DEPARTMENT OF TRANSPORATION AND EAGLE COUNTY, COLORADO 16 Eagle County Prof Services Final 5/14 (FMLAWRK) PROJECT BRO 0440-006 (17445) Burns Bridge REGION 3/(DAW) Rev July 1, 2009 Routing # 10 HA3 02516 ID #331000280 STATE OF COLORADO DEPARTMENT OF TRANSPORTATION Inter -Governmental Agreement (IGA) with EAGLE COUNTY 1. PARTIES ..................... TABLE OF CONTENTS ............................................................... 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY..................................................................... 2 3. RECITALS ................................... . ............................. ....... 4. DEFINITION 2 .............................................. 5. TERM and EARLY TERMINATION. 6. SCOPE OF W 7. OPTION LETTER MODIFICATION ................................................. . . 8. PAYMENTS ........................... ............................. 7 9. ACCOUNTING 10. REPORTING - NOTIFICATION ................... 11. LOCAL AGENCY RECORDS ................ 11 12. CONFIDENTIAL INFORMATION -STATE RECORDS... 12 13. CONFLICT OF INTEREST....................................................................................... . 14. REPRESENTATIONS AND WARRANTIES .................... 12 15. INSURANCE ................. 12 16. DEFAULT-BREACH13 17. REMEDIES14 ........................................................................................ . 15 18. NOTICES and REPRESENTATIVES........................................................................................... 17 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE ..................................... . 20. GOVERNMENTAL IMMUNITY ................ ..... 17 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM.............................................................. 17 22. FEDERAL REQUIREMENTS ................................. 18 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 18 24. DISPUTES_, .......... ................ 18 ....................................................... 25. GENERAL PROVISIONS 26. COLORADO ............. ................. I ...... I....................... O SPECIAL PROVISIONS ..... 19 27. SIGNATURE PAGE ...................................... 28. EXHIBIT A- ........................ 24 SCOPE OF WORK........................................................................ . 1 29. EXHIBIT B - LOCAL AGENCY RESOLUTION ................... 30. EXHIBIT C - F .............................................. UNDING PROVISIONS ....................... ............. 31. EXHIBIT D - ..................... OPTION LETTER..................................................................................................... 1 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST ................. 33. EXHIBIT F - CERTIFICATION FOR FEDERAL -AID CONTRACTS.,.., ..... ................ 1 34. EXHIBIT G - DISADVANTAGED BUSINESS ENTERPRISE........................................................ 0 35. EXHIBIT H - LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES ........................ 1 36. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS ........................................ . 37. EXHIBIT J - FEDERAL REQUIREMENTS """""' 1 1. PARTIES THIS AGREEMENT is entered into by and between, the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the "State" or "CDOT") and Eagle County (hereinafter called the "Local Agency"). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or reimburse the Local Agency for any performance hereunder, including, but not limited to costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date. 3. RECITALS A. Authority, Appropriation, And Approval Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval, clearance and coordination have been accomplished from and with appropriate agencies. f. Federal Authority Pursuant to Title 1, Subtitle A, Section 1108 of the "Transportation Equity Act for the 21$, Century" of 1998 (TEA -21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be amended, (collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ("FHWA"). ii. State Authority Pursuant to CRS §43-1-223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program, including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c) and 43-2-14. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of this Agreement is to disburse Federal funds to the Local Agency pursuant to CDOT's Stewardship Agreement with the FHWA for the ROW, Design & Construction of the Burns Bridge Project SRO 0440-006 (17445) referred to as the Project or the Work per the Scope of Work contained in Exhibit A form 463. D. References All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows: A. Agreement or Contract "Agreement" or "Contract" means this Agreement, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Agreement, and any future modifying agreements, exhibits, attachments or references that are incorporated pursuant to Colroado State Fiscal Rules and Policies. Page 2 of 24 B. Agreement Funds "Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement. C. Budget "Budget" means the budget for the Work described in Exhibit C. D. Consultant and Contractor "Consultant" means a professional engineer or designer hired by Local Agency to design the Work and "Contractor" means the general construction contractor hired by Local Agency to construct the Work. E. Evaluation "Evaluation" means the process of examining the Local Agency's Work and rating it based on criteria established in §6 and Exhibits A and 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) and Exhibit J (Federal Requirements). G. Goods "Goods" means tangible material acquired, produced, or delivered by the Local Agency either separately or in conjunction with the Services the Local Agency renders hereunder. H. Oversight "Oversight" means the term as it is defined in the Stewardship Agreement between CDOT and the Federal Highway Administration ("FHWA") and as it is defined in the Local Agency Manual. 1. Party or Parties "Party" means the State or the Local Agency and "Parties" means both the State and the Local Agency J. Work Budget Work Budget means the budget described in Exhibit C. K. Services "Services" means the required services to be performed by the Local Agency pursuant to this Contract. L. Work "Work" means the tasks and activities the Local Agency is required to perform to fulfill its obligations under this Contract and Exhibits A and E, including the performance of the Services and delivery of the Goods. M. Work Product "Work Product" means the tangible or intangible results of the Local Agency's Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts. 5. TERM and EARLY TERMINATION. The Parties' respective performances under this Agreement shall commence on the Effective Date. This Agreement shall terminate after five (5) years of state controllers signature in section 27, unless sooner terminated or completed as demonstrated by final payment and final audit. 6. SCOPE OF WORK A. Completion The Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. Page 3 of 24 I3. Goods and Services The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered the Local Agency's, Consultants' or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Commitments i. Design If the Work includes preliminary design or final design or design work sheets, or special provisions and estimates (collectively referred to as the "Plans"), the Local Agency shall comply with and be responsible for satisfying the following requirements: a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard, such as the Uniform Building Code, as approved by the State. c) Prepare provisions and estimates in accordance with the most current version of the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Local Agency specifications if approved by the State. d) Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling public. e) Stamp the Plans produced by a Colorado Registered Professional Engineer. f) Provide final assembly of Plans and all other necessary documents. g) Be responsible for the Plans' accuracy and completeness. h) Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties. The Plans shall be considered final when approved in writing by CDOT and when final they shall be incorporated herein. ii. Local Agency Work a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document "ADA Accessibility Requirements in CDOT Transportation Projects". b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements. c) Local Agency may enter into a contract with a Consultant to perform all or any portion of the Plans and/or of construction administration. Provided, however, if federal -aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance/provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H. If the Local Agency enters into a contract with a Consultant for the Work: (1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State's approval. If not approved by the State, the Local Agency shall not enter into such Consultant contract. (2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing. immediately after the Consultant contract has been awarded, one copy of the executed Consultant contract and any amendments shall be submitted to the State. (3) Local Agency shall require that all billings under the Consultant contract comply with the State's standardized billing format. Examples of the billing formats are available from the CDOT Agreements Office, Page 4 of 24 (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the CDOT procedures described in Exhibit H to administer the Consultant contract. (5) 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. iii. Construction a) If the Work includes construction, the Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with 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 (LAPS), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures. (2) For the construction of the Work, advertising the call for bids upon approval by the State and awarding the construction contract(s) to the low responsible bidder(s). (a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23 Page 5 of 24 C.F.R. Parts 633 and 635 and C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefor, as required by 23 C.F.R. 633.102(e). (b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. The Local Agency must accept or reject such bid within three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, ner.Pssary to complete the Work if no additional federal -aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) If all or part of the Work is to be accomplished by the Local Agency's personnel (i.e. by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F.R. 635, Subpart B, Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed. (b) An alternative to the preceeding subsection is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 C.F.R. Part 31. (c) If the State provides matching funds under this Agreement, rental rates for publicly owned equipment shall be determined in accordance with the State's Standard Specifications for Road, and Bridoe Construction §109.04. (d) All Work being paid under force account shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. iv. State's Commitments a) 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, v. ROW and Acquistion/Relocation a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local Agency shall immediately convey title to such right of way to CDOT after the Local Agency obtains title. b) Any acquisition/relocation activities shall comply with all applicable federal and state statutes and regulations, including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted 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 24 d) The Parties' respective responsibilities under each level in CDOT's Right of Way Manual (located at littl)://www.dc)t.,-,tile.co.us/]ZOW Manual/) 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 vi. Utilities acquisition/relocation of right of way — 3114). If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company which may become involved in the Work. Prior to the Work being advertised for bids, the Local Agency shall certify in writing to the State that all such clearances have been obtained, vii. Railroads If the Work involves modification of a railroad company's facilities and such modification will be accomplished by 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. viii. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. ix. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their useful life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes, ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained. 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 unexeected 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. Page 7 of 24 This option is only applicable for Local Overmatch on an overbid situation and shall not be intended for any other Local Overmatch funding. The State may unilaterally increase the total dollars of this contract as stipulated by the executed Option Letter (Exhibit D), which will 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. 1f the State exercises this option, the contract will be considered to include this option provision. B. Option 2 — Option to add overlapping phase without increasing contract dollars. The State may require the Local Agency to begin a phase that may include Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation or Railroads) as detailed in Exhibit A and at the same terms and conditions stated in the original contract with the contract dollars remaining the same. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. C. Option 3 - To update funding (increases 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 (30) days after the State has received notice of funding changes, in a form substantially equivalent to Exhibit D. If the State exercises this option, the contract will be considered to include this option provision. 8. PAYMENTS The State shall, in accordance with the provisions of this §8, pay the Local Agency in the amounts and using the methods set forth below: A. Maximum Amount The maximum amount payable is set forth in Exhibit C as determined by the State from available funds. Payments to the Local Agency are limited to the unpaid encumbered balance of the Contract set forth in Exhibit C. The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B. B. Payment 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. ii. Interest The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by the Local Agency previously accepted by the State. Page 8 of 24 Uncontested amounts not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of days interest to be paid and the interest rate. iii. Available Funds -Contingency -Termination The State is prohibited by law from making commitments beyond the term of the State's current fiscal year. Therefore, the Local Agency's compensation beyond the State's current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. The State's performance hereunder is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may terminate this Contract immediately, in whole or in part, without further liability in accordance with the provisions hereof. iv. Erroneous Payments At the State's sole discretion, payments made to the Local Agency in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under this Contract or other contracts, Agreements or agreements between the State and the Local Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Contract Funds shall 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: Page 9 of 24 i. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goods and Services provided. ii. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred); 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts, or as a separate and integral part of its current accounting scheme). Such accounting systems shall, at a minimum, provide as follows. A. Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls, time records, invoices, contracts, vouchers, and other applicable records. 13. Local Agency -Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls, invoices, contracts, vouchers, orders, and other accounting documents shall be on file in the office of the Local Agency ,clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other Work documents. C. State -Administrative Services The State may perform any necessary administrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn, or if the Local Agency terminates this Agreement prior to the Work being approved or completed, then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency's sole expense. D. Local Agency -Invoices The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless CDOT receives such invoices within 60 days after the date for which payment is requested, including final invoicing. Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency. P. Reimbursement of State Costs CDOT shall perform Oversight and the Local Agency shall reimburse CDOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days, at CDOT's request, the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to CDOT. Interim funds shall be payable from the State Highway Supplementary Fund (400) until CDOT is reimbursed. If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full. CDOT's invoices shall describe in detail the reimbursable costs incurred, the dates incurred and the amounts thereof, and shall not be submitted more often than monthly. 10. REPORTING - NOTIFICATION Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §19, if applicable. Page 10 of 24 A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency's performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of CDOT. C. Noncompliance The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with this §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: (i) a period of three years after the date this Agreement is completed or terminated, or (ii) three years after final payment is made hereunder, whichever is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (collectively, the "Record Retention Period"). B. Inspection The Local Agency shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Agreement, including any extension. If the Work fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring the Work into conformity with Agreement requirements, at the Local Agency's sole expense. If the Work cannot be brought into conformance by re -performance or other corrective measures, the State may require the Local Agency to take necessary action to ensure that future performance conforms to Agreement requirements and may exercise the remedies available under this Agreement at law or in equity in lieu of or in conjunction with such corrective measures. C. Monitoring The Local Agency also shall permit the State, the federal government or any other duly authorized agent of a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on-site checking, formal audit examinations, or any other procedures. All such monitoring shall be performed in a manner that shall not unduly interfere with the Local Agency's performance hereunder. Page 11 of 24 D. Final Audit Report If an audit is performed on the Local Agency's records for any fiscal year covering a portion of the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 12. CONFIDENTIAL INFORMATION -STATE RECORDS The Local Agency shall comply with the provisions of this §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 he construed to require the Local Agency to violate the Colorado Open, Records Act, C.R.S. §§ 24-72-1001 et seq. A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State's principal representative. B. Notification The Local Agency shall notify its agents, employees and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure -Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, or assignees pursuant to this §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. Page 12 of 24 A. Standard and Manner of Performance The Local Agency shall perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. 13. Legal Authority — The Local Agency and the Local Agency's Signatory The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of the Local Agency's authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds. Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non -renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for the Local Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for termination of this Agreement. 15. INSURANCE The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State. A. The Local Agency L Public Entities If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended (the "GIA"), then the Local Agency shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance requirements necessary to meet Consultant or Contractor liabilities under the GIA. ii. Non -Public Entities If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and policies meeting the same requirements set forth in §15(B) with respect to sub -contractors that are not "public entities". B. Contractors The Local Agency shall require each contract with Contractors, Subcontractors, or Consultants, other than those that are public entities, providing Goods or Services in connection with this Agreement, to include insurance requirements substantially similar to the following: Page 13 of 24 L Worker's Compensation Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance covering all of the Local Agency's Contractors, Subcontractors, or Consultant's employees acting within the course and scope of their employment. ii. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket liability, personal injury, and advertising liability with minimum limits as follows: (a) $1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, contractors, subcontractors, and consultants shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or other document satisfactory to the Local Agency showing compliance with this provision. iii. Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Additional Insured The Local Agency and the State shall be named as additional insured on the Commercial General Liability policies (leases and construction contracts require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). v. Primacy of Coverage Coverage required of the Consultants or Contractors shall be primary over any insurance or self-insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non -renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Agreement and secured and maintained by the Local Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against the Local Agency or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates The Local Agency and all Contractors, subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. No later than 15 days prior to the expiration date of any such coverage, the Local Agency and each contractor, subcontractor, or consultant shall deliver to the State or the Local Agency certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Agreement or any sub- contract, the Local Agency and each contractor, subcontractor, or consultant shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §15. 16. DEFAULT -BREACH A. Defined In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner constitutes a breach. B. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §18. Page 14 of 24 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. REME=DIES 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 notice and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and/or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non-performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non- performance within the cure period, the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated, if any. L 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. ii. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination. If, after termination by the State, it is determined that the Local Agency was not in default or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein. iii. Damages and Witholding Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Agreement by the Local Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from the Local Agency is determined. 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 Page 15 of 24 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. L Method and Content 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. ii. 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). iii. 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. ii. Withold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed. iii. Deny Payment Deny payment for those obligations not performed that due to the Local Agency's actions or inactions cannot be performed or, if performed, would be of no value to the State; provided that any denial of payment shall be reasonably related to the value to the State of the obligations not performed. iv. Removal Demand removal of any of the Local Agency's employees, agents, or contractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Agreement is deemed to be contrary to the public interest or not in the State's best interest. v. Intellectual Property If the Local Agency infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Agreement, the Local Agency shall, at the State's option (a) obtain for the State or the Local Agency the right to Page 16 of 24 use such products and services; (b) replace any Goods, Services, or other product involved with non -infringing products or modify them so that they become non -infringing; or, (c) if neither of the forgegoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State. 18. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Party's principal representative at the address set forth below. In addition to but not in lieu of a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. A. State: Martha Miller CDOT Re ion 3 Resident Engineer 714 Grand Avenue Eagle, CO 81631 970 328-6385 B. Local Agency: Eva Wilson Eagle Count —County En ineer 500 Broadway PO Box 850 Eagle, CO 81631 970 328-3560 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type, including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. The Local Agency shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agencys's obligations hereunder without the. prior written consent of the State. 20. GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees and of the Local Agency is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24-30-1501, et seq., as amended. 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §21 applies. The Local Agency agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24- 102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor Page 17 of 24 performance on state agreements/contracts and inclusion of agree ment/contract performance information in a statewide contract management system. The Local Agency's performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Agreement, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be part of the normal Agreement administration process and the Local Agency's performance will be systematically recorded in the statewide Agreement Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of the Local Agency's obligations under this Agreement shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of the Local Agency's obligations. Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Agreement term. The Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by CDOT, and showing of good cause, may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24- 105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause. 22. FEDERAL REQUIREMENTS The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing regulations, as they currently exist and may hereafter be amended. A listing of certain federal and state laws that may be applicable are described in Exhibit J. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C.F.R. Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State - approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints, at its sole cost and expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program. 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer of the Department of Transportation. 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 Page 18 of 24 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. I. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous addition, deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein. F. Indemnification - General If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., the Local Agency shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq. G. Jurisdction and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit, attachment, schedule, 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, (Ill) 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 Page 19 of 24 Fiscal Rules, and Office of the State Controller Policies, including, but not limited to, the Policy entitled MODIFICATIONS OF AGREEMENTS - TOOLS AND FORMS. ii. By Operation of Law This Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Agreement on the effective date of such change, as if fully set forth herein. J. Order of Precedence The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions, ii. The provisions of the main body of this Agreement, iii. Exhibit A (Scope of Work), iv. Exhibit 8 (Local Agency Resolution), v. Exhibit C (Funding Provisions), vi. Exhibit D (Option Letter), vii. Exhibit E (Local Agency Contract Administration Checklist), viii. Other exhibits in descending order of their attachment. K. Severability Provided this Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required. M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them. N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. 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. Page 20 of 24 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24-30-202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §2410-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance benefits shall be available to The Local Agency and its employees and agents only if such coverage is made available by The Local Agency or a third party. The Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local Agency shall not have authorization, express or implied, to bind the State to any Agreement, liability or understanding, except as expressly set forth herein. The Local Agency shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. The Local Agency shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution. Page 21 of 24 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that The Local Agency is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of The Local Agency's services and The Local Agency shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental Agreements, or information technology services or products and services] The Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E -Verify Program or the State program established pursuant to CRS §8-17.5-102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall 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 Page 22 of 24 or contracting with an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5- 102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the State program, The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that The Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If The Local Agency fails to comply with any requirement of this provision or CRS §8-17.5- 101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this Agreement for breach and, if so terminated, The Local Agency shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this Agreement. Special Provisions Effective 1/1/09 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 23 of 24 - - - ------ now 27. SIGNATURE PAGE Agreement Routing Number 10 HA3 02516 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Persons signing for The Local Agency hereby swear and affirm that they are authorized to act on The Local Agency's behalf and acknowledge that the State is relying on their representations to that effect. THE LOCAL AGENCY STATE OF COLORADO EAGLE COUNTY By. Bill Ritter, Jr. GOVERNOR (Printed NamColorado Department of Transportation Title: .1 Name Russell George, Executive Director _Y -,A do ?gnatu' By: Pam Hutton — CDOT Chief Engineer Attested by LEGAL REVIEW 'john W. Suthers, Attorney General By. ry (Printed Name) By: Title:ar2e C-0 cch- t -- Signature /Assistant Attorney 9,6peral ll -d , *Signature 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. It The Local Agency begins performing prior thereto, the State of Colorado is not to obligated to pay The Local Agency for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER Davi .44. -McDermott, CPA By: Colorado Depar r ent of Transporation Date: Page 24 of 24 28. EXHIBIT A — SCOPE OF WORK Page 1 of 4 COLORADO DEPARTMENT OF TRANSPORTATION I Orig.Oate: 06/242009 DESIGN DATA Rev.Data: Revision # 0 ...... ......... ....... . _........ Page i to 3 I Region # 03 Status: NJ Preliminary ;_ Final (';j Revised Project Code t (SAff): 17445 STIP*: SR35771 ••� _ Project v: SRO C440.006 PE Pr ct Code: Li htin Project Desuiption: Burns Bridge - Eagle County Submitted By PM: KILLIANS Approved by Program Engineer. —__.._....___......-- Dote County: 037 Munic' al' : Burns stem Code: Z -Not on any Federal -Aid Highway Revised by: Oversight By: A- Exempt Date: Planned Le 0.250 Geographic Location: MILE MARKER 32.5 COUNTY ROAD 301 Type of Terrain: Rodin Description Of Proposed Constructionfimprovement(Attech map shaving site location) OFF SYSTEM BRIDGE Project Characteristics (Proposed) Median (Type): (-j Depressed Painted (-j Reined' None Li htin Hancica Rams j Traffic Control Signals j Striping j..T Curb and Gutter Curb Ord Left -Tum Slots C_j Continuous Widh= Sidwalk Width- i'i Bikewa Width= l Ri t -Tum Slots Continuous Wckh= I Parkin Lane Width= :"'I Detours Signing Construction Paimanent (..,I Landscaping requirements (description): =;1 Other(dowtiption): Right of Way YesrNo Est. # Utilities (list names of known utility companies) ROW &for Penn. Easement Requited No Unknown Relocation Required No Temporary Easement Rogrired: No Changes in Access: No Changes to Connecting Roads: No Railroad Crossings tr of Crossings: Jmmendations: Environmental Type: Approved On: Project Code # Cleared Under. Project a Cleared Under: N -CE Nonpr emmatic ments: Coordination Withdrawn Lands (Power Sites, Reservoirs, Etc.) Cleared through BLM or Forest Service Office Irrigation Ditch Name: New Traffic Ordinance Required Modify Schedule of Existing Ordinance Muncipatity: Burns Other: Construction Method Advertised Sy: NoAd Reason: I Entity /Agency Contact Name: Phone a: Local Safety Considerations Project Under: Guardrail meets current standards: No Comments: Unknown Variance in Minimum Design Standards Required iJ Safety project not all standards Jus@BcationAttached ;71 J ISafetY Request to be Submitte addressedid (see Rem 12)Sta Construction (ex lain in remarks) rojects Evaluation Complete (date): Page 2 of 4 Page 3 of 3 Project Code #(SA#): Project #: Revise Date: 17445 SRO 0440-O06 Major Structures S- to stay. R- to be removed P= proposed new structure Reference Standard Structure Slructurat Horizontal Vertical Year SUudure Itl# Length Point Feature Intersected Width Roadwa C ac Clearance Clearance Buhl Proposed se,of Bridges to Remain in Place(address bridge reit, capacity, and allowable surfacing thickness): Remarks The structure number for this bridge is (EAG301.23.5). Eagle County is proposing to construct a bridge located on Colorado River Road (301), mile marker 23.5. The existing bridge is going to be removed and replaced with a new two.iane structure. Each approach end is going to be reworked to accommodate drainage. the new structure and the road alignment The bridge will be constructed with either concrete or steel girders to accommodate higher weight loads and traffic volumes. Eagle County plans on using locant funds to complete a full design of the bridge structure and all associated elements for bridge replacement. The county has also elected to use federal funds rot rightot-way acquisition and miscellaneous fees retailing to acquisition of the right-of-way. #The bridge will be constructed with either concrete or steel g'eders to accommodate higher weight loads and traffic volumes.# Page 4 of 4 Co III Inissionel- moved adoptioll ot' the foll(ming Resolution: BOARD O1.,'COUN,rN,' CONINUSSIONUAIS C'MATY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2010- 1\'J,-'S(.',)lA,"lJ0N "--')(JPP0R.TlNCi'l-1 V 13MVEEN MUIT MUM Y Ala) THE COLORAE() DEPARTMENT (*)]-"I'IZANS13()R'l-A'-I'I()N FOR LASPURSEAVIEw OF FI_ DS FOR THE ROW. DESITY & CONSTRUCTION OFuiE 1 -31 -ANS BRIDGE PRO.117-CJ' WHEREA,S. Fagle Courrty desires to replace a structurally det-Icierit Iri(lue oil tile Colorado River Road at -Mile Marker 23,5 (hereinafter ..Project") in the mincorporated area of Burns in Eagle County: and WHEREAS. tile Colorado Department of Transportation (hereinafter "C -*L)0,1*,) has selected this Project as 1--'ederal funding thioujoi the (?System Bridge Program (hereinafter "13R,C)") administered by CDOT: and WHEREAS. the total Project cost inciti(linj design and COnStYLIC6011 is estimated at S2,83T625 with SM? kmdhg hvni the BRO and 2W�,') funding from the Local Xgenc. , 7 y: Zinc] WHEREAS. Eagle Coumy agmes to assme the respimiNvilities of the LAW Agency as d(nned by the Inter-Goverrinlental Agreenlellt (hereinalAer -IGA-) between CDOT in(] Ea,le County tor the Pro�ject—)Ilkl WHEIZE.AS. Evioe Coumy has budgeted 5561525 m meet the 20'),.i) Local responsibility. gericy ,`:' Rl-'\v'lAl'NDE'R OF PAGE INTENTIONALLY LLTT BLANK!/ NOW, THERE ORF,, 13E rr m. -,SOLVED in,' THE BOARD OF (A -M.. -Nn COMMISSIONERS OF IWE MINTY OF EASME, STATE OF CIRA)RADO- THAT, the Board of Eagle County Wnniissbners hereby authorizes the Chairman of dle Board to sig,11 the IGA with CDO F THAT, this resolmion is to he in Rdlg RUCe and el'teCt t] and liter its passage and 'r"AT. We board hereby Hnd& dviennines and cleclares that this Resoludon is necessary tier the public health, safely and welbre of the reddents of file County of Ea.ple. State of (: o orado. NIOVI-A), READ ,NND ADOPAIII) by the Board of COLJ]JtV C'01111liksioners of the County of Eagle, time of Colorado. at its regular, meeting held this " 7 lay of 11 C2L'r�-t 161"Af, 2010. COUNTY OF EAGLE, STATE OF COLORADO By and Through its Bwwd of County Coinluissioncl-s i-2 ATTEST: '00f"QfN R v: too Clerk of the Board of C,ourlty Conirnissioners Runyon. C0111111i , ssioner Commissioner 0-!!!l secondal adoption of the tbregoing resolution. Hie roll having been cal led, the vote was Z>Kms: Commisdoner Sain I Fisher Conuilissioner .[oil Stavney CCIIIII)IkSiOnCr POter 1. RLIIIy,Ml -11i5 Resolution passed L)x VOte of the 130ard of, Coulliv Conlini-'sioners of he c"UMY Of "'I'lle ot'Colora&.1, 29. EXHIBIT B - LOCAL AGENCY RESOLUTION LOCALAGENCY ORDINANCE or RESOLUTION Page t of 2 30. EXHIBIT C — FUNDING PROVISIONS BRO 0440-006 (17445) Burns Bridge A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $2,837,625.00 which is to be funded as follows: 1 BUDGETED FUNDS a. Federal Funds $2,270,100.00 (80% of Participating Costs) b. Local Agency Matching Funds $567,525.00 (20% of Participating Costs) C- Local Agency Matching for CDOT - Incurred Non -Participating Costs Overmatch $0.00 TOTAL BUDGETED FUNDS _ $2,837,625.00 2 ESTIMATED CDOT-INCURRED COSTS a. Federal Share (_ of Participating Costs) $0.00 b. Local Agency Local Agency Share of Participating Costs $0.00 Non -Participating Costs (including Non - Participating Indirects) $0.00 TOTAL ESTIMATED CDOT-INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (1 a) $2,270,100.00 b. Less 80% of $200,000.00ROW Acquisition ($160,000) (-$160,000.00) TOTAL. ESTIMATED PAYMENT TO LOCAL AGENCY $2,110,100.00 FOR CDOT ENCUMBRANCE PURPOSES 1 a. Federal Funds $2,270,100.00 1 b. Local Agency Matching Funds $567,525.00 Total Encumbrance Amount *"Note Federal funds are not yet available for encumbrence at this time. Funds will be encumbered at a later date by formal amendment or option letter. $2,837,625.00 Less ROW Acquisition 3111 and/or ROW Relocation 3109 -$200,000.00 Net to be encumbered as follows: $2,637,625.00 WBS Element 17445.10.50 ROW Misc 3114 $50,000.00 WBS Element 17445.10.30 Desi n 3020 $300,000.00 WBS Element 17445-20.10 Const 3301 $2,287,625.00 TOTAL ENCUMBRANCE ** $0.00 Page 1 of 2 B. Matching Funds The matching ratio for the federal participating funds for this Work is 80% federal -aid funds (CFDA #20 2050) to 20% Local Agency funds, it being understood that such ratio applies only to the $2,837,625.00 that is eligible for federal participation, it being further understood that all non -participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $2,837,625.00, and additional federal funds are made available for the Work, the Local Agency shall pay 20% of all such costs eligible for federal participation and 100% of all non -participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $2,837,625.00, then the amounts of Local Agency and federal -aid funds will be decreased in accordance with the funding ratio described herein. The performance of the Work shall be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $2,110,100.00 (For CDOT accounting purposes, the federal funds of $2,270,100.00 and Local Agency matching funds of $567,525.00 will be encumbered for a total encumbrance of $2,837,625.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred. "Note - No funds are available for encumbrence at this time. Funds will be encumbered at a later date by formal amendment or option letter. It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non-profit organization Sub -The Local Agencys receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes, shall comply with the audit requirements of OMB Circular A- 133 (Audits of States, Local Governments and Non -Profit Organizations) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to Sub -The Local Agencys receiving federal funds are as follows: I. Expenditure less than $500,000 If the Sub -The Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure exceeding than $500,000 -Highway Funds Only If the Sub -The Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be performed. This audit will examine the "financial" procedures and processes for this program area. Iii. Expenditure exceeding than $500,000 -Multiple Funding Sources If the Sub -The Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Page 2 of 2 31. EXHIBIT D — OPTION LETTER SAMPLE IGA OPTION LETTER NOTE: This option is limited to the specific contract scenarios listed below AND may be used in place of exercising a formal amendment. Date: State Fisc�Year�:Opitionetter No. 7�LIN Routing # Original Contract CMS # Option Letter CMS # Original Contract SAP # Option Letter SAP # Local Agency Name: A. SUBJECT: (Choose applicable options listed below AND in section Band delete the rest) I. 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, Ac encv code & CON routing # of Basic Contract) between the State of Colorado, Department of Transportation and (insert the Local Agency's name here), the State hereby exercises the option to record a level of service change due to unexpected overmatch dollars due to an overbid situation. The Agreement is now increased by (indicate additional dollars here) specified in Paragraph/Section/Provision of the original Agreement. (Insert the following language for use with Option #2)• In accordance with the terms of the original Agreement (_insert FY, Aaencv code ,& CL1N 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 findicate Fiscal Year here) that will include (describe which phase will be added and include all that apply — Design, Construction Environmental Utilities ROW incidentals or Miscellaneous). Total funds for this Agreement remain the same (indicate total dollars here) as referenced in Paragraph/Section/Provision/Exhibit ______of the original Agreement. (Insert the following IgMuage for use with Option #3• In accordance with the terms of the original Agreement (insert FY. Agencv code & CLiN routing # of Basic Contract} between the State of Colorado, Department of Transportation and (insert the Local Agency's Warne 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 he specified in Paragraph/ -Section/- Provision/Exhibit of the original Agreement. A new Exhibit C-1 is made part of the original Agreement and replaces Exhibit C. (The following is a NOTE only so please delete when using this option: future changes for this option for Exhibit C shall be labeled as follows: C-2, C-3, C-4, etc.) Page 1 of 2 The following language must be included on ALL options): The amount of the current Fiscal Year contract value is (increased/decreased) by ($ amount of chane to a new Agreement value of ($__— ) to satisfy services/goods ordered under the Agreement for the current fiscal year (indicate Fiscal Year}. The first sentence in Paragraph/Section/Provision _ _ is hereby modified accordingly. The total Agreement value to include all previous amendments, option letters, etc. is The effective date of this Option Letter is upon approval of the State Controller or delegate. APPROVALS: For the The Local Agency: Legal Name of the Local Agency A Print Name of Authorized Individual Signature: Date: Title: Official Title of Authorized Individual State of Colorado: Bill Ritter, Jr., Governor By: _ Date: Executive Director, Colorado Department of Transportation ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Agreement is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to pay the Local Agency for such performance or for any goods and/or services _ _ provided hereunder. By: Date: Form Updated: July t, 2009 State Controller David J. McDermott, CPA Page 2of2 32. EXHIBIT E - LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Page i of 6 LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST The following checklist has been developed to ensure that all required aspects of a project approved for Federal funding have been addressed and a responsible party assigned for each task. After a project has been approved for Federal funding in the Statewide Transportation Improvement Program, the Colorado Department of Transportation (CDOT) Project Manager, Local Agency project manager, and CDOT Resident Engineer prepare the checklist. It becomes a part of the contractual agreement between the Local Agency and CDOT. The CDOT Agreements Unit will not process a Local Agency agreement without this completed checklist. It will be reviewed at the Final Office Review meeting to ensure that all parties remain in agreement as to who is responsible for performing individual tasks. xvi COLORADO DEPARTMENT OF TRANSPORTATION LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST Project No. BRO C440-006 STIP No, Project Code Region Project Lotion -- TBD 17445 3 ca Date Colorado River Rd CR-301 mile marker 23.5 Project Description 6115/09 Replacement of off system bridge on Eagle County Road 301 Local Agency Local Agency Project Manager Ea to Count Ben Gerdes COOT Resident Engineer Martha Miller COOT Project Manager Brian Killian/Peter lombardi INSTRUCTIONS- This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement. The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters of the COOT Local Agency Manual. The checklist shall be prepared by placing an "X" under the responsible 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 COOT nor tate Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a 1" will denote that COOT must concur or approve. Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and procedures, will determine who will perform all other tasks that are the responsibility of CDOT. The checklist shall be prepared by the COOT Resident Engineer or the COOT Project Manager, in cooperation with the Local Agency Project Manager, and submitted to the Region Program Engineer. if contract administration responsibilities change, the COOT Resident Engineer, in co ration with the Local A en Project Manager, will prepare and distribute a revised checklist. NO. DESCRIPTION OF TASK RESPONSIBLE PARTY TIP/ STIP AND LONG-RANGE PLANS LA CDOT 2.1 Review Pro ect to ensure it is consist with STIP and amendments thereto FEDERAL FUNDING OBLIGATION AND AUTHORIZATION X 4. i Authorize funding by phases (COOT Form 4 t 8 - Federai•ald Program Data. Requires FHWA concurrence,involvement X PROJECT DEVELOPMENT 5.1 pre are Desi n Data - CDOT Form 463 5.2 Pre are Local A one lCDOT Inter-Governmental A reement see also Ch far 3 X 5.3 Conduct Consultant Selection/Execute Consultant A reement X 5.4 Conduct Desi n Soo In Review Meetln X 5.5 Conduct Public Involvement X 5.6 Conduct Field Inspection Review FIR X 5.7 Conduct Environmental Processes ma it require FHWA concurrencoAnvoivement) X 5 8 Ac uire licil tt•of-Wa ma re ire FHWA concurrenceiiinvolvement X X 5.9 Obtain Utilit and Railroad A reements X 5.10 Conduct Final Office Review FOR X 5.11 Justify Force Account Work b the Local Agency X 5A2 JustifY Proprietary, Sole Source or Local Agency Furnished Items X 5.13 Document Dest n Exce Irons -COOT Form 464X 5.14 Pre are Plans, S ecilicatlons and Construction Cost Estimates _ X 5.15 Ensure uthorization of Funds for construction X Previous editions are obsolete and may not be Used COOT Form 1243 04/06 Pagel of 4 Page 3 of 6 Previous editions are obsolete and may not be usedCDO7 Farm 1249 09:06 Paget of 4 Page 4 of 6 Previous editions are obsolete and may not be used CDOT Form 1243 09/06 Page3 of 4 Page 5 of 6 CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE 10.1 Fulfill Pro'ec1 Bulletin Board and Pre-Construction Packet Re ukements X 10.2 Process CDOT Form 205 - Sublet Permit Application Review and sign completed CDOT Form 205 for each subcontractor, and submit to X EEO/Civil Rights Specialist X 10.3 Conduct Equal Employment Opportunity and Labor Compliance Verification Employee X Interviews, Complete CDOT Form 280 10.4 Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the 'Commercially X Useful Function" Re uirements 10.5 Conduct Interviews When Project Utilizes On-the-Job Trainees, Complete CDOT Form 200 - X OJT Training Questionnaire 10.6 Check Certified Payrolls (Contact the fla ion EEQ'Cl vii RightsS dalists for traiiun requirements.) X 10.7 Submit FHWA Form 1391 - Hi hwa Construction Contractor's Annual EEO Re ort X FINALS i 1,1 Conduct Final Project inspectlon. Complete and submit CDOT Form 1212 - Final Acceptance Report (Resident Engineer with mandatory Local Agency participation.) X 11.2 Write Final Pro ect Acceptance Letter 11.3 Advertise for Final Settlement X X 11.4 Pre are and Distribute Final As-Constructed Plans X 11.5 Pre are EEO Certification 11.6 Check Final Quantities. Pians, and Pay Estimate; Check Project Documentation; and submit X X Final Certifications 11.7 Check Material Documentation and Acce t Final Material Certification See Ch ter 9 }t 11.8 Obtain CDOT Form 17 train the Contractor and Submit to the Resident Engineer X 11.9 Obtain FH WA Form 47 - Statement of Materials and Labor Used ... from the Contractor WA 11. fd Com lete and Submit CDOT Form 1212 — Final Acceptance Report (by CDOT X 11.11 Process Final Payment 11.12 Com fete and Submit , OT Form 950 - Project Closure X 11.13 Retain Project Records for Six Years from Date of Project Closure X X 11.14 Retain Final Version of Local A enc Contract Administration Checklist X cc: CDOT Resident Engineer/Project Manager CDOT Region Program Engineer CDOT Region EEOfCivil Rights Specialist CDOT Region Materials Engineer CDOT Contracts and Market Analysis Branch Local Agency Project Manager Previous editions are obsolete and may not be used CDOT Form 1243 09/06 Page4 of 4 Page 6 of 6 33. EXHIBIT F — CERTIFICATION FOR FEDERAL -AID CONTRACTS The Local Agency certifies, by signing this Agreement, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf or the undersigned, to any person for influencing or attempting to influenr.P an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Membpr of Conaress 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 [Ills transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agree by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub -recipients shall certify and disclose accordingly. Required by 23 CFR 635.112 Page 1 of 1 33. EXHIBIT G — DISADVANTAGED BUSINESS ENTERPRISE SECTION 1. Policy. It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business enterprises shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23. Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this agreement. SECTION 2. DBE Obligation. The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all participants or contractors shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local Agency DBE Program approved in advance by the State) to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of CDOT assisted contracts. SECTION 3 DBE Program. The Local Agency (sub -recipient) shall be responsible for obtaining the Disadvantaged Business Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall comply with the applicable provisions of the program. (If applicable). A copy of the DBE Program is available from and will be mailed to the Local Agency upon request: Business Programs Office Colorado Department of Transportation 4201 East Arkansas Avenue, Room 287 Denver, Colorado 80222-3400 Phone: (303) 757-9234 revised 1(22/98 Page 1 of 1 Required by 49 CFR Part 23.41 34. EXHIBIT H — LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL -AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERVICES Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement administered by CDOT that involves professional consultant services. 23 CFR 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(x) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23 CFR 172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local agencies must comply with these CFR requirements when obtaining professional consultant services under a federally funded consultant contract administered by CDOT. CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled "Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal and State regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local agencies should have their own written procedures on file for each method of procurement that addresses the items in 23 CFR 172]. Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the subsequent steps serve as a short -hand guide to CDOT procedures that a local agency must follow in obtaining professional consultant services. This guidance follows the format of 23 CFR 172. The steps are: 1. The contracting local agency shall document the need for obtaining professional services. 2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S. 24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations. 3. The contracting agency must advertise for contracts in conformity with the requirements of C.R.S. 24-30-1405. The public notice period, when such notice is required, is a minimum of 15 days prior to the selection of the three most qualified firms and the advertising should be done in one or more daily newspapers of general circulation. 4. The request for consultant services should include the scope of work, the evaluation factors and their relative importance, the method of payment, and the goal of 10% for Disadvantaged Business Enterprise (DBE) participation as a minimum for the project. 5. The analysis and selection of the consultants shall be done in accordance with CRS §24-30- 1403. This section of the regulation identifies the criteria to be used in the evaluation of CDOT pre -qualified prime consultants and their team. It also shows which criteria are used to short- list and to make a final selection. The short-list is based on the following evaluation factors: a. Qualifications, b. Approach to the Work, c. Ability to furnish professional services. d. Anticipated design concepts, and e. Alternative methods of approach for furnishing the professional services. Page 1 of 2 Evaluation factors for final selection are the consultant's: a. Abilities of their personnel, b. Past performance, C. Willingness to meet the time and budget requirement, d. Location, e. Current and projected work load, f. Volume of previously awarded contracts, and g. Involvement of minority consultants. 6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and reasonable price for the anticipated work. Pre -negotiation audits are prepared for contracts expected to be greater than $50,000. Federal reimbursements for costs are limited to those costs allowable under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with consideration given to size, complexity, duration, and degree of risk involved in the work. Profit is in the range of six to 15 percent of the total direct and indirect costs. 7. A qualified local agency employee shall be responsible and in charge of the Work to ensure that the work being pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the end of Work, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant. 8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42, which provide for records to be kept at least three years from the date that the local agency submits its final expenditure report. Records of projects under litigation shall be kept at least three years after the case has been settled. CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying with the preceeding eight (8) steps. Page 2 of 2 35. EXHIBIT I - FEDERAL -AID CONTRACT PROVISIONS FHWA Form 1273 f°HWA-1273 Electronic version March 10. 1994 REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS i. General 1 II. Nondiscrimination.................................................................................... 1 III. Nonsegregated Facilities....................................................................... 3 iV.Payment of Predetermined Minimum Wage ........................................... 3 V.Slatements and Payrolls......................................................................... 6 VI. Record of Materials, Supplies, and Labor ............................................... 6 VII. Subletting or Assigning the Contract .................................... 7 VIII. Safety: Accident Prevention ................................................. 7 IX. False Statements Concerning Highway Projects .................................... 7 X.Implementation of Clean Air Act and Federal Water Pollution Control Act.._., ............. ......... 8 XLCertification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion....................................................... 8 XII. Certification Regarding Use of Contract Funds for Lobbying................................................................ ....... ............................ 9 ATTACHMENTS A.Employment Preference for Appalachian Contracts (included in Appalachian contracts only) LGENERAL 1. These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers tinder the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provisions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12: Section 1, paragraph 2; Section IV, paragraphs 1, 2, 3, 4, and 7: Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this Agreement. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the DOL, or the contractor's employees or their representatives. 6. Selection of Labor: During the performance of this Agreement, the contractor shall not: a. discriminate against labor frorn any other State, possession, or territory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or b employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole, supervised release, or probation. (Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or more.) 1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 GFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this Agreement. The Equal Opportunity Construction Contract Specifications set forth under 41 CFR 60-4.3 and the provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et seg.) set forth tinder 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this Agreement. In the execution of this Agreement, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the State highway agency (SHA) and the Federal Government in carrying out EEO obligations and in their review of his/her activities under the contract. b. The contractor will accept as his operating policy the following statement: -it is the policy of this Company to assure that applicants are employed, and that employees are treated during omployrnent, without regard to their race, religion, sex, color, stational 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-apprenliceship, and/or on-the-job training." 2. EEO Officer: The contractor will designate and snake known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, wiB 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 contractors EEO policy and its implementation wiff 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 minority group employees. 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. If. NONDISCRIMINATION 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: 'An Equal Page 1 of 8 REQUIRED BY 23 CFR 633.102 -- Opportunity Employer," All such advertisements will be placed in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to file extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementations of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. information and procedures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. 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 discrimi- nation. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this Agreement, will attempt to resolve such complaints, and will take appropriate corrective action within a, reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shalt include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. Where feasible, 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training. In the event a special provision for training is provided under this Agreement, this subparagraph will be superseded as indicated in the special provision. c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. ). Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use hisrher best efforts to obtain the cooperation of such unions to increase opportunities for minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. Tile contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, Vie contractor shall so certify to the SHA and shelf set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minority group persons and women. (The DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.) In the event the union referral practice prevents the contractor from meeting file obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA. S. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his%her EEO obligations under this Agreement. b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this Agreement. The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their empioyees. Contractors shall obtain fists of DBE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcontractor compliance with their EEO obligations. 9. Records and Reporlsr The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHW A. a. The records kept by the contractor shall document the following: (t) The number of minority and non -minority group members and women employed in each work classification on the project; (2) The progress arid efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. b. The contractors will submit an annual report to the SHA each July for the duration of the project, indicating the number of minority, women, and non -minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. If on -the job training is being required by special provision, the contractor will be required to collect and report training data. Ill. NONSEGREGATED FACILITIES (Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or more.) a. By submission of this bid, the execution of this Agreement or subcontract, or the consummation of this material supply agreement or purchase order, as appropriate, the bidder. Federal -aid construction contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this Agreement. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, kicker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, focal custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking). e. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or more and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) 1. General: a. All mechanics and laborers employed or working upon the site of the work will be paid unconditionally and not less often than once a week and without subsequent deduction or rebate on any account [except such payroll deductions as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)j the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of Labor (hereinafter "the wage determi- nation") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics. The wage determination (including any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH -1321) or Form FHWA-1495) shall be posted at all times by the contractor and its subcontractors at Phe site of the work in a prominent and accessible place where it can be easily seen by the workers. For the purpose of this Section, contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis -Bacon Act (40 U.S.C. 276x) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof, Also, for the purpose of this Section, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shalt be paid the appropriate wage rate and fringe benefits oil the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this Section IV. b. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. C. All rulings and interpretations of the Davis -Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this Agreement. 2. Classification: a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classification, wage rate and fringe benefits only when the following criteria have been met: (1) the work to be performed by the additional classification requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210, The Wage and Hour Administrator, or an authorized representa- tive, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropriate, the laborers or mechanics to be employed in the additional classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is pedonned in the classification. 3. Payment of Fringe Benefits: a. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as all hourly rate, the contractor or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a part of the wages of any taborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) Apprentices will be permitted to work at fess than the predetermined rale for the work they performed when they are employed 3 of 8 REQUIRED BY 23 CFR 633.102 -- Pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or it a person is employed in hisiber first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeyman -level employees 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 employee listed on a payroll at an apprentice wage rate. who is not registered or otherwise ernpioyed as stated above, shall be paid riot less than the applicable wage rate listed in the wage determination for the classification of work actually performed. In addition, any apprentice performing work On the job 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 or subcontractor is Performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeymandevet hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. (3) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman -level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification, if the Administrator for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) to the event the Bureau of Apprenticeship and Training, ora State apprenticeship agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees (1) Except as provided in 29 CFR 5.16, trainees will not be Permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by [lie DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman-tevel employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not loss than the applicable wage rate on the wage determination for the work actually performed. (3) Every trainee must be paid at not less than the rate specified in the approved program for hisrher levet of progress, expressed as a percentage of the journeyman -level hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. It 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 ioumeyman-tevef wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices. (4) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor wilt no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed untif an acceptable program is approved. c. Helpers Helpers will be permitted to work on a project if the helper classification is specified and defined on the applicable wage determina- tion or is approved pursuant to the conformance procedure set forth in Section IV2. Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not fess than the applicable wage rate on the wage determination for the classification of work actually performed. 5. Apprentices and Trainees (Programs of the U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection Will 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 riot be greater than permitted by the terms of the particular program. 6. Withholding: The SHA shall upon its own action or upon written request of an authorized representative of file DOL withhold, or cause to be withheld, from the contractor or subcontractor under this Agreement or any other Federal contract with the same prime contractor, or any other Federally - assisted contract subject to Davis -Bacon prevailing wage requirements which is held by the same prime contractor, as much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the SHA contracting officer may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 7. Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic, watchman, or guard in any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one -and -one-half times his/her basic rate of pay for aft hours worked in excess of 40 hours in such workweek. 8. Violation: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for hisrher unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally - assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 8 above. V. STATEMENTS AND PAYROLLS (Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records: a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types described in Section 1(b)(2)(B) of the Davis Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. In addition, for Appalachian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not, normally reside in the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, I18S found that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section i(b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to file laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, paragraphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V. This information may be submitted in any Corm desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal stock number 029-005.0014-1), U.S. Government Printing Office, Washington, D.C. 20402, The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d, Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his/her agent who pays or supervises the payment of tate persons employed under the contract and shall certify the following: (1) that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for lute classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. The weekly submission of a property executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of tine "Statement of Compliance" required by paragraph 2d of this Section V. I. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 16 U.S.C. 1001 and 31 U.S.C. 2.31. g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspection, copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal -aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossings, those which are constructed on a force account or direct labor basis, highway beautification contracts, and contracts for which the tolaf final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA-47, "Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this Agreement. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA- 47, and in the units shown on Form FHWA-47. C. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHWA-47 together with the data required in paragraph 1 b relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUBLETTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contrpet work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor. b. "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 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 i of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with tine written consent of the SHA 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 fire SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIII. SAFETY: ACCIDENT PREVENTION 1. In the performance of this Agreement the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 GFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the SHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect properly in connection with the performance of the work covered by the contract. 2. It is a condition of this Agreement, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this Agreement, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 GFR 1926,3, it is a condition of this Agreement that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction 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. 333). IX, FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppli- ers, and workers on Federal -aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal -aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: "Whoever, being an officer, agent, or employee of the United States. or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knotvirigly 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 banished 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 t, 1918. (39 Stat. 355), as amended and supplemented; Shall be fined not store that S10,000 or imprisoned trot more than 5 years or both. " X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal -aid construction contracts and to all related subcontracts of $100,000 or more.) By submission of this bid or the execution of this Agreement, or subcontract, as appropriate, the bidder, Federal -aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any facility that is or will be utilized in the performance of this Agreement, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 g( lN., as amended by Pub.L. 91.604), and under the Federal Water Pollution Control Act, as amended (33 U.S.G. 1251 e( sgq., as amended by Pub.L. 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20, 2. That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That the firm shalt promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1. Instructions for Certification - Primary Covered Transactions (Applicable to all Federal -aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective Primary participant is providing the Certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explantation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. C. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. It it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government. the department or agency may terminate this transaction for cause of default. d. The prospective primary participant shall provide immediate written notice to tine department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible; "lower tier covered transaction," "participant," "person," "Primary covered transaction" "principal," "proposal; and "voluntarily excluded," as used in this clause, have the meanings set out in tine Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. I. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction 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 entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 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 may decide the method and frequency by which it determines the eligibility of its principals. Each Participant may, but is not required to, check the non -procurement portion of file "Lists of Parties Excluded From Federal Procurement or Non -procurement Programs" (Non -procurement List) which is compiled by the General Services Administration. 1. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph f of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended. debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Primary Covered Transactions 1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; b. Have not within a 3 -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, Stale or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph ib of this certification; and d. Have not within a 3 -year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Covered Transac- tions: (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or (note - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below, b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension andfor 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 file prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible." "primary covered transaction," "participant." "person," "principal," 'proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this Proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any tower 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. I. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause tilled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals_ Each participant may, but is not required to, check the Non -procurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. I. Except for transactions authorized under paragraph a of these instructions, if a participant in a covered transaction knowingly enters into a tower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Lower Tier Covered Transactions: t. The prospective tower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS OR LOBBYING (Applicable to all Federal -aid construction contracts and to all related subcontracts which exceed $100,00o - 49 CFR 20) 1. The prospective participant certifies, by signing arid submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. 2. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S,C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting his or her bid or proposal that he or she shalt require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly 8 of 8 REQUIRED BY 23 CFR 633.102 -- 36. EXHIBIT J — FEDERAL REQUIREMENTS Federal laws and regulations that may be applicable to the Work include: A. Uniform Administrative Requirements for Agreements and Cooperative Agreements to State and Local Governments (Common Rule) The "Uniform Administrative Requirements for Agreements and Cooperative Agreements to State and Local GovernmPnts (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: L the Local Agency/Contractor shall follow applicable procurement procedures, as required by section 18.36(d); ii. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the manner, and to the extent required by, applicable provisions of section 18.30; iii. the Local Agency/Contractor shall comply with section 18.37 concerning ally sub - Agreements; iv. to expedite any CDOT approval, the Local Agency/Contractor's attorney, or other authorized representative, shall also submit a letter to CDOT certifying Local Agency/Contractor compliance with section 18.30 change order procedures, and with 18.36(d) procurement procedures, and with 18.37 sub -Agreement procedures, as applicable; v. the Local Agency/Contractor shall incorporate the specific contract provisions described in 18.36(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) (Ail contracts and sub -Agreements for construction or repair). D. Davis -Bacon Act The Davis -Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR Part 5) (Construction contracts in excess of $2,000 awarded by the Local Agencys and sub -the Local Agencys when required by Federal Agreement program legislation. This act requires that all laborers and mechanics employed by contractors or sub -contractors to work on construction projects financed by federal assistance must be paid wages not less than those established for the locality of the project by the Secretary of Labor). E. Contract Work Hours and Safety Standards Act Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327- 330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by the Local Agencys and sub -the Local Agencys in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers). F. Clear Air Act Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1857(h), section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and sub -Agreements of amounts in excess of $100,000). G. Energy Policy and Conservation Act Page 1 of 3 Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163). H. OMB Circulars Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is applicable. I. Hatch Act The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally -assisted programs. J. Nondiscrimination 42 USC 6101 et sea. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. seq. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. K. ADA The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213 47 USC 225 and 47 USC 611. L. Uniform Relocation Assistance and Real Property Acquisition Policies Act The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-646, as amended and Public Law 100-17, 101 Stat. 246-256). (if the contractor is acquiring real property and displacing households or businesses in the performance of the Agreement). M. Drug -Free Workplace Act The Drug -Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et sea.). N. Age Discrimination Act of 1975 The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. sea. andits implementing regulation, 45 C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.G. 794, as amended, and implementing regulation 45 C.F.R. Part 84. 0.23 C.F.R. Part 172 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts". P. 23 C.F.R Part 633 23 C.F.R Part 633, concerning "Required Contract Provisions for Federal -Aid Construction Contracts". Q. 23 C.F.R. Part 635 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions"' R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973 Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part hereof. S. Nondiscrimination Provisions: S. Nondiscrimination Provisions: In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: €. Compliance with Regulations The Contractor will comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. Page 2 of 3 ii. Nondiscrimination The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including directly or indirectly in the discrimination prohibited by Section 21procurement of materials and leases of equipment. The Contractor wilt not participate either including employment practices when the contract covers a progrRegulations, am set forth .5 of the Appendix C of the Regulations. iii. Solicitations for Subcontracts, Including Procurement of Materials and Equipment in all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. iv. Information and Reports The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State, or the FHWA as appropriate and shall set forth what efforts have been made to obtain the information. v. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination or suspension of the contract, in whole or in part. T. Incorporation of Provisions§22 The Contractor will include the provisions of paragraphs A through F in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and in addition, the Contractor may request the FHWA to enter into such litigation to protect the interests of the United States. Page 3 of 3