HomeMy WebLinkAbout09889ORDINANCE NO. 9889
AN ORDINANCE APPROVING AN AGREEMENT WITH THE
COLORADO DEPARTMENT OF TRANSPORTATION (CDOT),
ACCEPTING A GRANT FROM THE FEDERAL HIGHWAY
ADMINISTRATION (FHWA) IN THE AMOUNT OF $1,800,000,
AND BUDGETING AND APPROPRIATING THE GRANT FUNDS
INTO PROJECT CI1819 – EAGLERIDGE AND DILLON DESIGN
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Grant Agreement by and between the Colorado Department of Transportation, and
the City of Pueblo, a Municipal Corporation, relating to the Pueblo Eagleridge and Dillon
Roundabout, a true copy of which is attached hereto (the “Grant Agreement”), having been
approved as to form by the City Attorney, is hereby accepted and approved.
SECTION 2.
The Mayor is authorized to execute the Grant Agreement in the name of the City of Pueblo,
and the City Clerk is authorized to affix the seal of the City thereto and attest same.
SECTION 3.
The grant amount of $1,800,000.00 is budgeted and appropriated to Capital Project No.
CI1819. Total Project amount will be $2,050,000.00
SECTION 3.
The officers and staff of the City are authorized to perform any and all acts consistent with
the intent of this Ordinance and the attached Grant Agreement to implement the transactions
described therein.
SECTION 4.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on February 22, 2021.
Final adoption of Ordinance by City Council on March 8, 2021 .
President of City Council
Action by the Mayor:
☒ Approved on March 10, 2021 .
□ Disapproved on based on the following objections:
_
Mayor
Action by City Council After Disapproval by the Mayor:
□ Council did not act to override the Mayor's veto.
□ Ordinance re-adopted on a vote of , on
□ Council action on _______ failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-2
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: February 22, 2021
TO: President Lawrence W. Atencio and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, City Clerk
FROM: Andrew Hayes, P.E., Director of Public Works
SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT WITH THE COLORADO
DEPARTMENT OF TRANSPORTATION (CDOT), ACCEPTING A GRANT FROM
THE FEDERAL HIGHWAY ADMINISTRATION (FHWA) IN THE AMOUNT OF
$1,800,000, AND BUDGETING AND APPROPRIATING THE GRANT FUNDS
INTO PROJECT CI1819 – EAGLERIDGE AND DILLON DESIGN
SUMMARY:
This Ordinance enters into an agreement with CDOT to accept grant funding in the amount of
$1,800,000 from FHWA, and appropriating those funds into Project CI1819 – Eagleridge & Dillon
Design.
PREVIOUS COUNCIL ACTION:
On September 24, 2018, by Ordinance No. 9350, City Council approved the creation of Project
CI1819 Eagleridge & Dillon Design and transferred money from 2018 fund balance of the General
Fund in the amount of $250,000 into Finance Account CI1819.
BACKGROUND:
The City sought grant funding through the CDOT using the FHWA program. Grant funding was
approved with the stipulation that the local agency was responsible for matching funds in the
amount of $200,000. The previous Council action established the matching funds account to
comply with the program requirements for grant funding.
The grant funds along with the allocated 2018 General Funds, will be used to design and construct
a traffic roundabout in the intersection of Dillon Drive and Eagleridge Boulevard in the City of
Pueblo. The roundabout will provide a free flow condition for all turning movements and will
eliminate stop signs. Additionally, medians, and concrete curb and gutter, striping and
appropriate signage will be installed on all four quadrants to delineate lanes and instruct drivers.
Crosswalks, curb ramps, landscaping, and other appurtenances will also be installed.
FINANCIAL IMPLICATIONS:
The required $200,000 local agency match, as well as design engineering fees and project
engineering fees will come from the established Project Fund CI1819, as approved by the
previous council action.
The total Project budget, CI1819 will be funded through the following sources:
City of Pueblo Ordinance No. 9350 – CI1819 $250,000
FHWA Grant $1,800,000
Total $2,050,000
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance is not approved, the Eagleridge & Dillon Roundabout will not be constructed at
this time and previously authorized and appropriated funds will not be executed. Furthermore, if
the City does not complete this Project within the allotted time period mandated by CDOT, the
City will lose the grant funds.
RECOMMENDATION:
Approve the Ordinance.
Attachments:
Intergovernmental Agreement for CDOT project #SHO M086-084 (23584)
OLA #:331002304
Routing #:21-HA2-XC-03180
STATE OF COLORADO INTERGOVERNMENTAL AGREEMENT
Signature and Cover Page
State AgencyAgreementRouting Number
Department of Transportation21-HA2-XC-03180
Local AgencyAgreementEffectiveDate
CITY OF PUEBLOThelater of the effective date or
December 01, 2020
AgreementDescriptionAgreementExpiration Date
PUEBLO DILLON EAGLERIDGE November 30, 2030
ROUNDABOUT
Project #Region #Contract WriterAgreementMaximum Amount
SHO M086-2VJM$2,000,000.00
084 (23584)
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Each person signing this Agreementrepresents and warrants that he or she is duly authorized to execute this
Agreementand to bind the Party authorizing his or her signature.
LOCAL AGENCYSTATE OF COLORADO
CITY OF PUEBLOJared S. Polis, Governor
Department of Transportation
Shoshana M. Lew, Executive Director
___________________________________________
Signature
By: Nicholas Gradishar, Mayor
___________________________________________
Date: _________________________Stephen Harelson, P.E.,Chief Engineer
Date: _________________________
2nd State or Local AgencySignature if Needed
LEGAL REVIEW
Philip J. Weiser, Attorney General
___________________________________________
___________________________________________
Assistant Attorney General
Signature
By: Brenda Armijo, City Clerk
___________________________________________
By: (Print Name and Title)
Date: _________________________
Date: _________________________
In accordance with §24-30-202 C.R.S., this Agreementis not valid until signed and dated below by the State
Controller or an authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By: ___________________________________________
Department of Transportation
Effective Date: _____________________
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TABLE OF CONTENTS
1.PARTIES..........................................................................................................................................2
2.TERM AND EFFECTIVE DATE.....................................................................................................2
3.AUTHORITY...................................................................................................................................3
4.PURPOSE........................................................................................................................................4
5.DEFINITIONS..................................................................................................................................4
6.STATEMENT OF WORK................................................................................................................6
7.PAYMENTS.....................................................................................................................................9
8.REPORTING -NOTIFICATION....................................................................................................14
9.LOCAL AGENCY RECORDS.......................................................................................................14
10.CONFIDENTIAL INFORMATION-STATE RECORDS................................................................15
11.CONFLICTS OF INTEREST..........................................................................................................16
12.INSURANCE.................................................................................................................................16
13.BREACH........................................................................................................................................18
14.REMEDIES....................................................................................................................................18
15.DISPUTE RESOLUTION...............................................................................................................19
16.NOTICES AND REPRESENTATIVES..........................................................................................20
17.RIGHTS IN WORK PRODUCT AND OTHER INFORMATION...................................................20
18.GOVERNMENTAL IMMUNITY...................................................................................................21
19.STATEWIDE CONTRACT MANAGEMENT SYSTEM................................................................21
20.GENERAL PROVISIONS..............................................................................................................21
21.COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)...................................23
22.FEDERAL REQUIREMENTS........................................................................................................25
23.DISADVANTAGED BUSINESS ENTERPRISE (DBE).................................................................25
24.DISPUTES.....................................................................................................................................25
EXHIBIT A, STATEMENT OF WORK
EXHIBIT B, SAMPLE OPTION LETTER
EXHIBIT C, FUNDING PROVISIONS
EXHIBIT D, LOCAL AGENCY RESOLUTION
EXHIBIT E, LOCAL AGENCY AGREEMENTADMINISTRATION CHECKLIST
EXHIBIT F, CERTIFICATION FOR FEDERAL-AID AGREEMENTS
EXHIBIT G, DISADVANTAGED BUSINESS ENTERPRISE
EXHIBIT H, LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
EXHIBIT I, FEDERAL-AID AGREEMENTPROVISIONS FOR CONSTRUCTION AGREEMENTS
EXHIBIT J, ADDITIONAL FEDERAL REQUIREMENTS
EXHIBIT K, FFATA SUPPLEMENTAL FEDERAL PROVISIONS
EXHIBIT L, SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT FORM
EXHIBIT M, OMB UNIFORM GUIDANCE FOR FEDERAL AWARDS
1.PARTIES
This Agreement is entered into by and between Local Agency named on the Signature and Cover Page for this
on the Signature and Cover Page for this Agreement
to the terms and conditions in this Agreement.
2.TERM AND EFFECTIVE DATE
A.Effective Date
This Agreement shall not be valid or enforceable until the Effective Date, and Agreement Funds shall be
expended within the dates shown in Exhibit C
The State shall not be bound by any provision of this Agreement before the Effective Date, and shall have
no obligation to pay Local Agency for any Work performed or expense incurred before 1) the Effective Date
of this original Agreement; 2) before the encumbering document for the respective phase andthe official
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Notice to Proceed for the respective phase; or 3) after the Final Phase Performance End Date, asshown in
Exhibit C.Additionally, the State shall have no obligation to pay Local Agency for any Work performed or
expense incurred after the Agreement Expiration Date or after required billing deadline specified in §7.B.i.e.,
the expiration of Multimodal
Expiration Date. If Agreement Funds expire before the Agreement Expiration Date, then no payments will
be made after expiration of Agreement Funds.
B.Initial Term
Date shown on the Signature and Cover Page for this Agreement and shall terminate on November 30, 2030
as shown on the Signature and Cover Page for this Agreement, unless sooner terminated or further extended
in accordance with the terms of this Agreement.
C.Early Termination in the Public Interest
The State is entering intothis Agreement to serve the public interest of the State of Colorado as determined
by its Governor, General Assembly, or Courts. If this Agreement ceases to further the public interest of the
State, the State, in its discretion, may terminate this Agreement in whole or in part. This subsection shall not
apply to a termination of this Agreement by the State for breach by Local Agency, which shall be governed
by §14.A.i.
i.Method and Content
The State shall notify Local Agency of such termination in accordance with §16.The notice shall specify
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 for termination in the public interest, Local Agency shall be subject
to §14.A.i.a
iii.Payments
If the State terminates this Agreement in the public interest, the State shall pay Local Agency an amount
equal to the percentage of the total reimbursement payable under this Agreement that corresponds to the
percentage of Work satisfactorily completed and accepted, as determined by the State, less payments
previously made. Additionally, if this Agreement is less than 60% completed, as determined bythe State,
the State may reimburse Local Agency for a portion of actual out-of-pocket expenses, not otherwise
reimbursed under this Agreement, incurred by Local Agency which are directly attributable to the
s, provided that the sum of any and all reimbursement
shall not exceed the maximum amount payable to Local Agency hereunder.
3.AUTHORITY
Authority to enter into this Agreement exists in the law as follows:
A.Federal Authority
Pursuant to Title I, Subtitle A
and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23
of the Code ofFederalRegulations, as may be amended, (collectively referred to hereinafter as the
federalfunds have been and are expected to continue to be allocated for
transportation projects requested by Local Agency and eligible under the Surface Transportation
Improvement Program that has been proposed by the State and approved by theFederalHighway
B.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-
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101(4)(c) and 43-2-104.5.
4.PURPOSE
The purpose of this Agreement is
Agreement with the FHWA.
5.DEFINITIONS
The following terms shall be construed and interpreted as follows:
A.Agreement
reference, all referenced statutes, rules and cited authorities, and any future modifications thereto.
B.Agreement Fundsappropriated, designated, encumbered, or otherwise
made available for payment by the State under this Agreement.
C.Award
The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of
the Federal Award specifically indicate otherwise.
D.BudgetExhibit C.
E.Business Dayconducting business, but shall not include
Saturday, Sunday or any day on which the State observes one of the holidays listed in §24-11-101(1) C.R.S.
F.Consultantt.
G.Contractor
H.CORA-72-200.1 et. seq., C.R.S.
I.Effective Datend signed by the Colorado State
Controller or designee, as shown on the Signature and Cover Page for this Agreement.
J.Evaluation
established in §6, Exhibit Aand ExhibitE.
K.Exhibits
i.Exhibit A, Statement of Work.
ii.Exhibit B,Sample Option Letter.
iii.Exhibit C, Funding Provisions
iv.Exhibit D, Local Agency Resolution
v.Exhibit E, Local Agency Contract Administration Checklist
vi.Exhibit F, Certification for Federal-Aid Contracts
vii.Exhibit G, Disadvantaged Business Enterprise
viii.Exhibit H, Local Agency Procedures for Consultant Services
ix.Exhibit I, Federal-Aid Contract Provisions for Construction Contracts
x.Exhibit J, Additional Federal Requirements
xi.Exhibit K, The Federal Funding Accountability and Transparency Act of 2006 (FFATA) Supplemental
Federal Provisions
xii.Exhibit L, Sample Sub-Recipient Monitoring and Risk Assessment Form
xiii.Exhibit M, Supplemental Provisions for Federal Awards Subject to The Office of Management and
Budget Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal
L.Federal Awardof Federal financial assistance or a cost-reimbursement contract under
means an agreement setting forth the terms and conditions of the Federal Award. The term does not include
payments to a contractor or payments to an individual that is a beneficiary of a Federal program.
M.Federal Awarding Agency
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N.FHWAAdministration, which is one of the twelve administrations under the
Office of the Secretary of Transportation at the U.S. Department of Transportation. FHWA provides
and tunnels.
FHWA is the Federal Awarding Agency for the Federal Award which is the subject of this Agreement.
OGoods
Agreement and shall include any movable material acquired, produced, or delivered by Local Agency in
connection with the Services.
P.Incident
unauthorized access or disclosure of State Confidential Information or of the unauthorized modification,
disruption, or destruction of any State Records.
Q.Initial Term§2.B
R.ormeans money transferred from the
general fund to the fund pursuant to C.R.S. §§24-75-219 (5)(a)(III) and (5)(b)(III) and any other money that
the general assembly may appropriate or transfer to the fund.
S.Notice to Proceedthe date the Local
Agency can begin work subject to the conditions of this Agreement.
T.OMB
U.Oversightbetween CDOT and the FHWA.
V.PartyParties
W.PII
by the State about an
information that is linked or linkable to an individual,such as medical, educational, financial, and
employment information. PII includes, but is not limited to, all information defined as personally identifiable
information in §24-72-501 C.R.S.
X.RecipientCDOT) for this Federal Award.
Y.Services
include any services to be rendered by Local Agency in connection with the Goods.
Z.means any and all State Records not subject to disclosure under CORA.
State Confidential Information shall include, but is not limited to, PII and State personnel records not subject
to disclosure under CORA.
AA.means the fiscal rulespromulgated by the Colorado State Controller pursuant to §24-
30-202(13)(a).
BB.means a 12 month period beginning on July 1 of each calendar year and ending on June
30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal
Year ending in that calendar year.
CC.means the position described in the Colorado Procurement Code and its
implementing regulations.
DD.means any and all State data, information, and records, regardless of physical form,
including, but not limited to, information subject to disclosure under CORA.
EE.Subcontractor-parties, if any, engaged by Local Agency to aid in performance of the Work.
FF.Subrecipient-Federal entity that receives a sub-award from a Recipient to carry out part of a
Federal program, but does not include an individual that is a beneficiary of such program. A Subrecipient
may also be a recipientof other Federal Awards directly from a Federal Awarding Agency.
GG.Uniform Guidance
Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB
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Circulars A-21, A-87, A-110, A-122, A-89, A-102, and A-133, and the guidance in Circular A-50 on Single
Audit Act follow-up.
HH.Work
Agency Manualdescribed in this Agreement.
II.Work Product
including drafts. Work Product includes, but is not limited to, documents, text, software (including source
code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives,
pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other
lude any material that was developed prior to the Effective
Date that is used, without modification, in the performance of the Work.
Any other term used in this Agreement that is defined in an Exhibit shall be construed and interpreted as defined
in that Exhibit.
6.STATEMENT OF WORK
Local Agency shall complete the Work as described in this Agreement and in accordance with the provisions of
Exhibit A, and the Local Agency Manual. The State shall have no liability to compensate Local Agency for the
delivery of any Goods or the performance of any Services that are not specifically set forth in this Agreement.
Work may be divided into multiple phases that have separate periods of performance. The State may not
compensate for Work that Local Agency performs outsideof its designated phase performance period. The
performance period of phases, including, but not limited to Design, Construction, Right of Way, Utilities, or
Environment phases, are identified in Exhibit C. The State may unilaterally modify Exhibit Cfromtime to time,
at its sole discretion, to extend the period of performance for a phase of Work authorized under this Agreement.
To exercise this phase performance period extension option, the State will provide written notice to Local Agency
in a form substantially equivalent to Exhibit B.
will not amend or alter in any way the funding provisions or any other terms specified in this Agreement,
notwithstanding the options listed under §7.E
A.Local Agency Commitments
i.Design
If the Work includes preliminary design, final design, design work sheets, or special provisions and
comply with and are 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 ofState Highway Transportation Officials (AASHTO) manual or other standard, such
as the Uniform Building Code, as approved by the State.
c.
and Bridge DesignManuals 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 as produced by a Colorado registered professional engineer.
f.Provide final assembly of Plans and all other necessary documents.
g.Ensure the Plans are accurate and complete.
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 will be deemed incorporated herein.
ii.Local AgencyWork
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a.Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA)
42 U.S.C. § 12101, et. seq., and applicable federal regulations and standards as contained in the
b.Local Agency shall afford the State ample opportunity to review the Plans and shall 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 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 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,
oved by the State, 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 Consultantcontract 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
Examples of the billing formats are available from the
CDOT Agreements Office.
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 Hto administer the Consultant contract.
5)Local Agency may expedite any CDOT approval of its procurement process and/or Consultant
representative certifying compliance withExhibit Hand 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 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
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 Local Agency to make such changes therein as the State
determines necessary to comply with State and FHWA requirements.
iii.Construction
If the Work includes construction, 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
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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 Exhibit E.
a.The State may, after providing written notice of the reason for the suspension to Local Agency,
suspend the Work, wholly or in part, due to the failure of Local Agency or its Contractor to correct
conditions which are unsafe for workers or for such periods as the State may deem necessary dueto
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.
b.Local Agency shall be responsible for the following:
1)Appointing a qualified professional engineer, licensed in the State of Colorado, as Local
Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall
administer the Work in accordance with this Agreement, the requirements of the construction
contract and applicable State procedures, as defined in the CDOT Local Agency Manual
(https://www.codot.gov/business/designsupport/bulletins_manuals/2006-local-agency-
manual).
2)For the construction Services, advertising the call for bids, following its approval by the State,
and awarding the construction contract(s) to the lowest responsible bidder(s).
(a)
with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts633 and 635 and
C.R.S. § 24-92-101 et seq. Those requirements include, without limitation, that Local
Agency and its Contractor(s) incorporate Form 1273 (Exhibit I) in its entirety, verbatim,
into any subcontract(s) for Services as terms and conditions thereof, as required by 23
C.F.R. 633.102(e).
(b)Local Agency may accept or reject the proposal of the apparent low bidder for Work on
which competitive bids have been received. Local Agency must accept or reject such bids
within 3 working days after they are publicly opened.
(c)If Local Agency accepts bids and makes awards that exceed the amount of available
Agreement Funds, Local Agency shall provide the additional funds necessary to complete
the Work or not award such bids.
(d)The requirements of §6.A.iii.b.2also apply to any advertising and bid awards made by the
State.
(e)The State (and in some cases FHWA) must approve in advance all Force Account
Construction, and Local Agency shall not initiate any such Services until the State issues a
written Notice to Proceed.
iv.Right of Way (ROW) and Acquisition/Relocation
a.If Local Agency purchases a ROW for a State highway, including areas of influence, Local Agency
shall convey the ROW to CDOT promptly upon the completion of the project/construction.
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, the Uniform Relocation Assistance and Real Property
Acquisition Policies for Federal and Federally Assisted Programs, as amended (49 C.F.R. Part 24),
c.r ensuring compliance with acquisition, relocation and
(located at http://www.codot.gov/business/manuals/right-of-way); however, the State always
retains oversight responsibilities.
d.
following categories:
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1)Right ofway acquisition (3111) for federal participation and non-participation;
2)Relocation activities, if applicable (3109);
3)Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of
way 3114).
v.Utilities
If necessary, Local Agency shall be responsible for obtaining the proper clearance or approval from any
utility company that may become involved in the Work. Prior to the Work being advertised for bids,
Local Agency shall certify in writing to the State that all such clearances have been obtained.
vi.Railroads
accomplished by the railroad company, Local Agency shall make timely application to the Public
Utilities Co
order. 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 with the railroad company setting out what work is to be accomplished and
the location(s) thereof, and which costs shall be eligible for federal participation.
b.
c.Establish future maintenance responsibilities for the proposed installation.
d.Proscribe in the agreement the 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, as between the railroad company and the
Local Agency, in the event of accidental destruction or damage to the installation.
vii.Environmental Obligations
Local Agency shall perform all Work in accordance with the requirements of current federal and State
environmental regulations, including the National Environmental Policy Act of 1969 (NEPA) as
applicable.
viii.Maintenance Obligations
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 Stateand FHWA. Local Agency shall
conduct such maintenance and operations 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.
ix.Monitoring Obligations
Local Agency shall respond in a timely manner to and participate fully with the monitoring activities
described in §7.F.vi.
B.
i.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.
ii.Notwithstanding any consents or approvals given by the State for the Plans, the State shallnot be liable
or responsible in any manner for the structural design, details or construction of any Work constituting
major structures designed by, or that are the responsibility of, Local Agency, as identified in Exhibit E.
7.PAYMENTS
A.Maximum Amount
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Payments to Local Agency are limited to the unpaid, obligated balance of the Agreement Funds set forth in
Exhibit C. The State shall not pay Local Agency any amount under this Agreement that exceeds the
Agreement Maximum set forth in Exhibit C.
B.Payment Procedures
i.Invoices and Payment
a.The State shall pay Local Agency in the amounts and in accordance with conditions set forth in
Exhibit C.
b.Local Agency shall initiate payment requests by invoice to the State, in a form and manner approved
by the State.
c.
as the amount invoiced correctly represents Work completed by Local Agency and previously
accepted by the State during the term that the invoice covers. If the State determines that the amount
of any invoice is not correct, then Local Agency shall make all changes necessary to correct that
invoice.
d.The acceptance of an invoice shall not constitute acceptance of any Work performed or deliverables
provided under the Agreement.
e.If a project is funded in part by the State with MMOF there is an expiration date for the funds. The
expiration date applies to grants and local funds used to match grants. In order to receive payment
from the State or credit for the match, Work must be completed prior to the expiration date of
funding and invoiced in compliance with C.R.S. §§24-75-102(a) and 24-30-202(11). Billing for this
work must be submitted 30 days prior to the end of the State Fiscal Year which is June 30th.
ii.Interest
on the unpaid balance beginning on the 46th day at the rate of 1% per month, as required by §24-30-
202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts
that the State disputes in writing. Local Agency shall invoice the State separately for accrued interest on
delinquent amounts, and the invoice shall reference the delinquent payment, the number of days interest
to be paid and the interest rate.
iii.Payment Disputes
If Local Agency disputes any calculation, determination, or amount of any payment, Local Agency shall
receipt of the payment or notification of the determination or calculation of the payment by the State.
The State will review the information presented by Local Agency and may make changes to its
determination based on this review. The calculation, determination, or payment amount that results from
ispute under this subsection. No payment subject to
a dispute under this subsection shall be due until after the State has concluded its review, and the State
shall not pay any interest on any amount during the period it is subject to dispute under this subsection.
iv.Available Funds-Contingency-Termination
a.The State is prohibited by law from making commitments beyond the term of the current State Fiscal
Year. Payment to Local Agency beyond the current State Fiscal Year is contingent on the
appropriation and continuing availability of Agreement Funds in any subsequent year (as provided
in the Colorado Special Provisions). If federal funds or funds from any other non-State funds
Local Agency shall be
contingent upon such non-State funding continuing to be made available for payment. Payments to
liability for such payments shall be limited to the amount remaining of such Agreement Funds. If
State, federal or other funds are not appropriated, or otherwise become unavailable to fund this
Agreement, the State may, upon written notice, terminate this Agreement, in whole or in part,
without incurring further liability. The State shall, however, remain obligated to pay for Services
and Goods that are delivered and accepted prior to the effective date of notice of termination, and
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this termination shall otherwise be treated as if this Agreement were terminated in the public interest
as described in §2.C.
b.If the agreement funds are terminated, the State can terminate the contract early. Payment due for
work done to the date of termination will be processed in a manner consistent with §2.C.
v.Erroneous Payments
including, but not limited to, overpayments or improper payments, and unexpended or excess funds
received by Local Agency. The State may recover such payments by deduction from subsequent
payments under this Agreement, deduction from any payment due under any other contracts, grants or
agreements between the State and Local Agency, or by any other appropriate method for collecting debts
owedto the State. The close out of a Federal Award does not affect the right of FHWA or the State to
disallow costs and recover funds on the basis of a later audit or other review. Any cost disallowance
recovery is to be made within the Record Retention Period (as defined below in §9.A.).
C.Matching Funds
Local Agency shall provide matching funds as provided in §7.A. and Exhibit C. Local Agency shall have
raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding
whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this
Agreement by the authorized repre
Exhibit Chas
been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into
its treasury. Local Agency may evidence such obligation by an appropriate ordinance/resolution or other
authority letter expressly authorizing Local Agency to enter into this Agreement and to expend its match
share of the Work.A copy of any such ordinance/resolution or authority letter is attached hereto as Exhibit
D.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 Local Agency. Local
Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes, or penalties of any nature,
D.Reimbursement of Local Agency Costs
described in Exhibit Cand§7. The applicable principles described in 2 C.F.R. Part 200 shall govern the
ed by Local Agency and submitted to the State for
reimbursement hereunder, and Local Agency shall comply with all such principles. The State shall reimburse
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. Local Agency costs for Work
performed prior to the Effective Date shall not be reimbursed absent specific allowance of pre-award costs
and indication that the Federal Award funding is retroactive. Local Agency costs for Work performed after
any Performance Period End Date for a respective phase of the Work, is not reimbursable. Allowable costs
shall be:
i.Reasonable and necessary to accomplish the Work and for the Goods andServices provided.
ii.Actual net cost to Local Agency (i.e. the price paid minus any items of value received by Local Agency
that reduce the cost actually incurred).
E.Unilateral Modification of Agreement Funds Budget by State Option Letter
The State m
the Work schedule in Exhibit Cif such modifications do not increase total budgeted Agreement Funds. Such
Option Letters shall amend and update Exhibit C, Sections 2 or 4 of the Table, and sub-sections B and C of
the Exhibit C. Option Letters shall not be deemed valid until signed by the State Controller or an authorized
delegate. Modification of Exhibit C by unilateralOption Letter is permitted only in the specific scenarios
listed below. The State will exercise such options by providing Local Agency a fully executed Option Letter,
in a form substantially equivalent to Exhibit B. Such Option Letters will be incorporated into this
Agreement.
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i.Option to Begin aPhase and/or Increase or Decrease the Encumbrance Amount
The State may require by Option Letter that Local Agency begin a new Work phase that may include
Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous Work (but may not
include Right of Way Acquisition/Relocation or Railroads) as detailed in Exhibit A. Such Option
Letters may not modify the other terms and conditions stated in this Agreement, and must decrease the
amount budgeted and encumbered for one or more other Work phases so that the total amount of
budgeted Agreement Funds remains the same. The State may also issue a unilateral Option Letter to
simultaneously increase and decrease the total encumbrance amount of two or more existing Work
phases, as long as the total amount of budgeted Agreement Funds remains the same, replacing the
original Agreement Funding exhibit (Exhibit C) with an updated Exhibit C-1(with subsequent exhibits
labeled C-2,C-3, etc.).
ii.Option to Transfer Funds from One Phase to Another Phase.
The State may require or permit Local Agency to transfer Agreement Funds from one Work phase
(Design, Construction, Environmental, Utilities, ROW Incidentals or Miscellaneous) to another phase
as a result of changes to State, federal, and local match funding. In such case, the original funding exhibit
(Exhibit C) will be replaced with an updated Exhibit C-1(with subsequent exhibits labeled C-2,C-3,
etc.) attached to the Option Letter. The Agreement Funds transferred from one Work phase to another
are subject to the same terms and conditions stated in the original Agreement with the total budgeted
Agreement Funds remaining the same. The State may unilaterally exercise this option by providing a
fully executed Option Letter to Local Agency within thirty (30) days before the initial targeted start date
of the Work phase, in a form substantially equivalent to Exhibit B.
iii.Option to Exercise Options i and ii.
The State may require Local Agency to add a Work phase as detailed in Exhibit A, and encumber and
transfer Agreement Funds from one Work phase to another. The original funding exhibit (Exhibit C) in
the original Agreement will be replaced with an updated Exhibit C-1(with subsequent exhibits labeled
C-2,C-3, etc.) attached to the Option Letter. The addition of a Work phase and encumbrance and transfer
of Agreement Funds are subject to the same terms and conditions stated in the original Agreement with
the total budgeted Agreement Funds remaining the same. The State may unilaterally exercise this option
by providing a fully executed Option Letter to Local Agency within 30 days before the initial targeted
start date of the Work phase, in a form substantially equivalent to Exhibit B.
iv.Option to Update a Work Phase Performance Period and/or modify information required under the OMB
Uniform Guidance, as outlined in Exhibit C. The State may update any information contained in
Exhibit C, Sections 2 and 4 of the Table, and sub-sections B and C of the Exhibit C.
F.Accounting
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:
i.Local Agency Performing the Work
If Local Agency is performing the Work, it shall document all allowable costs, including any approved
Services contributed by Local Agency or subcontractors, using payrolls, time records, invoices,
contracts, vouchers, and other applicable records.
ii.Local Agency-Checks or Draws
Checks issued or draws made by Local Agency shall be made or drawn against properly signed vouchers
detailing the purpose thereof. Local Agency shall keep on file all checks, payrolls, invoices, contracts,
vouchers, orders, and other accounting documents in the office of Local Agency, clearly identified,
readily accessible, and to the extent feasible, separate and apart from all other Work documents.
iii.State-Administrative Services
The State may perform any necessary administrative support services required hereunder. Local Agency
shall reimburse the State for the costs of any such services from the budgeted Agreement Funds as
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provided for in Exhibit C. If FHWA Agreement Funds are or become unavailable, or if Local Agency
terminates this Agreement prior to the Work being approved by the State or otherwise completed, then
all actual incurred costs of such services and assistance provided by the State shall be reimbursed to the
State by Local Agency atits sole expense.
iv.Local Agency-Invoices
which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and Local
Agency shall not submit more than one invoice per month.
v.Invoicing Within 60 Days
The State shall not be liable to reimburse Local Agency for any costs invoiced more than 60 days after
the date on which the costs were incurred, including costs included in Local
audit. Any costs incurred by Local Agency that are not allowable under 2 C.F.R. Part 200 shall be Local
ility, and the State will deduct such disallowed costs from any payments due to Local
Agency. The State will not reimburse costs for Work performed after the Performance Period End Date
for a respective Work phase. The State will not reimburse costs for Work performed prior to Performance
Period End Date, but for which an invoice is received more than 60 days after the Performance Period
End Date.
vi.Risk Assessment & Monitoring
Pursuant to 2 C.F.R. 200.331(b), noncompliance with
federal statutes, regulations, and terms and conditions of this Agreement. Local Agency shall complete
a Risk Assessment Form (Exhibit L) when that may be requested by CDOT. The risk assessment is a
quantitative and/or qualitative determ-compliance with
the requirements of the Federal Award. The risk assessment will evaluate some or all of the following
factors:
Experience: Factors associated with the experience and history of the Subrecipient with the same or
similar Federal Awards or grants.
monitoring visits, including those performed by the Federal Awarding Agency, when the
Subrecipient also receives direct federal funding. Include audit results if Subrecipient receives single
audit, where the specific award being assessed was selected as a major program.
ions, in which
services.
financial requirements of theFederal Award.
Internal Controls: Factors associated with safeguarding assets and resources, deterring and detecting
errors, fraud and theft, ensuring accuracy and completeness of accounting data, producing reliable
and timely financial and management information, and ensuring adherence to its policies and plans.
-compliance to the
overall success of the program objectives.
Program Management: Factors associated with processes to manage critical personnel, approved
written procedures, and knowledge of rules and regulations regarding federal-aid projects.
Exhibit L), CDOT will determine
the level of monitoring it
may be re-evaluated after CDOT begins performing monitoring activities.
G.Close Out
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Local Agency shall close out this Award within 90 days after the Final Phase Performance End Date. Close
final documentation has been submitted and accepted by the State as substantially complete. If FHWA has
not closed this Federal Award within 1 year and 90 days after the Final Phase Performance End Date due to
y be prohibited from
applying for new Federal Awards through the State until such documentation is submitted and accepted.
8.REPORTING -NOTIFICATION
A.Quarterly Reports
In addition to any reports required pursuant to §19or pursuant to any exhibit, for any contract having a term
longer than 3 months, Local Agency shall submit, on a quarterly basis, a written report specifying progress
made for each specified performance measure and standard in this Agreement. Such progress report shall be
in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted
to the State not later than five (5) Business Days following the end of each calendar quarter or at such time
as otherwise specified by the State.
B.Litigation Reporting
If Local Agency is served with a pleading or other document in connection with an action before a court or
other administrative decision making body, and such pleading or document relates to this Agreement or may
a
days after being served, notify the State of such action and deliver copies of such pleading or document to
ntified in §16.
C.Performance and Final Status
Local Agency shall submit all financial, performance and other reports to the State no later than 60 calendar
days after the Final Phase Performance End Date or sooner termination of this Agreement, containing an
D.Violations Reporting
Local Agency must disclose, in a timely manner, in writing to the State and FHWA, all violations of federal
or State criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal Award.
Penalties for noncompliance may include suspension or debarment (2 CFR Part 180 and 31 U.S.C. 3321).
9.LOCAL AGENCY RECORDS
A.Maintenance
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. Local Agency shall maintain such records for a period
expenditure report, or if this Award is renewed quarterly or annually, from the date of the submission of each
quarterly or annual report, respectively. If any litigation, claim, or audit related to this Award starts before
expiration of the Record Retention Period, the Record Retention Period shall extend until all litigation,
claims, or audit findings have been resolved and final action taken by the State or Federal Awarding Agency.
The Federal Awarding Agency, a cognizant agency for audit, oversight or indirect costs, and the State, may
notify Local Agency in writing that the Record Retention Period shall be extended. For records for real
property and equipment, the Record Retention Period shall extend three years following final disposition of
such property.
B.Inspection
Local Agency shall permit the State to audit, inspect, examine, excerpt, copy, and transcribe Local Agency
Records during the Record Retention Period. Local Agency shall make Local Agency Records available
during normal business hours
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that a shorter period of notice, or no notice, is necessary to protect the interests of the State.
C.Monitoring
D.Final Audit Report
Local Agency shall promptly submit to the State a copy of any final audit report of an audit performed on
or the Work, whether the audit is conducted
by Local Agency or a third party.
10.CONFIDENTIAL INFORMATION-STATE RECORDS
A.Confidentiality
Local Agency shall hold and maintain, and cause all Subcontractors to hold and maintain, any and all State
Records thatthe State provides or makes available to Local Agency for the sole and exclusive benefit of the
State, unless those State Records are otherwise publicly available at the time of disclosure or are subject to
disclosure by Local Agency under CORA. Local Agency shall not, without prior written approval of the
the use by any third party for its benefit or to the detriment of the State, any State Records, except as otherwise
stated in this Agreement. Local Agency shall provide for the security of all State Confidential Information
in accordance with all policies promulgated by the Colorado Office of Information Security and all applicable
laws, rules, policies, publications, and guidelines. Local Agency shall immediately forward any request or
B.Other Entity Access and Nondisclosure Agreements
Local Agency may provide State Records to itsagents, employees, assigns and Subcontractors as necessary
to perform the Work, but shall restrict access to State Confidential Information to those agents, employees,
assigns and Subcontractors who require access to perform their obligations under this Agreement. Local
Agency shall ensure all such agents, employees, assigns, and Subcontractors sign nondisclosure agreements
with provisions at least as protective as those in this Agreement, and that the nondisclosure agreements are
in force at all times theagent, employee, assign or Subcontractor has access to any State Confidential
Information. Local Agency shall provide copies of those signed nondisclosure agreements to the State upon
request.
C.Use, Security, and Retention
Local Agency shall use, hold and maintain State Confidential Information in compliance with any and all
applicable laws and regulations in facilities located within the United States, and shall maintain a secure
environment that ensures confidentiality of all State Confidential Information wherever located. Local
purposes of inspecting and monitoring access and use of State Confidential Information and evaluating
security controleffectiveness. Upon the expiration or termination of this Agreement, Local Agency shall
return State Records provided to Local Agency or destroy such State Records and certify to the State that it
has done so, as directed by the State. If Local Agency is prevented by law or regulation from returning or
destroying State Confidential Information, Local Agency warrants it will guarantee the confidentiality of,
and cease to use, such State Confidential Information.
D.Incident Notice and Remediation
If Local Agency becomes aware of any Incident, it shall notify the State immediately and cooperate with the
State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the
State. Unless Local Agency can establish that none of Local Agency or any of its agents, employees, assigns
or Subcontractors are the cause or source of the Incident, Local Agency shall be responsible for the cost of
notifying each person who may have been impacted by the Incident. After an Incident, LocalAgency shall
take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which
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may include, but is not limited to, developing and implementing a remediation plan that is approved by the
State at no additional cost to the State.
11.CONFLICTS OF INTEREST
A.Actual Conflicts of Interest
Local Agency shall not engage in any business or activities, or maintain any relationships that conflict in any
way with the full performance of the obligations of Local Agency under this Agreement. Such a conflict of
provide any tangible personal benefit to an employee of the State, or any member of his or her immediate
familyor his or her partner, related to the award of, entry into or management or oversight of this Agreement.
Officers, employees and agents of Local Agency may neither solicit nor accept gratuities, favors or anything
of monetary value from contractors or parties to subcontracts.
B.Apparent Conflicts of Interest
Local Agency acknowledges that, with respect to this Agreement, even the appearance of a conflict of interest
l Agency shall refrain
from any practices, activities or relationships that reasonably appear to be in conflict with the full
C.Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Local Agency is uncertain whether a conflict or the
appearance of a conflict has arisen, Local Agency shall submit to the State a disclosure statement setting
ly submit a disclosure statement or
Agreement.
12.INSURANCE
Local Agency shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance
as specified in this section at all times during the term of this Agreement. All insurance policies required by this
Agreement that are not provided through self-insurance shall be issued by insurance companies with an AM Best
rating ofA-VIII or better.
A.Local Agency Insurance
Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24-10-
101, et seq.
insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA.
B.Subcontractor Requirements
Local Agency shallensure that each Subcontractor that is a public entity within the meaning of the GIA,
maintains at all times during the terms of this Agreement, such liability insurance, by commercial policy or
self-obligations under the GIA. Local Agency shall
ensure that each Subcontractor that is not a public entity within the meaning of the GIA, maintains at all
times during the terms of this Agreement all of the following insurance policies:
i.ation
covering all Local Agency or Subcontractor employees acting within the course and scope of their
employment.
ii.General Liability
Commercial general liability insurance written on an Insurance Services Office occurrence form,
covering premises operations, fire damage, independent contractors, products and completed operations,
blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:
a.$1,000,000 each occurrence;
b.$1,000,000 general aggregate;
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c.$1,000,000 products and completed operations aggregate; and
d.$50,000 any 1 fire.
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.Protected Information
Liability insurance covering all loss of State Confidential Information, such as PII, PHI, PCI, Tax
Information,and CJI, and claims based on alleged violations of privacy rights through improper use or
disclosure of protected information with minimum limits as follows:
a.$1,000,000 each occurrence; and
b.$2,000,000 general aggregate.
v.Professional Liability Insurance
Professional liability insurance covering any damages caused by an error, omission or any negligent act
with minimum limits as follows:
a.$1,000,000 each occurrence; and
b.$1,000,000 general aggregate.
vi.Crime Insurance
Crime insurance including employee dishonesty coverage with minimum limits as follows:
a.$1,000,000 each occurrence; and
b.$1,000,000 general aggregate.
C.Additional Insured
The State shall be named as additional insured on all commercial general liability policies (leases and
construction contracts require additional insured coverage for completed operations) required of Local
Agency and Subcontractors. In the event of cancellation of any commercial general liability policy, the carrier
shall provide at least 10 days prior written notice to CDOT.
D.Primacy of Coverage
Coverage required of Local Agency and each Subcontractor shall be primary over any insurance or self-
insurance program carried by Local Agency or the State.
E.Cancellation
All commercial insurance policies shall include provisions preventing cancellation or non-renewal, except
for cancellation based on non-payment of premiums, without at least 30 days prior notice to Local Agency
and Local Agency shall forward such notice to the State in accordance with §16within 7 days of Local
F.Subrogation Waiver
All commercial insurance policies secured or maintained by Local Agency or its Subcontractors in relation
to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under
subrogation or otherwise against Local Agency or the State, its agencies, institutions, organizations, officers,
agents, employees, and volunteers.
G.Certificates
For each commercial insurance plan provided by Local Agency under this Agreement, Local Agency shall
within 7 Business Days following the Effective Date. Local Agency shall provide to the State certificates
evidencing Subcontractor insurance coverage required under this Agreement within 7 Business Days
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Date, Local Agency shall provide to the State certificates showing Subcontractor insurance coverage required
overage, Local
Agency shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time
during the term of this Agreement, upon request by the State, Local Agency shall, within 7 Business Days
following the request by the State, supply to the State evidence satisfactory to the State of compliance with
the provisions of this §12.
13.BREACH
A.Defined
The failure of a Party to perform any of its obligations in accordance with this Agreement, in whole or in part
or in a timely or satisfactory manner, shall be a breach. The institution of proceedings under any bankruptcy,
insolvency, reorganization or similar law, by or against Local Agency, or the appointment of a receiver or
similar officer for Local Agency or any of itsproperty, which is not vacated or fully stayed within 30 days
after the institution of such proceeding, shall also constitute a breach.
B.Notice and Cure Period
In the event of a breach, the aggrieved Party shall give written notice of breach to the other Party. If the
notified Party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice,
the Party may exercise any of the remedies as described in §14 for that Party. Notwithstanding any provision
of this Agreement to the contrary, the State, in its discretion, need not provide notice or a cure period and
may immediately terminate this Agreement in whole or in part or institute any other remedy in the Agreement
in order to protect the public interest of the State.
14.REMEDIES
A.
If Local Agency is in breach under any provision of this Agreement and fails to cure such breach, the State,
following the notice and cure period set forth in §13.B, shall have all of the remedies listed in this §14.A.in
addition to all other remedies set forth in this Agreement or at law. The State may exercise any or all of the
remedies available to it, in its discretion, concurrently or consecutively.
i.Termination for Breach
he State may terminate this entire Agreement or any
part of this Agreement. Local Agency shall continue performance of this Agreement to the extent not
terminated, if any.
a.Obligations and Rights
To the extent specified in any termination notice, Local Agency shall not incur further obligations
or render further performance past the effective date of such notice, and shall terminate outstanding
orders and subcontracts with third parties. However, Local Agency shall complete and deliver to the
State all Work not cancelled by the termination notice, and may incur obligations as necessary to do
all of Local Agency's rights, title, and interest in and to such terminated orders or subcontracts. Upon
termination, Local Agency shall take timely, reasonable and necessary action to protect and preserve
request, Local Ag
the time of any termination. Local Agency shall deliver all completed Work Product and all Work
.
b.Payments
Notwithstanding anything to the contrary, the State shall only pay Local Agency for accepted Work
received as of the date of termination. If, after termination by the State, the State agrees that Local
Agency was not in breach or that 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 as if this Agreement had been terminated in the public interest under §2.C.
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c.Damages and Withholding
Notwithstanding any other remedial action by the State, Local Agency shall remain liable to the
State for any damages sustained by the State in connection with any breach by Local Agency, and
the State may withhold payment to Local Agen
until such time as the exact amount of damages due to the State from Local Agency is determined.
The State may withhold any amount that may be due Local Agency as the State deems necessary to
protect theState against loss including, without limitation, loss as a result of outstanding liens and
excess costs incurred by the State in procuring from third parties replacement Work as cover.
ii.Remedies Not Involving Termination
The State, in its discretion, may exercise one or more of the following additional remedies:
a.Suspend Performance
corrective action as specified by the State without entitling Local Agency to anadjustment in price
or cost or an adjustment in the performance schedule. Local Agency shall promptly cease
not be liable for costs incurred by Local Agency after the suspension of performance.
b.Withhold Payment
Withhold payment to Local Agency until Local Agency corrects its Work.
c.Deny Payment
be performed or if they were performed are reasonably of no value to the state; provided, that any
denial of payment shall be equal to the value of the obligations not performed.
d.Removal
or
Subcontractors from the Work whom the State deems incompetent, careless, insubordinate,
unsuitable, or otherwise unacceptable or whose continued relation to this Agreement is deemed by
interest.
e.Intellectual Property
If any Work infringes a patent, copyright, trademark, trade secret, or other intellectual property right,
Local Agency shall, as approved by the State (a)secure that right to use such Work for the State or
Local Agency;(b)replace the Work with noninfringing Work or modify the Work so that it becomes
noninfringing; or, (c)remove any infringing Work and refund the amount paid for such Work to the
State.
B.
If the State is in breach of any provision of this Agreement and does not cure such breach, Local Agency,
following the notice and cure period in §13.Band the dispute resolution process in §15shall have all remedies
available at law and equity.
15.DISPUTE RESOLUTION
A.Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this Agreement
which cannot be resolved by the designated Agreement representatives shall be referred in writing to a senior
departmental management staff member designated by the State and a senior manager designated by Local
Agency for resolution.
B.Resolution of Controversies
If the initial resolution described in §15.A fails to resolve the dispute within 10 Business Days, Contractor
shall submit any alleged breach of this Contract by the State to the Procurement Official of CDOT as
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described in §24-101-301(30), C.R.S. for resolution in accordance with the provisions of §§24-106-109, 24-
109-101.1, 24-109-101.5, 24-109-106, 24-109-107, 24-109-201 through 24-109-206, and 24-109-501
through 24-109-
director of the Department ofPersonnel and Administration, or their delegate, under the Resolution Statutes
before Contractor pursues any further action as permitted by such statutes. Except as otherwise stated in this
Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations.
16.NOTICES AND REPRESENTATIVES
Each individual identified below shall be the principal representative of the designating Party. All notices required
or permitted to be given under this Agreement shall be in writing, and shall be delivered (i)by hand with receipt
required, (ii)
or (iii) as an email with read receipt requested to the principal representative atthe email address, if any, set forth
below. If a Party delivers a notice to another through email and the email is undeliverable, then, unless the Party
has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand
forth below. Either Party may change its principal representative or principal representative contact information
by notice submitted in accordance with this §16without a formal amendment to this Agreement. Unless otherwise
provided in this Agreement, notices shall be effective upon delivery of the written notice.
For the State
Colorado Department of Transportation (CDOT)
Donald Scanga,Local Agency Coordinator
CDOT Region 2
5615 Wills Blvd.
Pueblo,CO81008
719-621-8340
donald.scanga@state.co.us
For the Local Agency
City of Pueblo
Melanie Turner,Project Engineer
211 East D Street
Pueblo,CO81003
719-553-2246
mturner@pueblo.us
17.RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A.Work Product
Local Agency assigns to the State and its successors and assigns, the entire right, title, and interest in and to
all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property
rights related to the Work Product and all works based on, derived from, or incorporating the Work Product.
Whether or not Local Agency is under contract with the State at the time, Local Agency shall execute
applications, assignments, and other documents, and shall render all other reasonable assistance requested by
the State, to enable the State to secure patents, copyrights, licenses and otherintellectual property rights
related to the Work Product. The Parties intend the Work Product to be works made for hire.
i.Copyrights
To the extent that the Work Product (or any portion of the Work Product) would not be considered works
made for hire under applicable law, Local Agency hereby assigns to the State, the entire right, title, and
interest in and to copyrights in all Work Product and all works based upon, derived from, or incorporating
the Work Product; all copyright applications, registrations, extensions, or renewals relating to all Work
Product and all works based upon, derived from, or incorporating the Work Product; and all moral rights
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or similar rights with respect to the Work Product throughout the world. To the extent that Local Agency
cannot make any of the assignments required by this section, Local Agency hereby grants to the State a
perpetual, irrevocable, royalty-free license to use, modify, copy, publish, display, perform, transfer,
distribute, sell, and create derivative works ofthe Work Product and all works based upon, derived from,
or incorporating the Work Product by all means and methods and in any format now known or invented
in the future. The State may assign and license its rights under this license.
ii.Patents
In addition, Local Agency grants to the State (and to recipients of Work Product distributed by or on
behalf of the State) a perpetual, worldwide, no-charge, royalty-free, irrevocable patent license to make,
have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize, operate, modify
and propagate the contents of the Work Product. Such license applies only to those patent claims
licensable by Local Agency that are necessarily infringed by the Work Product alone, or by the
combinationof the Work Product with anything else used by the State.
B.Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Agreement, any pre-existing State Records, State
software, research, reports, studies, photographs, negatives, or other documents, drawings, models, materials,
Agency shall not use, willingly allow, cause or permit Work Product or State Materials to be used for any
consent of the State. Upon termination of this Agreement for any reason, Local Agency shall provide all
Work Product and State Materials to the State in a form and manner as directed by the State.
18.GOVERNMENTAL IMMUNITY
Liability for claims for injuries to persons or property arising from the negligence of the Parties, their departments,
boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the
provisions of the GIA; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the
-30-1501, et seq.C.R.S.
19.STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Local Agency under this Agreement is $100,000 or greater, either on the
Effective Date or at anytime thereafter, this §19shall apply. Local Agency agrees to be governed by and comply
with the provisions of §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 C.R.S.
regarding the monitoring of vendor performance and the reporting of contract performance information in the
shall be subject to evaluation and review in accordance with the terms and conditions of this Agreement, Colorado
statutes governing CMS, and State Fiscal Rules and State Controller policies.
20.GENERAL PROVISIONS
A.Assignment
assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such
consent shall be void. Any
State shall be subject to the provisions of this Agreement
B.Subcontracts
Local Agency shall not enter into any subcontract in connection with its obligations under this Agreement
without the prior, written approval of the State. Local Agency shall submit to the State a copy of each such
subcontract upon request by the State. All subcontracts entered into by Local Agency in connection with this
Agreement shall comply with all applicable federal and state laws and regulations, shall provide that they are
governed by the laws of the State of Colorado, and shall be subject to all provisions of this Agreement.
C.Binding Effect
Except as otherwise provided in §20.A.all provisions of this Agreement, including the benefits and burdens,
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D.Authority
Each Party represents and warrants to the other that the execution and delivery of this Agreement and the
E.Captions and References
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. 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.
F.Counterparts
This Agreement may be executed in multiple, identical, original counterparts, each of which shall be deemed
to be an original, but all of which, taken together, shall constitute one and the same agreement.
G.Entire Understanding
This Agreement represents the complete integration of all understandings between the Parties related to the
Work, and all prior representations and understandings related to the Work, oral or written, are merged into
this Agreement. Prior or contemporaneous additions, deletions, or other changes to this Agreement shall not
have any force or effect whatsoever, unless embodied herein.
H.Jurisdiction and Venue
All suits or actions related to this Agreement shall be filed and proceedings held in the Stateof Colorado and
exclusive venue shall be in the City and County of Denver.
I.Modification
Except as otherwise provided in this Agreement, any modification to this Agreement shall only be effective
if agreed to in a formal amendment to this Agreement, properly executed and approved in accordance with
applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Agreement, other
than contract amendments, shall conform to the policies promulgated by the Colorado State Controller.
J.Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy or other authority
shall be interpreted to refer to such authority then current, as may have been changed or amended since the
Effective Date of this Agreement.
K.Order of Precedence
In the event of a conflict or inconsistency between this Agreement and any exhibits or attachment such
conflict or inconsistency shall be resolved by reference to the documents in the following order of priority:
i.Colorado Special Provisions in the main body of this Agreement.
ii.The provisions of the other sections of the main body of this Agreement.
iiiExhibit A, Statement of Work.
iv.Exhibit D, Local Agency Resolution.
v.Exhibit C, Funding Provisions.
vi.Exhibit B, Sample Option Letter.
vii.Exhibit E, Local Agency Contract Administration Checklist.
viii.Other exhibits in descending order of their attachment.
L.Severability
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided
that the Parties can continue to perform their obligations under this Agreement in accordance with the intent
of the Agreement.
M.Survival of Certain Agreement Terms
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Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of the
Agreement shall survive the termination or expiration of the Agreement and shall be enforceable by the other
Party.
N.Third Party Beneficiaries
§20.C,this Agreement does not and is
not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement
of this Agreement and all rights and obligations hereunder are reserved solely to the Parties. 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
her explicit
or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right,
power, or privilege preclude any other or further exercise of such right, power, or privilege.
P.CORA Disclosure
To the extent not prohibited by federal law, this Agreement and the performance measures and standards
required under §24-103.5-101 C.R.S., if any, are subject to public release through the CORA.
Q.Standard and Manner of Performance
Local Agency shall perform its obligations under this Agreement in accordance with the highest standards of
R.Licenses, Permits, and Other Authorizations.
Local Agency shall secure, prior to the Effective Date, and maintain at all times during the term of this
Agreement, at its sole expense, all licenses, certifications, permits, and other authorizations required to
perform its obligations under this Agreement, and shall ensure that all employees, agents and Subcontractors
secure and maintain at all times during the term of their employment, agency or subcontract, all license,
certifications, permits and other authorizations required to perform their obligations in relation to this
Agreement.
21.COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A.STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If
this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), then this
B.FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for
that purpose being appropriated, budgeted, and otherwise made available.
C.GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State, its
departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled
and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the
statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted
as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions,
contained in these statutes.
D.INDEPENDENT CONTRACTOR
Contractor shall perform its duties hereunder as an independent contractor and not as an employee.Neither
Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State.
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Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or
understanding, except as expressly set forth herein. Contractor 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 Contractor or any of its agents or employees.
Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes
incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers'
compensation and unemployment compensation insurance in the amounts required by law, (ii) provide
proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its
employees and agents.
E.COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federaland State laws, rules, and regulations in effect or hereafter
established, including, without limitation, laws applicable to discrimination and unfair employment practices.
F.CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulationsissued pursuant thereto, shall be applied in the interpretation,
execution, and enforcement of this Contract. Any provision included or incorporated herein by reference
which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this
Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City
and County of Denver.
G.PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor harmless; requires
injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio.
Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term
in excess of any insuranceto be maintained under this Contract, and no insurance policy shall be interpreted
as being subject to any limitations of liability of this Contract.
H.SOFTWARE PIRACY PROHIBITION.
State or other public funds payable under this Contract shall not be used for the acquisition, operation, or
maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions.
Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor
has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds.
If the State determines that Contractor is in violation of this provision, the State may exercise any remedy
available at law or in equity or under this Contract, including, without limitation, immediate termination of
this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.
I.EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507,
C.R.S.
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 Contract. Contractor has no interest and shall not
acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of
J.VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-202.4, C.R.S.
\[Not applicable to intergovernmental agreements\]Subject to §24-30-202.4(3.5), C.R.S., the State Controller
(i)unpaid child support debts or child support arrearages; (ii)unpaid balances of tax, accrued interest, or
other charges specified in §§39-21-101, et seq., C.R.S.; (iii)unpaid loans due to the Student Loan Division
of the Department of Higher Education; (iv)amounts required to be paid to the Unemployment Compensation
Fund; and (v)other unpaid debts owing to the State as a result of final agency determination or judicial action.
ractor in error for any reason,
including, but not limited to, overpayments or improper payments, and unexpended or excess funds received
by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due
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under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate
method for collecting debts owed to the State.
K.PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S.
\[Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory
services or fund management services, sponsored projects, intergovernmental agreements, or information
technology services or products and services\]Contractor certifies, warrants, and agrees that it does not
knowingly employ or contract with an illegal alien who will perform work under this Contract and will
confirm the employment eligibility of all employees who are newly hired for employment in the United States
to perform work under this Contract, through participation in the E-Verify Program or the State verification
program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor shall not knowingly employ or
contract with an illegal alien to perform work under this Contract or enter into acontract with a Subcontractor
that fails to certify to Contractor that the Subcontractor shall not knowingly employ or contract with an illegal
alien to perform work under this Contract. Contractor (i)shall not use E-Verify Program or the program
procedu
pre-employment screening of job applicants while this Contract is being performed, (ii)shall notify the
Subcontractor and the contracting State agency or institution of higher education within 3 days if Contractor
has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under
this Contract, (iii)shall terminate the subcontract if a Subcontractor does not stop employing orcontracting
with the illegal alien within 3 days of receiving the notice, and (iv)shall comply with reasonable requests
made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado
Department of Labor and Employment. If Contractor participates in the Department program, Contractor
shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a
written, notarized affirmation, affirming that Contractor has examined the legal work status of such
employee, and shall comply with all of the other requirements of the Department program. If Contractor fails
to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State
agency, institution of higher education or political subdivision may terminate this Contract for breach and, if
so terminated, Contractor shall be liable for damages.
L.PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty
of perjury that Contractor (i)is a citizen or otherwise lawfully present in the United States pursuant to federal
law, (ii)shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii)has produced one form
of identification required by §24-76.5-103, C.R.S. prior to the Effective Date of this Contract.
Revised 11-1-18
22.FEDERAL REQUIREMENTS
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 summary of applicable federal provisions
are attached hereto as Exhibit F, Exhibit I, Exhibit J, Exhibit K and Exhibit M are hereby incorporated by this
reference.
23.DISADVANTAGED BUSINESS ENTERPRISE (DBE)
Local Agency will comply with all requirements of Exhibit G and Local Agency Contract Administration
Checklist regarding DBE requirements for the Work, except that if 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
Agreement. If Local Agency uses any State-approved DBE program for this Agreement, Local Agency shall be
solely responsible to defend thatDBE 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
sole responsibility of Local Agency for use of its program.
24.DISPUTES
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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, 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, 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, Local Agency shall proceed diligently with the performance
of this Agreement in ac
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.
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EXHIBIT A
SCOPEOF WORK
Dillon and Eagleridge Roundabout
SHO M086-084
23584
GeneralDescription
The local agency shallbe responsible for design and constructionof a traffic roundabout in theintersection of
DillonDrive and Eagleridge Boulevard in the City ofPueblo, Project M086-084, SA 23584. The roundabout
shall providea free flow condition forall turning movements and will eliminate stop signs. Medians and
concrete curb and gutter, as wellasstriping and appropriate signage will be installedon all four quadrants to
delineate lanes and instructdrivers. Crosswalks, curb ramps, landscaping, and other appurtenances will also be
installed.
Install a roundabout in theintersection of Dillon Drive and Eagleridge Boulevard.
STIP# SR26644
Definitions
Personnel
3.1.Responsible Administrator.
The Local Agency's performance hereunder shall be under the direct supervision of the project manager
identified in §18of the Agreement.
3.2.Replacement
The Local Agency shall immediately notify the State if any key personnel cease to serve and seek its
approval. Such notice shall specify why the change is necessary, who the proposed replacement is, what
their qualifications are, and when the change would take effect. Anytime key personnel cease to serve, the
State, in its sole discretion, may direct the LocalAgency to suspend performance on the Work until such
time as their replacements are approved. All notices sent under this subsection shall be sent in accordance
with §18 of the Agreement.
4.Administrative Requirements
At all times from the effective date of this Agreement until completion of the Work, the Local Agency shall
maintain properly segregated books of State Agreement funds, matching funds, and other funds associated
with the Work.All receipts and expenditures associated with said Work shall be documented in a detailed and
specific manner, and shall accord with the Work Budget set forth herein.
5.Monitoring
The State shall monitor this Work on an as-needed basis. The State may choose to audit the business activities
performed under this Agreement. The Local Agency shall maintain a complete file of all records, documents,
communications, notes and other written materials or electronic media, files or communications, which pertain
in any manner to the operation of activities undertaken pursuant to an executed Agreement. Such books and
records shall contain documentation of the participant’s pertinent activity under this Agreement in a form
consistent with good accounting practice.
Exhibit A –Page 1of 1
EXHIBIT B
SAMPLE IGA OPTION LETTER
DateState Fiscal YearOption Letter No.
Project CodeOriginal Agreement #
Vendor Name:
Option to unilaterally add phasing to include Design, Construction, Environmental, Utilities,
ROW incidentals or Miscellaneousand to update encumbrance amount(s).
Option to unilaterally transfer funds from one phase to another phase.
O
ption to unilaterally add phasing to include Design, Construction, Environmental, Utilities,
ROW incidentals or Miscellaneous, to update encumbrance amount(s), and to unilaterally
transfer funds from one phase to another phase.
O
ption to unilaterally extend the performance of this Agreement and/or update a Work Phase
Performance Period.
Option A
In accordance with the terms of the original Agreement between the State of Colorado,
Department of Transportation and the Local Agency), the State hereby exercises the option to
authorize theLocalAgencytoadd a phase and to encumber funds for the phase based on changes
in funding availability and authorization. The total encumbrance is (or increased) by$0.00. A
new Exhibit C-1 ismade part of the original Agreement and replaces Exhibit C.
Option B
In accordance with theterms of the original Agreement between the State of Colorado,
Department of Transportation and theLocalAgency, the State hereby exercises the option to
transfer funds based on varianceinactual phasecosts and original phase estimates. A new Exhibit
C-1 ismade part of the original Agreement and replaces Exhibit C.
Option C
Inaccordancewith the terms of the original Agreementbetween the State of Colorado,
Department of Transportation and the Local Agency,the State hereby exercises the option to 1)
release the Local Agency to begin a phase; 2) to encumber funds for the phase based upon
changes in funding availability and authorization; and 3) totransfer funds from phasesbasedon
varianceinactual phase costs and original phase estimates. A new Exhibit C-1 ismade part of
the original Agreement and replaces Exhibit C.
Exhibit B -Page 1 of 2
Option D
Inaccordancewiththetermsof the originalAgreementbetween the State of Colorado,
Department of Transportation and the LocalAgency,the State hereby exercises the option extend
the performance of this Agreement and/or update a Work Phase Performance Period.
The total encumbrance as a result of this option and all previous options and/or amendments is
now$0.00, as referenced in Exhibit C-1.Thetotal budgeted funds tosatisfy services/goods
ordered under the Agreement remains the same: as referenced in Exhibit C-1.
The effective date of this option letter is upon approval of the State Controller or delegate.
STATE OF COLORADO
Jared S. Polis
Department of Transportation
By: ___________________________________________
Stephen Harelson, P.E., Chief Engineer
(For) Shoshana M. Lew, Executive Director
Date: _________________________________________
ALL AGREEMENTS MUST BE APPROVED 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. Contractor is not authorized to begin performance
until such time. If the Local Agency begins performing prior thereto, the State of Colorado is not obligated to
pay the Local Agency for such performance or for any goods and/or services provided hereunder.
STATE OF COLORADO
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By: ______________________________________
Colorado Department of Transportation
Date:__________________________________
Exhibit B -Page 2 of 2
EXHIBIT C
FUNDING PROVISIONS
EXHIBIT C – FUNDING PROVISIONS SHO M086-084 (23584)
A.Cost of Work Estimate
The Local Agency has estimated the total cost the Work to be $2,000,000.00, which is to be funded as follows:
1.BUDGETED FUNDS
a.Federal Funds$1,800,000.00
(90.00% of Participating Costs)
b.Local Agency Matching Funds$200,000.00
(10.00% of Participating Costs)
TOTAL BUDGETED FUNDS$2,000,000.00
2.OMB UNIFORM GUIDANCE
a.Federal Award Identification Number (FAIN):TBD
b.Federal Award Date(also Phase Performance Start Date):See Below
c.Amount of Federal Funds Obligated:$0.00
d.Total Amount of Federal Award:$1,800,000.00
e.Name of Federal Awarding Agency:FHWA
f.CFDA#-Highway Planning and ConstructionCFDA 20.205
g.Is the Award for R&D?No
h.Indirect Cost Rate (if applicable)N/A
3.ESTIMATED PAYMENT TO LOCAL AGENCY
a.Federal Funds Budgeted$1,800,000.00
b.Less Estimated Federal Share of CDOT-Incurred Costs$0.00
$1,800,000.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY
4.FOR CDOT ENCUMBRANCE PURPOSES
a.Total Encumbrance Amount$2,000,000.00
b.Less ROW Acquisition 3111 and/or ROW Relocation 3109$0.00
Net to be encumbered as follows:$2,000,000.00
Note: No funds are currently available. Design and Construction funds will become available after execution of
an Option letter (Exhibit B) or formal Amendment.
Performance Period Start*/End Date
WBS Element 23584.10.30TBD / TBDDesign3020$0.00
TBD / TBD
WBS Element 23584.20.10 Const.3301 $0.00
*The Local Agency should not begin work until all three of the following are in place:
1) Phase Performance Period Start Date; 2) The execution of the document encumbering funds for the respective phase; and 3) Local Agency
receipt of the official Notice to Proceed. Any work performed before these three (3) milestones are achieved will not be reimbursable.
Exhibit C - Page 1 of 2
B.Matching Funds
The matching ratio for the federal participating funds for this Work is 90.00% federal-aid funds to 10.00% Local Agency funds, it
being understood that such ratio applies only to the $2,000,000.00that 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 $2,000,000.00, and additional federal funds are made available for the Work, the Local Agency shall pay 10.00% 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 theWork is less than $2,000,000.00,
then the amounts of Local Agency and federal-aid funds will be decreased in accordance with the funding ratio described herein. The
performance of the Work shall be at no cost to the State.
C.Maximum Amount Payable
The maximum amount payable to the Local Agency under this Agreement shall be $1,800,000.00(for CDOT accounting purposes,
the federal funds of $1,800,000.00and the Local Agency matching funds of $200,000.00 will be encumbered for a total encumbrance
of $2,000,000.00), unless such amount is increased by an appropriate written modification to this Agreement executed before any
increased cost is incurred.It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the
best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject
to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award.
The maximum amount payable shall be reduced without amendment when the actual amount of the Local Agency’s awarded contract
is less than the budgeted total of the federal participating funds and the Local Agency matching funds. The maximum amount payable
shall be reduced through the execution of an Option Letter as described in Section 7. E. of this contract.
D.Single Audit Act Amendment
All state and local government and non-profit organizations receiving more than $750,000 from all funding sources defined as federal
financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of 2 CFR part 200, subpart
F (Audit Requirements) see also, 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the
Local Agency receiving federal funds are as follows:
i.Expenditure less than $750,000
If the Local Agency expends less than $750,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal
year then this requirement does not apply.
ii.Expenditure of $750,000 or more-Highway Funds Only
If the Local Agency expends $750,000 or more, in Federal funds, but only received federal Highway funds (Catalog of
Federal Domestic Assistance, CFDA 20.205) then a programspecific audit shall be performed. This audit will examine
the “financial” procedures and processes for this program area.
iii.Expenditure of $750,000 or more-Multiple Funding Sources
If the Local Agency expends $750,000 or more in Federal funds, and the Federal funds are frommultiple sources (FTA,
HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity.
iv.Independent CPA
Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct
or indirect cost.
Exhibit C - Page 2 of 2
EXHIBITD
LOCALAGENCYRESOLUTION
Exhibit D - Page 1 of 3
Exhibit D - Page 2 of 3
Exhibit D - Page 3 of 3
COLORADO DEPARTMENT OF TRANSPORTATION
LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST
Project No.STIP No.Project CodeRegion
M086-084SR26644
235842
Project LocationDate
Intersection of Dillon Dr. and Eagleridge Blvd.
3/16/2020
Project Description
Dillon and Eagleridge Roundabout
Local AgencyLocal Agency Project Manager
City of PuebloMelanie Turner
CDOT Resident EngineerCDOT Project Manager
Lachelle DavisDon Scanga
INSTRUCTIONS:
This checklist shall be utilized to establish the contract administration responsibilities of the individual parties to this agreement.
The checklist becomes an attachment to the Local Agency agreement. Section numbers correspond to the applicable chapters
of the CDOT Local Agency Manual.
The checklist shall be prepared by placing an "X" under the responsible party, opposite each of the tasks. The “X” denotes the
party responsible for initiating and executing the task. Only one responsible party should be selected. When neither CDOT nor
the Local Agency is responsible for a task, not applicable (NA) shall be noted. In addition, a “#” will denote that CDOT must
concur or approve.
Tasks that will be performed by Headquarters staff will be indicated. The Regions, in accordance with established policies and
procedures, will determine who will perform all other tasks that are the responsibility of CDOT.
The checklist shall be prepared by the CDOT Resident Engineer or the CDOT Project Manager, in cooperation with the Local
Agency Project Manager, and submitted to the Region Program Engineer. If contract administration responsibilities change, the
CDOT Resident Engineer, in cooperation with the Local Agency Project Manager, will prepare and distribute a revised checklist.
Note:
Failure to comply withapplicableFederal andState requirements may result in the loss of Federal or State participation in
funding.
RESPONSIBLE
NO.DESCRIPTION OF TASKPARTY
LA CDOT
TIP / STIP AND LONG-RANGE PLANS
2.1Review Project to ensure it is consist with STIP and amendments theretoX
FEDERAL FUNDING OBLIGATION AND AUTHORIZATION
4.1Authorize funding by phases (CDOT Form 418 -Federal-aid Program Data. Requires FHWA X
concurrence/involvement)
PROJECT DEVELOPMENT
5.1Prepare Design Data -CDOT Form 463 XX
5.2Prepare Local Agency/CDOT Inter-Governmental Agreement (see also Chapter 3)X
X
5.3Conduct Consultant Selection/ExecuteConsultant Agreement
5.4ConductDesign Scoping Review MeetingX
5.5Conduct Public InvolvementX
5.6Conduct Field Inspection Review(FIR)X
5.7Conduct Environmental Processes (may require FHWA concurrence/involvement)X
X
5.8Acquire Right-of-Way (may require FHWA concurrence/involvement)
5.9Obtain Utility and Railroad Agreements X
5.10Conduct Final Office Review(FOR)X
5.11Justify Force Account Work by the Local Agency X
Previous editions are obsolete and may not be used.
CDOT Form 1243 12/14 Page 1 of 4
RESPONSIBLE
NO.DESCRIPTION OF TASKPARTY
LA CDOT
5.12Justify Proprietary, Sole Source, or Local Agency Furnished ItemsX
5.13Document Design Exceptions -CDOT Form 464X
5.14Prepare Plans, Specifications and Construction Cost EstimatesX
X
5.15Ensure Authorization of Fundsfor Construction
PROJECT DEVELOPMENT CIVIL RIGHTS AND LABOR COMPLIANCE
6.1Set Underutilized Disadvantaged Business Enterprise (UBDE)Goals for Consultant and X
Construction Contracts (CDOT Region EEO/Civil Rights Specialist)
6.2Determine Applicability of Davis-Bacon Act X
This project is X is not exempt from Davis-Bacon requirements as determined by the
functional classification of the project location (Projects located on local roads and rural
minor collectors may be exempt.)
Lachelle Davis3/16/2020
CDOT Resident Engineer(Signature on File)Date
6.3Set On-the-Job Training Goals. Goal is zero if total construction is less than $1 million (CDOT X
Region EEO/Civil Rights Specialist)
X
6.4Title VI Assurances
Ensure the correct Federal Wage Decision, all required Disadvantaged Business
Enterprise/On-the-Job Training special provisions and FHWA Form 1273 are included in the
Contract (CDOT Resident Engineer) X
ADVERTISE, BID AND AWARD
7.1Obtain Approval for Advertisement Period of Less Than Three Weeks X
7.2Advertise for Bids X
7.3Distribute “Advertisement Set” of Plans and SpecificationsX
7.4Review Worksite and Plan Details with Prospective Bidders While Project Is Under X
Advertisement
X
7.5Open Bids
7.6Process Bids for Compliance
Check CDOT Form 715 -Certificate of Proposed Underutilized DBE Participation when the
low bidder meets UDBE goals X
Evaluate CDOT Form 718 -Underutilized DBE Good Faith Effort Documentation and
X
determine if the Contractor has made a good faith effort when the low bidder does not meet
DBE goals
Submit required documentation for CDOT award concurrenceX
7.7Concurrence from CDOT to Award X
X
7.8Approve Rejection of Low Bidder
X
7.9Award Contract
7.10Provide “Award” and “Record” Sets of Plans and SpecificationsX
CONSTRUCTION MANAGEMENT
8.1IssueNotice to Proceed to the Contractor X
XX
8.2Project Safety
8.3Conduct Conferences:
Pre-ConstructionConference(Appendix B)X
Pre-survey
X
Construction staking
X
Monumentation
Partnering (Optional)X
Structural Concrete Pre-Pour (Agenda is in CDOT Construction Manual)X
Concrete Pavement Pre-Paving (Agenda is in CDOT Construction Manual)X
HMAPre-Paving (Agenda is in CDOT Construction Manual)X
X
8.4Develop and distribute Public Notice of Planned Construction to media and local residents
8.5Supervise Construction
Previous editions are obsolete and may not be used.
CDOT Form 1243 12/14 Page 2 of 4
RESPONSIBLE
NO.DESCRIPTION OF TASKPARTY
LA CDOT
A Professional Engineer (PE) registered in Colorado, who will be “in responsible charge of
construction supervision.”
Melanie Turner, P.E.719-553-2283
Local Agency Professional Engineer orPhone numberX
CDOT Resident Engineer
Provide competent, experienced staff who will ensure the Contract work is constructed in
X
accordance with the plans and specifications
Construction inspection and documentation X
8.6Approve Shop Drawings X
8.7Perform Traffic Control Inspections X
X
8.8Perform Construction Surveying
X
8.9Monument Right-of-Way
8.10Prepare and Approve Interim and Final Contractor Pay Estimates X
Provide the name and phone number of the person authorized for this task.
Melanie Turner, P.E.719-553-2283
Local Agency RepresentativePhone number
8.11Prepare and Approve Interim and Final Utilityand Railroad Billings X
8.12Prepare and Authorize Change OrdersX
8.13Submit Change OrderPackage to CDOTX
8.14Prepare Local Agency Reimbursement RequestsX
X
8.15Monitor Project Financial Status
8.16Prepare and Submit Monthly Progress Reports X
8.17Resolve Contractor Claimsand Disputes X
8.18Conduct Routineand Random Project Reviews
X
Provide the name and phone number of the person responsible for this task.
Don Scanga719-546-5434
CDOT Resident EngineerPhone number
MATERIALS
X
9.1Discuss Materials at Pre-Construction Meeting
Buy America documentation required prior toinstallation of steel
9.2Complete CDOT Form 250 -Materials Documentation Record
X
Generate form, which includes determining the minimum number of required tests and
applicable material submittals for all materials placed on the project
X
Update the form as work progresses
X
Complete and distribute form after work is completed
9.3Perform Project Acceptance Samples and TestsX
9.4Perform Laboratory Verification Tests X
9.5Accept Manufactured ProductsX
Inspection of structural components:
X
Fabrication of structural steel and pre-stressed concrete structural components
X
Bridge modular expansion devices (0” to 6” or greater)
X
Fabrication of bearing devices
X
9.6Approve Sources of Materials
9.7Independent Assurance Testing (IAT), Local Agency Procedures CDOT Procedures X
X
Generate IAT schedule
X
Schedule and provide notification
X
Conduct IAT
9.8Approve mix designs
X
Concrete
X
Hot mix asphalt
X
9.9Check Final Materials Documentation
X
9.10Complete and Distribute Final Materials Documentation
CDOT Form 1243 12/14 Page 3 of 4
Previous editions are obsolete and may not be used.
RESPONSIBLE
NO.DESCRIPTION OF TASKPARTY
LA CDOT
CONSTRUCTION CIVIL RIGHTS AND LABOR COMPLIANCE
10.1Fulfill Project Bulletin Board and Pre-Construction Packet Requirements X
10.2Process CDOT Form 205 -Sublet Permit Application
Review and sign completed CDOT Form 205 for each subcontractor, and submit to X
EEO/Civil Rights Specialist
10.3ConductEqual Employment Opportunity and Labor Compliance Verification Employee X
Interviews. Complete CDOT Form 280
10.4Monitor Disadvantaged Business Enterprise Participation to Ensure Compliance with the X
“Commercially Useful Function” Requirements
10.5Conduct Interviews When Project Utilizes On-the-Job Trainees.Complete CDOT Form 200 -X
OJT Training Questionnaire
10.6Check Certified Payrolls (Contact the Region EEO/Civil Rights Specialists for training requirements.)X
10.7Submit FHWA Form 1391 -Highway Construction Contractor’s Annual EEO ReportX
FINALS
11.1Conduct Final Project Inspection. Complete and submit CDOT Form 1212 -Final X
Acceptance Report (Resident Engineer with mandatory Local Agency participation.)
X
11.2Write Final Project Acceptance Letter
11.3Advertise for Final Settlement X
11.4Prepare and Distribute Final As-Constructed Plans X
11.5Prepare EEO CertificationX
11.6Check Final Quantities, Plans, and Pay Estimate; Check Project Documentation; and submit X
Final Certifications
X
11.7Check Material Documentation and Accept Final Material Certification (See Chapter 9)
11.8Obtain CDOT Form 17 from the Contractor and Submit to the Resident EngineerX
11.9Obtain FHWA Form 47 -Statement of Materials and Labor Used … from the ContractorX
11.10Complete and Submit CDOT Form 1212 –Final Acceptance Report (by CDOT)X
X
11.11Process Final Payment
X
11.12Complete and Submit CDOT Form 950 -Project Closure
11.13Retain Project Records for Six Years from Date of Project Closure X
11.14Retain Final Version of Local Agency Contract Administration ChecklistX
cc: CDOT Resident Engineer/Project Manager
CDOT Region Program Engineer
CDOT Region EEO/Civil Rights Specialist
CDOT Region Materials Engineer
CDOT Contracts and Market Analysis Branch
Local Agency Project Manager
Previous editions are obsolete and may notbe used.
CDOT Form 1243 12/14 Page 4 of 4
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 of the undersigned, to any person for
influencing or attempting to influence an officer or employee of any Federal agency, aMember of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal loan,
the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification
of any Federal contract, Agreement, loan, or cooperative agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or
attemptingtoinfluenceanofficerofCongress,oranemployeeof a MemberofCongressinconnectionwiththisFederal
contract, Agreement, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with itsinstructions.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by
Section1352,Title31,U.S.Code.Anypersonwhofailstofiletherequiredcertificationshallbesubjectto a civilpenalty
of not less than $10,000 and not more than $100,000 for each suchfailure.
The prospective participant also agrees 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.
Exhibit F -Page 1 of 1
EXHIBIT G
DISADVANTAGED BUSINESS ENTERPRISE
SECTION 1. Policy.
ItisthepolicyoftheColoradoDepartmentofTransportation(CDOT)thatdisadvantaged business enterprisesshallhave
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 26. 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 thisagreement.
SECTION 2. DBE Obligation.
The recipient or its the Local Agency agrees to ensure that disadvantaged business enterprises as determined by the Office
ofCertificationattheColoradoDepartmentofRegulatoryAgencieshavethemaximumopportunitytoparticipate 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 aLocal Agency DBE Program approved in advance by the State) to ensure that disadvantagedbusiness
enterpriseshavethemaximumopportunitytocompetefor andperformcontracts.Recipientsand their contractors shall
not discriminate onthe 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 Departmentof Transportation 2829 West Howard Place
Denver, Colorado 80204
Phone: (303) 757-9007
REVISED1/22/98REQUIRED BY 49 CFR PART26
Exhibit G -Page 1 of 1
EXHIBIT H
LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded Local Agency project agreement
administered by CDOT that involves professional consultant services. 23 CFR 172.1 states “The policies and
procedures involve federally funded contracts for engineering and design related services for projects subject to the
provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable
selection process, that prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost”
and according to 23 CFR 172.5 “Price shall not be used as a factor in the analysis and selection phase.” Therefore,
local agencies must comply with these CFR requirements when obtaining professional consultant services under a
federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled
"Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal
andStateregulations,i.e.,23CFR172andCRS§24-30-1401etseq. Copiesofthedirectiveandtheguidebook may be
obtained upon request from CDOT's Agreements and Consultant Management Unit. \[Local agencies should have their
ownwritten procedures on file for each method of procurement that addresses the items in 23CFR172\].
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 professionalservices.
2.Prior to solicitation for consultant services, the contracting Local Agency shall develop a detailed scope of
workand a listofevaluation factorsandtheir relativeimportance. The evaluation factorsarethoseidentifiedin
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 ofC.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 Local Agency shall not advertise any federal aid contract without prior review by the CDOT Regional
Civil Rights Office (RCRO) to determine whether the contract shall be subject to a DBE contract goal. If the
RCROdetermines a goalisnecessary,thentheLocalAgencyshallincludethegoalandtheapplicableprovisions
within the advertisement. The Local Agency shall not award a contract to any Contractor or Consultant without
theconfirmationbytheCDOTCivilRightsand Business ResourceCenterthattheContractororConsultanthas
demonstratedgoodfaithefforts.TheLocalAgencyshallworkwiththeCDOTRCROtoensurecompliancewith
the established terms during the performance of thecontract.
5.The Local Agency shall require that all contractors pay subcontractors for satisfactory performance of work
no later than 30 days after the receipt of payment for that work from the contractor. For construction projects, this
timeperiodshall bereducedtosevendaysinaccordancewithColoradoRevisedStatute24-91-103(2).Ifthe Local
Agency withholds retainage from contractors and/or allows contractors to withhold retainage from
subcontractors, such retainage provisions must comply with 49 CFR26.29.
6.Payments to all Subconsultants shall be made within thirty days of receipt of payment from \[the Local
Agency\] or no later than ninety days from the date of the submission of a complete invoice from the
Subconsultant, whichever occurs first. If the Consultant has good cause to dispute an amount invoiced by a
Subconsultant, the Consultant shall notify \[the Local Agency\] no later than the required date for payment. Such
notification shall include the amount disputed and justification for the withholding. The Consultant shall
maintain records of payment that show amounts paid to all Subconsultants. Good cause does not include the
Consultant’s failure to submit an invoice to the Local Agency or to deposit paymentsmade.
7.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 consultantsand
theirteam.Italsoshows whichcriteriaareusedtoshort-listandtomake a finalselection.
The short-list is based on the following evaluation factors:
a.Qualifications,
Exhibit H -Page 1of 2
b.Approach to theWork,
c.Ability to furnish professionalservices.
d.Anticipated design concepts,and
e.Alternative methods of approach for furnishing the professional services. Evaluation factors for final
selection are theconsultant's:
a.Abilities of theirpersonnel,
b.Pastperformance,
c.Willingness to meet the time and budgetrequirement,
d.Location,
e.Current and projected workload,
f.Volume of previously awarded contracts,and
g.Involvement of minorityconsultants.
8.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,
anddegreeofriskinvolvedinthework.Profit isintherangeofsixto15percentofthetotaldirectand indirect
costs.
9.A qualified Local Agency employee shall be responsible and in charge of the Workto ensure that the work
beingpursuediscomplete,accurate,andconsistentwiththeterms,conditions,andspecificationsofthecontract.
At the end of Work, the Local Agency prepares a performance evaluation (a CDOT form is available) on the
consultant.
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.
Exhibit H -Page 2of 2
FHWA-1273--Revised May 1, 2012
EXHIBIT I
FEDERAL-AID CONTRACT PROVISIONS FOR CONSTRUCTION CONTRACTS
I.General
3.A breach of any of the stipulations contained in these Required Contract
II.Nondiscrimination
Provisions may be sufficient grounds for withholding of progress payments,
III.Nonsegregated Facilities
withholding offinal payment, termination ofthe contract, suspension/debarment
IV.Davis-Bacon and Related Act Provisions
or any other action determined to be appropriate by the contracting agency and
V.Contract WorkHours and Safety StandardsAct
FHWA.
Provisions
VI.Subletting or Assigningthe Contract
4.Selection of Labor: During the performance of this contract, the contractor
VII.Safety: Accident Prevention
shall not use convict labor for any purpose within the limits of a construction
VIII.False Statements Concerning Highway Projects
project on a Federal-aid highway unless it is labor performed by convicts who
IX.Implementation of Clean Air Act and Federal Water
are on parole, supervised release, or probation. The term Federal-aid highway
Pollution Control Act
does not include roadways functionally classified as local roads or rural minor
X.Compliance with Government wide Suspension and collectors.
Debarment Requirements
XI.Certification Regarding Use of Contract Fundsfor
LobbyingII.NONDISCRIMINATION
The provisions of this section related to 23 CFR Part 230 are applicable to all
ATTACHMENTS
Federal-aid construction contracts and to all related construction subcontracts of
A.Employment and Materials Preference for Appalachian
$10,000 or more. The provisions of 23 CFR Part 230 are not applicable to
Development Highway System or Appalachian Local Access Road
material supply, engineering, or architectural service contracts.
Contracts (included in Appalachian contracts only)
In addition, the contractor and all subcontractors mustcomply with the following
policies: Executive Order 11246, 41 CFR 60, 29 CFR 1625-1627, Title 23 USC
Section 140, the Rehabilitation Act of1973,as amended (29 USC 794), Title VI
I.GENERAL
of the Civil Rights Act of1964, as amended, and related regulations including 49
1.Form FHWA-1273 must be physically incorporated in eachCFR Parts 21,26and27; and 23 CFR Parts 200, 230,and633.
construction contract funded under Title 23 (excluding emergency
contracts solely intended for debris removal). The contractor (orThe contractor and all subcontractors mustcomply with: the requirements ofthe
subcontractor) must insert this form in each subcontract and furtherEqual Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction
require its inclusion in all lower tier subcontracts (excluding purchase
contracts exceeding $10,000, the Standard Federal Equal Employment
orders, rental agreements and other agreements for supplies or OpportunityConstruction Contract Specifications in 41 CFR 60-4.3.
services).
Note: The U.S. Department of Labor has exclusive authority to determine
The applicable requirements of Form FHWA-1273are incorporated by compliance with Executive Order 11246 and the policies of the Secretary of
reference forworkdoneunder any purchaseorder, rental agreement or
Labor including 41 CFR 60, and 29 CFR 1625-1627. The contracting agency
agreement forother services. Theprime contractor shall beresponsible
and the FHWA have the authority and the responsibility to ensure compliance
for compliance by any subcontractor, lower-tier subcontractor or with Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29
service provider.
USC 794), and Title VI of the Civil Rights Act of1964,asamended, and related
regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230,
Form FHWA-1273 must be included in all Federal-aid design- build and 633.
contracts, in all subcontracts and in lower tier subcontracts (excluding
The following provision is adopted from 23 CFR 230, Appendix A, with
subcontracts for design services, purchase orders, rental agreements
and other agreements for supplies or services). The design-builder appropriate revisions to conform to the U.S. Department ofLabor(USDOL) and
shall be responsible for compliance by any subcontractor, lower-tier FHWA requirements.
subcontractor or serviceprovider.
1.Equal Employment Opportunity: Equal employment opportunity (EEO)
Contracting agencies may reference Form FHWA-1273 in bid requirements not to discriminate and to take affirmative action to assure equal
opportunity as set forthunder laws, executive orders, rules, regulations (28 CFR
proposal or request for proposal documents, however, the Form
35,29 CFR 1630,29 CFR 1625-1627,41 CFR 60 and 49 CFR 27) and ordersof
FHWA-1273 must be physically incorporated (not referenced) in all
contracts, subcontracts and lower-tier subcontracts (excluding 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
purchaseorders, rental agreements and other agreements forsupplies
affirmative action standards for the contractor's project activities under this
or services related to a construction contract).
contract. The provisions of the Americans with Disabilities Act of 1990(42
U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are
2.Subject to the applicability criteria noted in the following sections,
incorporated by reference in this contract. In the execution of this contract, the
these contract provisions shall apply to all work performed on the
contractor agrees to comply with the following minimumspecific requirement
contract by the contractor's own organization and with the assistance
activities of EEO:
of workers under the contractor's immediate superintendence and to
all work performed on the contract by piecework, station work, or by
subcontract.
Exhibit I -Page 1of 11
b.In the event the contractor has a valid bargaining agreement
a.The contractor will work with the contracting agency and the
providing for exclusive hiring hall referrals, the contractor is expected
Federal Government to ensure that it has made every good faith
to observe the provisionsof that agreement to the extent that thesystem
effort to provide equal opportunity with respect to all of its terms
meets the contractor's compliance with EEO contract provisions.Where
and conditions of employment and in their review of activities
implementation of such an agreement has the effect of discriminating
underthe contract.
against minorities or women, or obligates the contractor to do the same,
such implementation violates Federal nondiscrimination provisions.
b.The contractor will accept as its operating policy the following
statement:
c.The contractor will encourage its present employees to refer
minorities and women as applicants for employment. Information and
"It is the policy of this Company to assure that applicants are
procedures with regard to referring such applicants will be discussed
employed, and that employees are treated during employment,
with employees.
without regard to their race, religion, sex, color, national origin, age
or disability. Such action shall include: employment, upgrading,
5.Personnel Actions: Wages, working conditions, and employee
demotion, or transfer; recruitment or recruitment advertising; layoff
benefits shall be established and administered, and personnel actions of
or termination; rates of pay or other forms of compensation; and
every type, including hiring, upgrading, promotion, transfer, demotion,
selection for training, including apprenticeship, pre-apprenticeship,
layoff, and termination, shall be taken without regard to race, color,
and/or on-the- job training."
religion, sex, national origin, age or disability. Thefollowing procedures
shall be followed:
2.EEO Officer: The contractor will designate and makeknown to the
contracting officers an EEO Officer who will have the responsibility
a.The contractor will conduct periodic inspections of project sites to
for and mustbe capable of effectively administering and promoting an
insure that working conditions and employee facilities do not indicate
active EEOprogram and whomustbe assigned adequate authority and
discriminatory treatment of project site personnel.
responsibility to doso.
b.The contractor will periodically evaluate the spread of wages paid
3.Dissemination of Policy: All members of the contractor's staff
within each classification to determine any evidence of discriminatory
who are authorized to hire, supervise, promote, and discharge
wage practices.
employees, or who recommend such action, or who are substantially
involved in such action, will be made fully cognizant of, and will
c.The contractor will periodically review selected personnel actions
implement, the contractor's EEO policy and contractual
in depth to determine whether there is evidence of discrimination.
responsibilities to provide EEO in each grade and classification of
Where evidence is found, the contractor will promptly take corrective
employment. To ensure that the above agreement will be met, the
action. If the review indicates that the discrimination may extend
following actions will be taken asa minimum:
beyond the actions reviewed, such correctiveaction shall include all
affectedpersons.
a.Periodic meetings ofsupervisory and personnel office employees
willbe conducted before the start ofwork and then not less often than
d.The contractor will promptly investigate all complaints of alleged
once every six months, at which time the contractor's EEO policy and
discrimination made to the contractor in connection with its obligations
its implementation will be reviewed and explained. The meetings will
under this contract, will attempt to resolve such complaints, and will
be conducted by the EEO Officer.
take appropriate corrective action within a reasonable time. If the
investigation indicates that the discrimination may affect persons other
b.All new supervisoryorpersonneloffice employees will be given
than the complainant, such corrective action shall include such other
a thorough indoctrination by the EEO Officer, covering all major
persons. Upon completion of each investigation, the contractor will
aspects of the contractor's EEO obligations within thirty days
informevery complainant of all of their avenues of appeal.
following their reporting forduty with the contractor.
6.Training and Promotion:
c.All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer in the contractor's
The contractor will assist in locating, qualifying, and increasing the skills
procedures for locating and hiring minorities andwomen.
of minorities and women who are applicants for employment or current
employees. Such effortsshouldbe aimed at developing full journey level
d.Notices and posters setting forththe contractor's EEO policy will
status employees in the typeof trade or job classification involved.
be placed in areas readily accessible to employees, applicants for
a.Consistent with the contractor's work force requirements and as
employment andpotential employees.
permissible under Federal and State regulations, the contractor shall
make full use of training programs, i.e., apprenticeship, and on-the-job
e.The contractor's EEO policy and the procedures to implement
training programsfor the geographicalarea of contract performance. In
such policy will be brought to the attention of employees by means of
the event a special provisionfor training is providedunder this contract,
meetings, employeehandbooks,or other appropriate means.
this subparagraph will be superseded as indicated in the special
provision. The contracting agency may reserve training positions for
4.Recruitment: When advertising for employees, the contractor will
persons who receive welfare assistance in accordance with 23 U.S.C.
include in all advertisements for employees the notation: "An Equal
140(a).
Opportunity Employer." All such advertisements will be placed in
publications having a large circulation among minorities and women in
b.The contractor will advise employees and applicants for
the area from which the project work force would normally be derived.
employment of available training programs and entrance requirements
for each.
a.The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment through public
c.The contractor will periodically review the training andpromotion
and private employee referral sources likely to yield qualified
potential of employees who are minorities and women and will
minorities and women. To meet this requirement, the contractor will
encourage eligible employees to apply for such training and promotion.
identify sources of potential minority group employees, and establish
with such identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment
consideration.
Exhibit I -Page 2of 11
The contractor shall carry out applicable requirements of 49 CFRPart
7.Unions: If the contractor relies in whole or in partuponunions as a
26 in the award and administration of DOT-assisted contracts. Failure
sourceof employees, the contractor will usegood faith efforts to obtain
by the contractor to carry out these requirements is a material breach of
the cooperation of such unions to increase opportunitiesfor minorities
this contract, which may result in the termination of this contract or such
and women. Actions by the contractor, either directly or through a
other remedy as the contracting agency deems appropriate.
contractor's association acting as agent, will include theproceduresset
forth below:
11.Records and Reports: The contractor shall keep such records as
necessary to document compliance with the EEO requirements. Such
a.The contractor will use good faith efforts to develop, in
records shall be retained for a periodof three years following the date of
cooperation with the unions, joint training programs aimed toward
the final payment to the contractor for all contract work and shall be
qualifying more minorities and women for membership in the unions
available at reasonable times and places for inspection by authorized
and increasing the skills of minorities and women so that they may
representatives ofthe contracting agency and the FHWA.
qualify for higherpaying employment.
a.Therecordskeptbythe contractor shall document the following:
b.The contractor will use good faith efforts to incorporate anEEO
clause into each union agreement to the end that such union will be
(1)The number and work hours of minority and non- minority
contractually bound to refer applicants without regardto their race,
groupmembers and women employed in each work classification onthe
color, religion, sex, national origin,ageor disability.
project;
c.The contractor is to obtain information as to thereferral practices
(2)Theprogress and efforts being madein cooperation with unions,
and policies of the labor union except that to the extent such
when applicable, to increase employmentopportunitiesfor minorities
information is within the exclusive possession of the labor union and
and women; and
such labor unionrefuses to furnishsuch information to the contractor,
the contractor shall so certify to the contracting agency and shall set
(3)Theprogressandefforts being madein locating, hiring,
forth what efforts have been made to obtain such information.
training, qualifying, and upgrading minorities andwomen;
d.In the event theunion is unable to provide the contractor with
b.The contractors and subcontractors will submitanannualreport to
a reasonable flow of referrals within the time limit set forth in the
the contracting agency each July for the duration of the project,
collective bargaining agreement, the contractor will, through
indicating the number of minority, women, and non- minority group
independent recruitment efforts, fill the employment vacancies
employees currently engaged in each work classification required bythe
without regard to race, color, religion, sex, national origin, age or
contract work.This information is to be reported onForm FHWA-1391.
disability; making full efforts to obtain qualified and/or qualifiable
Thestaffing data should represent the project workforceonboard in all
minorities and women. The failure of a union to provide sufficient
or any partofthe last payroll period preceding the end ofJuly.Ifon-the-
referrals (even though it is obligated to provide exclusive referrals
job training is being required by special provision,the contractor will be
under the terms of a collective bargaining agreement) doesnot relieve
required to collect and report training data. Theemployment data should
the contractor fromthe requirements of this paragraph.Inthe event the
reflect the work force on board during all or any part of the last payroll
union referral practice prevents the contractor from meeting the
period preceding the end ofJuly.
obligations pursuant to Executive Order 11246, as amended, and these
special provisions, such contractor shall immediately notify the
III.NONSEGREGATED FACILITIES
contracting agency.
This provision is applicable to all Federal-aid construction contracts
8.Reasonable Accommodation for Applicants / Employees with
and to all related construction subcontracts of
Disabilities: The contractor mustbe familiar with the requirements for
$10,000 or more.
and comply with the Americans with Disabilities Act and all rules and
regulations established there under. Employers must provide
The contractor must ensure that facilities provided for employees are
reasonable accommodation in all employment activities unless to do
provided in such a manner that segregation on the basis of race, color,
so would cause anunduehardship.
religion, sex, or national origin cannot result. The contractor may neither
require such segregated use by written or oral policies nor tolerate such
9.Selection of Subcontractors, Procurement of Materials and
use by employee custom. The contractor's obligation extends further to
Leasing of Equipment: The contractor shall not discriminate on the
ensure that its employees are not assigned to perform their services at
grounds of race, color, religion, sex, national origin, age or disability
any location, under the contractor's control, where the facilities are
in the selection and retention of subcontractors, includingprocurement
segregated. The term "facilities" includes waiting rooms, work areas,
of materials and leases of equipment. The contractor shall take all
restaurants and other eating areas, time clocks, restrooms, washrooms,
necessary and reasonable steps to ensure nondiscrimination in the
locker rooms, and other storage or dressing areas, parking lots, drinking
administration of this contract.
fountains, recreation or entertainment areas, transportation, and housing
provided for employees. The contractor shall provide separate or single-
a.The contractor shall notify all potential subcontractors and
user restrooms and necessary dressing or sleeping areas toassure privacy
suppliers and lessors of their EEO obligationsunder this contract.
betweensexes.
b.The contractor will use good faith efforts toensure
subcontractor compliance with their EEO obligations.
IV.DAVIS-BACON ANDRELATEDACT PROVISIONS
10.Assurance Required by 49 CFR 26.13(b):
This section is applicable to all Federal-aid construction projects
exceeding $2,000 and to all related subcontracts and lower-tier
a.The requirements of49 CFR Part 26 and the State DOT’s
subcontracts (regardless of subcontract size). The requirements apply to
U.S. DOT-approved DBE program are incorporated by reference.
all projects located within the right-of- way of a roadway that is
functionally classified as Federal-aid highway. This excludes roadways
functionally classified as local roadsorruralminor collectors, which are
b.The contractor or subcontractor shall not discriminate onthe basis
exempt.
of race, color, national origin, or sex in the performance of this contract.
Contracting agencies may elect to apply these requirements to other
projects.
Exhibit I -Page 3of 11
(2)If the contractor and the laborers and mechanics to be
The following provisions are from the U.S. Department of Labor
employed in the classification (ifknown),or their representatives, and
regulations in 29 CFR 5.5 “Contract provisions and related matters”
the contracting officer agree on the classification and wage rate
with minor revisions to conform to the FHWA- 1273 format and
(including the amount designated for fringe benefits where
FHWA program requirements.
appropriate), a report of the action taken shall be sent by the
contracting officer to the Administrator of the Wage and Hour
1.Minimum wages
Division, Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20210. The Administrator, or an authorized
representative, will approve, modify, or disapprove every additional
a.All laborers and mechanics employed or working upon the site
classification action within 30 days of receipt and so advise the
of the work, will be paid unconditionally and not less often than once
contracting officer or will notify the contracting officer within the 30-
a week, and without subsequent deduction or rebate on any account
day period that additional time is necessary.
(except such payrolldeductions as are permitted by regulations issued
by the Secretary of Labor under the Copeland Act (29 CFR part 3)),
the full amount of wages and bona fide fringe benefits (or cash
(3)In the event the contractor, the laborers or mechanics to be
equivalents thereof) due at time ofpayment computed atrates not less
employed in the classification or their representatives, and the
than those contained in the wage determination of the Secretary of
contracting officer do not agree on the proposed classification and
Labor which is attached hereto and made a part hereof, regardless of
wage rate (including the amount designated forfringe benefits, where
any contractual relationship which maybe alleged to exist between the
appropriate), the contracting officer shall refer the questions,
contractor and such laborers and mechanics.
including the views of all interested parties and the recommendation
of the contracting officer, to the Wage and Hour Administrator for
determination. The Wage and Hour Administrator, or an authorized
Contributions made or costs reasonably anticipated for bona fide
representative, will issue a determination within 30daysof receipt and
fringe benefits under section 1(b)(2)ofthe Davis-Bacon Act on behalf
so advise the contracting officer or will notify the contracting officer
of laborers or mechanics are considered wages paid to such laborers
within the 30-day period that additional time is necessary.
or mechanics, subject to the provisions of paragraph 1.d. of this
section; also, regular contributions made or costs incurred for more
(4)The wage rate (including fringe benefits where appropriate)
than a weekly period (but not less often than quarterly) under plans,
determined pursuant to paragraphs1.b.(2) or 1.b.(3) of this section,
funds, or programs which cover the particular weekly period, are
shall be paid to all workers performing work in the classification under
deemed to be constructively made or incurred during such weekly
this contract from the first day on which work is performed in the
period. Such laborers and mechanics shall be paid the appropriate
classification.
wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill,
except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics
c.Whenever the minimum wage rate prescribed in the contract for a
performing work in more than one classification maybe compensated
class of laborers or mechanics includes a fringe benefit which is not
at the rate specified for each classification for the time actually worked
expressed as anhourly rate, the contractor shall either pay the benefit as
therein: Provided, That the employer's payroll records accurately set
stated in the wage determination or shall pay another bona fide fringe
forth the time spent in each classification in which work is performed.
benefit or an hourly cash equivalent thereof.
The wage determination (including any additional classification and
wage rates conformed under paragraph 1.b. of this section) and the
d.Ifthe contractor does notmakepayments to a trustee or other third
Davis-Bacon poster (WH–1321) shall be posted at all times by the
person, the contractor may consider as part of the wages of any laborer
contractor and its subcontractors at the site oftheworkin a prominent
or mechanic theamountof any costs reasonably anticipated in providing
and accessible place where it can beeasily seenby the workers.
bona fide fringe benefits under aplan or program, Provided, That the
Secretary ofLabor has found,uponthe written request ofthe contractor,
b.(1)The contracting officer shallrequire that any class of laborers
that the applicable standards of the Davis-Bacon Act have been met. The
or mechanics, including helpers, which is not listed in the wage
Secretary of Labor may require the contractor to set aside in a separate
determination and which is to be employed under the contract shall be
account, assets forthe meeting of obligations underthe plan orprogram.
classified in conformance with the wage determination. The
contracting officer shall approvean additional classification and wage
rate and fringe benefits therefore only when the following criteria have
been met:
(i)The work to be performed by the classification requested is
not performed by a classification in the wage determination; and
(ii)The classification is utilized in the area bythe construction
industry; and
(iii)The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in thewage determination.
Exhibit I -Page 4of 11
It is not a violation of this section for a prime contractor to require a
2.Withholding
subcontractor to provide addresses and social security numbers to the prime
contractor for its own records, without weekly submission to the contracting
The contracting agency shall upon its own action or upon written
agency.
request of an authorized representative of the Department of Labor,
withhold or cause to be withheld from the contractor under this
(2)Each payroll submitted shall be accompanied by a “Statement of
contract, orany other Federal contract with thesameprime contractor,
Compliance,” signed by the contractor or subcontractor or his or her
or any other federally- assisted contract subject to Davis-Bacon
agent who pays orsupervises the payment of the persons employed
prevailing wage requirements, which is held by the same prime
underthe contract and shall certify the following:
contractor, so 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 (i)That the payroll for the payroll period contains the
subcontractor thefullamountof wages required by the contract. In the
information required to be provided under §5.5(a)(3)
event of failure to pay any laborer or mechanic, including any
(ii)of Regulations, 29 CFR part 5, the appropriate information
apprentice, trainee, or helper, employed or working on the site of the
is being maintained under§5.5(a)(3)(i)of Regulations, 29CFR
work, all orpartofthe wagesrequiredby the contract, the contracting
part 5, and that such information is correct and complete;
agency may, after written notice to the contractor, take such action as
(ii)That each laborer or mechanic (including each helper,
may be necessary to cause the suspension of any further payment,
apprentice, and trainee) employed on the contract during the
advance, or guarantee offunds until such violations have ceased.
payroll period has been paid the full
weekly wages earned, without rebate, either directly
or indirectly, and that no deductions have been made either
3.Payrolls and basic records
directly or indirectly from the full wages earned, other than
permissible deductionsas set forth in Regulations, 29CFRpart
a.Payrolls andbasic records relating thereto shall be maintained by
3;
the contractor during the courseof the work and preserved for a period
(iii)That each laborer or mechanic has been paid not less than the
of three years thereafter for all laborers and mechanics working at the
site of the work. Such records shall contain the name, address, andapplicable wage rates and fringe benefits or cash equivalents for
social security number of each such worker, his or her correct
the classification of work performed, as specified in the
classification, hourly rates of wages paid (including rates of
applicable wage determination incorporatedinto the contract.
contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the
(3)The weekly submission of a properly executed certification set forth
Davis- Bacon Act), daily and weekly number of hours worked,
on the reverse side of Optional Form WH–347 shall satisfy the
deductions made and actual wages paid. Whenever the Secretary of
requirement forsubmissionof the “Statement of Compliance” required
Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any
by paragraph 3.b.(2)of this section.
laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan orprogram described in
section 1(b)(2)(B)of the Davis-Bacon Act, the contractor shall maintain(4)The falsification of any of the above certifications may subject the
records which show that the commitment to provide such benefits is
contractor or subcontractor to civil or criminal prosecution under
enforceable, that the plan or program is financially responsible, and
section 1001 of title 18 and section 231 of title 31 of the United States
that the plan or program has been communicated in writing to theCode.
laborers or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such benefits.
c.The contractor or subcontractor shall make the records required under
Contractors employing apprentices or trainees under approved
paragraph 3.a. of this section available for inspection, copying, or
programs shall maintain written evidence of the registration of
transcription by authorized representatives of the contracting agency, the
apprenticeship programs and certification of trainee programs, the
State DOT,the FHWA, or the Department ofLabor, and shall permit such
registration of the apprentices and trainees, and the ratios and wage
representatives to interview employeesduringworkinghourson the job.If
rates prescribed in the applicableprograms.
the contractor or subcontractor fails to submit the required records or to
make them available, the FHWA may, after written notice to the
contractor, the contracting agency or the State DOT, take such action as
b.(1)The contractor shall submit weekly for each week in which any
may be necessary to cause the suspension of any further payment,
contract work is performed a copy of all payrolls to the contracting
advance, or guarantee offunds.Furthermore, failure to submitthe required
agency. The payrolls submitted shall set out accurately and completely
records upon request or to make such records available may be grounds
all of the information required to be maintained under 29 CFR
for debarment action pursuant to 29 CFR 5.12.
5.5(a)(3)(i), except that full social security numbers and home
addresses shall not be included on weekly transmittals. Instead the
4.Apprentices and trainees
payrolls shall only need to include an individually identifying number
for each employee (e.g., the last four digits of the employee's social
a.Apprentices (programsof the USDOL).
security number). The required weekly payroll information may be
submitted in any form desired. Optional Form WH–347 is available
Apprentices will be permitted to work at less than the predetermined rate
for this purpose from the Wage and Hour Division Web site at
for the work they performed when they are employed pursuant to and
http://www.dol.gov/esa/whd/forms/wh347instr.htmor its successor
individually registered in a bona fide apprenticeship program registered
site. The prime contractor is responsible for the submission of copies
with the U.S. Department of Labor, Employment and Training
of payrolls by all subcontractors. Contractors and subcontractors shall
Administration, Office of Apprenticeship Training, Employer and Labor
maintain the full social security number and current address of each
Services, or with a State Apprenticeship Agency recognized by the Office,
covered worker, and shall provide them upon request to the contracting
or if a person is employed in his or her first 90 days of probationary
agency for transmission to the State DOT, the FHWA or the Wage and
employment as an apprentice in such an apprenticeship program, who is
Hour Division ofthe Department ofLabor for purposes of an
not individually registered in the program, but who has been certified by
investigation or audit of compliance with prevailing wage
the Office of Apprenticeship Training, Employer andLabor Services ora
requirements.
State Apprenticeship Agency (where appropriate) to be eligible for
probationaryemployment as an apprentice.
Exhibit I -Page 5of 11
Any employee listed onthe payroll at a trainee rate who isnot registered
The allowable ratio of apprentices to journeymenon the job site in any
and participating in a training plan approved by the Employment and
craft classification shall not be greater than the ratio permitted to the
Training Administration shall be paid not less than the applicable wage
contractor as to the entire workforceunder the registered program. Any
rate on the wage determination for the classification of work actually
worker listed on a payroll at an apprentice wagerate, who is not
performed. In addition, any trainee performing work on the job site in
registered or otherwise employed as stated above, shall be paid not less
excess of the ratio permitted under the registered program shall be paid
than the applicable wage rate on the wage determination for the
not less than the applicable wage rateonthe wage determination forthe
classification of work actually performed. In addition, any apprentice
work actually performed.
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 onthe wage determination for the work actually performed.Where
In the event the Employment and Training Administration withdraws
a contractor is performing construction on a project in a locality other
approval of a training program, the contractor will no longer be
than that in which its program is registered, the ratios and wage rates
permitted to utilize trainees at less than the applicable predetermined rate
(expressed in percentages ofthe journeyman's hourly rate) specified in
for theworkperformed until an acceptable program is approved.
the contractor's or subcontractor's registered program shall be
observed.
c.Equal employmentopportunity.
The utilization of apprentices, trainees and journeymen under this part
Every apprentice mustbe paid at not less than the rate specified in the
shall be in conformity with the equal employment opportunity
registered programfor the apprentice's level ofprogress, expressed as
requirements of Executive Order 11246, as amended, and 29 CFR part
a percentage of the journeymenhourly rate specified in the applicable
30.
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
d.Apprentices and Trainees (programsoftheU.S.DOT).
must be paid the full amount of fringe benefits listed on the wage
determination for the applicable classification. If the Administrator
determines that a different practice prevails for the applicable
Apprentices and trainees workingunderapprenticeship and skill training
apprentice classification, fringes shall be paid in accordance with that
programs which have been certified bythe Secretary of Transportation as
determination.
promoting EEO in connection with Federal- aid highway construction
programs are not subject to the requirements of paragraph 4 of this
Section IV. The straight time hourly wage rates for apprentices and
In the event the Office of Apprenticeship Training, Employer and
trainees under such programs will be established by the particular
Labor Services, or a State Apprenticeship Agency recognized by the
programs. The ratio of apprentices and trainees to journeymen shall not
Office, withdraws approval of an apprenticeship program, the
be greater than permitted bythe terms of the particular program.
contractor will nolongerbe permitted to utilize apprentices at less than
the applicable predetermined rate for the work performed until an
acceptable program isapproved.
5.Compliance with Copeland Act requirements. The contractor
shall comply with the requirements of 29 CFR part 3, which are
incorporated by reference in this contract.
b.Trainees (programsofthe USDOL).
6.Subcontracts. The contractor or subcontractor shall insert Form
Except as provided in 29 CFR 5.16, trainees will not be permitted to
FHWA-1273 in any subcontracts and also require the subcontractors to
work at less than the predetermined ratefor the work performed unless
include Form FHWA-1273 in any lower tier subcontracts. The prime
they are employed pursuant to and individually registered in a program
contractor shall be responsible for the compliance by any subcontractor
which has received prior approval, evidenced by formal certification
or lower tier subcontractor with all the contract clauses in29 CFR 5.5.
by the U.S. Department of Labor, Employment and Training
Administration.
7.Contract termination: debarment. Abreach of the contract clauses
in 29 CFR 5.5 may be groundsfor termination ofthe contract,and for
The ratio of trainees to journeymenonthejob site shall notbe greater
debarment as a contractor and a subcontractor as provided in 29 CFR
than permitted under the plan approved by the Employment and
5.12.
Training Administration.
8.Compliance with Davis-Bacon and Related Actrequirements.All
Every trainee must be paid at not less than the rate specified in the
rulings and interpretations of the Davis-Bacon andRelatedActs
approved program for the trainee's level of progress, expressed as a
contained in 29 CFR parts 1, 3, and 5 are hereinincorporatedby
percentage of the journeyman hourly rate specified in the applicable
reference inthiscontract.
wage determination. Trainees shall be paid fringe benefits in
accordance with the provisions of the trainee program. If the trainee
programdoes not mention fringe benefits, trainees shall be paid the 9.Disputes concerning labor standards. Disputes arising out of the
labor standards provisions of this contract shall not be subject to the
full amount of fringebenefits listed on the wage determination unless
the Administrator oftheWage and Hour Division determines that there general disputes clause of this contract.Such disputes shallberesolved
is an apprenticeship program associated with the corresponding in accordance with the proceduresof the Departmentof Labor set forth
in 29 CFR parts 5,6, and
journeyman wage rate on the wage determination which provides for
less than full fringe benefits for apprentices. 7. Disputes within the meaning of this clause include disputes between
the contractor (or any of its subcontractors) and the contracting agency,
the U.S. Department of Labor, or the employees or their representatives.
Exhibit I -Page 6of 11
4.Subcontracts. The contractor or subcontractor shall insert in any
subcontracts the clauses set forth in paragraph (1.) through (4.) of this
10.Certification of eligibility.
section and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be
responsible for compliance by any subcontractor or lower tier
a.By entering into this contract, the contractor certifies that neither it
subcontractor with the clauses set forth in paragraphs (1.) through (4.)
(nor he or she) nor any person or firm who has an interest in the
of this section.
contractor's firm is a person or firm ineligible to be awarded
Government contracts by virtue of section 3(a)of the Davis-Bacon Act
or29 CFR 5.12(a)(1).
VI.SUBLETTING OR ASSIGNINGTHECONTRACT
This provision is applicable to all Federal-aid construction contracts on
b.Nopartof this contract shall be subcontracted to any personorfirm
the National Highway System.
ineligible for award of a Government contract by virtue of section 3(a)
of the Davis-Bacon Act or29CFR5.12(a)(1).
1.The contractor shall perform with its own organization contract work
amounting to not less than 30 percent (or a greater percentage if
c.The penalty for making false statements is prescribed in the U.S.
specified elsewhere in the contract) of the total original contract price,
Criminal Code, 18 U.S.C.1001.
excluding any specialty items designated by the contracting agency.
Specialty items maybe performed by subcontract and theamountof any
such specialty items performed may be deducted from the total original
contract price before computing the amount of work required to be
V.CONTRACT WORK HOURS AND SAFETY
performed bythe contractor's own organization (23CFR635.116).
STANDARDS ACT
a.The term “perform work with its own organization” refers to
The following clauses apply to any Federal-aid construction contract
workers employed or leased by the prime contractor, and equipment
in an amount in excess of $100,000 and subject to the overtime
owned or rented by the prime contractor, with or without operators.
provisions of the Contract Work Hours and Safety Standards Act.
Such term doesnot include employees or equipment of a subcontractor
These clauses shall be inserted in addition to the clauses required by29
or lower tier subcontractor, agents of the prime contractor, oranyother
CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms
assignees. The term may include paymentsfor the costs of hiring leased
laborers and mechanics include watchmen and guards.
employees fromanemployee leasing firm meeting all relevant Federal
and State regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the following
1.Overtime requirements. No contractor or subcontractor
conditions:
contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or
(1)the prime contractor maintains control over the supervision of
permit any such laborer or mechanic in any workweek in which heor
the day-to-day activities ofthe leased employees;
she is employedon such work to work in excess offortyhours in such
(2)the prime contractor remains responsible for the quality of the
workweek unless such laborer or mechanic receives compensation at
work of the leased employees;
a rate not less than oneand one-half times the basic rate of pay for all
(3)the prime contractor retains all power to accept or exclude
hours worked in excess offortyhoursin such workweek.
individual employees from work on the project; and
(4)the prime contractor remains ultimately responsible for the
2.Violation; liability for unpaid wages; liquidated damages. Inthe
payment of predetermined minimum wages, the submission of
event of any violation of the clause set forth in paragraph (1.) of this
payrolls, statements of compliance and all other Federal regulatory
section, the contractor and any subcontractor responsible therefor
requirements.
shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work
b."Specialty Items" shall be construed to be limited to work that
doneunder contract for the District of Columbia or a territory, to such
requires highly specialized knowledge, abilities, or equipment not
District or to such territory), for liquidated damages. Such liquidated
ordinarily available in the typeof contracting organizations qualified and
damages shall be computed with respect to each individual laborer or
expected to bid or propose on the contract as a wholeand in general are
mechanic, including watchmen and guards, employed in violation of
to be limited to minorcomponentsofthe overall contract.
the clause setforth in paragraph (1.)ofthis section, in thesumof$10
for each calendar day on which such individual was required or
2.The contract amount upon which the requirements set forth in
permitted to work in excess of the standard workweekof forty hours
paragraph (1)of Section VI is computed includes the cost of material and
without paymentof the overtime wages required by the clause set forth
manufactured products which are to be purchased or produced by the
in paragraph (1.)of this section.
contractor under the contract provisions.
3.The contractor shall furnish (a) a competent superintendent or
3.Withholding for unpaid wages and liquidated damages. The
supervisor who is employed by the firm, has full authority to direct
FHWA or the contacting agency shall upon its own action or upon
performance of the work in accordance with the contract requirements,
written request of an authorized representative of the Department of
and is in charge of all construction operations (regardless of who
Labor withhold or cause to be withheld, from any moneys payable on
performsthework) and (b) such other of its own organizational resources
account of work performed by the contractor or subcontractor under
(supervision, management, and engineering services) as the contracting
any such contract or any other Federal contract with the same prime
officer determines is necessary to assurethe performance of the contract.
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 (2.)of this section.
Exhibit I -Page 7of 11
4.No portion of the contract shall be sublet, assigned or otherwise
"Whoever, being an officer, agent, or employee of the United States, or
disposed of except with the written consent of the contracting officer,
of any State or Territory, or whoever, whether a person, association,
or authorized representative, and such consent when given shall notbe
firm, or corporation, knowingly makes any false statement, false
construed to relieve the contractor of any responsibility for the
representation, or false report as to the character, quality, quantity,orcost
fulfillment of the contract. Written consent will be given only after the
of the material used or to be used, or the quantity or quality of the work
contracting agency has assured that each subcontract is evidenced in
performed or to be performed,or the cost thereof in connection with the
writing and that it contains all pertinent provisions and requirements of
submissionof plans, maps,specifications, contracts, orcostsof construction
the prime contract
on any highway or related project submitted forapproval to theSecretary
of Transportation;or
5.The 30% self-performance requirement of paragraph (1) is not
applicable to design-build contracts; however, contracting agencies
Whoever knowingly makes any false statement, false representation,
may establish their own self-performancerequirements.
false reportor false claim with respect to the character, quality, quantity,
or cost ofanywork performed or to beperformed,or materials furnished
or to be furnished, in connection with the construction of any highway
VII.SAFETY: ACCIDENTPREVENTION
or related project approvedby the Secretary of Transportation; or
This provision is applicable to all Federal-aid construction contracts
Whoever knowingly makes any false statement or false representation
and to all related subcontracts.
as to material fact in any statement, certificate, or report submitted
pursuant to provisions of the Federal-aid Roads Act approved July 1,
1.In the performance of this contract the contractor shall comply with
1916, (39 Stat. 355), as amended and supplemented;
all applicable Federal, State, and local laws governing safety, health,
and sanitation (23 CFR 635). The contractor shall provide all
Shall be fined under this title or imprisoned not more than 5 years or
safeguards, safety devices and protective equipment and take any other
both."
needed actions as it determines, or as the contracting officer may
determine, to be reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to protect
IX.IMPLEMENTATIONOF CLEAN AIRACTANDFEDERAL
property in connection with the performance of the work covered by
WATER POLLUTIONCONTROLACT
the contract.
This provision is applicable to all Federal-aid construction
2.It is a condition of this contract, and shall be made a condition of
contracts and toall related subcontracts.
each subcontract, which the contractor enters into pursuant to this
contract, that the contractor and any subcontractor shall not permit any
By submission of this bid/proposal or the execution of this contract, or
employee, in performance of the contract, to work in surroundings or
subcontract, as appropriate, the bidder, proposer, Federal-aid
under conditions which are unsanitary, hazardous or dangerous to
construction contractor, or subcontractor, as appropriate, will be deemed
his/her health or safety, as determined under construction safety and
to have stipulated as follows:
health standards (29 CFR 1926) promulgated by the Secretary of
1.That any personwho is or will be utilized in the performanceof this
Labor, in accordance with Section 107 of the Contract Work Hours
contract is not prohibited from receiving an award dueto a violation of
and Safety Standards Act (40U.S.C.3704).
Section 508ofthe Clean Water Act or Section 306of the Clean Air Act.
2.That the contractor agrees to include or cause to be included the
3.Pursuant to 29CFR1926.3, it is a condition of this contract that the
requirements of paragraph (1) of this Section X in every subcontract,
Secretary ofLabororauthorized representative thereof, shall haveright
and further agrees to take such action as the contracting agency may
of entry to any site of contract performance to inspect or investigate the
direct as a means of enforcing such requirements.
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 WorkHours and Safety Standards Act (40U.S.C.3704).
X.CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
VIII.FALSE STATEMENTS CONCERNING HIGHWAY
This provision is applicable to all Federal-aid construction contracts,
PROJECTS
design-build contracts, subcontracts, lower-tier subcontracts, purchase
orders, lease agreements, consultant contracts or any other covered
This provision is applicable to all Federal-aid construction contracts
transaction requiring FHWA approval or that is estimated to cost
and to all related subcontracts.
$25,000 or more – as defined in 2 CFR Parts 180 and 1200.
In order to assure high quality and durable construction in conformity
1.Instructions for Certification – First Tier Participants:
with approved plans and specifications and a high degree of reliability
on statements and representations made by engineers, contractors,
a.Bysigningand submitting this proposal, the prospective first tier
suppliers, and workers on Federal- aid highway projects, it is essential
participant is providing the certification set out below.
that all persons concerned with the project performtheir functions as
b.The inability of a person to provide the certification set out below
carefully, thoroughly, and honestly as possible. Willful falsification,
will not necessarily result in denial of participation inthis covered
distortion, or misrepresentation with respect to any facts related to the
transaction. The prospective first tier participant shall submit an
project is a violation of Federal law. To prevent any misunderstanding
explanation of why it cannotprovide the certification set out below.
regarding the seriousness of these and similar acts, Form FHWA-1022
shall be posted on each Federal-aid highway project (23 CFR 635) in
one or more places where it is readily availabletoallpersons concerned
with the project:
18 U.S.C. 1020 reads as follows:
Exhibit I -Page 8of 11
i.Nothing contained in the foregoing shall be construed to requirethe
The certification or explanation will be considered in connection
establishment of a systemofrecords in order to render in good faith
with the department or agency's determination whether to enter
the certification required by this clause. The knowledge and
into this transaction. However, failure of the prospective first tier
information of the prospective participant is not required to exceed
participant to furnish a certification or an explanation shall
that which is normally possessedby a prudentperson in theordinary
disqualify such a person from participation in this transaction.
courseof business dealings.
c.The certification in this clause is a material representation of fact
j.Except for transactions authorized under paragraph (f) of these
upon which reliance was placed when the contracting agency
instructions, if a participant in a covered transaction knowingly
determined to enter into this transaction. If it is later determined
enters into a lower tier covered transaction with a person who is
that the prospective participant knowingly rendered an erroneous
suspended, debarred, ineligible, or voluntarily excluded from
certification, in addition to other remedies available to the Federal
participation in this transaction, in addition to other remedies
Government, the contracting agency may terminate this
available to the Federal Government, the department or agency may
transaction for cause of default.
terminate this transaction for cause or default.
d.The prospective first tier participant shall provide immediate
* * * * *
written notice to the contracting agency to whom this proposalis
2.Certification Regarding Debarment, Suspension, Ineligibility
submitted if any time the prospective first tier participant learns
and Voluntary Exclusion – First Tier Participants:
that its certification was erroneous when submitted or has
a.The prospective first tier participant certifies to the best of its
become erroneousby reason of changed circumstances.
knowledge and belief, that it and its principals:
e.The terms "covered transaction," "debarred," "suspended,"
(1)Are not presently debarred, suspended, proposed for debarment,
"ineligible," "participant," "person,""principal," and "voluntarily
declared ineligible, or voluntarily excluded from participating in
excluded," as used in this clause, are defined in 2 CFR Parts 180
covered transactions by any Federal department or agency;
and 1200. “First Tier Covered Transactions” refers to any
covered transaction between a grantee or subgrantee of Federal
(2)Have not within a three-year period preceding this proposal
funds and a participant (such as the prime or general contract).
been convicted of or had a civil judgment rendered againstthem for
“Lower Tier Covered Transactions” refers to any covered
commission offraudor a criminal offense in connection with obtaining,
transaction under a First Tier Covered Transaction (such as
attempting to obtain, or performing a public (Federal, State or local)
subcontracts). “First Tier Participant” refers to the participant
transaction or contract under a public transaction; violation of Federal
who has entered into a covered transaction with a grantee or
or State antitrust statutes orcommission of embezzlement, theft,
subgrantee of Federal funds (such as the prime or general
forgery, bribery, falsification or destruction of records, making false
contractor). “Lower Tier Participant” refers any participant who
statements, or receiving stolen property;
has entered into a covered transaction with a First Tier
Participant or other Lower Tier Participants (such as
(3)Arenot presently indicted foror otherwise criminally or civilly
subcontractors and suppliers).
charged by a governmental entity (Federal, State or local) with
commission of any ofthe offenses enumerated in paragraph(a)(2)of this
f.The prospective first tier participant agrees by submitting this
certification;and
proposal that, shouldtheproposed covered transaction be entered
into, it shall not knowingly enter into any lower tier covered
(4)Have not within a three-year period preceding this
transaction with a person who is debarred, suspended, declared
application/proposal had oneor morepublic transactions (Federal, State
ineligible, or voluntarily excluded from participation in this
or local) terminated for cause ordefault.
covered transaction, unless authorized by the department or
agency entering intothis transaction.
b.Where the prospective participant is unable to certify to anyofthe
statements in this certification, such prospective participant shall attach
g.The prospective first tier participant further agrees by submitting
an explanation to this proposal.
this proposal that it will include the clause titled "Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary
2.Instructions for Certification - Lower Tier Participants:
Exclusion-Lower Tier Covered Transactions," provided by the
department or contracting agency, entering into this covered
(Applicable to all subcontracts, purchase orders and other lower tier
transaction, without modification, in all lower tier covered
transactions requiring prior FHWA approval or estimated to cost
transactions and in all solicitations for lower tier covered
$25,000 or more - 2 CFR Parts 180 and 1200)
transactions exceeding the$25,000 threshold.
a.Bysigning and submitting this proposal, the prospective lower tier
h.A participant in a covered transaction may rely upon a
is providingthe certification set out below.
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
b.The certification in this clause is a material representation of fact
voluntarily excluded from the covered transaction, unless it
upon which reliance was placed when this transaction was entered into.
knows that the certification is erroneous. A participant is
If it is later determined that the prospective lower tier participant
responsible for ensuring that its principals are not suspended,
knowingly rendered an erroneous certification, in addition to other
debarred, or otherwise ineligible to participate in covered
remedies available to the Federal Government, the department, or
transactions. To verify the eligibility of its principals, as well as
agency with which this transaction originated may pursue available
the eligibility of any lower tier prospective participants, each
remedies, including suspensionand/or debarment.
participant may, but is not required to, check the Excluded
Parties List System website (https://www.epls.gov/), which is
compiled by the General Services Administration.
Exhibit I -Page 9of 11
* * ** *
c.The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
Certification Regarding Debarment, Suspension, Ineligibility and
any time the prospective lower tier participant learns that its
Voluntary Exclusion--Lower Tier Participants:
certification waserroneousby reason ofchanged circumstances.
1.The prospective lower tier participant certifies, by submission of
d.The terms "covered transaction," "debarred,""suspended,"
this proposal, that neither it nor its principals is presently debarred,
"ineligible," "participant," "person," "principal," and "voluntarily
suspended, proposed for debarment, declared ineligible, or voluntarily
excluded," as used in this clause, are defined in 2 CFR Parts 180 and
excluded from participating in covered transactions by any Federal
1200. You may contact the person to which this proposal is submitted
department or agency.
for assistance in obtaining a copy of those regulations. “First Tier
Covered Transactions” refers to any covered transaction between a
2.Where the prospective lower tier participant is unable to certify to
grantee or subgrantee of Federal funds and a participant (such as the
any of the statements in this certification, such prospective participant
primeor general contract). “Lower Tier Covered Transactions” refers
shall attach anexplanation to this proposal.
to any covered transaction under a First Tier Covered Transaction
(such as subcontracts). “First Tier Participant” refers to the participant
* * * * *
who has entered into a covered transaction with a grantee or
subgranteeof Federal funds(suchastheprimeor general contractor).
XI.CERTIFICATIONREGARDINGUSEOF CONTRACT FUNDS
“Lower Tier Participant” refers any participant who has entered into a
FOR LOBBYING
covered transaction with a First Tier Participant or other Lower Tier
Participants (such as subcontractors andsuppliers).
This provision is applicable to all Federal-aid construction contracts
and to all related subcontracts which exceed $100,000 (49 CFR 20).
e.The prospective lower tier participant agrees by submitting this
proposal that, shouldtheproposed covered transactionbe entered into,
1.The prospective participant certifies, bysigningand submitting this
it shall not knowingly enter into any lower tier covered transaction
bid orproposal, to the best of his or herknowledge and belief, that:
with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction,
a.No Federal appropriated funds have been paid or willbe paid, by
unless authorized by the department or agency with which this
or on behalf of the undersigned, to any person for influencing or
transactionoriginated.
attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an
f.The prospective lower tier participant further agrees by
employee of a Member of Congress in connection with the awarding of
submitting this proposal that it will include this clause titled
any Federal contract, the making of any Federal grant, the making ofany
"Certification Regarding Debarment, Suspension, Ineligibility and
Federal loan, the entering into of any cooperative agreement, and the
Voluntary Exclusion-Lower Tier Covered Transaction," without
extension, continuation, renewal, amendment, or modification of any
modification, in all lower tier covered transactions and in all
Federal contract, grant, loan, or cooperative agreement.
solicitations for lower tier covered transactionsexceedingthe$25,000
threshold.
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
g.A participant in a covered transaction may rely upon a
an officer or employee of any Federal agency, a MemberofCongress,an
certification of a prospective participant in a lower tier covered
officer or employee of Congress, or an employee of a Member of
transaction that is not debarred, suspended, ineligible, or voluntarily
Congress in connection with this Federal contract, grant, loan, or
excluded from the covered transaction, unless it knows that the
cooperative agreement, the undersigned shall complete and submit
certification is erroneous. A participant is responsible for ensuring
Standard Form-LLL, "Disclosure Form to Report Lobbying," in
that its principals are not suspended, debarred, or otherwise
accordance withits instructions.
ineligible to participate in covered transactions.To verify
the eligibility of its principals, as well as the eligibility of any lower
2.This certification is a material representation of fact upon which
tier prospective participants, each participant may, but is not
reliance was placed when this transaction was made or entered into.
required to, check the ExcludedParties List System website
Submission of this certification is a prerequisite for making or entering
(https://www.epls.gov/), which is compiled bytheGeneral Services
into this transaction imposed by 31 U.S.C. 1352. Any person who fails
Administration.
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.
h.Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
3.The prospective participant also agrees by submitting its bid or
the certification required by this clause. The knowledge and
proposal that the participant shall require that the language of this
information of participant is not required to exceed that which is
certification beincluded in all lower tier subcontracts, which exceed
normally possessed by a prudent person in the ordinary course of
$100,000 and that all such recipients shall certify and disclose
business dealings.
accordingly.
Except for transactions authorized under paragraph e 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, orvoluntarily 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.
Exhibit I -Page 10of 11
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
Thisprovision is applicable to all Federal-aid projects funded under the
Appalachian Regional Development Act of1965.
1.During the performance of this contract, the contractor
undertaking to dowork which is, or reasonably may be, doneason-site
work, shall give preference to qualified persons who regularly reside
in the labor area as designated by the DOL wherein the contract work
is situated, or the subregion, or the Appalachian counties of the State
wherein the contract work is situated, except:
a.To the extent that qualified persons regularly residing in thearea
arenot available.
b.For the reasonable needs ofthe contractor to employsupervisory
or specially experienced personnel necessary to assure an efficient
executionofthe contract work.
c.For the obligation ofthe contractor to offeremployment to present
or former employees as the result of a lawful collective bargaining
contract, provided that the number of nonresident persons employed
under this subparagraph (1c) shall not exceed 20 percent of the total
number of employees employed by the contractor on the contract
work, except asprovided in subparagraph(4) below.
2.The contractor shall place a joborder with the State Employment
Service indicating (a) the classifications ofthelaborers, mechanicsand
other employees required to performthe contract work,(b) the number
of employees required in each classification, (c)the date on which the
participant estimates such employees will berequired, and(d) any other
pertinent information required by the State Employment Service to
complete the job orderform.The job ordermaybe placed with the State
Employment Service in writing orby telephone. Ifduring the courseof
the contract work, the information submitted by the contractor in the
original job order is substantially modified, the participant shall
promptlynotify the State Employment Service.
3.The contractor shall give full consideration to all qualified job
applicants referred to him by the State Employment Service. The
contractor is not required to grant employment to any job applicants
who, in his opinion, are not qualified to perform the classification of
workrequired.
4.If, within one week following the placing of a job order by the
contractor with the State Employment Service, the State Employment
Service is unable to refer any qualified job applicants to the contractor,
or less than thenumber requested, the State EmploymentService will
forward a certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the contractor's
permanent project records. Upon receipt of this certificate, the
contractor mayemploypersons who donot normally resideinthelabor
area to fill positions covered by the certificate, notwithstanding the
provisionsofsubparagraph(1c)above.
5.Theprovisionsof23 CFR 633.207(e) allow the contracting agency
to provide a contractual preference for the use of mineral resource
materials native to the Appalachianregion.
6.The contractor shall include theprovisionsof Sections 1 through4
of this Attachment A in every subcontract for work which is, or
reasonably maybe,doneason-site work.
Exhibit I -Page 11of 11
EXHIBIT J
ADDITIONAL FEDERAL REQUIREMENTS
Federal laws and regulations that may be applicable to the Work include:
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 the Local Agencys).
Copeland "Anti-Kickback" Act
The Copeland"Anti-Kickback"Act(18U.S.C.874)assupplementedin DepartmentofLabor regulations(29
CFR Part 3) (All contracts and sub-Agreements for construction orrepair).
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 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).
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
LocalAgency’sinexcessof$2,000,andinexcessof$2,500forothercontractswhichinvolvetheemployment
of mechanics orlaborers).
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 inexcess of $100,000).
Energy Policy and Conservation Act
Mandatory standards and policies relating to energy efficiency which are contained in the state energy
conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163).
OMB Circulars
Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-110, whichever is
applicable.
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.
Nondiscrimination
The Local Agency shall not exclude from participation in, deny the benefits of, or subject to discrimination
any person in the United States onthe ground of race, color national origin, sex, age or disability. Prior to the
receiptofanyFederalfinancial assistance fromCDOT,theLocalAgencyshallexecutetheattachedStandard
DOT Title VI assurance. As appropriate, the Local Agency shall include Appendix A, B, or C to the Standard
DOTTitleVIassuranceinanycontractutilizingfederalfunds,landorotheraid.TheLocalAgencyshallalso
include the following in all contractadvertisements:
The \[Local Agency\], in accordance with the provisions of Title VI of the Civil Rights Act
of1964(79Stat.252,42US.C.§§2000dto2000d-4)andtheRegulations,herebynotifies
allbiddersthatitwillaffirmatively ensure thatanycontractenteredintopursuanttothis
advertisement, DBEs willbeaffordedfullandfairopportunitytosubmitbidsin response
to this invitation and will not be discriminated against on thegrounds of race, color, or
national origin in consideration for anyaward.
Exhibit J -Page 1of 11
ADA
In any contract utilizing federal funds, land, or other federal aid, the Local Agency shall require the federal-
aidrecipient or contractor to provide a statement of written assurance that they will comply with Section 504
and not discriminate on the basis of disability.
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).
Drug-Free Workplace Act
The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
Age Discrimination Act of 1975
The Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. seq. and its implementing regulation, 45
C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as amended, and implementing
regulation 45 C.F.R. Part 84.
23 C.F.R. Part 172
23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
23 C.F.R Part 633
23 C.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts".
23 C.F.R. Part 635
23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973
TitleVIoftheCivilRightsActof1964and162(a)oftheFederalAidHighwayActof1973.Therequirements
forwhichareshownintheNondiscriminationProvisions,whichareattachedheretoandmade a parthereof.
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:
i.Compliance withRegulations
The Contractor will comply with the Regulations of the Department of Transportation relative to
nondiscriminationin Federally assisted programsoftheDepartmentofTransportation(Title49,Code
of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein
incorporated by reference and made a part of thisAgreement.
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 onthe ground of race, color, sex, mental or physical handicap or
nationaloriginintheselectionandretentionofSubcontractors,includingprocurementofmaterialsand
leases of equipment. The Contractor will not participate either directly or indirectly in the
discrimination prohibited by Section 21.5 of the Regulations, including employment practices when
the contract covers a program set forth in Appendix C of theRegulations.
iii.Solicitations for Subcontracts, Including Procurement of Materials andEquipment
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
AgreementandtheRegulationsrelativetonondiscriminationonthegroundofrace,color,sex,mental
or physical handicap or nationalorigin.
iv.Information andReports
The Contractor will provide all information and reports required by the Regulations, or orders and
instructionsissuedpursuanttheretoandwillpermitaccesstoitsbooks,records,accounts,othersources
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,theContractorshall so certifytotheState,ortheFHWAasappropriateandshallsetforth
what efforts have been made to obtain theinformation.
Exhibit J -Page 2of 11
v.Sanctions forNoncompliance
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.
Incorporation of Provisions §22
The Contractor will include the provisions of this Exhibit J in every subcontract, including procurement of
materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant
thereto.TheContractorwilltakesuchactionwithrespecttoanysubcontractorprocurementastheStateorthe
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 UnitedStates.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Exhibit J -Page 3of 11
SAMPLE
The United States Department of Transportation (USDOT) Standard Title VI/Non-Discrimination
Assurances for Local Agencies
DOT Order No. 1050.2A
The \[Local Agency\] (herein referred to as the "Recipient"), HEREBY AGREES THAT, as a condition to receiving
anyFederalfinancialassistancefromtheU.S.DepartmentofTransportation(DOT),throughtheColoradoDepartment
of Transportation and the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and
Federal Aviation Administration (FAA), is subject to and will comply with thefollowing:
Statutory/Regulatory Authorities
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78stat. 252), (prohibits discrimination on
the basis of race, color, nationalorigin);
49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of
Transportation-EffectuationOfTitleVIOf The CivilRightsActOf1964);
28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights
Act of1964);
The preceding statutory and regulatory cites hereinafter are referred to as the "Acts" and "Regulations," respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or
guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
"No person in the United States shall, on the grounds of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or
activity,"forwhichtheRecipientreceives Federalfinancial assistance fromDOT,includingtheFHWA, FTA,
orFAA.
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other
Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of
1973), by restoring the broad, institutional-wide scope and coverage of these non- discrimination statutes and
requirements to include all programs and activities of the Recipient, so long as any portionof the program is Federally
assisted.
Specific Assurances
Morespecifically,andwithoutlimitingtheabovegeneralAssurance,theRecipientagreeswithandgivesthefollowing
Assurances with respect to its Federally assisted FHWA, FTA, and FAA assistedprograms:
1.The Recipient agrees that each "activity," "facility," or "program," as defined in §§ 21.23(b) and 21.23(e) of
49C.F.R. § 21willbe(withregardtoan"activity") facilitated,orwillbe(withregardto a "facility")operated,
orwillbe(withregardto a "program")conductedincompliancewithallrequirementsimposedby,orpursuant
to the Acts and theRegulations.
2.The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work,
or material subject to the Acts and the Regulations made in connection with all FHWA, FTA and FAA programs
and, in adapted form, in all proposals for negotiated agreements regardless of fundingsource:
3."The \[Local Agency\] in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat.
252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively
ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will
be afforded full and fairopportunity
Exhibit J -Page 4of 11
4.to submit bids in response to this invitation and will not be discriminated against on the grounds of
race, color, or national origin in consideration for anaward."
5.The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement
subject to the Acts and theRegulations.
6.The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land,
in any deed from the United States effecting or recording a transfer of real property, structures, use, or
improvements thereon or interest therein to aRecipient.
7.That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility,
theAssurancewillextendtotheentirefacilityandfacilitiesoperatedinconnection therewith.
8.That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real
property or an interest in real property, the Assurance will extend to rights to space on, over, or under such
property.
9.That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a
covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered
into by the Recipient with otherparties:
a.for the subsequent transfer of real property acquired or improved under the applicable activity, project,
or program;and
b.for the construction or use of, or access to, space on, over, or under real property acquired or improved
under the applicable activity, project, orprogram.
10.That this Assurance obligates the Recipient for the period during which Federal financial assistance is
extended to the program, except where the Federal financial assistance is to provide, or is in the form of,
personal property, or real property, or interest therein, or structures or improvements thereon, in which case
the Assurance obligates the Recipient, or any transferee for the longer of the followingperiods:
a.the period during which the property is used for a purpose for which the Federal financialassistance is
extended, or for another purpose involving the provision of similar services or benefits;or
b.the period during which the Recipient retains ownership or possession of theproperty.
11.The Recipient will provide for such methods of administration for the program as are found by the Secretary
of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee
that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees,
successors in interest, and other participants of Federal financial assistance under such program will comply
with allrequirementsimposed orpursuanttotheActs,theRegulations,andthisAssurance.
12.The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any
matter arising under the Acts, the Regulations, andthisAssurance.
By signing this ASSURANCE, the \[Local Agency\] also agrees to comply (and require any sub-recipients, sub-
grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing
the FHWA, FTA, and FAA’s access to records, accounts, documents, information, facilities, and staff. You also
recognize that you must comply with any program or compliance reviews, and/or complaint investigations
conducted by CDOT, FHWA, FTA, or FAA. You must keep records, reports, and submit the material for review
Exhibit J -Page 5of 11
upon request to CDOT, FHWA, FTA, or FAA,or its designee in a timely, complete, and accurate way. Additionally,
youmustcomplywithallotherreporting,datacollection,andevaluationrequirements,asprescribedbylawordetailed
in programguidance.
\[Local Agency\] gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts,
agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date
hereof to the recipients by the U.S. Department of Transportation under the FHWA, FTA, and FAA. This ASSURANCE
isbindingon\[LocalAgency\],otherrecipients,sub-recipients,sub-grantees,contractors,subcontractors and their
subcontractors', transferees, successors in interest, and any other participants in the FHWA, FTA, and FAA funded
programs. The person(s) signing below is authorized to sign this ASSURANCE onbehalf of theRecipient.
(Name of Recipient)
by
(Signature of AuthorizedOfficial)
DATED
Exhibit J -Page 6of 11
APPENDIX A
During the performance of thiscontract, the contractor, for itself, its assignees, and successors in interest (hereinafter
referred to as the "contractor") agrees as follows:
1.Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts
andtheRegulationsrelativetoNon-discrimination inFederally-assisted programsoftheU.S.Departmentof
Transportation, FHWA, as they may be amended from time to time, which are herein incorporated by reference
and made a part of thiscontract.
2.Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not
discriminateonthegroundsofrace,color,ornationaloriginintheselectionandretentionofsubcontractors,
including procurements of materials andleases of equipment. The contractor will not participate directly or
indirectlyinthediscriminationprohibitedbytheActsandtheRegulations,includingemploymentpractices
when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
3.SolicitationsforSubcontracts,IncludingProcurementsofMaterialsandEquipment: Inallsolicitations,
either by competitive bidding, or negotiation made by the contractor for work to be performed under a
subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or
supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and
the Regulations relative to Non-discrimination on the grounds of race, color, or nationalorigin.
4.InformationandReports: Thecontractor willprovideallinformation andreportsrequired bytheActs,the
Regulations, and directives 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 \[Local Agency\], CDOT or FHWA tobe
pertinenttoascertaincompliancewithsuch Acts,Regulations,andinstructions.Whereanyinformation
required of a contractor is in the exclusive possession of another who fails or refuses to furnish the
information, the contractor will so certify to the \[Local Agency\], CDOT or FHWA, as appropriate, and will
set forth what efforts it has made to obtain theinformation.
5.Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non- discrimination
provisions of this contract, the \[Local Agency\] will impose such contract sanctions as it, CDOT or FHWA
may determine to be appropriate, including, but not limitedto:
a.withholdingpaymentstothecontractorunderthecontractuntilthecontractorcomplies;and/or
b.cancelling, terminating, or suspending a contract, in whole or inpart.
6.Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in
every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts,
the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any
subcontract or procurement as the Recipient or the \[Local Agency\], CDOT or FHWA may direct as a means
ofenforcingsuchprovisionsincludingsanctionsfornoncompliance.Provided,thatifthecontractorbecomes
involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the
contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In
addition,thecontractormayrequest theUnitedStatestoenterintothelitigationtoprotecttheinterestsofthe
UnitedStates.
Exhibit J -Page 7of 11
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or
improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and uponthe condition that the
\[LocalAgency\]willaccepttitletothelandsandmaintaintheprojectconstructedthereoninaccordancewith (Nameof
Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program), and
the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in
compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of
Transportation, Subtitle A, Officeof the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the
U.S Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of
1964(78Stat.252;42U.S.C. § 2000dto2000d-4),does herebyremise,release,quitclaimandconveyuntothe\[Local
Agency\]alltheright,titleandinterestoftheU.S.DepartmentofTransportationinandtosaidlandsdescribedinExhibit
A attached hereto and made a parthereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto \[Local Agency\] and its successors forever, subject,
however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in
effect for the period during which the real property or structures are used for a purpose for which Federal financial
assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding
onthe \[Local Agency\] its successors and assigns.
The \[Local Agency\], in consideration of the conveyance of said lands and interests in lands, does hereby covenant and
agreeas a covenantrunningwiththelandforitself,itssuccessors and assigns,that(1)noperson willonthegrounds of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed \[,\]
\[and\]* (2) that the \[Local Agency\] will use the lands and interests in lands and interests in lands so conveyed, in
compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the
U.S.DepartmentofTransportation,EffectuationofTitleVIoftheCivilRightsActof1964,andassaidRegulations and
Acts may be amended \[, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions,
the Department will have a right to enter or re-enter said lands and facilities onsaid land, and that above describedland
andfacilitieswillthereonreverttoandvestinandbecometheabsolutepropertyoftheU.S. Department of Transportation
and its assigns as such interest existed prior to thisinstruction\].*
(*Reverter clause and related language to be used only when it is determined that such aclauseis necessary to make clear
the purpose of Title VI.)
Exhibit J -Page 8 of 11
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the
\[Local Agency\] pursuant to the provisions of Assurance 7(a):
A.The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree \[in the
case of deeds and leases add "as a covenant running with the land"\]that:
1.In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed,
license,lease,permit,etc.)for a purposeforwhich a U.S.DepartmentofTransportationactivity,facility, or
program is extended or for another purpose involving the provision of similar services or benefits, the (grantee,
licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all
requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds
of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of saidfacilities.
B.With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination
covenants, \[Local Agency\] will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter,
and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never
been made or issued. *
C.Withrespectto a deed,intheeventofbreachofanyoftheaboveNon-discriminationcovenants,the\[LocalAgency\]
will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities
will there upon revert to and vest in and become the absolute property of the \[Local Agency\] and its assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make
clear the purpose of Title VI.)
Exhibit J -Page 9of 11
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITYOR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by
\[Local Agency\] pursuant to the provisions of Assurance 7(b):
A.The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the
case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race,
color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected
to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under
such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will
be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the
(grantee,licensee,lessee,permittee,etc.)will use thepremisesincompliancewithallotherrequirementsimposed
byor pursuant to the Acts and Regulations, as amended, set forth in thisAssurance.
B.With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Non- discrimination
covenants, \[Local Agency\] will have the right to terminate the (license, permit, etc., as appropriate) and to enter
orre-enterand repossess saidlandandthefacilitiesthereon,andholdthesameasifsaid(license,permit,etc.,as
appropriate) had never been made orissued. *
C.With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, \[Local Agency\]
will there uponrevert to and vest in and become the absolute property of \[Local Agency\] of Transportation and its
assigns. *
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make
clear the purpose of Title VI.)
Exhibit J -Page 10of 11
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter
referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities;
including but not limited to:
Pertinent Non-Discrimination Authorities:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on
the basis of race, color, national origin); and 49 CFR Part21.
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601),
(prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or
Federal-aid programs andprojects);
Federal-Aid HighwayActof1973,(23U.S.C.§ 324 etseq.),(prohibitsdiscriminationonthebasisofsex);
Section504oftheRehabilitationActof1973,(29U.S.C. § 794etseq.),asamended,(prohibitsdiscrimination
on the basis of disability); and 49CFR Part27;
The AgeDiscriminationActof1975,asamended,(42U.S.C. § 6101etseq.),(prohibitsdiscriminationonthe
basis ofage);
Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits
discrimination based on race, creed, color, national origin, orsex);
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of
Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of
the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs
or activities are Federally funded ornot);
TitlesIIandIIIoftheAmericanswithDisabilitiesAct,whichprohibitdiscriminationonthebasisofdisability
in the operation of public entities, public and private transportation systems, places of public accommodation,
and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation
regulations at 49C.F.R. parts 37 and 38;
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, andsex);
ExecutiveOrder 12898,FederalActionstoAddressEnvironmentalJusticeinMinorityPopulationsandLow-
Income Populations, which ensures discrimination against minority populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health or environmental effects on
minority and low-incomepopulations;
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and
resulting agency guidance, national origin discrimination includes discrimination because of Limited English
proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to74100);
TitleIXoftheEducationAmendmentsof1972,asamended,whichprohibitsyoufromdiscriminatingbecause
ofsex in education programs or activities (20 U.S.C. 1681 etseq).
Exhibit J -Page 11of 11
EXHIBIT K
FFATA SUPPLEMENTAL FEDERAL PROVISIONS
State of Colorado
Supplemental Provisionsfor
Federally Funded Contracts, Grants, and Purchase Orders
Subject to
The Federal Funding Accountability and Transparency Act of 2006 (FFATA), As Amended
Revised as of 3-20-13
The contract, grant, or purchase order to which these Supplemental Provisions are attached has been funded, in whole
or in part, with an Award of Federal funds. In the event of a conflict between the provisions of these Supplemental
Provisions, the Special Provisions, the contract or any attachments or exhibits incorporated into and made a part of the
contract, the provisions of these Supplemental Provisions shall control.
1.Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings
ascribed to thembelow.
1.1.“Award” means an award of Federal financial assistance that a non-Federal Entity receives or administers
in the formof:
1.1.1.Grants;
1.1.2.Contracts;
1.1.3.Cooperative agreements,which do not include cooperative research and development
agreements (CRDA) pursuant to the Federal Technology Transfer Act of 1986, as amended
(15 U.S.C.3710);
1.1.4.Loans;
1.1.5.LoanGuarantees;
1.1.6.Subsidies;
1.1.7.Insurance;
1.1.8.Foodcommodities;
1.1.9.Directappropriations;
1.1.10.Assessed and voluntary contributions;and
1.1.11.OtherfinancialassistancetransactionsthatauthorizetheexpenditureofFederalfundsbynon-
FederalEntities.
Award does not include:
1.1.12.Technical assistance, which provides services in lieu ofmoney;
1.1.13.A transferoftitletoFederally-ownedpropertyprovidedinlieuofmoney;eveniftheawardis
called agrant;
1.1.14.Any award classified for security purposes;or
1.1.15.Any award funded in whole or in part with Recovery funds, as defined in section 1512 of the
American Recovery and Reinvestment Act (ARRA) of 2009 (Public Law111-5).
1.2.“Contract”meansthecontracttowhichtheseSupplementalProvisionsareattachedandincludesallAward
types in §1.1.1 through 1.1.11 above.
1.3.“Contractor” means the party or parties to a Contract funded, in whole or in part, with Federal financial
assistance, other than the Prime Recipient, and includes grantees, subgrantees, Subrecipients, and borrowers.
For purposes of Transparency Act reporting, Contractor does not includeVendors.
1.4.“Data Universal Numbering System (DUNS) Number” means the nine-digit number established and
assigned by Dun and Bradstreet, Inc. to uniquely identify a business entity. Dun and Bradstreet’s website
may be found at:http://fedgov.dnb.com/webform.
1.5.“Entity” means all of the following as defined at 2 CFR part 25, subpartC;
1.5.1.A governmental organization, which is a State, local government, or IndianTribe;
1.5.2.A foreign publicentity;
1.5.3.A domestic or foreign non-profitorganization;
Exhibit K -Page 1of 4
1.5.4.A domestic or foreign for-profit organization;and
1.5.5.A Federal agency, but only a Subrecipient under an Award or Subaward to a non-Federalentity.
1.6.“Executive”meansanofficer,managingpartneror anyotheremployeein a managementposition.
1.7.“Federal Award Identification Number (FAIN)” means an Award number assigned bya Federal agency
to a PrimeRecipient.
1.8.“FFATA”meanstheFederalFundingAccountabilityandTransparencyActof2006(PublicLaw109- 282),
asamendedby§6202ofPublicLaw110-252.FFATA, asamended,alsoisreferredtoasthe“Transparency
Act.”
1.9.“Prime Recipient” means a Colorado State agency or institution of higher education that receives an Award.
1.10.“Subaward”means a legalinstrumentpursuanttowhich a PrimeRecipientofAwardfundsawardsallora
portionofsuchfundsto a Subrecipient,inexchangefortheSubrecipient’ssupportintheperformanceofall
or any portion of the substantive project or program for which the Award wasgranted.
1.11.“Subrecipient” means a non-Federal Entity (or a Federal agency under an Award or Subaward to a non-
FederalEntity)receivingFederalfundsthrough a PrimeRecipienttosupporttheperformanceoftheFederal
project or program for which the Federal funds were awarded. A Subrecipient is subject to the terms and
conditions of the Federal Award to the Prime Recipient, including program compliance requirements. The
term “Subrecipient”includesandmaybereferredtoasSubgrantee.
1.12.“Subrecipient Parent DUNS Number” means the subrecipient parent organization’s 9-digit Data
Universal Numbering System (DUNS) number that appears in the subrecipient’s System for Award
Management(SAM) profile, ifapplicable.
1.13.“Supplemental Provisions” meanstheseSupplementalProvisionsforFederallyFundedContracts,Grants,
and Purchase Orders subject to the Federal Funding Accountability and Transparency Act of 2006, As
Amended, as may be revised pursuant to ongoing guidance from the relevant Federal or State of Colorado
agency or institution of highereducation.
1.14.“System for Award Management (SAM)” means the Federal repository into which an Entity must enter
http://www.sam.gov.
theinformationrequiredunder theTransparencyAct,whichmaybefoundat
1.15.“Total Compensation” means the cash and noncash dollar value earned by an Executive during the Prime
Recipient’s or Subrecipient’s preceding fiscal year and includes thefollowing:
1.15.1.Salary andbonus;
1.15.2.Awards of stock, stock options, and stock appreciation rights, using the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2005)
(FAS 123R), Shared BasedPayments;
1.15.3.Earnings for services under non-equity incentive plans, not including group life, health,
hospitalization ormedicalreimbursementplansthatdonotdiscriminateinfavorofExecutives
and are available generally to all salariedemployees;
1.15.4.Change in present value of defined benefit and actuarial pensionplans;
1.15.5.Above-market earnings ondeferred compensation which is nottax-qualified;
1.15.6.Other compensation, if the aggregate value of all such other compensation (e.g. severance,
termination payments, value of life insurance paid on behalf of the employee, perquisites or
property) for the Executive exceeds$10,000.
1.16.“TransparencyAct” meanstheFederalFundingAccountabilityandTransparencyActof2006(PublicLaw
109-282),asamendedby§6202ofPublicLaw110-252.TheTransparencyActalsoisreferredtoasFFATA.
1.17 “Vendor” means a dealer, distributor, merchant or other seller providing property or services required for a
project or program funded by an Award. A Vendor is not a Prime Recipient or a Subrecipient and is not
subject to the terms and conditions of the Federal award. Program compliance requirements do not pass
through to a Vendor.
Exhibit K -Page 2of 4
2.Compliance. Contractor shall comply with all applicable provisions of the Transparency Act and the regulations
issued pursuant thereto, including but not limited to these Supplemental Provisions. Any revisions to such
provisionsorregulationsshallautomaticallybecome a partoftheseSupplementalProvisions,withoutthenecessity
of either party executing any further instrument. The State of Colorado may provide written notification to
Contractorofsuchrevisions,butsuchnoticeshallnotbe a conditionprecedenttotheeffectivenessofsuchrevisions.
3.Systemfor AwardManagement(SAM)andDataUniversal NumberingSystem(DUNS)Requirements.
3.1.SAM. Contractor shall maintain the currency of its information in SAM until the Contractor submits the
finalfinancialreportrequiredundertheAwardorreceivesfinalpayment,whicheverislater.Contractorshall
review and update SAM information at least annually after the initial registration, and more frequently if
required by changes in itsinformation.
3.2.DUNS. Contractor shall provide its DUNS number to its Prime Recipient, and shall update Contractor’s
information in Dun& Bradstreet, Inc. at least annually after the initial registration, and more frequently if
requiredbychangesinContractor’sinformation.
4.Total Compensation. Contractor shall include Total Compensation in SAM for each of its five most highly
compensated Executives for the preceding fiscal yearif:
4.1.The totalFederalfundingauthorizedtodateundertheAwardis$25,000ormore;and
4.2.Intheprecedingfiscalyear,Contractorreceived:
4.2.1.80%ormoreofitsannualgrossrevenuesfromFederalprocurementcontractsandsubcontracts
and/orFederalfinancialassistanceAwardsorSubawardssubjecttotheTransparencyAct;and
4.2.2.$25,000,000 or more in annual gross revenues from Federal procurement contracts and
subcontracts and/or Federal financial assistance Awards or Subawards subject to the
Transparency Act;and
4.3.The publicdoesnothaveaccesstoinformationaboutthecompensationofsuch Executivesthroughperiodic
reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)
or § 6104 of the Internal Revenue Code of1986.
5.Reporting. Contractor shall report data elements to SAM and to the Prime Recipient as required in §7 below if
Contractor is a Subrecipient for the Award pursuant to the Transparency Act. No direct payment shall be made to
Contractor for providing any reports required under these Supplemental Provisions and the cost of producing such
reportsshallbeincludedintheContractprice. The reportingrequirementsin§7belowarebasedonguidancefrom
the US Office of Management and Budget (OMB), and as such are subject to change at any time by OMB. Any such
changes shall be automatically incorporated into this Contract and shall become part of Contractor’s obligations
under this Contract, as provided in §2 above. The Colorado Office of the State Controller will provide summaries
ofrevisedOMBreportingrequirementsathttp://www.colorado.gov/dpa/dfp/sco/FFATA.htm.
6.Effective Date and Dollar Threshold for Reporting. The effective date of these Supplemental Provisions apply
to new Awards as of October 1, 2010. Reporting requirements in §7 below apply to new Awards as of October 1,
2010, if the initial award is $25,000 or more. If the initial Award is below $25,000 but subsequent Award
modifications result in a total Award of $25,000 or more, the Award is subject to the reporting requirements as of
the date the Award exceeds $25,000. If the initial Award is $25,000 or more, but funding is subsequently de-
obligated such that the total award amount falls below $25,000, the Award shall continue to be subject to the
reportingrequirements.
7.SubrecipientReportingRequirements.IfContractoris a Subrecipient,Contractorshallreportassetforthbelow.
Exhibit K -Page 3of 4
7.1To SAM. A Subrecipient shall register in SAM and report the following data elements in SAM for each
Federal Award Identification Number no later than the end of the month following the month in which the
Subaward wasmade:
7.1.1Subrecipient DUNSNumber;
7.1.2Subrecipient DUNS Number + 4 if more than one electronic funds transfer (EFT)account;
7.1.3Subrecipient Parent DUNSNumber;
7.1.4Subrecipient’s address, including: Street Address, City, State, Country, Zip + 4, and
CongressionalDistrict;
7.1.5Subrecipient’s top 5 most highly compensated Executives if the criteria in §4 above are met;
and
7.1.6Subrecipient’sTotalCompensationoftop 5 mosthighlycompensatedExecutivesifcriteriain
§4 above met.
7.2To Prime Recipient. A Subrecipient shall report to its Prime Recipient, uponthe effective date of the
Contract, the following dataelements:
7.2.1Subrecipient’s DUNS Number as registered inSAM.
7.2.2PrimaryPlaceofPerformanceInformation,including:StreetAddress,City,State,Country,Zip
code +4, and CongressionalDistrict.
8.Exemptions.
8.1.These Supplemental Provisions do not apply to an individual who receives an Award as a natural person,
unrelated to any business or non-profit organization he or she may own or operate in his or hername.
8.2A Contractor with gross income from all sources of less than $300,000 in the previous tax year is exempt
from the requirements to report Subawards and the Total Compensation of its most highly compensated
Executives.
8.3Effective October 1, 2010, “Award” currently means a grant, cooperative agreement, or other arrangement
as defined in Section 1.1 of these Special Provisions. On future dates “Award” may include other items to
be specified by OMB in policy memoranda available at the OMB Web site; Award also will include other
types of Awards subject to the TransparencyAct.
8.4There are no Transparency Act reportingrequirements for Vendors.
Event of Default. Failure to comply with these Supplemental Provisions shall constitute an event of default under the
ContractandtheStateofColoradomayterminatetheContractupon30dayspriorwrittennoticeifthedefaultremains
uncured five calendar days following the termination of the 30 day notice period. This remedy will be in addition to
any other remedy available to the State of Colorado under the Contract, at law or inequity.
Exhibit K -Page 4of 4
EXHIBIT L
SAMPLE SUBRECIPIENT MONITORING AND RISK ASSESSMENT
Exhibit L -Page 1of 3
Exhibit L -Page 2of 3
Exhibit L -Page 3of 3
EXHIBIT M - OMB Uniform Guidance for Federal
Awards Subject to
The Office of Management and Budget Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards (“Uniform Guidance”),
Federal Register, Vol. 78, No. 248, 78590
The agreement to which these Uniform Guidance Supplemental Provisions are attached has been funded, in whole or
in part, with an award of Federal funds. In the event of a conflict between the provisions of these Supplemental
Provisions, the Special Provisions, the agreement or any attachments or exhibits incorporated into and made a part of
the agreement, the provisions of these Uniform Guidance Supplemental Provisions shall control. In the event of a
conflict between the provisions of these Supplemental Provisions and the FFATA Supplemental Provisions, the
FFATA Supplemental Provisions shall control.
9.Definitions. For the purposes of these Supplemental Provisions, the following terms shall have the meanings
ascribed to thembelow.
9.1.“Award”meansanawardby a Recipientto a Subrecipientfunded in wholeorin partby a FederalAward.
The terms and conditions of the Federal Award flow down to the Award unless the terms and conditions of
the Federal Award specifically indicate otherwise. 2CFR§200.38
9.2.“Federal Award” means an award of Federal financial assistance or a cost-reimbursement contract under
theFederalAcquisitionRequirementsby a FederalAwardingAgencyto a Recipient.“FederalAward”also
meansanagreementsettingforththetermsandconditionsoftheFederalAward. The termdoesnotinclude
payments to a contractor or payments to an individual that is a beneficiaryof a Federal program.
9.3.“FederalAwardingAgency”means a Federalagencyproviding a FederalAwardto a Recipient. 2 CFR
§200.37
9.4.“FFATA” means the Federal Funding Accountability and Transparency Act of 2006 (Public Law 109-
282), as amended by §6202 of Public Law110-252.
9.5.“Grant” or “Grant Agreement” means an agreement setting forth the terms and conditions of an Award.
The term does not include an agreement that provides only direct Federal cash assistance to an individual, a
subsidy, a loan, a loan guarantee, insurance, or acquires property or services for the direct benefit of use of
the Federal Awarding Agency or Recipient. 2 CFR§200.51.
9.6.“OMB” means the Executive Office of the President, Office of Management andBudget.
9.7.“Recipient” means a Colorado State department, agency or institution of higher education that receives a
FederalAwardfrom a FederalAwardingAgencytocarryoutanactivityunder a Federalprogram. The term
does not include Subrecipients. 2 CFR§200.86
9.8.“State” means the State of Colorado, acting by and through its departments, agencies and institutions of
highereducation.
9.9.“Subrecipient” means a non-Federal entity receiving an Award from a Recipient to carry out part of a
Federal program. The term does not include an individual whois a beneficiary of suchprogram.
9.10.“Uniform Guidance” means the Office of Management and Budget Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards, which supersedes requirements from OMB
Circulars A-21, A-87, A-110, and A-122, OMB Circulars A-89, A-102, and A- 133, and the guidance in
Circular A-50 onSingle Audit Act follow-up. The terms and conditions of the Uniform Guidance flow down
to Awards to Subrecipients unless the Uniform Guidance or the terms and conditions of the Federal Award
specifically indicateotherwise.
9.11.“UniformGuidanceSupplementalProvisions”meanstheseSupplementalProvisionsforFederalAwards
subject to the OMB Uniform Guidance, as may be revised pursuant to ongoing guidance from relevant
Federal agencies or the Colorado StateController.
10.Compliance. SubrecipientshallcomplywithallapplicableprovisionsoftheUniformGuidance,includingbutnot
limited to these Uniform Guidance Supplemental Provisions. Any revisions to suchprovisions
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automaticallyshallbecome a partoftheseSupplementalProvisions,withoutthenecessityofeitherpartyexecuting
any further instrument. The State of Colorado may provide written notification to Subrecipient of such revisions,
but such notice shall not be a condition precedent to the effectiveness of suchrevisions.
11.ProcurementStandards.
3.1Procurement Procedures. Subrecipient shall use its own documented procurement procedures which
reflect applicable State, local, and Tribal laws and regulations, provided that the procurements conform to
applicableFederallawandthestandardsidentifiedintheUniform Guidance,includingwithout limitation,
§§200.318 through 200.326 thereof.
3.2Procurement of Recovered Materials. If Subrecipient is a State Agency or an agency of a political
subdivision of a state, its contractors must comply with section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include
procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40CFR
part247thatcontainthehighestpercentageofrecoveredmaterialspracticable,consistentwithmaintaining
a satisfactorylevel ofcompetition,wherethepurchasepriceoftheitemexceeds $10,000orthevalueofthe
quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management
services in a manner that maximizes energy and resource recovery; and establishing an affirmative
procurement program for procurement of recovered materials identified in the EPAguidelines.
4.AccesstoRecords.SubrecipientshallpermitRecipientandauditorstohaveaccesstoSubrecipient’srecordsand
financial statements as necessary for Recipient to meet the requirements of §200.331 (Requirements for pass-
through entities), §§200.300 (Statutory and national policy requirements) through 200.309 (Period of
performance), and Subpart F-Audit Requirements of the Uniform Guidance. 2 CFR§200.331(a)(5).
5.SingleAuditRequirements.IfSubrecipientexpends$750,000ormoreinFederalAwardsduringSubrecipient’s
fiscal year, Subrecipient shall procure or arrange for a single or program-specific audit conducted for that year in
accordancewiththeprovisionsofSubpart F-AuditRequirementsoftheUniformGuidance,issued pursuanttothe
Single Audit Act Amendments of 1996, (31 U.S.C. 7501-7507). 2 CFR§200.501.
5.1Election. Subrecipientshall have a single audit conducted in accordance with UniformGuidance
§200.514 (Scope of audit), except when it elects to have a program-specific audit conducted in accordance
with §200.507 (Program-specific audits). Subrecipientmay elect to have a program-specific audit if
Subrecipient expends Federal Awards under only one Federal program (excluding research and
development) and the Federal program's statutes, regulations, or the terms and conditions of the Federal
award do not require a financial statement audit of Recipient. A program-specific audit may not be elected
forresearchanddevelopmentunlessalloftheFederalAwardsexpendedwerereceivedfromRecipientand
Recipient approves in advance a program-specificaudit.
5.2Exemption. If Subrecipient expends less than $750,000 in Federal Awards during its fiscal year,
Subrecipient shall be exempt from Federal audit requirements for that year, except as noted in 2 CFR
§200.503 (Relation to other audit requirements), butrecords shall be available for review or audit by
appropriate officials of the Federal agency, the State, and the Government Accountability Office.
5.3Subrecipient Compliance Responsibility. Subrecipient shall procure or otherwise arrange for the audit
requiredbyPart F oftheUniformGuidanceandensureitisproperlyperformedandsubmittedwhenduein
accordance with the Uniform Guidance. Subrecipient shall prepare appropriate financial statements,
including the schedule of expenditures of Federal awards in accordance with Uniform Guidance §200.510
(Financial statements) and provide the auditor with access to personnel, accounts, books, records, supporting
documentation,andotherinformationasneededfor theauditortoperformtheauditrequiredby Uniform
Guidance Part F-AuditRequirements.
6.Contract Provisions for Subrecipient Contracts. Subrecipient shall comply with and shall include all of the
followingapplicableprovisionsinallsubcontractsenteredintobyitpursuanttothisGrantAgreement.
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6.1EqualEmploymentOpportunity.Exceptasotherwiseprovidedunder41CFRPart60,allcontractsthat
meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 shall include the
equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246,
“Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965Comp., p. 339), as
amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment
Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, DepartmentofLabor.”
“During the performance of this contract, the contractor agrees as follows:
(1)The contractor will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard to their race,
color, religion, sex, or national origin. Such action shall include, but not be limited to the following:
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. The contractoragreestopostinconspicuousplaces,availabletoemployeesandapplicants
for employment, notices to be provided by the contracting officer setting forth the provisions of this
nondiscriminationclause.
(2)The contractor will, in all solicitations or advertisements for employees placed by or on behalf of
the contractor, state that all qualified applicants will receive consideration for employment without regard
to race, color, religion, sex, or nationalorigin.
(3)The contractor will send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, a notice to be provided by the agency
contracting officer, advising the labor union or workers' representative of the contractor's commitments
under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in
conspicuous places available to employees and applicants foremployment.
(4)The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965,
and of the rules, regulations, and relevant orders of the Secretary ofLabor.
(5)The contractor will furnish all information and reports required by Executive Order 11246 of
September24,1965,andbytherules,regulations,andordersoftheSecretaryofLabor,orpursuantthereto,
and will permit access to his books, records, and accounts by the contracting agency and the Secretary of
Labor for purposes of investigation to ascertain compliance with such rules, regulations, andorders.
(6)Intheeventof thecontractor'snon-compliancewiththenondiscriminationclausesofthiscontract
or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in
whole or in part and the contractor may be declared ineligible for further Government contracts in
accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other
sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided bylaw.
(7)The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or
purchase order unless exempted by rules, regulations, or orders of the Secretaryof Labor issued pursuant to
section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon
each subcontractor or vendor. The contractor will take such action with respect to any subcontract or
purchase order as may be directed by the Secretary of Labor 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 vendor as a result of such direction, the
contractor may request the United States to enter into such litigation to protect the interests of the United
States.”
4.2Davis-Bacon Act. Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When requiredby Federal
program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities
must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and3146-
Exhibit M -Page 3of 5
3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions
Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the
statute, contractors must be required to pay wages to laborers and mechanicsat a rate not less than the
prevailingwagesspecifiedin a wagedeterminationmadebytheSecretaryofLabor.Inaddition,contractors
must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the
currentprevailingwagedetermination issued bytheDepartmentofLaborin eachsolicitation.Thedecision to
award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The
non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The
contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40U.S.C.
3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors
on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from theUnitedStates”).
The ActprovidesthateachcontractororSubrecipientmustbeprohibitedfrominducing, by any means, any
person employed in the construction, completion, or repair of public work, to give upany part of the
compensation to which he or she is otherwiseentitled.
The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
4.3RightstoInventionsMadeUnder a ContractorAgreement.IftheFederalAwardmeetsthedefinition of
“funding agreement” under 37 CFR §401.2 (a) and Subrecipient wishes to enter into a contract with a small
business firm or nonprofit organization regarding the substitution of parties, assignment or performance of
experimental, developmental, or research work under that “funding agreement,” Subrecipient must comply
with the requirements of 37CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small
Business Firms Under Government Grants, Contracts and CooperativeAgreements,”andanyimplementing
regulationsissuedbytheawardingagency.
4.4CleanAirAct(42U.S.C.7401-7671q.)andtheFederalWaterPollutionControlAct(33U.S.C.1251-
1387), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a provision that
requires thenon-Federalawardtoagreetocomplywithallapplicablestandards,ordersorregulations issued
pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended
(33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office
of the Environmental Protection Agency(EPA).
4.5Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 CFR 180.220)
must not be made to parties listed on the government wide exclusions in the System for Award Management
(SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders12549(3
CFRpart1986Comp.,p.189)and12689(3CFRpart1989Comp.,p.235),“Debarment and Suspension.”
SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as
well as parties declared ineligible under statutory or regulatory authority other than Executive Order12549.
4.6Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply or bid for an award exceeding
$100,000mustfiletherequiredcertification.Eachtiercertifiestothetierabovethatitwillnot and has not
used Federal appropriated funds to pay any person or organization for influencing or attemptingtoinfluence
anofficeroremployeeofanyagency, a memberofCongress,officeroremployee of Congress, oranemployee
of a memberofCongressinconnectionwithobtaininganyFederalcontract, grantoranyotherawardcovered
by31U.S.C.1352.Eachtiermustalsodiscloseanylobbyingwithnon- Federal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-
Federalaward.
7.Certifications. Unless prohibited by Federal statutes or regulations, Recipient may require Subrecipient to submit
certifications and representations required by Federal statutes or regulations on an annual basis. 2 CFR§200.208.
SubmissionmayberequiredmorefrequentlyifSubrecipientfailstomeet a requirementoftheFederal
award. Subrecipient shall certify in writing to the State at the end of the Award that the project or activity
was completed or the level of effort was expended. 2 CFR §200.201(3). If the required level of activity
or effort was not carried out, the amount of the Award must beadjusted.
1. 8.Event of Default. Failure to comply with these Uniform Guidance Supplemental Provisions shall constitute an event
of default under the Grant Agreement (2 CFR §200.339) and the State may terminate the Grant upon 30
Exhibit M -Page 4of 5
days prior written notice if the default remains uncured five calendar days following the termination of the 30
day notice period. This remedy will be in addition to any other remedy available to the State of Colorado under
the Grant, at law or in equity.
9.Effective Date. The effective date of the Uniform Guidance is December 26, 2013. 2 CFR §200.110. The
procurement standards set forth in Uniform Guidance §§200.317-200.326 are applicable to new Awards made by
Recipient as of December 26, 2015. The standards set forth in Uniform Guidance Subpart F-Audit Requirements
are applicable to audits of fiscal years beginning on or after December 26,2014.
10.PerformanceMeasurement
The Uniform Guidance requires completion of OMB-approved standard information collection forms (the PPR).
The form focuses on outcomes, as related to the Federal Award Performance Goals that awarding Federal agencies
are required to detail in the Awards.
Section 200.301 provides guidance to Federal agencies to measure performance in a way that will help the Federal
awarding agency and other non-Federal entities to improve program outcomes.
The Federal awarding agency is required to provide recipients with clear performance goals, indicators, and
milestones (200.210). Also, must require the recipient to relate financial data to performance accomplishments of
the Federal award.
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